WEBVTT - CFPB Director Gets Second Chance at Independence Fight (Audio)

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<v Speaker 1>Thanks June, the Consumer Financial Protection Bureau has a new

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<v Speaker 1>lease on life. A federal appeals court here in Washington

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<v Speaker 1>will reconsider a ruling that slashed the agency's powers and

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<v Speaker 1>made it much easier for the president to fire its

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<v Speaker 1>aggressive director, Richard Cordray. The earlier ruling came from a

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<v Speaker 1>three judge panel of Republican appointees on a court known

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<v Speaker 1>as the d C Circuit. The case, which involves kickback

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<v Speaker 1>allegations against a mortgage lender, will now be taken up

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<v Speaker 1>by the full DC Circuit, with its majority of Democratic appointees.

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<v Speaker 1>It's all happening against the backdrop of a congressional battle

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<v Speaker 1>over the cfp B and the Dodd Frank law that

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<v Speaker 1>created it. Republicans want to ease the burdens they say

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<v Speaker 1>the law has placed on the financial industry. With us

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<v Speaker 1>to talk about the legal fight over the cfp B.

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<v Speaker 1>Our Dai him In is a professor at the University

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<v Speaker 1>of Connecticut School of Law and Christopher Peterson, professor at

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<v Speaker 1>the University of Utah College of Law DAIA. Let let

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<v Speaker 1>me start with you. The earlier ruling had several aspects

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<v Speaker 1>to it, but let's let's cut to the part of

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<v Speaker 1>it that deals with the president's power to fire the

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<v Speaker 1>director of the CFPB. Can you just explain what the

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<v Speaker 1>panel said about that issue? Yeah, sure, Um. The panel

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<v Speaker 1>decided that, um, it didn't the separate from the sort

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<v Speaker 1>of um statutory problems um that the PhH Company was

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<v Speaker 1>bringing against the CFPP, they would decide they would look

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<v Speaker 1>at whether or not the structure of the CFPP is

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<v Speaker 1>actually constitutional um, and which uh, maybe it was something

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<v Speaker 1>that they didn't actually have to do. And in doing that,

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<v Speaker 1>they decided that it was unconstitutional that um, there was

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<v Speaker 1>only one director and that they could only be uh

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<v Speaker 1>that that director could be fired um, only for cause um.

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<v Speaker 1>And so they decided that uh that instead um uh,

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<v Speaker 1>the way to fix it was to say to basically

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<v Speaker 1>rewrite the statute and say that the director can be

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<v Speaker 1>fired for any reason at the will of the president um.

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<v Speaker 1>And so obviously making it a lot easier for now

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<v Speaker 1>President Trump to fire the director. But now that decision

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<v Speaker 1>has been vacated, now that the Full Court has decided

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<v Speaker 1>to hear the decase again. And Christopher, what is the

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<v Speaker 1>reasoning for the Full Court taking on the case. Well,

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<v Speaker 1>I think the Full Court is is recognizing that the case,

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<v Speaker 1>first off, is very important that it has significant implications

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<v Speaker 1>both for this new UH consumer Protection Agency, but also

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<v Speaker 1>for the power of the presidency of the United States. UH.

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<v Speaker 1>And what's more, I think that the it's I think

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<v Speaker 1>it's fair to say that the DC Circuit panel opinion

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<v Speaker 1>was um someone uncharitable to the motives and the structure

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<v Speaker 1>of the CFPB. So I think that, you know, look

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<v Speaker 1>to take away is that the the entire DC Circuit

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<v Speaker 1>is going to look at the case and UH it

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<v Speaker 1>has implications about whether or not President Trump will may

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<v Speaker 1>be able to is effectively assert his agenda UH in

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<v Speaker 1>in in you know, pursuing de regulatory goals for the

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<v Speaker 1>economy dai UM. As you mentioned, there's also a statutory

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<v Speaker 1>component to this case, which is basically pH H arguing

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<v Speaker 1>that the cfpv PP had changed what had been the

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<v Speaker 1>common understanding of a law involving real estate settlements and

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<v Speaker 1>then UH improperly applied it retroactively. When the d C

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<v Speaker 1>Circuit yesterday said we want to reconsider this case, it

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<v Speaker 1>sort of suggested that maybe we can avoid getting to

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<v Speaker 1>those constitutional questions and just deal with that statutory issue.

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<v Speaker 1>Does that seem like a realistic possibility to you. UM,

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<v Speaker 1>I think that's right. Actually, UM, I think it was

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<v Speaker 1>surprising that the panel had asked for briefing on the

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<v Speaker 1>constitutionality question, UM, and it's the case can totally be decided,

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<v Speaker 1>and infect the panel really did decide it in the

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<v Speaker 1>alternative on the statutory question, and h p H is

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<v Speaker 1>basically one on the statutory question. So I think it

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<v Speaker 1>is very likely, UM, that the that the full Court

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<v Speaker 1>will decide, UM, you know, will make the decision on

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<v Speaker 1>those narrow grounds. Also not just for the reasons that

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<v Speaker 1>Professor Peterson just pointed out, but also because UM, their decision,

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<v Speaker 1>the panel decision had actually thrown into question, um, the

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<v Speaker 1>constitutionality of the structure of the Federal Housing Finance Agency,

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<v Speaker 1>which was actually created before the CFPP. UM, and that

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<v Speaker 1>you know, you know, not a party to the case

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<v Speaker 1>or anything. So H that may be another reason why

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<v Speaker 1>they might want to go narrower. And so just I

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<v Speaker 1>understand you you're suggesting that what could happen would be

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<v Speaker 1>that PhH could win on that narrower question, and then

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<v Speaker 1>the Court would never have to deal with the question

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<v Speaker 1>of whether the whole structure of the the CFPP is unconstitutional,

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<v Speaker 1>that's right. I mean they could win or lose. You know,

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<v Speaker 1>they could decide it the same way or a different way.

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<v Speaker 1>But but the case could be entirely decided on the

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<v Speaker 1>question of the statory questions. I think, Christopher, the twelve

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<v Speaker 1>judge panel that will be hearing it will include Chief

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<v Speaker 1>Judge Merrick Garland, whose Supreme Court nomination Republicans refused to consider.

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<v Speaker 1>Does the panel being Democratic or Republican or center? Well, so,

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<v Speaker 1>first off, with respected Judge Garland, He's a consummate professional,

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<v Speaker 1>and I have absolute confidence that he'll do nothing other

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<v Speaker 1>than follow the law and his best ambitions about you know,

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<v Speaker 1>realizing what the how the laws of the United States

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<v Speaker 1>should be interpreted. That thinks that the three judge panel

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<v Speaker 1>that decided the decision below leaned fairly far to the right,

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<v Speaker 1>or that's the way that people would normally conceptualize it.

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<v Speaker 1>But the DC circuit itself the broader UH Court now

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<v Speaker 1>and recently it's balanced, and power has shifted somewhat to

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<v Speaker 1>the left with some recent Obama appointees. But I also

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<v Speaker 1>want to caution that, you know, a lot of the

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<v Speaker 1>questions that are here are not really very easily sort

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<v Speaker 1>of tracked out on a you know, a traditional left

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<v Speaker 1>right Democrat Republican spectrum. Some of the questions that issue

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<v Speaker 1>are questions of constitutional power and separation of powers that

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<v Speaker 1>are not just regulation good or regulation bad. So I

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<v Speaker 1>do think that it's a little bit difficult to predict

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<v Speaker 1>how the DC Circuit would rule on the independent regulatory

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<v Speaker 1>agency question. Uh, you know that being said, I think

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<v Speaker 1>that Professor Jimenez is exactly right that the fact that

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<v Speaker 1>the d C Circuit has granted him bank review may

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<v Speaker 1>be signaling that some of the judges are, perhaps the

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<v Speaker 1>majority of the judges may prefer to resolve the questions

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<v Speaker 1>in the case on statutorial statutory grounds rather than confirming

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<v Speaker 1>the more difficult, broader reaching constitutional questions. And I just

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<v Speaker 1>want to correct I understand now that the Chief Judge

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<v Speaker 1>Merrick Garland is not going to be participating in this case.

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<v Speaker 1>Greg dally Um. One thing that has puzzled me a

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<v Speaker 1>little bit. It seems like there was Richard Corday, the director,

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<v Speaker 1>has been very controversial. Republicans have been highly critical of

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<v Speaker 1>him for being too aggressive, and it seems like until

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<v Speaker 1>until this order to rehear the case came out, there

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<v Speaker 1>was a little window where Donald Trump could have fired

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<v Speaker 1>him for any reason at all. Are you surprised that

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<v Speaker 1>the president didn't take advantage of that, Um, Well, I'm

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<v Speaker 1>not sure there was such a window actually, because the

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<v Speaker 1>case when um, the CFTV sought on bunk review, Uh,

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<v Speaker 1>the the decision was stayed while the court decided whether

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<v Speaker 1>or not the full court decided whether or not to

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<v Speaker 1>grant on bunk review. So I think, um, the sort

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<v Speaker 1>of correct legal thing to do there was just to

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<v Speaker 1>wait until the court decided whether or not to grant

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<v Speaker 1>on bunk and if they had denied it, um, then

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<v Speaker 1>depending exactly what that word it looked like, then perhaps

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<v Speaker 1>you know, if the CFPP didn't immediately file for a

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<v Speaker 1>certain certain petitions and Supreme Court, uh, there might have

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<v Speaker 1>been a small window. I mean, I think the right

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<v Speaker 1>thing is really to you know, let the courts make

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<v Speaker 1>this decision, um, at least to to get a chance

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<v Speaker 1>at it. Um. So I'm glad that that I think that, uh,

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<v Speaker 1>you know that that was not circumvented, Christopher. The Republicans

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<v Speaker 1>have many options outside of court to use against the CFTB,

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<v Speaker 1>So they could have legislation they're considering that would change

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<v Speaker 1>the leadership from a single director to a five person commission.

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<v Speaker 1>What are some of the other things that they could

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<v Speaker 1>do and how likely is it that they would Well,

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<v Speaker 1>I think that, UM, I mean the big the biggest

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<v Speaker 1>options that they have is clearly to pass new legislation

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<v Speaker 1>to reform the Dodd Frank Act and the portion of

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<v Speaker 1>the Dodd Frank Act and the Consumer Financial Protection Act

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<v Speaker 1>that created the CFPB. And that's that's something that is

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<v Speaker 1>a viable legislative strategy. Uh. They do face the prospect

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<v Speaker 1>of potential filibuster in the Senate recalled that. Uh. You know,

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<v Speaker 1>one of the the sort of uh founding thought leaders

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<v Speaker 1>for the creation of the CFPB was then Professor Warren

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<v Speaker 1>now Senator Warren. Uh. Presumably, if there's anything that rules

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<v Speaker 1>back on the cfpbs powers to aggressively, you can anticipate

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<v Speaker 1>that she would attempt a filibuster. And and unless the

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<v Speaker 1>Senate is willing to change its rules, whatever changes that

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<v Speaker 1>the Republicans Congress wants to get to, the agency would

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<v Speaker 1>have to surmount that sixty vote barrier. So who knows

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<v Speaker 1>how that's going to shape out. Other but there are

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<v Speaker 1>with respect that not just the structure of the agency

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<v Speaker 1>but particular matters that the agency may be working on,

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<v Speaker 1>such as regulations that are pending or enforcement actions that

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<v Speaker 1>rely on particular statutory provisions. There are also potential options

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<v Speaker 1>that the Republicans have there as well. So, for example,

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<v Speaker 1>there's a regulatory review statute that allows Congress to invalidate

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<v Speaker 1>regulations that are adopted by the agency with by voting

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<v Speaker 1>to do so in Congress, and that that could potentially

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<v Speaker 1>create another independent obstacle to some of the agenda that

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<v Speaker 1>Director Cordrey has laid out. Christopher has inadvertently teased a

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<v Speaker 1>later portion of the show, We're gonna actually talk about

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<v Speaker 1>the Congressional Review active very important law that I confess

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<v Speaker 1>I didn't know anything about until until a few weeks ago. Um,

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<v Speaker 1>you could back to the legal fight. Um, the how

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<v Speaker 1>does this play out in terms of the CFPB and

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<v Speaker 1>the Trump administration? As I understand that the CFPB has

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<v Speaker 1>independent litigating authority, so that at the on Bond DC

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<v Speaker 1>circuit and perhaps elsewhere. Um, could we see the CFPB

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<v Speaker 1>up against the Trump administration. Huh, That's that's an interesting question.

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<v Speaker 1>I don't actually think that they have I mean, I

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<v Speaker 1>think they still have to go through the Department of

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<v Speaker 1>Justice to UH. They have to do that too. For

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<v Speaker 1>restipcase might might actually know more. But I think that's

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<v Speaker 1>right that they would not be able to UH. I

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<v Speaker 1>mean that would be very odd. You've stunned me. I

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<v Speaker 1>do Christopher jump in if you if you have have

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<v Speaker 1>thoughts on it. Sure, No, it's it's perfectly understandable that

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<v Speaker 1>there's there's some ambiguity here, and it's you know, the

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<v Speaker 1>agency is still a young agency, so it's still working

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<v Speaker 1>some of these things out as they go along. So,

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<v Speaker 1>but the agency does have independent litigation authority, and unlike

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<v Speaker 1>say some of the other agencies, does not have to

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<v Speaker 1>rely on the Department of Justice's attorneys to to bring

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<v Speaker 1>litigation enforcement litigation in court. That's one of the sort

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<v Speaker 1>of key features of the Dodd Frank Act. But that

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<v Speaker 1>being said, generally speaking, that Bureau has relied on the

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<v Speaker 1>Solicitor General's Office in UH a Supreme Court matters UH,

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<v Speaker 1>And that could create a potential issue in the event

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<v Speaker 1>that petition for curtiary was granted by the Supreme Court.

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<v Speaker 1>But that's the bridge that hasn't been crossed yet, and

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<v Speaker 1>there's a good chance that that that won't actually happen

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<v Speaker 1>now that the d C circuit may be signaling that

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<v Speaker 1>it's going to sort of extinguish this case. Of course,

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<v Speaker 1>I don't want to predict that with any real certainty.

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<v Speaker 1>They don't hand out crystal balls with tenure at my university.

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<v Speaker 1>But UM, at least for its time being before the

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<v Speaker 1>courts tell us how important and what the role of

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<v Speaker 1>the CSPB is. UM. And actually I think this is

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<v Speaker 1>one of the sort of positives of the physician, you know,

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<v Speaker 1>coming back being in the news again. Is the CSTB UM.

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<v Speaker 1>You know, it's really the one agency who they're protecting

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<v Speaker 1>consumers UM and UH. One of the reasons why it

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<v Speaker 1>would be very difficult for President Trump to fire Director

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<v Speaker 1>Cord for cause is because it's been doing a you know,

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<v Speaker 1>stand up job of protecting consumers. Almost twelve billion dollars

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<v Speaker 1>UM have been returned to consumers, thirty million UM consumers

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<v Speaker 1>have received relief. UM. You know, companies have who have

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<v Speaker 1>been violating the law UM in all sorts of different

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<v Speaker 1>financial areas have been ordered to you know, change their practices,

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<v Speaker 1>to correct them, to uh, to rest to give restitutions

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<v Speaker 1>to consumers. UM. And I think that that's something that

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<v Speaker 1>we need, you know. And then the reason it was

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<v Speaker 1>created was because we thought, um, this might have prevented

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<v Speaker 1>the financial crisis. Um. Perhaps the hope is that it

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<v Speaker 1>will prevent the next financial crisis. And um uh, that's

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<v Speaker 1>something that you know, I think we should all want.

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<v Speaker 1>I want to thank our guest Dalia Jimenez the University

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<v Speaker 1>of Connecticut School of Law and Christopher Peterson of the

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<v Speaker 1>University of Utah College of Law, talking about new developments

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<v Speaker 1>in the legal fight over the Consumer Financial Protection Bureau.

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<v Speaker 1>Coming up on Bloomberg Law, we'll talk to former Senate

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<v Speaker 1>Democratic Majority Leader George Mitchell.