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Old 10-22-2019, 04:23 PM
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Is Elizabeth Warren's signature achievement (the CFPB) unconstitutional?


This article, "The Supreme Court Is Poised to Strike Down a Major Obama-Era Agency", does a pretty good job of outlining the constitutional case against the CFPB:

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The CFPB is the most independent of independent agencies, with power to make rules, enforce them, adjudicate violations in its own administrative hearings, and punish wrongdoers. And yet a single director heads the agency, one who can be removed only “for cause” — malfeasance rather than, say, a change in presidential policy priorities. The CFPB doesn’t even need Congress to approve its budget, because its funding requests are rubber-stamped by another agency insulated from political control: the Federal Reserve. The CFPB has regulatory authority over 19 federal consumer-protection laws. This concentration of power in the hands of a single, unelected, unaccountable official is unprecedented and cannot be squared with the Constitution’s structure, or with its purpose of protecting individual liberty from government overreach.
Does this give any Warren fans here pause / cause for concern, either due to the constitutional implications or her electoral prospects? I imagine that an adverse (for the CFPB) ruling is going to be used as fodder in campaign commercials against Warren.
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Old 10-22-2019, 04:25 PM
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I support the mission of the CFPB, but I generally agree that these are concerning structural issues.
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Old 10-22-2019, 04:36 PM
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That's "consumer finance protection bureau", for anyone who doesn't have all of the governmental acronyms memorized.
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Old 10-22-2019, 04:39 PM
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Old 10-22-2019, 04:55 PM
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First, tell me why you consider to be her "signature achievement," then we can say whether that achievement was unconstitutional.

Recognize that Warren recommended that the government create a Consumer Financial Protection Board, which would have been a bipartisan board with multiple Senate-confirmed members who would have jointly exercised authority. Warren was a citizen who advocated for such an agency to be created and she failed in this objective because the agency that Congress created did not have this structure. Since this failure was obviously not her "signature achievement," I'd like to know what you are referring to in your heading before I answer.
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Old 10-22-2019, 05:19 PM
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That the previous decisions will be overturned is a stretch, at best.

Even Kavanaugh argues that the CFPB itself is not unconstitutional, only the "for cause" protection for the director. And even that has repeatedly been upheld by the Supreme Court in the past, notably when FDR fired a FTC commissioner under the same protection.
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Old 10-22-2019, 05:24 PM
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Originally Posted by Tired and Cranky View Post
First, tell me why you consider to be her "signature achievement," then we can say whether that achievement was unconstitutional.

Recognize that Warren recommended that the government create a Consumer Financial Protection Board, which would have been a bipartisan board with multiple Senate-confirmed members who would have jointly exercised authority. Warren was a citizen who advocated for such an agency to be created and she failed in this objective because the agency that Congress created did not have this structure. Since this failure was obviously not her "signature achievement," I'd like to know what you are referring to in your heading before I answer.
Seems like a stupid quibble to me:

(emphasis mine)

Also, from the NYT - Joe Biden Stresses His Part in Elizabeth Warren’s Signature Accomplishment

The Intercept - JOE BIDEN, IN STUMBLING DEBATE PERFORMANCE, CLAIMS CREDIT FOR ELIZABETH WARREN’S SIGNATURE ACHIEVEMENT

Mother Jones - Biden Snaps At Warren: My Help Secured Your Signature Legislative Achievement

Last edited by HurricaneDitka; 10-22-2019 at 05:27 PM.
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Old 10-22-2019, 05:44 PM
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You started this thread to quibble. I want to make sure I know what we are quibbling about. Also, I asked you why you considered this her signature achievement. You linked to other people rather than explaining yourself. That doesn't answer my question.

In my opinion, her signature achievement thus far has been starting up the CFPB as its interim head. She exercised her duties commendably. She did so in a role where she served at the President's pleasure, so the constitutional concerns raised by the lawsuit concerning the CFPB's structure were not implicated by her service in that role. So the answer to your question is "no," there is nothing unconstitutional about her signature achievement.

If you are going to suggest that any purported constitutional defect in the agency's structure is due to a fault in her recommendations, you are ignorant of what she recommended.
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Old 10-22-2019, 06:05 PM
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You started this thread to quibble. I want to make sure I know what we are quibbling about. ...
Then you should have read the title. It's made clear there.

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.... Also, I asked you why you considered this her signature achievement. You linked to other people rather than explaining yourself. That doesn't answer my question. ...
I linked to other people to show that it's a common perception. I personally consider it her signature achievement because I don't think she's accomplished anything else worth the label in her whole life. She, no shit, lists the CFPB as one of her children on Twitter:

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.... If you are going to suggest that any purported constitutional defect in the agency's structure is due to a fault in her recommendations, you are ignorant of what she recommended.
You've alluded to this twice and haven't provided a source either time. Do you have a cite for Elizabeth Warren's recommendation "that the government create a Consumer Financial Protection Board, which would have been a bipartisan board with multiple Senate-confirmed members who would have jointly exercised authority"?
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Old 10-22-2019, 06:08 PM
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Let's remember FDR proposed many programs that were later determined to be unconstitutional. That's what the courts are for, to help us figure out what can and cannot be done consistent with the Constitution. As far as I know, there was no dishonesty or asking for foreign assistance. Warren is not on my short list for the nomination, but even if she was, her involvement with this agency seems like a good accomplishment, even if the Court later strikes it down. There's no scandal here.
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Old 10-22-2019, 07:44 PM
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Then you should have read the title. It's made clear there.


I linked to other people to show that it's a common perception. I personally consider it her signature achievement because I don't think she's accomplished anything else worth the label in her whole life. She, no shit, lists the CFPB as one of her children on Twitter:




You've alluded to this twice and haven't provided a source either time. Do you have a cite for Elizabeth Warren's recommendation "that the government create a Consumer Financial Protection Board, which would have been a bipartisan board with multiple Senate-confirmed members who would have jointly exercised authority"?
I don't have the time or interest to be your researcher. Can you support the claim that the constitutionalyl suspect structure of the CFPB is Warren's greatest legislative accomplishment? Please note that she was not a legislator when the Dodd-Frank Act was adopted.
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Old 10-22-2019, 07:51 PM
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We need a consumer finance prevention board.

That is her signature issue.
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Old 10-22-2019, 07:55 PM
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Originally Posted by Tired and Cranky View Post
I don't have the time or interest to be your researcher. Can you support the claim that the constitutionalyl suspect structure of the CFPB is Warren's greatest legislative accomplishment? Please note that she was not a legislator when the Dodd-Frank Act was adopted.
Ok, what do you think is Warren's signature achievement?
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Old 10-22-2019, 08:08 PM
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Ok, what do you think is Warren's signature achievement?
I don't believe that is relevant to Mr. Ditka's OP.
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Old 10-22-2019, 08:17 PM
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I don't believe that is relevant to Mr. Ditka's OP.
Neither do I but, boy oh boy, does Tired and Cranky ever think it is.

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Old 10-22-2019, 08:27 PM
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Neither do I but, boy oh boy, does Tired and Cranky ever think it is.
Nope. My opinion of Sen. Warren's legislative accomplishments are completely irrelevant. I am asking about HurricanDitka's opinions because it is necessary to understand his ambiguous, poorly defined question. We can't begin to answer the OP until HurricanDitka explains his question clearly.
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Old 10-22-2019, 08:39 PM
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Nope. My opinion of Sen. Warren's legislative accomplishments are completely irrelevant. I am asking about HurricanDitka's opinions because it is necessary to understand his ambiguous, poorly defined question. We can't begin to answer the OP until HurricanDitka explains his question clearly.
I'm sorry but it is you in the poorly defined category. Ditka's question is quite clear and you have latched on to his description as a "signature achievement" as if it matters. The CFBP is a major part of Warren's rise to prominence and you are making inane nitpicks.
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Old 10-22-2019, 08:51 PM
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I imagine that an adverse (for the CFPB) ruling is going to be used as fodder in campaign commercials against Warren.
Actually, after thinking about this for a bit, if the Supreme Court eliminated an agency designed to keep the billionaires who run banks from taking homes away from struggling Americans because of fraudulent mortgages, that would be a literal gift to Warren's campaign.

I'm not particularly a fan of Warren, but you're getting this totally wrong. This could win her the election.
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Old 10-22-2019, 08:51 PM
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Neither do I but, boy oh boy, does Tired and Cranky ever think it is.

Ditka's question is quite clear and you have latched on to his description as a "signature achievement" as if it matters. The CFBP is a major part of Warren's rise to prominence and you are making inane nitpicks.
The phrase "Warren's signature achievement' is part of HD's OP. That makes his definition, what he thinks it means, relevant from square one, before anyone including Tired and Cranky can respond on point.

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Old 10-22-2019, 09:06 PM
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The phrase "Warren's signature achievement' is part of HD's OP. That makes his definition, what he thinks it means, relevant from square one, before anyone including Tired and Cranky can respond on point.
No, it is not relevant because everyone here knows that it is an extremely important part of her rise in the Dem party. Whether it is "signature" or not is ridiculous pedantry.
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Old 10-22-2019, 09:11 PM
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Actually, after thinking about this for a bit, if the Supreme Court eliminated an agency designed to keep the billionaires who run banks from taking homes away from struggling Americans because of fraudulent mortgages, that would be a literal gift to Warren's campaign.

I'm not particularly a fan of Warren, but you're getting this totally wrong. This could win her the election.
I would tend to agree. If a court rules against this, people aren't going to be fainting at the thought that somehow Warren is responsible for this monstrously unconstitutional agency. Rehashing the bank collapse/bailout of 2008-2010 isn't going to hurt Warren.
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Old 10-22-2019, 10:48 PM
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I don't have the time or interest to be your researcher. ...
I'm not asking you to be my researcher. I'm asking you to support the claim you made. You appear to be unable or unwilling to do so.

Last edited by HurricaneDitka; 10-22-2019 at 10:50 PM.
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Old 10-22-2019, 10:50 PM
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Actually, after thinking about this for a bit, if the Supreme Court eliminated an agency designed to keep the billionaires who run banks from taking homes away from struggling Americans because of fraudulent mortgages, that would be a literal gift to Warren's campaign.

I'm not particularly a fan of Warren, but you're getting this totally wrong. This could win her the election.
That's a reasonable perspective. It's certainly a possibility that it ends up a political positive for her.
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Old 10-23-2019, 12:19 PM
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I recently did some research on this area of constitutional law, for The Trump Inquiry thread:
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The President "shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States." U.S. Const. art. II, § 3.

The President has a personal responsibility to see that the Laws are faithfully executed. If he has not the power to remove insubordinate officers, how can he fulfil his duty? The reasonable inference is that "in the absence of any express limitation respecting removals, that as [the president's] selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he can not continue to be responsible." Myers v. United States, 272 U.S. 52 (1926), citing Fisher Ames, 1 Annals of Congress, 474.

But the President is not without limits. He is not at liberty to remove officials who exercise what are essentially legislative or judicial powers, as opposed to executive powers. Humphrey's Executor v. United States, 295 U.S. 602 (1935). (Holding that a member of the Federal Trade Commission is not subject to the President's removal power except as specified by statute, because the FTC exercises quasi-legislative powers). See also Weiner v. United States, 357 U.S. 349 (1958). (Holding that the President may not remove quasi-judicial officers from the War Claims Commission except as specified by statute).

But what if Congress creates an office charged with executing the law? Can Congress deny the President the power to remove officials that execute the law? The Supreme Court has explicitly answered that question in the negative. "Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment." Bowsher v. Synar, 478 U.S. 714 (1986).

The most recent and most relevant case on removal power is Morrison v. Olson, 487 U.S. 654 (1988). There the Court held that "the real question is whether the removal restrictions are of such a nature that they impede on the President's ability to perform his constitutional duty [to take care that the laws are faithfully executed], and the functions of the officials in question must be analyzed in that light". After considering the temporary nature of the office, its limited jurisdiction, and its oversight purpose, the Court ruled that the President through the Attorney General cannot remove the independent counsel but for cause, as statute specifies.
It would appear that Congress added the CFPB Director's removal restriction to comply with Bowsher. In my opinion Morrison should control the current case.

The lower opinions are available on the Supreme Court's server at https://www.supremecourt.gov/DocketP...onAppendix.pdf.

The district court's opinion rests heavily on its earlier opinions in CFPB v. Future Income Payments, 2017 WL 2190069, available at https://www.courtlistener.com/recap/...70869.47.0.pdf (at p. 11), and CFPB v. Morgan Drexen, Inc, 60 F. Supp. 3d 1082 (C.D. Cal. 2014), available at eg: https://www.courtlistener.com/recap/...69569.40.0.pdf (at p. 5)

ETA: From Morgan Drexen:
Quote:
It is no more difficult for the President to assure that the Director of the CFPB is "competently performing his or her statutory responsibilities," id. at 692, than it was for the President to oversee the leadership of the FTC at the time of Humphrey’s Executor. In fact, if the President had needed to fully revamp the leadership of the FTC at that time, he would have been required to affect five separate for cause removals, while only one is required in order to change the leadership of the CFPB.
~Max

Last edited by Max S.; 10-23-2019 at 12:24 PM.
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Old 10-23-2019, 01:02 PM
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This article, "The Supreme Court Is Poised to Strike Down a Major Obama-Era Agency", does a pretty good job of outlining the constitutional case against the CFPB:
If that's the best outline of the case, the case is shit. Congress can close the CFPB tomorrow if it wants to.
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Old 10-23-2019, 01:08 PM
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If that's the best outline of the case, the case is shit. Congress can close the CFPB tomorrow if it wants to.
In my understanding the question is whether Congress (through the Dodd-Frank Act) is unconstitutionally infringing on the President's executive power by preventing him from firing at will an officer who "enforces" the law.

The petitioner's brief is available at https://www.supremecourt.gov/DocketP...Certiorari.pdf

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Old 10-23-2019, 02:10 PM
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In my understanding the question is whether Congress (through the Dodd-Frank Act) is unconstitutionally infringing on the President's executive power by preventing him from firing at will an officer who "enforces" the law.

The petitioner's brief is available at https://www.supremecourt.gov/DocketP...Certiorari.pdf

~Max
Humphrey, which you cited earlier, answers that. It states the President cannot fire an FTC commissioner for political reasons, but only for cause, as provided for in the FTC's creation.

85 years later, we still have a FTC, and it's commissioners still have that same protection. The National Review gets all breathless because it's "OMG ONE PERSON CONTROLS EVERYTHING OMG OMG OMG START THE PEARL CLUTCHING", but literally no one has advocated shutting down the entire CFPB. The worst case scenario - Kavanaugh - is that the director no longer enjoys the "for cause" protection, which is weak in light of Humphrey.

Given that Morrison ALSO provides the same "for cause" protection, I don't know how that helps the National Review OR HurricaneDitka's positions.
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Old 10-23-2019, 02:43 PM
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The "Failure by association" gambit?
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Old 10-23-2019, 02:56 PM
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Humphrey, which you cited earlier, answers that. It states the President cannot fire an FTC commissioner for political reasons, but only for cause, as provided for in the FTC's creation.

[...]

Given that Morrison ALSO provides the same "for cause" protection, I don't know how that helps the National Review OR HurricaneDitka's positions.
Right, the lower courts explicitly used Morrison and Humphrey's Executor to rule against Salia Law.

The base of the present appeal is that the lower courts were wrong. See the counterargument from petitioner's brief starting at p. 20. Basically, they are arguing that the CFPB possesses substantially more executive power and substantially less procedural safeguards, enough to differentiate it from the FTC as it existed in 1935. They caution a slippery slope by which Congress effectively restructures the rest of the executive branch so as to strip the President of his ability to remove officers except for cause.

~Max
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Old 10-23-2019, 03:17 PM
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Right, the lower courts explicitly used Morrison and Humphrey's Executor to rule against Salia Law.

The base of the present appeal is that the lower courts were wrong. See the counterargument from petitioner's brief starting at p. 20. Basically, they are arguing that the CFPB possesses substantially more executive power and substantially less procedural safeguards, enough to differentiate it from the FTC as it existed in 1935. They caution a slippery slope by which Congress effectively restructures the rest of the executive branch so as to strip the President of his ability to remove officers except for cause.

~Max
That is, in fact, their argument. And it's bullshit. If the director is not "faithfully executing the law", as is the province of the executive branch, that certainly follows under ANY of "inefficiency, neglect of duty, or malfeasance in office" - also known as the reasons the director can be removed by the President. The director of the CFPB cannot be fired for political reasons. That is a good thing. It insulates the bureau from the whims of fraudsters like Trump.

Let's just get this settled so Selia Law can get smacked down by the CFPB as scam artists like was going to happen before the babies started crying about the CONSTITUTION.
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Old 10-23-2019, 03:24 PM
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By the way, Seila Law seem like real shitbirds. They are selling some kind of debt consolidation/debt relief products, and they are being invesigated for deceptive practices. The company basically responds, "You're illegal! We're a law firm and unaccountable to investigations! We won't tell you if our founder has established other shell companies to do this same work!"
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Old 10-23-2019, 03:39 PM
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In my understanding the question is whether Congress (through the Dodd-Frank Act) is unconstitutionally infringing on the President's executive power by preventing him from firing at will an officer who "enforces" the law.

The petitioner's brief is available at https://www.supremecourt.gov/DocketP...Certiorari.pdf

~Max
I understand that. But they haven't (and can't) explain how the CFPB differs from other independent executive agencies such as the FEC.
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Old 10-23-2019, 03:44 PM
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That is, in fact, their argument. And it's bullshit. If the director is not "faithfully executing the law", as is the province of the executive branch, that certainly follows under ANY of "inefficiency, neglect of duty, or malfeasance in office" - also known as the reasons the director can be removed by the President. The director of the CFPB cannot be fired for political reasons. That is a good thing. It insulates the bureau from the whims of fraudsters like Trump.

Let's just get this settled so Selia Law can get smacked down by the CFPB as scam artists like was going to happen before the babies started crying about the CONSTITUTION.
It's not only the take care clause. The opening clause of Article II vests the executive power in a President of the United States, and it is argued that the Dodd-Frank Act violates that grant of power when Congress vests the executive power in an independent official.

Notably the CFPB can of its own accord bring suit in federal courts against individuals, whereas the FDC of 1935 could only recommend that the President bring suit or produce reports for Congress. 12 U.S.C. 5564(a). This power in particular is quite literally "executing the law", and the argument is that the Constitution grants that power to the President, and that Congress cannot by statute vest the President's executive power into an independent civil officer.

~Max
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Old 10-23-2019, 03:47 PM
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By the way, Seila Law seem like real shitbirds. They are selling some kind of debt consolidation/debt relief products, and they are being invesigated for deceptive practices. The company basically responds, "You're illegal! We're a law firm and unaccountable to investigations! We won't tell you if our founder has established other shell companies to do this same work!"
Yeah, no kidding. I agree with the district court that even if the restriction is unconstitutional, that's not going to save them from the subpoenas. I'm not sure how they gained standing for the constitutional question, but it seemed like a settled matter so I skipped that section.

~Max
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Old 10-23-2019, 03:51 PM
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FDC of 1935
FTC

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Old 10-23-2019, 04:33 PM
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Notably the CFPB can of its own accord bring suit in federal courts against individuals, whereas the FDC of 1935 could only recommend that the President bring suit or produce reports for Congress. 12 U.S.C. 5564(a). This power in particular is quite literally "executing the law", and the argument is that the Constitution grants that power to the President, and that Congress cannot by statute vest the President's executive power into an independent civil officer.
This is particularly weak because the Court expressly compared the special counsel's law enforcement powers with the FTC's "authority to bring civil actions to recover civil penalties". 487 U.S. 692, note 31. (page 39 of https://cdn.loc.gov/service/ll/usrep...srep487654.pdf)

~Max
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Old 10-23-2019, 08:24 PM
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This is particularly weak because the Court expressly compared the special counsel's law enforcement powers with the FTC's "authority to bring civil actions to recover civil penalties". 487 U.S. 692, note 31. (page 39 of https://cdn.loc.gov/service/ll/usrep...srep487654.pdf)



~Max
Wait, so the FTC can bring civil actions, and that's constitutional. But because the CFPB can bring civil actions, it's unconstitutional?

So that argument is worth as much as the first.

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Old 10-24-2019, 12:47 AM
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That's a reasonable perspective. It's certainly a possibility that it ends up a political positive for her.
It would be even more positive to keep the board and elect Warren. For the country, of course.
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Old 10-24-2019, 09:45 AM
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Wait, so the FTC can bring civil actions, and that's constitutional. But because the CFPB can bring civil actions, it's unconstitutional?

So that argument is worth as much as the first.

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Well, as a footnote to what was already ober dictum, that "ruling" on the constitutionality of FTC civil actions probably won't be acknowledged stare decisis. It would appear that the current case is relitigation of that note.

~Max

Last edited by Max S.; 10-24-2019 at 09:45 AM. Reason: grammar
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Old 10-24-2019, 08:10 PM
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Originally Posted by Max S. View Post
Well, as a footnote to what was already ober dictum, that "ruling" on the constitutionality of FTC civil actions probably won't be acknowledged stare decisis. It would appear that the current case is relitigation of that note.

~Max
Why are you so sure of that? Given that is not in the petition for cert OR the issues before the Court, I'd be fairly confident they won't overturn THAT as well, in addition to the three precedents guiding the case.
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