Separation of Powers

Is the CFPB Unconstitutional? We'll Soon Find Out. (Corrected)

The Supreme Court will consider a constitutional challenge to the composition of the Consumer Financial Protection Bureau.

|The Volokh Conspiracy |

Today, the Supreme Court granted certiorari in four cases. One of the four, Seila Law LLC v. Consumer Financial Protection Bureau asks the Court to consider whether the CFPB is unconstitutionally constituted. Specifically, the Court will consider whether it is unconstitutional for Congress to limit the President's ability to remove the head of a single-headed agency, such as the CFPB. In this Seila Law presents a similar question to Collins v. Mnuchin, in which the U.S. Court of Appeals for the Fifth Circuit concluded that a similarly structured agency was unconstitutional.

In addition the constitutional separation of powers question, the Court has also asked the parties to brief the question of remedy. Specifically, the Court wants to know the extent to which the provision limiting removal of the head of the CFPB is severable from the rest of the law or, in the alternative, whether concluding that the CFPB is impermissibly constituted requires invalidating other aspects of the CFPB, if not the CFPB altogether.  The addition of this question was likely prompted, at least in part, by the Collins v. Mnuchin petition for certiorari, which sought the Court's attention to the remedial issue.

It is also worth noting that the Court has appointed Alan Morrison to argue in defense of the CFPB's constitutionality as an amicus curiae. This is necessary because the CFPB and the Department of Justice agree with the petitioners that the CFPB's current structure is unconstitutional. Presumably the Court will appoint an amicus to defend the CFPB's constitutionality.

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  1. Minor correction:
    Professor Morrison wasn’t appointed to argue as amicus curiae (at least not yet). At this point, the court just ruled on a motion for his cert-stage amicus brief to be filed out of time.

  2. The only way you can get away with the sophistry the regulatory state regulations are not unconstitutional laws is by claiming their creation is part of the executive branch enforcing Congress’ law, i.e. carrying out the law.

    As such, the heads of any such agencies only wield that power at the whim of the president.

    1. You’re confusing your chosen interpretation as the only possible interpretation, which is incorrect.

      The administrative state is possible because the Congress can delegate some of its legislative power to an agency, and so can the President do so (by signing the enabling legislation)

      Your mistake is assuming that any reduction of Congressional power MUST be an increase of Executive, and vice versa. But this is not so. The administrative state contains a fourth, BUT NOT CO-EQUAL branch of government, in the professional bureaucrats, which has some of the power ceded from Congress, and some of the power ceded from the Executive. They can choose to work together to revoke the ceded powers. Congress could write legislation eliminating any portion of the bureaucracy, and if it passes both houses and gets signed into law, they get the power back. If the Congress is divided about recapture, and doesn’t have the votes in one chamber or the other, they can’t. They also can’t do it without the President, unless a LOT of Congresspeople want it done.

      This creates a situation where the sovereign power of the United States is divided, which is a core principle of the Constitution. Keeping the sovereign power divided increases the likelihood that a tendency towards tyranny is countered by a portion of the sovereign power… which sounded pretty good to the Founders, who had experience with an entirely undivided sovereign..

      1. What makes you think that Congress or the President can, in fact, delegate not only their own power, but the power of future Congresses and Presidents? Do these powers really belong to the Congress or the President (to be given away at their whim), or are they merely exercising those powers on behalf of the People they represent?

        Shouldn’t changing the allocation power in such a fundamental way require a constitutional amendment? Can the President give some of his executive power directly to Congress? To the Supreme Court? All of it?

        If there a law allocating some of the President’s power to Congress and the President vetoes it, what then?

        1. “What makes you think that Congress or the President can, in fact, delegate not only their own power, but the power of future Congresses and Presidents?”

          Because of the text of the Constitution doesn’t forbid them from doing so.

          “If there a law allocating some of the President’s power to Congress and the President vetoes it, what then?”

          Then it isn’t a law. Duh.

      2. Oddly enough, I don’t remember the “4th branch of government, the professional bureaucrats” anywhere in the US Constitution.

        There’s an Article 1:”All legislative Powers herein granted shall be vested in a Congress of the United States”

        There’s an Article 2: “The executive Power shall be vested in a President of the United States of America.”

        And there’s an Article 3: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

        Nope….nothing about a “professional bureaucrats” Branch that takes some of the power from the article 1-3 sections.

        1. “Oddly enough, I don’t remember the “4th branch of government, the professional bureaucrats” anywhere in the US Constitution. ”

          Since it isn’t prohibited in the Constitution, as you concede, it’s entirely valid if Congress votes for it and presents it to the President.

          1. That’s not actually how the Constitution works, this bizarre “anything not explicitly prohibited is allowed” theory. And that’s before we delve into the text that literally says what branches get what powers (here’s a hint…none of them are the so-called 4th branch)

            But thanks for playing.

            1. “That’s not actually how the Constitution works”

              Bill passes both houses of Congress, then is presented to the President, isn’t how the Constitution works? Has anyone notified Schoolhouse Rock? They’re going to need a new song.

          2. You should read your Constitution more carefully:

            “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

            If it isn’t an enumerated power then Congress can’t create out of thin air.

            To be sure there is some work done by the necessary and proper clause: “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution.” But it is hardly proper to create a fourth branch of government that supersedes Congress and the executive.

            1. Pollack is the type of American who believes the General Welfare clause grants the people in government unlimited power so long as they could argue they are doing it for the benefit of the people.

              1. Pseudo-Gompers is the sort of “American” who decides what other people’s opinion is, without consulting them about the question first, and then sticks to his own assessment rather than objective reality. And he doesn’t spell people’s names correctly, which is a sign of the accuracy of his observations.

            2. “You should read your Constitution more carefully:
              […]
              If it isn’t an enumerated power then Congress can’t create out of thin air.”

              You should read what I wrote more carefully. At no point did I suggest that Congress was creating anything out of thin air. They can use their power (you know, the power granted to them by the text of the Constitution) and vest it in inferior bodies (if they follow the usual rules regarding presentment, etc.)

            3. “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” This is in Article 1 Section 8… Doesn’t the last part authorize professional bureaucrats?

          3. I think the argument proves too much. That is, it seems to make the whole civil service system unconstitutional. Is that what you are advocating? If Congress has no power to regulate executive employment decisions then that is the ultimate result. Just from a policy viewpoint this would be devastating. The effect would be to create a patronage army available to each administration. I am from Chicago, and it took years of federal court decisions to mitigate the problem. Based on experience, such control results in a bigger bureaucracy not a smaller one and filled with ostensible government servants whose real job to is to do political work.
            At minimum, I’d say that Congress’s spending power gives it say in the terms of federal employment–so civil service exams, employee due process and whistle-blower protections,etc.–seems clearly tied to Congress’s power to appropriate money for a particular purpose–in this case, the employment of an honest, qualified professional federal workforce.
            The separation of powers question is harder at the leadership levels, but the sweeping “no professional bureaucrats” argument is patently overbroad.
            What you are really arguing in railing against bureaucracy, I think, is the so-called non-delegation doctrine (it is really a doctrine limiting, not prohibiting delegation)–a thorny question that does not fit easily into broad statements either.

            1. “It would make the whole civil service system unconstitutional. Is that what you are advocating?”

              No.

              The Civil Service, as an institution that executes the laws of the United States, answers to the President. They are not a “4th Branch,” self-funding, making independent decisions as they see fit, without needing to really answer to anyone.

              Now, I’m not advocating wholesale replacement of every civil service member, every time there’s a new President. I am advocating the heads of the various departments can be replaced at will by the President, as part of the executive service. And those heads can further direct policy.

              This, by the way, is how it currently is. The President appoints a Secretary of Defense, a new FBI director, a new Attorney General, etc. Under the “4th Branch” doctrine currently in place with the CFPB, they…don’t.

              Imagine a world where Bush appoints an Attorney General…and the AG just stays there through the Obama administration, because Obama can’t fire him. (It would’ve been a very different administration.) Or all sorts of other issues…

              1. Well said. Every last one of these law-making independent agencies are an offense to the Constitution, in my opinion.

              2. ” They are not a ‘4th Branch,’ self-funding, making independent decisions as they see fit, without needing to really answer to anyone.”

                You’re confusing the way things are set up now as the only possible way they could be set up. This is lazy thinking.

                Having the manager of an agency only capable of being fired for cause is not at all the same thing as “self-funding, making independent decisions as they see fit, without needing to answer to anyone”, any more than it is true if any other member of the bureaucracy can only be fired for cause. The bureaucracy, all of it, remains dependent on funding from Congress, because Constitutionally, only Congress can appropriate money. If the agency starts not following the mandate established for it by Congress, then the President can start removing people from it, for cause.

                The Founders didn’t want to specify in detail how the court system should work, so they kicked it to Congress… except there, the President not only can’t fire judges without cause, he also can’t fire them WITH cause.

              3. “This, by the way, is how it currently is.”

                Except for where it isn’t, which you conveniently ignore.

        2. These days, the Fourth Branch is the most important branch since they control most of the actions with the public.

  3. How will the government maintain control without the bureaucracy? Maybe we should ask, how will the bureaucracy maintain control?

    1. Fear will keep the local systems in line, fear of this battle station.

      1. You, my friend, are all that remains of that religion.

        1. “This regulatory state, adding a hundred billion dollars of cost to the economy every year, is now the ultimate power in the universe.”

          “Congress and the president have just dissolved themselves so they can hide behind the ultimate power and not take blame.”

          “I noticed your stench when I was brought on board.”

          “You would prefer another target? Perhaps one better at donating to candidates, officially or otherwise? Then name the industry.”

          1. “Red Leader, standing by.”
            “Acknowledged, Porkinsbarrel.”

            “Sir, we’ve analyzed their attack pattern. There’s a chance, no matter how small, that they could destroy this battle station?”
            “Really?”
            “Well, no. But they could destroy it as a independent entity, answering directly to no elected official in either branch, not even subject to the power of the purse.”
            “Very well. Commander, you may fire an additional 8 Supreme Court justices at will.”

            1. “Use force, Luke”

  4. Yes, it’s unconstitutional. Here’s why…

    1. It takes an executive branch function, but essentially removes it from the control of the democratically elected head of the executive branch, and puts it in the hands of a single, unelected bureaucrat, who can’t be removed except “for cause” (whatever that is defined to mean), while simultaneously removing it’s funding source from annual appropriations.

    2. You may think this is good. But let’s look at this from another viewpoint.

    3. After economic recession xyz, the “nationalist” party in the United States briefly gains control of the presidency and Congress. They pass a bill that empowers “General America” to form the “Protect America now” organization. An armed organization that is self funded through 5% VAT tax. General America can only be removed for very specific and narrow causes. In the meantime, the nationalist party loses many seats in the next election, then the presidency, but still maintain a fillibuster proof majority in the Senate. Meanwhile General America is gaining more and more power, through selective enforcement of new regulations….

    1. ” General America is gaining more and more power, through selective enforcement of new regulations….”

      … and then is removed “for cause” if they direct the agency in a way that is counter to the interests of the people of the United States.

      Note that removing a bureaucrat “for cause” is considerably easier than removing the President “for cause”, and the President has power over more than one agency AND the military forces.

      1. The President is lawfully elected by the people of the United States, and has a term that ends every 4 years. Unlike unelected bureaucrats, who can serve….forever, while making, enforcing, and judging the laws and regulations they design.

        1. “The President is lawfully elected by the people of the United States”

          No, he isn’t. Presidents are elected by the Electoral College.

          “Unlike unelected bureaucrats, who can serve….forever”

          Egads. There are people in the government who can serve for life, as long as they don’t give cause for dismissal? What does the Supreme Court think of this?

    2. I think we ought to separate our judgment of the constitutional question from whether we think the structure of the CFPB in particular is good or not.

      I think that the CFPB is “good” but I also tentatively don’t think it should be led by anyone who can’t be fired by the President. That said, I think that this is severable. The whole statute should not be declared to be void on this basis.

      But guess what. Ff the CFPB is unconstitutional, it might not be the only thing that is unconstitutional. What about the Federal Reserve Board of Governors? Each member of the board is appointed to a 14-year term (thus, spanning multiple presidencies) and are removable by the President “for cause.”

      1. That’s the main crux of the argument, that the head of the CFPB should be able to be fired by the President for any reason. Whether or not it’s “good” is a different issue, and best addressed by the legislature.

        To be honest, it probably is severable, although I might consider also making at least some of its funds dependent on the Treasury. I don’t see the absolute independence as that important here.

        The only reason (and it’s weak) for an all or nothing argument, is to “persuade” the legislature to make constitutional laws in the future, rather than stretching the limits. If it’s severable, there’s no penalty for stretching the limits.

        1. Whether it is a “good” reason to fire or not is best addressed by the voters at the next election.

          This entire charade is about locking in power to insulate it from the voters.

          1. “This entire charade is about locking in power to insulate it from the voters.”

            Yeah. The Constitution is designed to have differing levels of responsiveness to voters. Reps are intended to be most responsive… that’s why they stand for re-election every two years. The President and the Senate are less responsive… originally Senators weren’t selected by voters at all, and the President still is not. They also stand for re-election less frequently. Finally, Article III judges don’t stand for election at all.
            This means that the House can be expected to focus on things that are bothering the electorate right now, while the Senate takes a longer view of things. The President has a different set of responsibilities, but also takes an intermediate-term view. Judges look to the long-term, which they can do because they don’t have to answer to the electorate next year.
            Career bureaucrats are closer to judges than to Reps. They have long-term job security and also look to the long-term interests of their agency and the government they’re part of.

      2. “I think that the CFPB is “good” but I also tentatively don’t think it should be led by anyone who can’t be fired by the President.”

        The head of the CFPB can be fired by the President. For cause.

  5. “This is necessary because the CFPB and the Department of Justice agree with the petitioners that the CFPB’s current structure is unconstitutional.”

    So, why is this even a thing, if the bureau accused of being unconstitutional agrees that it’s unconstitutional?

    1. Because no number of executive branch organs have the ability to change the law (in theory). Since Congress seems disinclined to repeal the legislation that created this abortion of liberty and the democratic process, the other alternative is to have it struck down by SCOTUS.

    2. “So, why is this even a thing, if the bureau accused of being unconstitutional agrees that it’s unconstitutional?”

      The American legal system is based on the premise that when adversaries compete to prove their case, you’re most likely to get to the truth, because both sides have reason to dig into the evidence and precedent and present those that support their cause. You’re less likely to get truth when both sides are really only one of the sides, with the other side left out entirely. This will lead to both parties producing facts and precedent that support their side, and nobody presenting facts and precedent that don’t support them.

      Consider: If your premise is that Donald Trump is a corrupt scumbag, will get a fair determination if the two “sides” arguing this point are Hillary Clinton arguing the “yes” side, and Joe Biden also arguing the “yes” side, and nobody arguing the “no” side?
      In cases like this where the lawyers for both sides agree about which side should win, but don’t resolve it among themselves because they want a court ruling enabling them to order other people to do something, the court picks someone to argue the other side of the argument.

      1. Are you then in favor of revoking a large percentage of the suits the EPA has settled? There’ve been numerous examples of the EPA being sued to regulate in a particular manner that wasn’t supported by the enacting statutes or science, who then settle in order to effectively enact a regulation that would have been ruled arbitrary and capricious had it gone through the usual rule making process. In those cases, it was “environmental” group + EPA vs EPA.

        Since they were settled by collusion (hey, that’s actually a valid place to use it!), they should all be overturned, right?

        P.S. I agree with your position, I want to see if you’ll follow it where it leads too.

        1. “P.S. I agree with your position”

          Odd, seeing as how you don’t know what it is.

        2. There’ve been numerous examples of the EPA being sued to regulate in a particular manner that wasn’t supported by the enacting statutes or science, who then settle in order to effectively enact a regulation that would have been ruled arbitrary and capricious had it gone through the usual rule making process.

          That’s not true. There was a statutory private right of action for each of those actions, else they would have been dismissed under the APA.

        3. He will disagree with you because the outcome doesn’t align with his desired preferences.

  6. It would be good for the respondents if the “for-cause” removal provision is severed (which is the likely remedy if the court finds a separation-of-powers violation).

    The cfpb is currently captured by a bunch of ringers from the payday loan industry. The function of the bureau has been inverted to protect non-consumers.

    The current figurehead director is unqualified to lead the cfpb. Before her confirmation, she had no experience in consumer protection or financial regulation.

    Yet she would have to stay on even if the current president is not re-elected. But if scotus dumps “for-cause”, the industry capture of the cfpb can be reversed sooner.

    1. There are a bunch of academics who argue that the pay day loan business serves the needs of some people and that the limits are too restrictive effectively cutting many “unbanked” from a legitimate source of funds.

      1. And the appropriate point of comparison isn’t between a credit card with an effective APR of 30% vs a payday loan with an effective APR of 300%, since the people who get payday loans by and large can’t get (or have already maxed out) their credit cards. Instead, the comparison is between a payday loan at 300%, and a loan from Jimmy The Shark at an effective APR of 30,000%.

        One might think that even then no one would take the 300% loan if they really understood how it worked, but multiple academic have interviewed people taking out these loans, and by and large they know exactly what they’re doing.

        It seems that people who object to payday loans just don’t like scarcity, so they should also pass laws making it illegal to sleep under bridges – after all, both the rich and poor are equally prohibited in this case…..

        1. Another comparison (vice Jimmy The Shark) is bank overdraft fees, bounced check fees, and the consequences of writing bad checks, which can include eviction, loss of job, and many other unwelcome outcomes which the do-gooder crowd and the ivory tower nannies simply cannot comprehend.

          Once again, government does not know best, and allowing people the agency to take care of themselves is the best thing to do.

          1. “Once again, government does not know best, and allowing people the agency to take care of themselves is the best thing to do.”

            Allowing people to take advantage of other people is great if you’re on one side of the equation, not so awesome if you’re on the other side.

        2. @Robert, cite some of the “multiple academic”.

          Legislation prohibiting payday loans has been passed even in fairly conservative states like Arizona because the justice courts there were clogged with payday suits for $3,000-$4,000 that were based on an initial loan of $300-$400 (that had been renewed every two weeks for a year or more), so that 90%+ of the suit amount was fees. Once judgment was entered, these people had their paychecks garnished by 25% for years, all over a $300 loan. The payday loan outfits were often out-of-state franchisees, so all of that low-income judgment money would be promptly shipped out of Arizona, forcing the judgment debtors to either apply for state aid (food stamps, etc.) or file for bankruptcy.

          Arizona had enough of this and put an end to it. In all of the local media that led up to passage of the legislation, scores of people who took out the loans said they regretted doing so.

          It is unfortunate that some fully-informed person that would be helped by a payday loan has to go to more trouble to get one now, but set against the harm that has been demonstrated, this trade off seems justified.

          The Arizona justice court dockets have been much less stressed since the passage of the payday legislation. It is now just mostly evictions, medical debt lawsuits, and debt buyer lawsuits.

          There has been no evidence of an increase in loan sharking. There have been more “tribal loans”, online payday loans, and title loans, so the well-informed still have plenty of options.

          1. It is unfortunate that some fully-informed person that would be helped by a payday loan has to go to more trouble to get one now, but set against the harm that has been demonstrated, this trade off seems justified.

            What harm has been demonstrated, that people don’t pay their obligations and then are eventually forced to pay them? What about not paying their car loan or their utility bills or their mortgage? Are they being harmed by being required to pay for goods and services that they receive?

            The biggest users of payday loans are people with bad credit. They can get a payday loan with a bank account and a pay stub or some proof of regular funds but they don’t have to have good credit. Almost any other place where they could get a loan will require a credit check. That means no loan.

            1. “No loan” just might have been a better outcome for the vast majority of the tens of thousands of Arizonans that had to endure garnishment of several thousand dollars over several years, just because they made a bad decision to borrow a few hundred dollars for a couple of weeks. Almost all of them (in Arizona) will tell you so themselves.

              A lawsuit for a defaulted car loan or utility bill might be, at most, for double the original amount of the debt, even after court costs and attorney fees are added. Only payday loan suits are for 10+ times the original amount of the debt, and most of that is fees not interest.

              Society at large just can’t sustain that sort of policy at any scale.

              There is no way for the uniformed to revoke this kind of mistake. Others here say that most payday customers are fully informed of the costs and potential risks. In covering this issue in Arizona for more than a decade, this has not been what I’ve observed at all.

              Almost all of the desperate people who borrowed $300 said they never had an extra $300 at any time in the past five years. They weren’t going to have it in two weeks after they took out the loan. Or in two more weeks after they paid $50 to renew the load for another two weeks. Ad infinitum. The path to a lawsuit and a judgment and years of garnishment peonage was a near certainty from the moment they signed.

              The fully informed still have options for payday loans, they just have to go to a little more trouble now in Arizona. At the same time, the uninformed are more protected.

          2. “It is unfortunate that some fully-informed person that would be helped by a payday loan has to go to more trouble to get one now”

            The payday lenders just moved onto the Reservation, where they can ignore state laws.

            1. Tribal loans are still readily available. But in case of default, they’ll likely have trouble getting relief in AZ state court. The tribe’s lawyers have come up with some crafty ways to get around this, but one of them was shot down last year.

      2. No payday lender will lend to the “unbanked”.

        Payday lenders require a back account to automatically debit payments and fees.

  7. IANAL. While I see the arguments for not wanting something as unaccountable as the CFPB, the arguments against it seem more based in what people want rather than strict legality and constitutionality. I do see the point of questioning its funding, but doesn’t the same problem exist with other agencies that are self-funded by the fees and fines they collect?

    1. It’s built into the Constitution’s design the observation that people will twist laws to serve their own purpose.

      That’s why trying to sever lawmaking (which regulation is) from direct control of elected officials, who in turn are controlled by voters, is insidious all by itself.

  8. “While I see the arguments for not wanting something as unaccountable as the CFP”

    By which, most people mean “not accountable to the people I want them to be accountable to”.

    Congress can dissolve the CFPB at any time, but the R’s couldn’t get enough votes to do it, and neither can the D’s (if they wanted to do so). If the CFPB does something actively harmful, however, that could change quickly.

    1. Well, that ain’t what I asked. I am curious as to what the actual legal arguments are, not the obvious remedies already existing to get rid of it or reform it.

      1. I wasn’t trying to answer what you asked. I was quibbling with your assertion that the CFPB is “unaccountable”.

        1. “It’s accountable as a last resort if it goes completely off the rails.”

          You and I have a vastly different idea of accountability and voters.

          1. “You and I have a vastly different idea of accountability”

            Yes, my view is objective.

    2. Who is the CFPB —or civil servants in general—actually accountable to now?

      If the prez is to have the discretion needed to see “take care” that all laws are faithfully executed, agencies or programs shoved shoehorned into the executive branch should actually be answerable to him.

      This sort of CFPB dynamic is how particular ideologies entrench their agendas into government indefinitely.

      Also, I need to look at the statute again, but if Gorsuch ever gets Kavanaugh and Alito on board and revives the nondelegation doctrine he outlined in Gundy, I doubt this particular delegation would pass muster.

      1. “If the prez is to have the discretion needed to see ‘take care’ that all laws are faithfully executed”

        If the laws are NOT faithfully executed, then the head of the agency can be terminated, for cause, by the President.

        1. Well, then there’s the lawsuit, where the fired official holds onto her job, saying “I was faithfully executing the laws”. And then she holds onto the job, for a year or three, while the lawsuit makes it’s way through the courts.

          1. “Well, then there’s the lawsuit, where the fired official holds onto her job,”

            No, then there’s the lawsuit, where the fired official gets paid more money if they were fired without cause.

    3. Simply because Congress (with the President) could change the law, it doesn’t mean the original law is unconstitutional.

      1. “Simply because Congress (with the President) could change the law, it doesn’t mean the original law is unconstitutional.”

        Um, yeah. Kind of my point.

  9. Correction

    We know it’s unconstitutional, we’ll soon find out if the court cares to uphold the Constitution.

    1. Yeah, Dave Ss is the only true arbiter of constitutionality.

  10. I think you’re missing the forest for the trees.
    If the CFPB is unconstitutional, Elizabeth Warren was acting extra-constitutionally, and should therefore be immediately impeached if she is elected President.

    1. Excellent idea. Our country has a long history of impeaching each and every president who signs an unconstitutional law or enacts an unconstitutional regulation. And it’s why we impeach each member of Congress who votes for legislation that is later ruled unconstitutional.

      I assume that this is true in some parallel universe where your version of Elizabeth Warren lives, yes?

      1. I’m assuming not-great sarcasm, because Smooth is smarter than that.

  11. The focus on the President’s inability to remove the head of the CFPB from office seems to be misguided.
    The real question should be whether the President’s inability to nullify any particular order of the CFPB makes the CFPB unconstitutional. I think that the answer to that question is yes, but that it is easily fixable.
    Since the President is vested with all of the executive power under the Constitution, it follows that no executive action can be taken by anyone in the government without the President’s effective consent.
    Thus, the CFPB (and every similar body created by Congress) would be constitutional if it were subject to having its executive actions nullified by the President. (Indeed, the Court may be able to save the CFPB by holding that the President has the inherent power to nullify executive actions of which he disapproves.)

    1. “The real question should be whether the President’s inability to nullify any particular order of the CFPB makes the CFPB unconstitutional. I think that the answer to that question is yes”

      Because it’s the President’s job to make laws?

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