“Too big to fail”—or “TBTF”—is a popular metaphor for a core dysfunction of today’s financial system: the recurrent pattern of government bailouts of large, systemically important financial institutions. The financial crisis of 2008 made TBTF a household term, a powerful rhetorical device for expressing the widely shared discontent with the pernicious pattern of privatizing gains and socializing losses it came to represent in the public’s eye. Ten years after the crisis, TBTF continues to frame much of the public policy debate on financial regulation. Yet, the analytical content of this term remains remarkably unclear.

Soon after the 2016 election of Donald Trump as President of the United States, while Republicans controlled Congress, opponents of the fledgling Consumer Financial Protection Bureau (CFPB) opened a campaign against the Bureau. Their target was less the substance of federal consumer financial protection laws than the structure of the CFPB itself. This emphasis on structure was a response to the fact that Congress in 2010 had given special thought to the design of the CFPB to safeguard the Bureau and its mission.

From its inception, the Consumer Financial Protection Bureau (CFPB) has been criticized in the court of public opinion for a host of reasons—mostly focused on the aggressive scope of its supervision, rulemaking, and enforcement actions. During the last several years, however, a new critique has emerged and gained traction—at least in federal courts. Defendants in CFPB enforcement actions began to routinely (and sometimes effectively) argue that the CFPB’s entire structure is unconstitutional. The CFPB faced its greatest constitutional crisis during the period from 2015 to 2018, when a D.C. Circuit case, PHH v. CFPB, threatened its structure, very existence, and—by extension—all of its prior enforcement actions. Though that case would ultimately be dismissed by the CFPB, questions about the CFPB’s constitutionality remain, even with 100 years of the Supreme Court’s key cases in executive power and agency independence behind us. This Article revisits this 100-year history, and then situates it against attacks upon the CFPB, finding that the CFPB’s design and structure stand on firm constitutional ground. However, the Article critiques the singular-director structure for other reasons and suggests improvements in order to improve the CFPB’s political—if not legal—standing for the future.

The year 2018 marked ten years since the global financial meltdown. This Article focuses on the current state of consumer protection in the United States and considers the effectiveness of various post-meltdown government initiatives geared towards consumer protection. As the current administration dismantles many post-crisis initiatives, such as the Dodd-Frank Act, this Article considers the future of consumer protection and what Americans need moving forward.