Brett Kavanaugh Calls Single-Director Structure of BCFP an ‘Issue of Concern’

U.S. Sen. Chuck Grassley, Senate Judiciary Committee chairman, is calling for a vote to send the nomination to the Senate floor by Sept. 13, while the Democrats have the option to postpone it for one more week. A final vote is expected by Oct. 1.

9/5/2018 1:00 PM

Brett Kavanaugh Calls Single-Director Structure of BCFP an ‘Issue of Concern’

In a somewhat more subdued hearing Wednesday, the Senate Judiciary Committee questioned President Donald Trump’s U.S. Supreme Court nominee Brett Kavanaugh for several hours, focusing on his rulings during his service as a judge and his positions on issues such as gun control and health care.

Late in the day, Kavanaugh was asked to expand on his views about the single-director leadership structure of the Bureau of Consumer Financial Protection and the president’s ability to remove a director at-will.

“Is it fair to say if you have a singleperson headed agency and the president doesn’t have the authority to hire or fire this person, that [the] person having policymaking functions, executive functions and judicial functions functionally becomes a fourth branch of government?,” asked U.S. Sen. Ben Sasse, R-Neb.

“Having a single person who’s in charge, who’s not removable at will by anyone, not accountable to Congress, in charge of a huge agency, is something that’s different and has an effect on individual liberties,” Kavanaugh responded, stressing his comments are in line with his previous opinion on constitutionality of the bureau’s structure in the landmark PHH Corp. v. CFPB case.

“A single person can make these enormous decisions, rulemakings, adjudications and enforcement decisions, all of them and from my perspective ... that was an issue of concern,” he said.

Notably, Kavanaugh authored the D.C. Circuit Court of Appeals majority panel opinion in 2016 declaring the bureau unconstitutional in PHH Corp v. CFPB.

Politico reports U.S. Sen. Amy Klobuchar, D-Minn., asked Kavanaugh about agencies led by a single director and if precedent from the 1935 Supreme Court Case, Humphrey's Executor v. United States is correct.

“It’s a precedent of the Supreme Court, and it's been reaffirmed many times,” he responded, according to the article.

Klobuchar disagreed, according to Politico. "It just doesn't make common sense to me that we would throw an agency out like that, or the head of it," she said. "You're basically putting your judgment in the place of Congress."

"But I didn't throw the agency out," Kavanaugh responded, according to the article. "I said the agency could continue operating as it was; the only change would be instead of being for-cause removal, it could be at-will removal."

Next Steps in Kavanaugh Confirmation

Committee Chairman U.S. Rep. Chuck Grassley, R-Iowa, said during Tuesday’s proceedings that the committee could vote on Kavanaugh’s confirmation by Sept. 13, The Washington Post reports.

However Democrat committee members could push for more time, according to the article, meaning the vote could take another week—until Sept. 20.

Insiders continue to anticipate a Senate vote on Kavanaugh before the Oct. 1 Supreme Court 2018 term begins, ACA International previously reported.

Even if the vote is delayed, Kavanaugh is expected to receive approval from the Senate Judiciary Committee due to its Republican majority, The Hill reports.

“Under committee rules, any one member can ask that a nomination is held over for one week if it's appearing on the committee's agenda for the first time. Judicial nominees are routinely held over,” according to the article.

As the accounts receivable management industry and others in the financial services industry await a Senate floor vote on Bureau of Consumer Financial Protection director nominee Kathy Kraninger, Kavanaugh’s nomination and progression through the Senate approval process will likely impact the timing of other nominations and votes.

The hearing will resume at 9:30 a.m. Eastern Thursday and is expected to run through the week, possibly into the weekend.

Kavanaugh’s appointment, if confirmed by the U.S. Senate, would increase the number of appointees from Republican presidents, ACA International previously reported.

The House is also in session, but is expected to break three weeks ahead of the election, according to Roll Call. The Senate will be in recess for two weeks surrounding the election.

Related Content from ACA International: Heated Debate to Delay Nomination Starts Hearing for U.S. Supreme Court Nominee Brett Kavanaugh

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