The Consumer Financial Protection Bureau’s Payday Lending Rule has had a rough decade. In an effort to protect consumers from abusive financial practices, the Rule prohibits lenders from continuing to attempt to withdraw a payment from an account after the second failed attempt and requires lenders to provide certain disclosures before attempting a withdrawal. CFPB issued the Rule in 2017, and it formally took effect in 2018—but lenders quickly filed suit and obtained a court order staying the Rule’s compliance deadline. After years of litigation, including a trip to the Supreme Court, lenders were finally required to begin complying with the Rule on March 30, 2025.

Not so fast, said the Trump Administration. Just days before the deadline, the zombie Trump CFPB announced that it would not “prioritize enforcement or supervision actions with regard to any penalties or fines associated with the Payment Withdrawal provisions and the Payment Disclosure provisions.” CFPB stated that it would instead focus its resources on unspecified “pressing threats to consumers, particularly servicemen and veterans.” It also noted that it “is further contemplating issuing a notice of proposed rulemaking to narrow the scope of the rule.” No such notice has yet appeared in the Federal Register.

Much like the Trump Administration’s attempt to “dismantle and disable the agency entirely,” the administration’s latest effort to prevent CFPB from enforcing vital consumer protections is unlawful. Affected parties—those who stand to benefit from the Payday Lending Rule’s protections—might also be able to challenge the decision in court. Indeed, a recent issue brief by our organization, Governing for Impact, outlines how, as a general matter, litigants might think about challenging such agency non-enforcement directives. This issue is sure to recur given the administration’s apparent intent to use enforcement discretion across the board to refrain from enforcing rules while it goes through notice and comment to rescind them.

Here, although CFPB’s announcement was couched in the language of enforcement discretion, it amounts to an attempt to alter the Payday Lending Rule without complying with the Administrative Procedure Act. The APA generally requires agencies to provide advance notice and an opportunity for comment before issuing “legislative rules,” which include rules that, like the Payday Lending Rule, “purport[] to impose legally binding obligations or prohibitions on regulated parties.” Because “an agency issuing a legislative rule is itself bound by the rule until that rule is amended or revoked,” it “may not alter [such a rule] without notice and comment.” And yet CFPB all but admitted that it intended to cease enforcement of the Payday Lending Rule as a substitute for attempting to rescind it, gesturing at a notice of proposed rulemaking that may not ever come. Worse still, the agency offered virtually no reasoning—the hallmark of arbitrary-and-capricious agency action—to support its conclusion that other enforcement priorities are more pressing.

The Trump Administration is likely to argue that, under Heckler v. Chaney, CFPB’s decision to refrain from enforcing the Payday Lending Rule is committed to its discretion. In Heckler, the Supreme Court held that “an agency’s decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2)” of the APA. But, as Justice Brennan’s concurrence in Heckler noted, the Court left open the possibility of review where “an agency has refused to enforce a regulation lawfully promulgated and still in effect.” And lower courts have similarly noted that, whatever discretion agencies may have to set substantive enforcement priorities, “[n]o such discretion exists when it comes to the Government’s obligation to comply with procedural rules in exercising that enforcement discretion.” Indeed, courts have routinely held that an agency’s attempt to postpone a legislative rule’s effective date—which is essentially what the CFPB’s announcement does—is subject to the APA’s notice-and-comment requirements, without suggesting that Heckler poses any bar.

The administration might also assert that, in simply “deprioritizing” enforcement of the Payday Lending Rule, CFPB still intends to enforce the Rule where warranted. But that dubious assertion should not immunize the administration’s decision from challenge. Although an agency may choose how to allocate its resources between various priorities, it cannot nullify a valid regulation under the guise of “prioritization.” Indeed, the administration’s announcement itself recognizes that its non-enforcement policy is nothing more than a stopgap while it purports to consider whether to amend the Rule. At the very least, litigation might force the administration to articulate how it intends to enforce the Rule moving forward, and potentially even provide litigants with an opportunity to seek discovery “to ascertain the contours” of the administration’s purported non-enforcement policy.

Of course, these questions may be somewhat academic; the Trump Administration appears to have barred the CFPB from enforcing much of anything, even if what remains of the agency were equipped to do so. But it may be worth holding the administration accountable in court nonetheless—even if only to illustrate that the CFPB plays a vital role in protecting American consumers and should be permitted to resume its important work.

John Lewis is Deputy Legal Director at Governing for Impact.