The Supreme Court will decide if Trump can fire the head of the CFPB. The implications are enormous.

  
Via:  ender  •  one month ago  •  31 comments

By:   Ian Millhiser

The Supreme Court will decide if Trump can fire the head of the CFPB. The implications are enormous.
Trump wants to be able to fire the CFPB director. He could get a whole lot more.

S E E D E D   C O N T E N T


Next Tuesday,   the Supreme Court will hear   Seila Law v. CFPB , which asks whether the president is allowed to fire the head of the Consumer Financial Protection Bureau (CFPB) at will. That question may seem minor and esoteric, but the stakes underlying   Seila Law   are   enormous .

There is an off chance that the Court could use this lawsuit to strike down the entire CFPB — a decision that would dismantle much of the infrastructure Congress built in response to the 2008 financial crisis. Meanwhile, there’s a much greater chance that the Court will use this case to fundamentally alter the balance of power between the president and the federal government’s “independent” agencies.

The “Seila Law” in the   Seila Law   case is a law firm that is being investigated by the CFPB for allegedly engaging “in   unlawful acts or practices   in the advertising, marketing, or sale of debt relief services.” This lawsuit is its Hail Mary attempt to end that investigation by having the entire agency conducting the investigation struck down. Yet, while that outcome is unlikely, the Court’s decision in   Seila Law   is likely to fundamentally rework the balance of power between the president and various “independent agencies.”

Various federal officials, ranging from the CFPB director, to Federal Reserve governors, to members of the Federal Trade Commission, serve in independent agencies. That means that the agency’s leaders enjoy a certain amount of job security. They can be fired by the president, but only “ for cause ” or for “ inefficiency, neglect of duty, or malfeasance in office .”

The legal theory animating   Seila Law   is that the CFPB director, at least, may not be given this kind of job security. As a constitutional matter, the lawyers behind   Seila Law   argue, the president has the authority to oversee the CFPB — and that includes the power to fire its director if the president objects to how the CFPB is being run.

In the short term ,   a decision allowing the CFPB director to be fired at will by the president could benefit Democrats — the current director, Kathy Kraninger, is a Trump appointee whom a Democratic president would probably prefer to replace as soon as possible. But there are also   very good reasons why the heads of independent agencies are protected from being fired. And, if   the Supreme Court strips these agency heads of their protection, President Trump could easily find new ways to abuse his power.

If the president had the power to fire Federal Reserve governors at will, for example, he could remove Fed governors unless they goose the economy by keeping interest rates low during a presidential election year — potentially changing the outcome of that election.

The “unitary executive,” explained


Seila Law   could be the culmination of a conservative crusade that began more than three decades ago, with Justice Antonin Scalia’s dissenting opinion in   Morrison v. Olson   (1988).

Morrison   involved a federal law, which   expired in 1999 , that provided for “independent counsels” — a kind of special prosecutor who could only be fired for cause. The Court upheld this law in a 7-to-1 decision, with Scalia the only voice in dissent.

As Scalia argued, the Constitution provides that “the executive Power   shall be vested in a President of the United States .” This provision, according to Scalia, “does not mean   some of   the executive power, but   all of   the executive power.” Thus, because the power to bring prosecutions is vested in the executive branch, there cannot be a prosecutor who is “independent” of the president. Under Scalia’s view, federal officers must either serve at the pleasure of the president, or be responsible to an official who serves at the will of the president.

Scalia’s   Morrison   dissent laid out the “unitary executive” theory of the presidency. Under this theory, the president sits at the top of the executive branch’s org chart — and everyone beneath him must be accountable to that president.

Justice Scalia’s   Morrison   dissent, it should be noted, is a   dissent . Scalia’s idea of a unitary executive lost out in 1988 — he couldn’t even convince a single one of his colleagues to join his jeremiad against agency officials who act independently from the president.

But Scalia’s dissent has also garnered a cult following among conservatives in the more than three decades since it was written, and many of its most loyal fans are now in very powerful jobs. One of them is Justice Brett Kavanaugh, who said in 2016 that he wanted to “ put the final nail ” in the   Morrison   majority opinion’s coffin.

Significantly, the Trump Justice Department also   filed a brief   arguing that the CFPB director’s job protections are unconstitutional. The unitary executive may not be the law of the land, yet, but it is the dominant viewpoint in conservative legal circles.

Two big questions at the heart of   Seila Law


Though it is likely that five members of the Supreme Court will agree that the president should be allowed to fire the CFPB director, it is less clear whether the Court’s decision will have significant implications beyond the CFPB.

In   Humphrey’s Executor v. United States   (1935), the Supreme Court held that Congress could create independent agencies led by multi-person, bipartisan boards — and that the members of these boards could be given job security protections. But the CFPB is not led by such a board. It is led by a single director.

According to the Trump administration, this unusual arrangement, a single director shielded from accountability to the president, is different in kind from a multi-member board. “A single-headed independent agency presents a greater risk than a multimember independent agency of taking actions or adopting policies inconsistent with the President’s executive policy,” the Trump administration   argues in its   Seila Law   brief .

Thus, it’s possible that the Supreme Court could preserve the core holding of   Humphrey’s Executor   — that independent agencies are fine so long as they are led by a multi-member board — while also striking down the CFPB’s single-director structure.

Another open question is whether the Court will hand down a sweeping invalidation of the CFPB, or merely change the rules governing when its director may be fired.

The lawyers challenging the CFPB’s single-director structure suggest that the agency should   cease to exist . “Congress’s foremost goal in structuring the CFPB was to create an agency independent from outside influence,” they claim. So if the agency cannot be independent, it should be struck down in it entirety (or, at least, it should be prevented from bringing enforcement actions).

Realistically, there are unlikely to be five votes for such a radical outcome. Even the Trump administration   rejects the argument   that the entire agency should be struck down — it argues in its brief that there is “no basis to conclude that Congress would have preferred to have no Bureau at all rather than a Bureau headed by a Director who would be removable.” Similarly,   though Kavanaugh is one of the Court’s most outspoken defenders of the unitary executive theory, he also   heard a very similar lawsuit to   Seila Law   when he was a lower court judge — and his opinion in that case was relatively measured.

Although Kavanaugh agreed that the president should have the power to fire the CFPB director, he also wrote that the CFPB may continue to operate with the president able “to remove the Director at will at any time.” Thus, Kavanaugh would keep the agency largely intact.

Without Kavanaugh’s vote, it’s difficult to see how litigants hoping to kill the CFPB in its entirety will find a majority on this Supreme Court.

The short term effect of   Seila   Law , in other words, could potentially be very good for Democrats. As a practical matter, the Court may simply allow the next Democratic president to fire Trump’s CFPB director on day one of the new administration.

But the Court could also give Trump broad new powers to intimidate members of the Federal Reserve board and other key agencies. And there is, at least, a small chance that it will strike down the CFPB in its entirety.

Photo:President Donald Trump greets Supreme Court Justice Brett Kavanaugh, with Justices Elena Kagan and Neil Gorsuch looking on.   Alex Wong/Getty Images


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Ender
1  seeder  Ender    one month ago

More power !  More power !

 
 
 
JohnRussell
2  JohnRussell    one month ago

Why would Trump ever care about protecting consumers?  He is a life long crook, con man and cheat whose own company defrauded consumers when he and his children misled customers who wanted to buy condos in his buildings about what the rate of sales of units in the buildings was. 

It's like expecting a mugger to care about the pickpocket rate. 

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bbl-1
3  bbl-1    one month ago

Bottom line:  Conservatism does not believe in consumer protections---or any protections for anyone except the rich and powerful.

Gorsuch and Kavanaugh are in place.  And of course, Thomas and Alito are already there. 

 
 
 
Texan1211
3.1  Texan1211  replied to  bbl-1 @3    one month ago

Why do some liberals profess to know what conservatives think when it is clear that they simply don't even have a clue?

 
 
 
Trout Giggles
3.1.1  Trout Giggles  replied to  Texan1211 @3.1    one month ago

Why do some conservatives (Texan) profess to know what liberals think?

bernie all the way! - ring a bell?

 
 
 
Texan1211
3.1.2  Texan1211  replied to  Trout Giggles @3.1.1    one month ago
Why do some conservatives (Texan) profess to know what liberals think?
bernie all the way! - ring a bell?

Sorry, woefully inadequate response.

I didn't claim to know what liberals think (?) but expressed my desire for Bernie to win the Democratic nomination.

So what?

 
 
 
bbl-1
3.1.3  bbl-1  replied to  Texan1211 @3.1    one month ago

[Deleted.  Texan is not the topic.]

 
 
 
Texan1211
3.1.4  Texan1211  replied to  bbl-1 @3.1.3    one month ago
[removed]

 
 
 
CB
4  CB     one month ago

Can you see the 'outrage' in living color now?!!! Whatever may happen this fall, do not forget if we lose the selection for the high court for another 'season' or so —we're done! We're be done in the federal and local court systems too. In our lifetimes in anyway. Because this is precisely what conservatives mean to do. That is, ram conservative "thought" and 'policies" down liberal throats through their own form of court activism. In other words, conservatives think the constitution is wholly designed and committed to a conservative form of governance. They are the "righteous" defenders and spokespeople for what is rule of law.

If you still don't get my drift, I mean, conservatives believe just like back in the old days, what they SAY is rule is law!

 Some of us, many of us, will die in a stupid, ass-backward, "suspension-state" like our whole lives have been prior to achieving a proper thinking and reasoning jurisprudence. We will all die in a Trump 'fhit-hole.'

Democrats and independents and some of you republicans remember what matters this fall. Trump must go back out into the private sector, where that freak of nature belongs. And, the law can get to him properly!

 
 
 
Ender
4.1  seeder  Ender  replied to  CB @4    one month ago

The conservative mantra use to be not to legislate from the bench yet that is exactly what they are doing.

With court stacking and pushing agendas in front of the courts. And now them just letting donald grab more and more power, idiots don't even realize they are diminishing their own.

 
 
 
CB
4.1.1  CB   replied to  Ender @4.1    one month ago

The Conservative 'Movement' is a fraud, a 'theft,' and has never been a proper friend to liberals or the Rule of Law! They always think they know better. That they are the 'tools of righteousness' used by God. The song goes, "Beware of the handshake that hides the snake."

Smiling Faces Sometimes  - The Undisputed Truth.

It is time for democratic party unity. We need to come together right now or we shall fall together. We have enough to catch up with as it is. And unless we want to fall back to the era before the 1900's when the rich lived in palatial homes modeled off of European palaces and the less fortunate go around in patches owning nothing and eating grubs from the fields, unions are 'flat' or not at all: Unity now!

 
 
 
CB
5  CB     one month ago

Democrats, Independents, and relevant Republicans and Conservatives the time has come to hop down off the fence; speak up, and vote like you mean it! Pick up your load! Stop expecting "the few others" to defend your 'space' in the lineup!

It is high-time for the fhits and giggles to end in the DNC! Stop the dumbness and get it all together. Get focused on picking a winner in the Electoral College! Forget the 'cutesy' crap. If democrats lose this election. Get ready not to recognize this country in two years time. Why? Because conservative think-tanks will be pushing every conservative policy through their own "activist" courts.

You see how "activism" can work both ways now? Conservatives and republicans have been bullfhitting the republican for a long time. They are Trump. He is the fake, mockery, of freedom and patriotism they have been waiting for over 40 years! They intend to take liberals back to the 'stone-age' of rule of law. And in its stead, put some ridiculous "theocratic" mockery of a Right-wing ideology (with its accompaniment of lies, deceptions, and alternatives to reality) we have been sampling of recent.

 
 
 
Sparty On
5.1  Sparty On  replied to  CB @5    one month ago

Wow!   What a speech!

Put me in coach .... i'm ready to play!

 
 
 
CB
5.1.1  CB   replied to  Sparty On @5.1    one month ago

You pitch for the other side. Nobody is confused about that. That freak of nature President you support has no problem having his minions call the private homes of judges and officials to browbeat each one into deceptively believing a lying talking point or intimidating each one into not standing up for the laws on the books!

 
 
 
igknorantzrulz
5.1.2  igknorantzrulz  replied to  CB @5.1.1    one month ago

accept his catcher

 
 
 
CB
5.1.3  CB   replied to  igknorantzrulz @5.1.2    one month ago

?

 
 
 
Sparty On
5.1.4  Sparty On  replied to  CB @5.1.1    one month ago

Funny ..... when i volunteered to serve in the USMC i didn't know there was "sides."    Still don't think there is and i'm not confused about it. 

There is only people too rigid and extreme in their views to ever compromise on anything.   

 
 
 
igknorantzrulz
5.1.5  igknorantzrulz  replied to  CB @5.1.3    one month ago

Trump would be his catcher he would hope you could accept, as i can't ever accept their exception

 
 
 
CB
5.1.6  CB   replied to  Sparty On @5.1.4    one month ago

I am a veteran, and I know better than to exploit my status.  So, . . . .  Moving forward.

Is this right and proper Or wrong and deceptive ?

South Carolina, Joe Biden Can't Be Trusted - Committee For The President [Trump]

The ad . . . runs audio of Obama reading an unrelated passage from his book, “Dreams from My Father,” about a conversation he had with a barber in Chicago when he was a community organizer.

The Obama passage, which describes the mistreatment of black voters by politicians, refers to complaints about “plantation politics” and the history in Chicago of Democratic politicians expecting black votes despite poor housing, poor job opportunities and police brutality.

The ad repurposes a similar attack the Committee to Defend the President ran last year in several states with many black politicians, including Georgia, Michigan and Louisiana,  according to PolitiFact . Similar tactics, aimed at decreasing black turnout for Democrats, were used in a radio ad by another pro-Trump super PAC, Great America Alliance, in the 2017 special House election in Georgia. Source of text: https://www.washingtonpost.com/politics/barack-obama-demands-south-carolina-stations-pull-misleading-ad-attacking-joe-biden/2020/02/26/45cc7012-58d6-11ea-9000-f3cffee23036_story.html

Sparty On , here is a proper chance for you to defend truth from error. Please proceed. . . .

 
 
 
Just Jim NC TttH
5.1.7  Just Jim NC TttH  replied to  CB @5.1.6    one month ago

Damned Russians. Stay out of SC......................hahahahahaha

 
 
 
CB
5.1.8  CB   replied to  Just Jim NC TttH @5.1.7    one month ago

No distractions. This is not a laughing matter. Defend truth from error. Please proceed. . . .

 
 
 
Sparty On
5.1.9  Sparty On  replied to  CB @5.1.6    one month ago

Yeah well, I’m proud of my service and have zero problem talking about it whenever I please.

I suggest you learn to deal with that or simply move along.

Oh and “I” have nothing to defend.    My comment stands on its own.

 
 
 
KDMichigan
5.1.10  KDMichigan  replied to  CB @5.1.6    one month ago
and I know better than to exploit my status.

Just how the fuck is Sparty exploiting his status? I guess you exploited your status by claiming to be a veteran?

 
 
 
CB
5.1.11  CB   replied to  Sparty On @5.1.9    one month ago

I am proud of my service, too. It does not follow that when I state:

You pitch for the other side. Nobody is confused about that. That freak of nature President you support has no problem having his minions call the private homes of judges and officials to browbeat each one into deceptively believing a lying talking point or intimidating each one into not standing up for the laws on the books!

A good answer is to mention military service, nevertheless.

I note your deflection, also. @5.1.6 do you care to proceed with it or not? Your or my military service is not at stake or issue in this political exchange.

 
 
 
CB
5.1.12  CB   replied to  KDMichigan @5.1.10    one month ago

Do not make vain attempts at outrage. If you want to be outraged about something. Try that republican lying video/ad above. It's a perfect opportunity for you to defend truth from error too!

 
 
 
Sparty On
5.1.13  Sparty On  replied to  CB @5.1.11    one month ago
I am proud of my service,

I never said you weren’t.   You’re the one making value judgements about others service not me.

Any deflection you perceived from me on this is entirely made up in your mind.    Not very clever at all ....

oh and thanks for your service.

 
 
 
CB
5.1.14  CB   replied to  Sparty On @5.1.13    one month ago

@ 5.1.6 do you care to proceed with it or not? Your or my military service is not at stake or issue in this political exchange .

 
 
 
Sparty On
5.1.15  Sparty On  replied to  CB @5.1.14    one month ago

There is nothing to debate.    It changes nothing related to my comments.    

Their was no mention of Democrat or Republican,  black or white, straight or gay, etc, etc in the oath I took.   There is no sides, only the US Constitution.    Which again means ALL Americans.    Perhaps you took a different oath than I.

You could have thanked me for my service as well but you just want to argue endlessly about a unrelated narrative of your choice.   Find someone else for that.    I’m not interested In the least.

 
 
 
CB
5.1.16  CB   replied to  Sparty On @5.1.15    one month ago

So, no words of critique for Trump or republicans when properly deserved? Yet fully engaged in dumping on anybody who is not Trump or republican? Got it. Blow smoke and mirrors all day long—I see. It's transparent to me and others who care to look closely.

Walk away. Take Trump. I will call it as I see it-nothing more or less!

 
 
 
Sparty On
5.1.17  Sparty On  replied to  CB @5.1.16    one month ago

[Deleted] ..... my comment had nothing to do with Trump or Republicans, or Obama and Democrats or etc, etc.     [Deleted] if it’s important to you to claim a false victory have at her.

I could care less.

 
 
 
CB
5.1.18  CB   replied to  Sparty On @5.1.17    one month ago
5 CB   2 days ago

Democrats, Independents, and relevant Republicans and Conservatives the time has come to hop down off the fence; speak up, and vote like you mean it! Pick up your load! Stop expecting "the few others" to defend your 'space' in the lineup!

It is high-time for the fhits and giggles to end in the DNC! Stop the dumbness and get it all together. Get focused on picking a winner in the Electoral College! Forget the 'cutesy' crap. If democrats lose this election. Get ready not to recognize this country in two years time. Why? Because conservative think-tanks will be pushing every conservative policy through their own "activist" courts.

You see how "activism" can work both ways now? Conservatives and republicans have been bull f hitting the republic for a long time. They are Trump. He is the fake, mockery of freedom and patriotism they have been waiting for over 40 years! They intend to take liberals back to the 'stone-age' of rule of law. And in its stead, put some ridiculous "theocratic" mockery of a Right-wing ideology (with its accompaniment of lies, deceptions, and alternatives to reality) we have been sampling of recent.

5.1   Sparty On   replied to  CB @ 5     2 days ago
Wow!   What a speech! Put me in coach .... i'm ready to play!

My whole comment is about politics. And yours? Well, you see it properly there.

 
 
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