# Is Elizabeth Warren's signature achievement (the CFPB) unconstitutional? **URL:** \ **Category:** Politics & Elections\ **Created:** [October 22, 2019, 8:23pm UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154 "2019-10-22T20:23:14Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [October 23, 2019, 1:11am UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/21 "2019-10-23T01:11:48Z")
> [@Ravenman](#): > > 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. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [October 23, 2019, 2:48am UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/22 "2019-10-23T02:48:23Z")
> [@Tired\_and\_Cranky](#): > > 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. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [October 23, 2019, 2:50am UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/23 "2019-10-23T02:50:33Z")
> [@Ravenman](#): > > 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. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 23, 2019, 4:19pm UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/24 "2019-10-23T16:19:59Z")
I recently did some research on this area of constitutional law, for The Trump Inquiry thread: > [@The Trump Impeachment Inquiry](https://boards.straightdope.com/t/the-trump-impeachment-inquiry/840771/3116): > > 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/DocketPDF/19/19-7/104482/20190628140649752\_18-\_PetitionAppendix.pdf](https://www.supremecourt.gov/DocketPDF/19/19-7/104482/20190628140649752_18-_PetitionAppendix.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/gov.uscourts.cacd.670869/gov.uscourts.cacd.670869.47.0.pdf](https://www.courtlistener.com/recap/gov.uscourts.cacd.670869/gov.uscourts.cacd.670869.47.0.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/gov.uscourts.cacd.569569.40.0.pdf](https://www.courtlistener.com/recap/gov.uscourts.cacd.569569.40.0.pdf) (at p. 5) ETA: From _Morgan Drexen_: > [@](#): > > 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 ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 23, 2019, 5:02pm UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/25 "2019-10-23T17:02:36Z")
> [@HurricaneDitka](#): > > [This article, “The Supreme Court Is Poised to Strike Down a Major Obama-Era Agency”](https://www.nationalreview.com/2019/10/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. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 23, 2019, 5:08pm UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/26 "2019-10-23T17:08:41Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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/DocketPDF/19/19-7/104482/20190628140628272\_18-\_PetitionForAWritOfCertiorari.pdf](https://www.supremecourt.gov/DocketPDF/19/19-7/104482/20190628140628272_18-_PetitionForAWritOfCertiorari.pdf) ~Max ---
**Author:** ![Chisquirrel](https://avatars.discourse-cdn.com/v4/letter/c/6bbea6/32.png) [@Chisquirrel](https://boards.straightdope.com/u/Chisquirrel)\ **Post date:** [October 23, 2019, 6:10pm UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/27 "2019-10-23T18:10:13Z")
> [@Max\_S](#): > > 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/DocketPDF/19/19-7/104482/20190628140628272\_18-\_PetitionForAWritOfCertiorari.pdf](https://www.supremecourt.gov/DocketPDF/19/19-7/104482/20190628140628272_18-_PetitionForAWritOfCertiorari.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. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [October 23, 2019, 6:43pm UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/28 "2019-10-23T18:43:22Z")
The “Failure by association” gambit? ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 23, 2019, 6:56pm UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/29 "2019-10-23T18:56:09Z")
> [@Chisquirrel](#): > > 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 ---
**Author:** ![Chisquirrel](https://avatars.discourse-cdn.com/v4/letter/c/6bbea6/32.png) [@Chisquirrel](https://boards.straightdope.com/u/Chisquirrel)\ **Post date:** [October 23, 2019, 7:17pm UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/30 "2019-10-23T19:17:58Z")
> [@Max\_S](#): > > 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. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [October 23, 2019, 7:24pm UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/31 "2019-10-23T19:24:20Z")
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!” ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 23, 2019, 7:39pm UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/32 "2019-10-23T19:39:53Z")
> [@Max\_S](#): > > 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/DocketPDF/19/19-7/104482/20190628140628272\_18-\_PetitionForAWritOfCertiorari.pdf](https://www.supremecourt.gov/DocketPDF/19/19-7/104482/20190628140628272_18-_PetitionForAWritOfCertiorari.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. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 23, 2019, 7:44pm UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/33 "2019-10-23T19:44:39Z")
> [@Chisquirrel](#): > > 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 ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 23, 2019, 7:47pm UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/34 "2019-10-23T19:47:41Z")
> [@Ravenman](#): > > 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 ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 23, 2019, 7:51pm UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/35 "2019-10-23T19:51:10Z")
> [@Max\_S](#): > > FDC of 1935 FTC ~Max ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 23, 2019, 8:33pm UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/36 "2019-10-23T20:33:02Z")
> [@Max\_S](#): > > 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/usrep487/usrep487654/usrep487654.pdf](https://cdn.loc.gov/service/ll/usrep/usrep487/usrep487654/usrep487654.pdf)) ~Max ---
**Author:** ![Chisquirrel](https://avatars.discourse-cdn.com/v4/letter/c/6bbea6/32.png) [@Chisquirrel](https://boards.straightdope.com/u/Chisquirrel)\ **Post date:** [October 24, 2019, 12:24am UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/37 "2019-10-24T00:24:44Z")
> [@Max\_S](#): > > 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/usrep487/usrep487654/usrep487654.pdf](https://cdn.loc.gov/service/ll/usrep/usrep487/usrep487654/usrep487654.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. Sent from my SM-G970U using Tapatalk ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [October 24, 2019, 4:47am UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/38 "2019-10-24T04:47:48Z")
> [@HurricaneDitka](#): > > 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. ---
**Author:** ![Max\_S](https://avatars.discourse-cdn.com/v4/letter/m/46a35a/32.png) [@Max\_S](https://boards.straightdope.com/u/Max_S)\ **Post date:** [October 24, 2019, 1:45pm UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/39 "2019-10-24T13:45:40Z")
> [@Chisquirrel](#): > > 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. > > Sent from my SM-G970U using Tapatalk 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 ---
**Author:** ![Chisquirrel](https://avatars.discourse-cdn.com/v4/letter/c/6bbea6/32.png) [@Chisquirrel](https://boards.straightdope.com/u/Chisquirrel)\ **Post date:** [October 25, 2019, 12:10am UTC](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154/40 "2019-10-25T00:10:43Z")
> [@Max\_S](#): > > 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. [Previous page](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154.md?page=1) [Next page](https://boards.straightdope.com/t/is-elizabeth-warrens-signature-achievement-the-cfpb-unconstitutional/842154.md?page=3)