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.
I recently did some research on this area of constitutional law, for The Trump Inquiry thread:
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.
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.
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.
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.
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.
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!”
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.
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.
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)
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.
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.