By Kevin Daley

Two congressional Democrats have filed a motion to intervene in the Consumer Financial Protection Bureau’s defense of its leadership structure, fearing the Trump administration will not protect an agency championed by former President Barack Obama.

Sen. Sherrod Brown of Ohio and Rep. Maxine Waters of California, the top Democrats on committees overseeing the agency, filed a motion to take over its defense in the event the Trump administration chooses to stymie the agency in its ongoing legal battle over its leadership structure. They are represented by the Constitutional Accountability Center.

A three judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled in October 2015 that the CFPB’s leadership framework is unconstitutional, because its director may only be dismissed by the president for cause. Critics argue insulating the director from dismissal at the president’s pleasure compromises the president’s exclusive authority to supervise and direct executive branch agencies.

Though that decision has been appealed, the ruling allows President Trump to fire the agency’s embattled director, Richard Cordray. Fearing that Trump may dismiss Cordray, or that the U.S. Department of Justice would interfere with a possible appeal to the Supreme Court, Brown and Waters hope to lead their own defense of the CFPB.

Brown and Waters argue that they should be allowed to intervene in the case in the event the Justice Department shuts down defense of the agency before the high court. They reason that depriving the agency of full review would effectively nullify the votes they cast in Congress in favor of establishing CFPB as an independent agency.

Their brief reads:

In October 2016, a divided panel of this Court held that the leadership structure Congress chose for the Bureau—a single director removable only for cause—is unconstitutional. Movants now seek to intervene in this litigation because recent events have made it clear that their interests in preserving the leadership structure they voted for may no longer be adequately represented by the new Administration. Indeed, absent intervention, it is possible that the panel’s decision will be insulated from review, thus nullifying movants’ votes to establish the CFPB as an independent agency and their ability to establish similar independent agencies in the future.

Other parties have moved to intervene in the case as well. A coalition of consumer groups filed a motion to intervene on Thursday, as did a dozen state attorneys general.

The D.C. Circuit has not yet determined if it will rehear the case. If they decline to do so, the case will likely be resolved at the Supreme Court.