CFPB Decides that the CFPB Is Unconstitutional

In a newly filed brief with the Supreme Court, the Justice Department claims the Consumer Financial Protection Board's structure is unlawful.

The Consumer Financial Protection Bureau began investigating the Seila Law for potential violations of federal telemarketing regulations. Seila Law was not cooperative, however. When the CFPB issued a civil investigative demand (CID) for relevant documents, Seila failed to comply. The CFPB went to court seeking an order forcing Seila's compliance, and Seila responded by contesting the CFPB's constitutionality. According to Seila, the CFPB's structure violates the separation of powers.

In May, the U.S. Court of Appeals for the Ninth Circuit rejected Seila's arguments. Seila responded with a petition for certiorari to the Supreme Court, and prompted an unusual response.

Today, the Department of Justice filed its response on behalf of the CFPB, and it was not the typical brief in opposition. Rather than argue against granting the petition, DOJ endorsed Seila's call for certiorari, and noted that the CFPB itself now accepts the argument (which DOJ had previously endorsed) that the CFPB, as structured, is unconstitutional. Specifically, DOJ and CFPB accept the argument that the prohibition on removal of the CFPB's Director absent cause is unconstitutional.

With both Seila Law and the federal government supporting certiorari, there's a decent chance the Supreme Court will accept this case for review -- adding another potential blockbuster to what is already a stacked Supreme Court term. If so, the Court will likely appoint an amicus to argue in defense of the CFPB's constitutionality. Expect a decision on the petition later this fall.

Comments

[Kazinski]

Not only is their structure unconstitutional, but their funding mechanism is even more egregiously unconstitutional.

[ReaderY]

Why would the Supreme Court have jurisdiction to review? In the absence of a disagreement, there is no controversy, and hence no Article III jurisdiction.

One of the side effects of the Article III case-or-controversy requirement ought to be that federal courts are not empowered to preside over collusive agreements between the Executive and plaintiffs to request that courts declare laws the President disagrees with politically unconstitutional. This would seem to be particularly the case where the court below has just found the law constitutional, making the idea that the law has no valid defense rediculous and rendering the political, collusive nature of the undertaking patent.

[Lee Moore]

Not quite sure I follow. Seila Law has an Appeal Court judgement against it, why should it not appeal and why should the Supreme Court not have juruisdiction to hear the appeal ?

The problem, Shirley, is that CFPB have chosen not to defend Seila Law's appeal before SCOTUS, rather than simply dropping any enforcement action against Seila Law (which would end the case or controversy.)

Presumably, the DoJ has concluded that telling the Appeal Court "OK thanks for your opinion, but we've concluded you're wrong, and so we're dropping the enforcement" might be open to criticism as

(a) a thumbing of noses at the courts
(b) precisely the sort of collusive agreement you disapprove of, without benefit of a favorable court judgement
(c) open to some challenge from someone who thinks Seila Law should be punished (yeah, standing, but c'mon this is nearly 2020)

So perhaps asking SCOTUS to confirm the DoJ's view that the 9th got it wrong, before proceeding with the nose thumbing etc might be more deferential to the judicial branch's amour propre.

After all a collusive ageement made in defiance of a court ruling is smellier than one made with the court's agreement. And if an amicus is appointed it is not as if the contrary opinion will not get a look in on this collusive agreement.

[Eddy]

Since there's an order from the lower court premised on the CFPB being constitutional, and the target company is challenging that order, I think there's a case/controversy. The question is whether the case for the CFPB will get a full hearing.

With a friend of the court appointed to defend the constitutionality of the CFPB - assuming that friend of the court is learned and prepared enough - then we can ensure both sides are heard.

I don't think the executive has to presume statutes constitutional until struck down. Executive branch officials take an oath or affirmation to uphold the Constitution, not to uphold every statute until it's specifically denounced by the courts.

[Stephen Lathrop]

Eddy, Article III requires the President "to take Care that the Laws be faithfully executed." Perhaps there is something to discuss when the President picks and chooses how to enforce a law which resources do not permit him to enforce completely, against every offender. But it is hard to see how he can join an alleged offender to argue the law should not be enforced at all, and then not enforce it. I think the Take Care clause does mean the President has to presume a law remains constitutional unless it has been struck down. If you supposed otherwise, why would that not negate the Take Care clause completely?

[Brett Bellmore]

Yes, the President is to take care that the laws be faithfully executed.

The highest of those laws is the Constitution.

And the theory behind judicial review is not that the courts are repealing laws, but rather that they are taking notice that, being contrary to that highest law, they are not real laws, just pretend enactments.

Why should the executive, no less and no more bound to the Constitution than the judiciary, not take the same view of what is and isn't a law?

[apedad]

"Why should the executive, no less and no more bound to the Constitution than the judiciary, not take the same view of what is and isn’t a law?"

C'mon, you know the answer - the President, under the Constitution, does not have the authority to question what is constitutional or not.

I definitely agree a President can chose to vigorously or meekly ensure that the laws be faithfully executed - but not their constitutionality.

[Brett Bellmore]

He has the same express authorization in the Constitution to do that as the judiciary do. (0=0)

The constitutionally mandated Presidential oath of office: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

He's not fulfilling his oath if he upholds a law he believes to be unconstitutional, and by the same reasoning the judiciary uses, such a "law" isn't actually a law anyway, and so doesn't invoke his take care obligation.

[jph12]

"C’mon, you know the answer – the President, under the Constitution, does not have the authority to question what is constitutional or not."

Not everyone agrees with you, including the last President.

"President Obama, in a striking legal and political shift, has determined that the Defense of Marriage Act — the 1996 law that bars federal recognition of same-sex marriages — is unconstitutional, and has directed the Justice Department to stop defending the law in court, the administration said Wednesday."

[James Pollock]

"Why should the executive, no less and no more bound to the Constitution than the judiciary, not take the same view of what is and isn’t a law?"

Judicial review is a judicial power, which is vested in the Supreme Court, and such lesser tribunals as the Congress shall see fit to establish.

[Bob from Ohio]

"Judicial review is a CLAIMED judicial power"

[James Pollock]

(Hint: 200 years of history suggests that they do, in fact, have the power of judicial review. But I'll play along.)

When the judges CLAIMED that they had the power of judicial review, the judicial power was the authority they used to CLAIM it.

[James Pollock]

"it is hard to see how he can join an alleged offender to argue the law should not be enforced at all, and then not enforce it."

Unconstitutional laws are void ab initio. As long as the President is in agreement with the courts about exactly which laws are unconstitutional, there's no constitutional crisis formed by having the President be the first to recognize it as such.

[FlameCCT]

I'm curious Stephen,

I don't remember you making this argument when the government and President refused to faithfully execute DOMA.

[Robert Beckman]

He didn’t, at least not here. And by here I mean two sites ago.

If you search on google for “lathrop doma site:Volokh.com” you’ll find no responsive comments at all, even though he was active in the appropriate era (hard to blame him if he hadn’t joined the conspiracy, even if only as an interloper, at the time).

But remember, Trump is worse than Hitler (or maybe literally Hitler), And the US population should be in the position of the Jews in the ghettos - effectively disarmed. If people were consistent, they’d either drop the histrionic objections to Trump, or try to get the NFA and GCA repealed. Not that Stephens this bad, but it’s the same syndrome, he just has a lesser case of it.

[Brett Bellmore]

Humans by and large lack the capacity to be consistent, even where they desire to be. It's an ideal we can only distantly aspire to, and usually succeed only where we aren't emotionally invested.

If we had that capacity, we'd be a rather different species.

[Lee Moore]

Probably an extinct one. There's no reason at all to believe that intellectual consistency would be more evolutionarily adaptive than selecting whatever suits my interests from time to time.

Sure, in a long lived species armed with memory, getting longer term co-operation from others may be helped by things like honesty, trustworthiness and consistency. But only up to a point.

I've noticed for example how common it is for people to try to build up a career record for probity and fair dealing only to cash it in for a lump sum at the end. Whether with a seat on the Board of some shady company which wants a bit of your kudos, or a tell all book, or an endorsement for Todger erection pills.

[Robert Beckman]

Very true. It’s the same reason that overreacting to news that the sky is falling is so prevalent.

Millennial ago, two guys both heard a rustle in the leaves. The first one said “it’s probably nothing,” and was right most of the time. The second one said “it’s a tiger!” and ran every time. We descended from the second guy, not the first, even though he was right most of the time.

[James Pollock]

" We descended from the second guy, not the first"

I'm descended from the guy who moved to where the tigers weren't.

[Lee Moore]

We descended from the second guy, not the first, even though he was right most of the time.

I take your point in the spirit in which it was intended, but I rather doubt that you are correct. Running from hypothetical tigers all the time has a high opportunity cost. Besides which you may run straight into a bear.

And while failing to run from a real tiger has a fatal cost, so long as you have generated your 2.4 surviving children by the time the real tiger gets you, your genetic endowment still finishes up ahead.

You will have noticed that the majority of the world's population lives in zones subject to volcanic eruptions, earthquakes, flooding and terrifying storms. Although these zones are dangerous, they also offer a good living.

There's no such thing as a safe space when it comes to passing on your genes.

[markm23]

But you also are not descended from the guy that thought every rustle in the leaves was a tiger, because he spent all his time running from imaginary tigers and starved to death.

[Stephen Lathrop]

Flame, you are probably right. It's nothing to do with the issues here. I can't recall much participating in any of the gay rights threads.

[3ducerist]

Is this one of those where the argument doesn't necessarily address the legality of the issue at hand? What I mean: while both sides agree that their structure is unconstitutional (which I tend to agree here) it doesn't necessarily mean that their investigation is unconstitutional and there for Seila Law still has to comply with their CID?

[Rossami]

If CFPB's fundamental structure is unconstitutional, then nothing they do under the auspices of that structure is constitutional. In particular, they would have no enforcement authority.

They might be right on the money about suspected wrong-doing but they can't be the ones to conduct the investigation. (They might, however, be able to pass their evidence over to some other agency who does have proper investigative powers. Maybe the SEC or the FBI?)

[Noscitur a sociis]

If CFPB’s fundamental structure is unconstitutional, then nothing they do under the auspices of that structure is constitutional. In particular, they would have no enforcement authority.</i<

That is not DOJ's position: rather, they explain that the appropriate remedy is to sever the provision that limits the president's ability to remove the CFPB director. As they explain, what that would mean for this case is an open question:

In the court of appeals, the Bureau argued that even if the removal restriction were unconstitutional, petitioner would not be entitled to relief because the former Director’s issuance of the CID was ratified by the Bureau’s then-Acting Director, who could be removed by the President at will. See Resp. C.A. Br. 13-19. But the court of appeals did not address this remedial issue, and it would not prevent the Court’s resolution of the question presented. The Court has often observed that it is “a court of final review and not first view” and therefore does not ordinarily “decide in the first instance issues not decided below.” Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012) (citations omitted). The Court has previously declined to address whether a ratification has cured a constitutional infirmity when the court of appeals had not first addressed that question. See Lucia v. SEC, 138 S. Ct. 2044, 2055 n.6 (2018). There are compelling reasons to follow a similar course here.

[Don Nico]

If the structure itself is unconstitutional, how can it continue to exist spending taxpayer money?

[Lee Moore]

By a saving construction placing it within the taxing power.

[Eddy]

"If so, the Court will likely appoint an amicus to argue in defense of the CFPB's constitutionality."

Dig up Louis Brandeis, James McReynolds and O. W. Holmes, the dissenters in the Myers case.

Those three aren't doing anything else that I know of.

[rsteinmetz]

How about Senator Warren?
She went to Law School and dreamed up this monstrosity.

[FlameCCT]

Doubt she would take the case as she would be further exposed by her own monstrosity; which btw is a perfect example of her "plans" should she become President.

[donojack]

The rest of the occupants of the Dem clown car would be content to spend the Presidency hand waving and enjoying the perks, much like Obama. This one is very dangerous.

[Don Nico]

ANd she wanted to run it while remaining in the Senate. Even Obama understood that was grossly illegal.

[markm23]

Find the authors of the law creating the CFPB and require them to defend it - or pay all costs for both sides and the courts. If any of them still have a current lawyers license, require them to argue in court, with any deficiencies in their performance to be reported to their bar associations.

[TwelveInchPianist]

Why do we have to do this? The court should simply vacate the 9th circuit's ruling as moot, accept the parties' position that the CFPB is unconstitutional without finding so, and quash the CID based on the parties' position. Then if some future DoJ wants to argue that the CFPB is constitutional, it can.

And if the court's procedures don't allow that, it should fix them.

[donojack]

While I enjoy seeing its present state of impotency where its only enforcement mechanism, the DOJ, declares it unconstitutional, wouldn't it be better to let SCOTUS kill it once and for all? Otherwise you will have this rogue agency popping up from time to time depending on the political winds.

[BrotherMovesOn]

Twelve, gotta say, without more extensive research, gonna go with ReaderY on this.

[BrotherMovesOn]

"Today the Department of Justice filed its response on behalf of tha the CFPB, and it was not the typical brief in opposition."
Color me shocked. Who needs Veep?

[Stephen Lathrop]

This is just another item to add to the Bill of Impeachment. Trump is thumbing his nose at the Take Care clause in Article III.

[Armchair Lawyer]

Or he's viewing the current structure as unconstitutional, and because of that, he's expressly endorsing the take care clause.

[Ridgeway]

I look forward to Stephen's denunciation of Obama for inplementing DACA in direct contravention of the Take Care clause, and his full-throated endorsement of Trump's principled repeal thereof.

[Robert Beckman]

Alternatively, it would be entirely worth it to lose a Trump, and even lose a replacement for Ginsberg, if I’m doing so we finally hamstrung the rampant executive.

Of course, I don’t think that’s the trade, because most who are anti-Trump aren’t also pro-liberty, they just want their guy doing the rampaging.

[James Pollock]

"most who are anti-Trump aren’t also pro-liberty, they just want their guy doing the rampaging."

most who are pro-Trump ALSO aren't pro-liberty. I suspect a good number of them aren't even particularly pro-Trump so much as they are pro-anybody-who-isn't-a-progressive. Which is entirely their choice to make, even if it does reinforce the old saying about strange bedfellows.

[jubulent]

The DNC is currently on the same side as actual fascists, communists, and white supremacists. I don't think the bedfellows get much stranger than that.

[James Pollock]

Fantasy produces strange bedfellows, as well, it would seem.

[Brett Bellmore]

Historically speaking, there's hardly anything strange about the DNC being on the same side as white supremacists. Or communists, for that matter. And fascists and communists are kissing cousins to each other.

It IS kind of strange that Amercia's fascists chose to call themselves "anti-fascists", but, progs gotta newspeak.

[Martinned]

Guys, this is no way to run a country.

Even if the CFPB's setup is unconstitutional (I express no opinion), it's the constitution that's wrong, not the CFPB. I'm old enough to remember when the imperial presidency was a Bad Thing, rather than a constitutional requirement.

Similarly, having statutes simply become unconstitutional because the president refuses to defend them, as some commenters are suggesting, is no way to run a country. I get why it would be appealing to some here, but think about it this way: someday the same might happen to Trump's Kick Out The Coloreds Act of 2021.

[Brett Bellmore]

There's a bit of a stretch between an "imperial" presidency, and a presidency constitutionally entitled to hire (With Congressional approval.) and fire its own subordinates.

And, sure, you can argue that the Constitution is wrong, but that's an argument for an amendment, not an argument for the courts to not uphold it.

[bernard11]

having statutes simply become unconstitutional because the president refuses to defend them, as some commenters are suggesting, is no way to run a country.

Yes, this process sounds absurd.

Congress passes Law ABC.

A government agency takes action under ABC against Company XYZ.

XYZ goes to court to argue that ABC is unconstitutional, and instead of the Supreme Court deciding that, the President decides it?

Sounds pretty imperial to me.

[donojack]

It's the only agency that has ever been created that is accountable only to itself. SCOTUS should take it and kill it.

[James Pollock]

"It’s the only agency that has ever been created that is accountable only to itself. SCOTUS should take it and kill it"

You seem to have left out any indication of why your conclusion follows from your premise.

[Brett Bellmore]

It follows directly from the structure of government created by the Constitution, which leaves no space for any federal governmental entity which is not fully within either the legislative, judicial, or executive branches. This agency is clearly by function within the executive branch, and as such must be subject to the President's authority as the head of that branch.

[M L]

James Pollock isn't up to speed on his 2nd grade civics. What are these "branches" of government you are talking about?

[James Pollock]

Fuck off, asshole.

Hey, whaddaya know? I've got 2nd-grade civics down pat!

[James Pollock]

"There’s a bit of a stretch between an 'imperial' presidency, and a presidency constitutionally entitled to hire (With Congressional approval.) and fire its own subordinates."

Lots of government employees are bound by civil service laws, which, among other things, restrict patronage and limit termination offenses.

I suppose one approach that hasn't been tried would be to place some officers under Article III authority. That's a power that the Congress unambiguously has.

[donojack]

Article II, Section 1. Congress created a little island of executive power not subordinate to the President.

[Bob from Ohio]

Martinned, don't you have some elderly person to drug and then murder in the Dutch custom.

Not interested in the opinion of someone from your country.

[Robert Beckman]

Do you actually think that all Trump supporters, either narrowly or broadly construed, are in favor of a “kick out the coloreds act?”

If not, what’s the purpose in adding it to a comment about governmental structure and the superiority of constitutions over statutes? This is an actually meaningful topic that yields different answers on the continent compared to America, but adding this in seems to deaden the entire impact of whatever point you’re really trying to make.

Unless, of course, your point is “only bigots want to curtail the excesses of power by locking it behind outright bans and arcane procedures, all right thinking people want unfettered government power to do good” (with “good” left to the reader to ascertain, of course).

[Bob from Ohio]

"what’s the purpose in adding it to a comment"

He has a Europe is superior on all things attitude". He just can't resist a dig, its in 99% of his comments over the years.

[James Pollock]

" He just can’t resist a dig"

Paging Mr. Kettle. Mr. Kettle, please pick up a white courtesy telephone.

[Robert Beckman]

That’s the problem though. There’s an interesting discussion to be had over governmental structure, but when you make it by saying,

“(Interesting argument), but of course anyone who disagrees is necessarily evil, QED”

You don’t get that discussion. You also don’t convince anyone, so what’s the purpose of adding it, again, unless the point is to make yourself feel better (and you’re the type of person who feels aggrandized by ridiculing those you yourself think are lower than you). I find most comments about “punching down” to be vapid, but I don’t see how this is anything other than that to the person making the statement, so I genuinely want to know if there’s some angle here that’s interesting, or if it’s just public masturbatory conduct from someone who otherwise presents as a potentially thoughtful person.

[James Pollock]

WTF are you trying to say? (Respectfully).

[jph12]

"Even if the CFPB’s setup is unconstitutional (I express no opinion), it’s the constitution that’s wrong, not the CFPB."

No, but even if this was the case, the solution would be to amend the Constitution, not pretend it doesn't exist.

[M L]

"Even if the CFPB’s setup is unconstitutional (I express no opinion), it’s the constitution that’s wrong, not the CFPB."

Yes, clearly, the fundamental structure of the US government is all wrong, because its powers are separated into the executive, legislative, and judicial.

Obviously, you NEED to be able to create new, politically unaccountable bureaucracies outside of those branches, and gradually shift the formerly separated powers into the self-serving and self-perpetuating administrative state.

Thanks for the insight, moron.

[Alpheus W Drinkwater]

It must have been the part where he said he expressed no opinion on the CFPB's constitutionality that you interpreted as meaning that he thought the CFPB was constitutional. Also not sure how you interpreted this blog's request for all comments to be civil.

[M L]

Apologies to Martinned.

The comment I responded to expressed no opinion on constitutionality. Instead, it flippantly expressed the opinion that the Constitution's separation of powers is obviously "wrong" as a normative matter -- if indeed the constitution prevents the creation of independent powers such as the CFPB.

Further . . .

"I’m old enough to remember when the imperial presidency was a Bad Thing, rather than a constitutional requirement."

The CFPB is a part of the imperial presidency. Abolishing it would be an improvement. But moreover, the CFPB is also the (often improper) executive powers being siphoned off by the unaccountable bureaucratic state.

"Similarly, having statutes simply become unconstitutional because the president refuses to defend them, as some commenters are suggesting, is no way to run a country."

True. But are the statutes simply "becoming" unconstitutional? Meaning, they weren't before?

[OtisAH]

This is fantastic news for professional scammers like Wells Fargo all the way down to the lowliest snake-oil salesman. From corruption throughout the administration to the rise of junk insurers plaguing the elderly, and everything and everyone in-between and all around the edges, we are bearing witness to a new Golden Age of Grift.

After all this time we finally know to which era of greatness we aspire: the Gilded Age. See? Nothing to do with racism at all. Just greed and exploitation. And about half the country keeps saying “Thank you, could I please have some more?”

[Bob from Ohio]

Whatever did we do for the first 220 years before CFBP?

We have a Justice Department and dozens of US Attorneys to prosecute criminal fraud.

[donojack]

It should have been named the Deadbeat Coddling and Protection Bureau. Among other egregious provisions a mortgagee has to wait 120 days before even contacting a mortgagor about delinquency.

[Sarcastr0]

Yes, the lenders are never predatory - it is the poors that are always wrong.

[donojack]

Please tell us what you think constitutes a "predatory" lender. Is it someone who goes out and grabs an unsuspecting victim and forces him to accept money that he probably will never repay, and for which there is little to no consequence in failing to do so?

The CFPB has jimmied it so that a mortgagor, in conjunction with strategic bankruptcy, can get at least a year's free ride before foreclosure. And if they are too dumb to know how to do it the CFPB is there for them with free advice about how to game the system.

[James Pollock]

" tell us what you think constitutes a 'predatory' lender."

That's a lender that seeks to capture the debtor, via undisclosed or poorly disclosed fees and terms, or terms subject to change at the creditor's sole option, or through outright misrepresentation, into a loan that unfairly favors the creditor at the expense of the debtor(s).

Around a decade ago the term took on a secondary meaning, a lender that generated much of its income from originating loans rather than servicing them, which gave them a conflict of interest... they made more money making lots of bad loans, rather than making fewer, sounder loans. When the loan originator makes money by talking people into loans they can't afford, and makes no money by telling them "You really can't afford this", guess which outcome is more likely?

"Strategic" bankruptcy isn't much help, either... in chapter 7, you have to give up the assets, and in chapter 13, you get a choice... keep the assets you can actually keep paying for, or give up the assets. "Strategic" bankruptcy is only meaningful in a chapter 11 context.

[donojack]

Sorry but you don't understand anything about strategic bankruptcy. They file a Chapter 13 petition which gives them a six week automatic stay, then a hearing at which they propose a "plan" for repayment. Then the so-called plan gets reviewed and by the time it gets rejected for being completely ridiculous they have bought themselves six months or more.

[James Pollock]

My mistake. I assumed "strategic" meant that you obtained something you otherwise wouldn't have obtained otherwise, more cheaply.
Using your definition, I guess you're right.

[M L]

What a joke!

Why not leave usury laws to the states?

[James Pollock]

"Why not leave usury laws to the states?"

Because it's proven to be ineffective?

[Brett Bellmore]

"Ineffective" doesn't mean the same thing as, "Some states won't implement your preferred policy." Part of the point of leaving things to the states is to NOT make uniform across the country policies people don't actually agree about.

[OtisAH]

There you have it, folks. If any of you previously believed you’d never see someone outside of Debate Club argue in favor of usury (and, I assume, other abusive business practices), it turns out you were wrong.

[M L]

The CFPB deciding itself unconstitutional is Frodo if he had thrown the ring into the volcano.

Martinned and others above are Gollum trying to snatch the ring from destruction.

[James Pollock]

In this construct, you are Sauron's anus.

[donojack]

I don't think so. The President appoints the Board members and he can remove them for cause.

[Brett Bellmore]

I was going to write that I'd include the FED. But on reviewing Article II, I find the following: "but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

It seems reasonable that, if Congress can vest the appointment of inferior officers in somebody other than the President, it can vest their removal in somebody other than the President, or condition it.

So the question becomes whether the members of the CFBP are "inferior officers". Per Edmond v. United States, "“the term ‘inferior officer’ connotes a relationship with some higher ranking officer or officers below the President: Whether one is an ‘inferior’ officer depends on whether he has a superior … in the context of a Clause designed to preserve political accountability relative to important Government assignments, we think it evident that ‘inferior officers’ are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.”

Ok, I think it's clear that neither the members of the Fed nor of the CFBP are "inferior officers", because they are directly chosen by the President, and particularly because they don't take orders from anybody else.

So, on reflection, both the Fed and the CFBP suffer this problem: They are staffed with officers whose selection AND dismissal should be at the discretion of the President.

[Robert Beckman]

Anecdotally, I now receive far more telemarketing calls to my cell phone, and with fraudulent caller IDs done by spoofing the ANI, than only a few years ago.

This could easily be other things, like how it’s much easier to do this now than before, but it’s at least one thing the CFPB could do something about that’s gotten worse during the Trump administration compared to the Obama administration.

[David Nieporent]

Not sure why you think the CFPB has jurisdiction over telemarketing.

[Brett Bellmore]

To be fair, it was getting worse during the Obama administration, too, it just didn't stop getting worse when Trump took office.

[Ridgeway]

Isn't that the same standard (terminable only for cause) that DOJ is agreeing is an unconstitutional restriction on POTUS' power?

[Rossami]

Not quite. The Supreme Court has said that the Federal Reserve standard is okay because there are multiple co-equal board-members who hold each other in check. SCOTUS has said that other agencies with only one person at the top are okay because that person can be fired at will by the President. The CFPB is unique in having only one person at the top who can only be fired "for cause", meaning that there is basically nothing to keep that person in check.

[Stephen Lathrop]

mad_kalak, the executive branch has no such right. It is obliged to honor the Take Care clause. To suggest an independent power in the executive do decide an act is unconstitutional would violate separation of powers, and render the Take Care clause a nullity.

[jph12]

he says, completely without evidence.

[jph12]

"To suggest an independent power in the executive do decide an act is unconstitutional would violate separation of powers"

Was Obama wrong to end enhanced interrogation without a Supreme Court decision declaring it torture, or could he do that on his own?

Is it wrong for a FBI agent to refrain from conducting a search because he thinks it might violate the Fourth Amendment, even if there isn't a judicial decision establishing that?

[James Pollock]

"meaning that there is basically nothing to keep that person in check."

Except that they can be fired "for cause", and acting beyond authorization would be just cause for termination. (Granted, there might be spirited debate about whether or not the agency head was acting beyond authorization when terminated. If only the federal government had some kind of forum where people could bring their disputes, specifically about Constitutional and statutory interpretation.

[Alpheus W Drinkwater]

"Was Obama wrong to end enhanced interrogation without a Supreme Court decision declaring it torture, or could he do that on his own?"
Yes, it certainly would have been wrong if Congress had mandated enhanced interrogation. Are any of you actually defending the argument that the President can disregard a law passed by Congress because he deems it unconstitutional? Hard to see what would cabin that power.

[James Pollock]

"Are any of you actually defending the argument that the President can disregard a law passed by Congress because he deems it unconstitutional?"

Yes. In fact, I wrote that down in a comment right here, in response to this very blog article.
The catch is, he'd better be right.

[jph12]

"Yes, it certainly would have been wrong if Congress had mandated enhanced interrogation."

Seems like you are willing to let the legislature intrude pretty far onto the executive's turf. But Congress hadn't, so it doesn't much matter. What about with what actually happened?

"Are any of you actually defending the argument that the President can disregard a law passed by Congress because he deems it unconstitutional?"

Yes. Are you really defending the argument that the President should be forced to violate the Constitution because of a law passed by Congress?

"Hard to see what would cabin that power."

Well, there just happens to be a third branch that can serve as a tie breaker. Plus, there's the impeachment power if the President really gets out of line.

[Alpheus W Drinkwater]

And I think you were wrong then also. He can challenge the law in court (or decide not to defend it when someone else challenges it), but he still has to abide by that law until it's struck down by an article three court. I'm having a hard time believing you are actually making this argument.

[Alpheus W Drinkwater]

JPH:
"Seems like you are willing to let the legislature intrude pretty far onto the executive’s turf..."

Ha ha you gave that example, not me.

"Yes. Are you really defending the argument that the President should be forced to violate the Constitution because of a law passed by Congress?"

Sort of. I'm defending the argument that the President does not have the power to disregard a law passed by Congress, full stop.

"Well, there just happens to be a third branch that can serve as a tie breaker. "

Exactly. But until that third branch acts, the President does not have the authority to negate a law passed by Congress. If he has that power, then Congress has no power, except for impeachment.

[jph12]

"Ha ha you gave that example, not me."

No, in the example I gave Congress hadn't passed a law requiring enhanced interrogation. That was a detail you added.

"Sort of. I’m defending the argument that the President does not have the power to disregard a law passed by Congress, full stop."

Then there's no sort of about it. You are defending the argument that Congress can force the President to violate the Constitution simply by passing a law (and overriding his veto).

"Exactly. But until that third branch acts, the President does not have the authority to negate a law passed by Congress. If he has that power, then Congress has no power, except for impeachment."

Impeachment is designed to be used by Congress as a check on the President, so it can't be disregarded as a power. But Congress also has the power of the purse, which it can use against rebellious presidents. Congress also has the power to pass constitutional laws. Congress has all kinds of powers.

[James Pollock]

"He can challenge the law in court (or decide not to defend it when someone else challenges it), but he still has to abide by that law until it’s struck down by an article three court."

Repeating this claim doesn't make it any truer. Where in the Constitution does it say the President has to keep abiding by an unconstitutional law until it's struck down by an article III court?

[Rossami]

Nope. Being firable "for cause" does not establish the required checks and balances. Especially not in an organization that has (or alleges that it has) the authority to define its own scope of authorization.

[James Pollock]

"Being firable “for cause” does not establish the required checks and balances. "

Way to state your conclusion as a premise. Saves all that work evidence-gathering or argument building. Just boom! "my claim is right", no need to add anything more...