That shouldn’t be controversial, or at least not something that banks would be willing to stand up and publicly say they are opposed to. But it’s 2022 and anything goes, as long as you’re a Republican. The basis for their complaint is that the CFPB is exceeding its legal authority by making this change in their examination manual, the instrument they use to oversee financial firms, and that the change wasn’t subject to a public comment period.

“The Consumer Financial Protection Bureau is operating beyond its statutory authority and in the process creating legal uncertainty that will result in fewer financial products available to consumers,” said Neil Bradley, chief policy officer of the Chamber.

The changes affect the CFPB’s supervision around unfair, deceptive, and abusive acts and practices (UDAAPs), which are prohibited by federal law but are not necessarily covered by fair lending laws. They’re looking at how banks treat customers in practices beyond lending. “For example, denying access to a checking account because the individual is of a particular race could be an unfair practice even in those instances where ECOA may not apply,” the bureau wrote in the press release announcing the new manual.

The banks say that will keep them from doing things like offering no-fee checking accounts for people who keep minimum balances in their accounts. The banks could, of course, offer no-fee checking accounts to everybody and not make extra money off of the people who can least afford it by dinging them with myriad obnoxious fees. That’s true for all the other products that are now under closer scrutiny including payment plans, prepaid cards, money transfers, and debt collection. It could all be done without additional pain for lower-income people, but that might eat into banks’ profits.

So they’re suing. In Texas. Where they are just about guaranteed to get a friendly district court judge. In the off chance they don’t, the Fifth Circuit Court of Appeals will be there for them. It’s the court which brought us all of the challenges to Obamacare; the worst of the abortions bans leading up to and including Dobbs v. Jackson Women’s Health Organization (which overturned Roe v. Wade); and efforts to keep the Biden administration bound by Trump’s immigration policies. The court is a dumpster fire, and the most reliable way Republicans have found to fight Democratic administrations.

That’s with the help of Senate Minority Leader Mitch McConnell, the deep, dark money pockets of the Federalist Society, and the extremist justices on the Supreme Court, who are definitely putting partisan ideology above patriotic judicial service. It’s a good reminder that it’s not just the Supreme Court that needs expansion and reform. All federal courts are a mess. We’re not going to restore democracy without fixing that.



Joan McCarter

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