This past Tuesday the Supreme Court heard argument in Seila Law v. CFPB, a case in which the Court will decide whether CFPB’s structure violates constitutional separation-of-powers principles. That same day, a divided panel of the Fifth Circuit addressed the same question, siding with the Ninth and D.C. Circuits in concluding it does not. I'll leave the merits of this case alone for now since the Supreme Court will provide authoritative answers in Seila Law soon enough. I do want to highlight a couple of non-merits features of the Fifth Circuit's decision, though.

First, something is off about the separate opinions of the two members of the panel majority. Judge Higginbotham wrote the only opinion to garner more than one vote, which would ordinarily mean his opinion is the only one that represents the view of the Fifth Circuit. Yet, his opinion appears after Judge Higginson’s and is silent regarding the Court’s ultimate disposition of the appeal.

Judge Higginson’s opinion appears first and helpfully concludes, “the district court is AFFIRMED.” But it's not clear how Judge Higginson could  affirm the district court in an opinion that neither of his colleagues joined.

I have yet to hear an explanation that makes sense of all these oddities. My own view is that some last-minute vote-switching probably explains the confusion, though I can’t be sure.  If you know what’s going on here, please let me know!

Now let’s move on to Judge Smith who channeled his inner Jules Winnfield to pen a real “Guns of the Navarone” dissent. He has two main grievances. First, he disagrees with Judges Higginbotham and Higginson regarding the constitutionality of the CFPB’s structure. Second, he insists the panel majority’s view to the contrary is foreclosed by the Fifth Circuit’s recent en banc opinion in Collins v. Mnuchin, which declared the very similarly structured FHFA unconstitutional by a 12-4 margin. Here are a few examples of Judge Smith in Beast Mode:

First up, Judge Smith gets creative with a Strict Scrutiny allusion while throwing much shade in the footnotes:

Next, a helpful metaphor to "drive" a point home:

Sometimes a short sentence at the end of a paragraph can really increase dramatic effect:

And finally, a strong finish, complete with even more shade in the footnotes:

That's just a sampling. There's much more.

CFPB v. All American Check Cashing, 18-60302 (5th Cir. Mar. 3, 2020) (Higginbotham, Smith, Higginson)
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