Ori Lev, a partner at the Mayer Brown law firm, said, “[The opinion is] probably the most consequential decision yet for the agency, and that’s saying a lot for an agency that’s lived through the recess-appointment challenges and the director-removable-for-cause challenges.” Lev said the CFPB could ignore the opinion.
However, that wouldn’t be a tenable strategy because it would set binding circuit precedent across Texas, Louisiana and Mississippi, he added.
Another option for the bureau would be to appeal the decision for review before the full Fifth Circuit or the Supreme Court, he noted.
“If I were betting, I would bet on them [filing for a writ of certiorari from the Supreme Court] with the goal of resolving it this term, because that’s going to be the quickest route to resolution and to certainty, even if that certainty is ‘Congress needs to act,’” Lev said.