Eleventh Circuit, Building Resilient Infrastructure v. CFPB: PACE loan rule, state taxing power and the Tenth Amendment

The Eleventh Circuit upheld the Consumer Financial Protection Bureau's rule applying the Truth in Lending Act to PACE home-improvement loans. The panel held that the rule neither infringes state taxing power nor commandeers states under the Tenth Amendment.

CourtNovember 13, 20264 min readThe Constilumen record

What happened

On November 13, 2026, the U.S. Court of Appeals for the Eleventh Circuit decided Building Resilient Infrastructure & Developing Greater Equity, Inc. v. Consumer Financial Protection Bureau (Nos. 25-14109 and 26-10508). The panel affirmed summary judgment for the Bureau in a challenge to its rule on Property Assessed Clean Energy (PACE) loans, and dismissed as moot the appeal from the earlier denial of a preliminary injunction.

Chief Judge William Pryor wrote the opinion for a panel that also included Judges Grant and Luck. There was no concurrence and no dissent.

PACE loans are home-improvement loans that local governments offer, which homeowners repay "through the same process as real property taxes." In 2018, section 307 of the Economic Growth, Regulatory Relief, and Consumer Protection Act directed the Bureau to apply the Truth in Lending Act's ability-to-repay and civil-liability provisions to these loans. The Bureau's final rule (90 Fed. Reg. 2434, January 10, 2025) amended Regulation Z to treat them as consumer credit.

Building Resilient, a trade organization for companies in the PACE industry, sued under the Administrative Procedure Act. Among its claims, it argued that the rule "abridges the states' taxing authority and commandeers the states to enforce a federal program in violation of the Tenth Amendment."

What the opinion says

The court began: "These consolidated appeals require us to decide whether the Consumer Financial Protection Bureau exceeded its statutory authority, acted arbitrarily or capriciously, or violated the Tenth Amendment when it regulated certain home-improvement loans offered by local governments."

On the statute, the panel held that the loans are "consumer credit transactions" under the Truth in Lending Act, so the rule fell within the Bureau's general rulemaking authority. On the APA's arbitrary-and-capricious standard, it held that the Bureau's use of its own research report was reasonable.

On the Tenth Amendment, the panel rejected two arguments.

State taxing power. The court held that "the programs facilitate debts, not taxes." Relying on Lane County v. Oregon (1869), Meriwether v. Garrett (1880) and Tompkins v. Little Rock & Fort Smith Railway (1888), it wrote: "That the governments use tax bills as the vehicle for collecting debt payment does not transform the loans into taxes." It added that "the Rule does not preempt state taxation powers; it regulates governments as market participants voluntarily lending credit," and that the rule "regulates the financing, not the resulting tax assessment."

Commandeering. Quoting Murphy v. National Collegiate Athletic Association (2018), the court held that "[t]he anticommandeering doctrine does not apply when Congress evenhandedly regulates an activity in which both States and private actors engage." In some states local governments run the programs themselves; in others private companies underwrite and administer them. The court found that "[t]he Rule regulates the programs evenhandedly, regardless of whether a local government or a private company operates the program." Citing South Carolina v. Baker (1988), it concluded that the rule "does not force states 'to administer or enforce a federal regulatory program.'"

The other side

The panel was unanimous. The opinion sets out Building Resilient's arguments as follows. It argued that "the sovereign taxing power . . . is at the heart of" the programs. It said the rule would "lead[s] to a federal mandate that States may not impose State tax assessments on property to further their sovereign goals if State . . . programs fail to meet certain federal standards." It argued that Congress must "speak clearly when it intends to . . . preempt traditional state powers such as taxation". On commandeering, it said that "private commercial actors could [not] impose the tax assessments that form the basis for [the programs]—a unique state function." It also argued that the Bureau took "snippet[s]" of older precedents out of context.

The court did not decide whether the Bureau should have convened a small-business review panel, because it held that argument forfeited on appeal.

Where it sits in the record

The anticommandeering line the opinion applies runs through New York v. United States (1992), Printz v. United States (1997) and Murphy v. NCAA (2018), and the Eleventh Circuit's own Montgomery County Commission v. Federal Housing Finance Agency (2015), which the panel quoted for "the general 'anti-commandeering' parameters of the Tenth Amendment." The rule took effect on March 1, 2026, according to the Federal Register.

Sources

Record updates report what happened and take no side. Signed analysis is kept apart, in Positions. Published November 14, 2026.

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