Kent Barnett argues that the manner in which the Deputy Director of the Consumer Financial Protection Bureau is appointed is potentially unconstitutional under Free Enterprise Fund v. PCAOB. I am not an expert in Appointments Clause jurisprudence but I found the argument to be persuasive on my read.
Boyden Gray and John Shu have argued that other elements of Dodd-Frank are unconstitutional as well.
thirdeblue says:
From the abstract:
After having read the article, this is very accurate. Let me paraphrase, “Even though I’m writing this and I concede it’s complete bullshit, if you want to try to kneecap this regulatory bureau (or is it a Department?) until 2012, then here’s how you could do it.”
At least being a hack pays well.
March 1, 2011, 7:54 amHarry says:
Thirdeblue: what exactly is bullshit? You just said “this is very accurate.” The author states a normative position that the Bureau should be a department based on its independence, but recognizes adverse and ambiguous precedent. Why is the author a hack? You don’t address his argument on the merits; instead, you attack the author’s motives, not his argument.
March 1, 2011, 9:40 amthirdeblue says:
If you read the article you’ll find the author does not actually believe the arguments they are making.
Imagine this conversation:
Person A: Is the sky green?
Person B: No.
Person A: Are you sure?
Person B: Pretty sure.
Person A: But if you wanted to prove the sky was green, could you?
Person B: Well, although I think the sky is blue, if you wanted to prove it was, in fact, green; here’s a not completely ridiculous argument saying that’s its possible under current Supreme Court opinions. Maybe the Supreme Court might buy that the sky is green, but I don’t think they will, because it’s…you know bullshit…but you’re welcome to try.
Here is Kent Barnett’s (the author) view
Yet the very last line of the article is,
Who exactly is making this “cloud of unconstitutionality” and why?
March 1, 2011, 10:28 amBen P says:
The meaning of that statement is something akin to me as a lawyer telling a client “I can argue X, Y and Z why we should win this case, we’ll almost certainly lose, but you should cut the checks for me to do this.”
In this case if I happened to be a lawyer for a regulated institution I’d damn sure be making those arguments, but a good lawyer also makes sure his client knows the arguments are unlikely to be successful.
March 1, 2011, 10:37 am~FR says:
Boyden Gray and John Shu have argued that other elements of Dodd-Frank are unconstitutional as well.
And so it begins… Dodd-Frank has quickly achieved a reputation as one of the worst-written bills in history. I suppose the ‘good’ news is that any lawyer who makes the effort to understand it will probably be employed for life.
March 1, 2011, 10:56 amDavid M. Nieporent says:
And?
March 1, 2011, 11:18 amJoe says:
As to the first comment, it sounds something like “well, I think the death penalty is unconstitutional but under current precedent, the Supreme Court disagrees. I think they are wrong, but if you want to know what current precedent is likely to lead to, since my own hypothetical views might be right but who cares since I’m not the Supreme Court, here you go.”
This is what lawyers and law professors do all the time. If you think it is hackery, perhaps you think the profession as a whole is when it is descriptive, saying what “is” as compared to what “ought.”
March 1, 2011, 11:25 amORID says:
Then why isn’t any bank challenging this in court? Apparently there was one bank, a small bank in the mid-west I believe challenging it (this is from my recollection of the discussion during Stanford Symposium on Executive during Crisis in November).
A bunch of folks have claimed a bunch of stuff is unconstitutional, but I guess its not unless it infringes on some right somewhere.
(Note: didn’t read the article).
March 1, 2011, 11:31 amHarry says:
ORID: I don’t think that a challenge would be ripe at this point. The Bureau is not even up and running yet (it won’t be until probably July 2011). I don’t think that there is a director or deputy director yet. The article essentially tells the Executive Branch to be very careful in how it organizes the Bureau because of the separation of power concerns and possible effects, and it points out a potentially successful argument for regulated entities in the future.
March 1, 2011, 11:36 amgooners says:
Whoever it is, it’s working.
March 1, 2011, 11:51 amanon says:
I am curious what happened when you emailed/im’d Professor Warren regarding this?
March 1, 2011, 12:18 pmkarrde says:
Dodd-Frank has strong competition for that prize in the PPACA. (Also known as TBWCPWCAIIIDAO, or That Bill Which Certain Partisans Will Complain About If It Is Described As ‘ObamaCare’).
March 1, 2011, 12:21 pmSarcastro says:
Yep, all the laws I hate are also badly drafted to boot!
This is because Dems manage to be both evil threats to democracy, freedom and capitalism (though I repeat myself) while at the same time being staggeringly incompetent and always in over their head.
March 1, 2011, 12:42 pmtamerlane says:
It’s close but “Obamacare is ahead by a nose.
March 1, 2011, 12:42 pmBen P says:
I’m sure there will be challenges, but they’ll have to be as applied. The first time the agency attempts to enforce regulations I’m sure there will be all sorts of challenges. Constitutional, regulatory and otherwise.
Although, I’m not really sure who would have standing to bring an appointment clause suit in the first place. I suppose you could reach it by arguing the acts of a particular official are void if that official’s position is unconstitutional.
March 1, 2011, 1:22 pmChris Travers says:
At least some bills I otherwise like I concede are badly drafted ;-)
However the PPACA is badly written by anyone’s standards, though to be fair, it’s hard to draft a bill that long and have it come out well in the end, and Dodd-Frank contains poorly thought-out and the same sort of pro-big-business giveaways that would make the GOP leadership in Wisconsin proud.
March 1, 2011, 3:04 pmSarcastro says:
It does make one yearn for the simple days of the Alien and Sedition and Fugitive Slave Acts.
Now THOSE laws were bad, but at least they were clear!
March 1, 2011, 3:23 pmChrisTS says:
I suppose it’s good to see CB still serving it up, even if I disagree with him about almost everything.
March 1, 2011, 5:10 pmB-Rob says:
Really? A reputation according to whom? If you tell me that a thoughtful collection of academics and practitioners have studied a statute and found it to be poorly drafted, and explained why, I might be willing to reconsider it. But John Shu and Boyden Gray are two conservative political hacks. Shu writes for Andrew Breitbart, for God’s sake! How does their disapproval of a finance industry regulatory statute, AN AREA IN WHICH NEITHER HACK IS AN EXPERT, arise to the level of seriousness such that the “reputation” of the statute is actually in question? It doesn’t. You might as well tell me “Both Glenn beck and Rush Limbaugh say this statute blows”; they have as much expertise in financial regulation as Messrs. Shu and Grey.
March 1, 2011, 5:13 pmt1 says:
“I am not an expert in Appointments Clause jurisprudence but I found the argument to be persuasive on my read.”
It is such a happy coincidence when one comes across arguments reaching one’s desired conclusions, isn’t it?
March 1, 2011, 6:39 pmPerseus says:
As a High Federalist, I say: only an atheist sans-culottes Jacobin Democrat could think that the Alien and Sedition Acts were bad.
March 1, 2011, 10:58 pmNew Consumer Protection Bureau will Come Out Swinging | Welcome to propertiesandnotes.com says:
[...] Is the CFPB’s Deputy Director Unconstitutional? (volokh.com) [...]
March 10, 2011, 4:35 pm