#q88

[sarcasticcynic]

It was nice when judges believed in the rule of law.

Remember the Consumer Financial Protection Bureau? The independent government agency that the Dodd-Frank Act created in the wake of the recession to try to keep such abuses from happening again? The agency Donald Trump hates so much he sent the Department of Justice into court to argue that having a federal agency that might disagree with him or his policies was unconstitutional?

The argument that the CFPB is unconstitutional is based on a provision that allows the president to fire the Director only for cause, not at will. At least eleven federal courts have rejected this argument so far. This includes a federal Circuit Court of Appeals, which on January 31, 2018, upheld the constitutionality of an independent CPFB on a vote of 10-3.

Then came CFPB v. RD Legal Funding.

The judge declined to follow any of this prior precedent, and instead adopted the reasoning of two of the dissenting justices in the appellate case to hold--with no substantive discussion--that the CFPB “is unconstitutionally structured because it is an independent agency that exercises substantial executive power and is headed by a single Director.”

That dissenting opinion felt the appropriate remedy for the Bureau’s allegedly unconstitutional independence would be to strike the “for-cause” provision and allow the president to fire the Director at will. This judge, however, elected to go even further. Again with no substantive discussion, she agreed with a single dissenting justice that the CFPB’s basic “composition violates the Constitution’s separation of powers,” and ordered the portion of the Dodd-Frank Act that created the CFPB stricken in its entirety.

Now, this judge is legally entitled to disagree with all of those judges and justices who came before her. Their decisions are not binding on her. The remedy for inconsistent decisions in lower courts is to address the discrepancy and determine the issue on appeal (typically by overruling the outlier). The judge’s decision to eliminate the CFPB altogether, however, is legally wrong. Among other things, it directly violates the U.S. Supreme Court’s repeated holdings that, even where part of a law is found to be unconstitutional, courts may not invalidate more of the law than absolutely necessary:

“‘[A] court should refrain from invalidating more of the statute than is necessary. ...’ ‘[W]henever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it is valid.’ [Cc] ... ‘Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not...’”

Here’s the problem: In order to challenge this judge’s order wrongly eliminating the entire CFPB, someone has to appeal her ruling. And given that Trump and his administration have already demonstrated their hostility to the Bureau, it seems unlikely that they will spend any effort trying to save it. And so, in the words of the admittedly left-biased Think Progress: “an entire agency set up to protect consumers will cease to exist due to the whim of a single person.”

[dondidonde]

#bus #q88 (at Rego Park)

[vnshopping]

TPAB - Bao da Q88 (đỏ)

TPAB – Bao da Q88 (đỏ)

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