PHH Corporation v. Consumer Financial Protection Bureau: Financial Fairness and Administrative Anxiety

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In PHH Corporation v. Consumer Financial Protection Bureau, the D.C. Circuit upheld the constitutionality of the Consumer Financial Protection Bureau’s “novel” structure over vociferous dissent. Yet the divisive constitutional and statutory challenges to the Bureau mirror those levied against its predecessor and partner agency, the Federal Trade Commission, beginning nearly a century ago. The anxiety produced by consumer protection’s infringement on freedom of contract is not “novel.” In this Essay, we explain how the trans‐substantive constitutional and administrative law principles at play in PHH should not distract from the substantive debates about consumer protection underlying the controversy. In short, PHH should be recognized as much as a referendum on “Consumer Financial Protection” as it is on the “Bureau.”

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