Pub. 11 2022 Issue 6 15 ABA fully supports the fair enforcement of the nation’s antidiscrimination laws. We simply believe these laws should be enforced by regulators within the boundaries set by Congress. attempt by the bureau to set itself up as a “super-regulator” of financial practices using authority Congress did not give it. To be clear: ABA fully supports the fair enforcement of the nation’s anti-discrimination laws. We simply believe these laws should be enforced by regulators within the boundaries set by Congress. This updated manual does not qualify. Given that the bureau has not seen fit to rescind the manual – despite previous calls from ABA and other trade groups – we were left with no choice but to pursue legal action. ABA’s lawsuit – filed in late September jointly with the U.S. Chamber of Commerce, the Longview Chamber of Commerce, the Texas Bankers Association, the Independent Bankers Association of Texas, the Texas Association of Business and the Consumer Bankers Association – alleges violations of the APA in three ways. First, the bureau is exceeding its statutory authority outlined in Dodd-Frank, which is clear that “unfairness” under UDAAP and discrimination are distinct concepts that should not be conflated. Second, the updated manual is “arbitrary and capricious,” in violation of the APA. Finally, it violates the APA’s procedural requirements because it constitutes a legislative rule that failed to go through notice and comment. It’s never our preference to take legal action against a regulator. And this lawsuit doesn’t mean we’ve given up on finding common ground with the bureau. In fact, on issues like the need to protect consumer data, the need to make sure nonbanks face the same regulatory requirements as banks for similar activities, or the importance of relationship banking, our goals are very much aligned. But when a regulator – any regulator – takes a step like this to dramatically expand its regulatory reach without authorization from Congress or any opportunity for the public to weigh in, ABA will respond on behalf of our members and the industry we represent. Email Rob Nichols at nichols@aba.com.
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