The fact that Congress passed a bipartisan joint resolution to invalidate the 1071 Rule would seem to support the argument that the Bureau overstepped its statutory authority and might be a good argument against the new rule now that Chevron has been overruled. So even though Biden vetoed the bipartisan resolution the Court may consider the resolution as proof that the Bureau went father than intended by increasing the mandated data points about 10-fold and made the rule unduly burdensome. Time will tell.

The problem is, the will of Congress is bent and shaped by politics. When courts look at these issues, they should consider what Congress put into the law at the time, not how Congress feels about the issues now. If Congress wants badly enough to change the law, it can do so and regulations should change. But a court's review of something like the 1071 rule should look to the Dodd Frank Act and background documents behind it, not to current congressional attempts to nullify it.

The fact that it took the CFPB over a decade to finalize the rule is unfortunate. But look at how long it took the prudential regulators to implement FACTA -- that delay was ridiculous.

I was going to say, the fact that Congress failed to overturn this rule would be some pretty wacky evidence that the court should do so. The courts essentially vetoing the President's veto would be... a strange new world in separation of powers. Not saying there aren't grounds for some of these data points to be challenged, but I don't think the reasoning can be that the current/recent Congress tried and failed using the political process.

As I understand it, the Congressional Review Act applies to regulations published during the current session of congress, not the session when the law was passed. If only the congress in session at the time the statute was passed had authority to override a regulation the Congressional Review Act would never apply to any regulation since it's almost impossible to develop proposed rules, hold public hearings, and then publish a final rule during the same session of congress. This rule was published something like 14 years after Dodd-Frank. So the current Congress approved a resolution that the Bureau had gone too far in interpreting a law passed some 7 sessions earlier. One thing is I assume the litigation regarding 1071 will go all the way to the SCOTUS and we will see how they rule and what their reasoning is. Will they ignore the Congressional resolution or acknowledge it? That ought to be interesting. When Chevron became the rule it was under the Regan Administration and it was the Courts that were liberally interpreting regulations such as those pertaining to the Clean Air Act. So it was appealing to have the more conservative (at the time) Agencies interpret the law. Now, it's 180 degrees the opposite and it's the agencies gone wild. The anti-redlining initiative is a good example. The pendulum goes back and forth.

The CRA is a legislative process, not a constitutional process. The courts rule on the question of constitutionality. The legislative desire to implement or overturn a regulation is a completely separate issue from the constitutionality of that regulation. The courts routinely overturn legislation passed by Congress on the grounds it's unconstitutional. They don't defer to the legislative branch and decree that since it's the will of the legislators it shall be the law of the land. The will of the legislators, in this regard, is irrelevant to the question of the constitutionality of a regulation.

I think you may be confusing the constitutional question regarding the CFPB's funding in the litigation with the statutory issue, to wit, "Promulgating a Final Rule Beyond the Statutory Scope", also raised in the litigation. In other words both a constitutional question and a statutory question have been raised in litigation. It's the interpretation of statutory authorization which remains to be decided, and not the constitutional issue (which has been determined) where I believe the legislative intent and the overruling of the Chevron framework may be a factor. Now that deference to the Agency's interpretation of the statute has been diminished it seems to me that the Congress's bipartisan vote of "Disapproval" of the 1071 Rule may be a factor in the judicial deliberations. After all, it's now a question of interpretation of what the statute authorizes, not a constitutional issue.

Personally, I'm not sure that the failed Congressional override will play much of a role. There could be many reasons that Congress chose to override the rule even if the CFPB didn't exceed its statutory authority in issuing the rule. Also, with respect to the required data points, Chevron deference might not have even been applied, because the statute is pretty clear: CFPB regulation can require collection of the data points listed in the statute, plus "any additional data that the Bureau determines would aid in fulfilling the purposes of this section."

The statute specifically articulates its purpose as "to facilitate enforcement of fair lending laws and enable communities, governmental entities, and creditors to identify business and community development needs and opportunities of women-owned, minority-owned, and small businesses."

So the court will be looking at whether the CFPB makes a decent case for its determination that the additional data points would aid in fulfilling the statutory purpose, and whether the CFPB's process in making that determination was arbitrary and capricious or otherwise not in accordance with required processes under the Administrative Procedure Act and other applicable law.