//  8/24/17  //  Commentary

On this week’s episode of Versus Trump, Jason and Charlie talk about the Trump Administration's position in a lawsuit contending that the structure of the Consumer Financial Protection Bureau—commonly known as the CFPB—is unconstitutional, because its sole director does not serve at the pleasure of the President but instead serves a set term and can be terminated only for-cause. As usual, you can listen online below, and subscribe here with any podcast player or here in iTunes.

We begin the episode [at 2:00] by explaining what the CFPB does and how it's structured as an independent agency with a single director that serves a 5-year term. We next [at 7:30] talk about the lawsuit PHH v. CFPB, in which a mortgage lender who was fined $109 million by the agency has challenged the fine because, among other reasons, the independence of the sole director from the President makes the entire agency's structure unconstitutional. We discuss the recent opinion from the Court of Appeals for the D.C. Circuit agreeing with this conclusion, but we note that, as the case has continued before a larger panel of judges, the Trump Administration has now switched sides and has argued that the structure of the agency is indeed unconstitutional (this has left the CFPB in the unusual position of defending itself in court, without assistance from the Department of Justice). We then move on to other issues this case raises, such as why President Trump has been reluctant to closely control even executive agencies [at 15:05] and whether the structure of the agency poses a threat to individual liberty [at 26:30].

The episode concludes [at 35:35] with a Trump nugget about the limits of the First Amendment.

Please share or provide feedback, and rate us in iTunes. You can find us at @VersusTrumpPod on twitter, or send us an email at [email protected] 

Links

  • The D.C. Circuit's 3-judge panel opinion in the case PHH Corp. v. CFPB is here. In the podcast, Charlie flagged passages on pages 27 and 52. Note that this opinion has been officially withdrawn, because the full court is hearing the case en banc.
  • Oral argument was held before the full panel of judges in May of this year. One helpful recap is here, at a blog hosted by the law firm Covington & Burling. A decision is pending and could come any day.
  • Jason mentioned a recent episode of the podcast The Ezra Klein Show that featured an interview with MSNBC commentator Chris Hayes. That episode is here. [Editor's note: Charlie and Ezra are not related, though they do look alike.]
  • The law review article that Charlie referred to at the end of the show is Nelson Tebbe's Government Nonendorsement. It can be found here.

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