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Speaker 1: It is a big day for the Consumer Financial Protection Bureau.

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Speaker 1: That's the agency set up in the aftermath of the

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Speaker 1: two thousand economic meltdown. It was touted by Democrats as

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Speaker 1: at Wall Street watchdog that would protect ordinary Americans, and

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Speaker 1: it was derided by Republicans as a source of burdensome

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Speaker 1: red tape for lenders. Today in Washington, and eleven judge

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Speaker 1: panel heard arguments in a case that will determine the

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Speaker 1: cfpbs future. The court could curb the agency's powers, give

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Speaker 1: Donald Trump the power to fire the director for any reason,

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Speaker 1: or even abolish the CFPB altogether. With us to talk

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Speaker 1: about the CFPP and the many legal issues surrounding us

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Speaker 1: are Adam White, he's a fellow at the Hoover Institution.

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Speaker 1: And Mike Copsaw, who's here with me in the studio

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Speaker 1: in Washington. He is a fellow at the Roosevelt Institute. Um, Adam, Uh,

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Speaker 1: let me just kind of start with the basics of

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Speaker 1: this case. UM, can you just explain what I know

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Speaker 1: you may not kind of agree with the case, but

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Speaker 1: just explain, if you would, what the CFPB thinks that

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Speaker 1: this mortgage lender pH A h did wrong. Oh, I

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Speaker 1: have to admit, I'm more aversed in the constitutional issues

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Speaker 1: than uh than a lot of the dispute and the

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Speaker 1: enforcement action. I mean, in a nutshell, the CFPB concluded

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Speaker 1: that PhH was misleading its customers, um, which is something

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Speaker 1: that was well within the CFPBS statutory mandate. But the

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Speaker 1: question that suddenly has become to the forefront of this

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Speaker 1: case is whether the CFPB itself is unlawful in terms

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Speaker 1: of its structure under the Dodd Frank Act. Well, let's okay,

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Speaker 1: let's go ahead and jump to to that issue. UM, Mike,

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Speaker 1: the uh, why don't you tell us what the uh?

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Speaker 1: This was originally heard by a three judge panel, uh,

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Speaker 1: and now it's being heard by a broader set of

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Speaker 1: judges at the d C circuit um. The three judge

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Speaker 1: panel essentially said that the because the CFPB was headed

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Speaker 1: by a single director and because President could only fire him, uh,

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Speaker 1: you know, for a particular reason, that the agency had

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Speaker 1: had too much uh, it was too unaccountable. Do you

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Speaker 1: agree with that reasoning? Right? So, in response to the

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Speaker 1: p HH, which was you know, kicking back uh consumers

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Speaker 1: to mortgage insurers for exchange for kickbacks, which was you know,

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Speaker 1: Richard Cordray in the CFPP raised the fine, which was

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Speaker 1: the basis of this lawsuit. But this UM panel argued

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Speaker 1: that because the CFPB has a single director and the

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Speaker 1: single director has a term that is longer than any

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Speaker 1: one presidential administration, so it's six years instead of four years, UH,

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Speaker 1: that there's an in essence no public accountability or a

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Speaker 1: lack of public accountability in regards to the broader administrative state. UM.

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Speaker 1: I think it's a wrong ruling, But before we get there,

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Speaker 1: it's worthwhile to talk. A lot of people are talking

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Speaker 1: about the existential threat to the CFPB, the idea that

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Speaker 1: the CFPP itself is unconstitutional. But this was a very

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Speaker 1: conservative three panel, three judges. I don't think that's controversial.

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Speaker 1: They're very conservative, and if you read the decision was

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Speaker 1: very big picture. They're talking about the history of the

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Speaker 1: administrative state in the Constitution. And at the end of

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Speaker 1: the day, it's a very limited way they interjected the CFPB.

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Speaker 1: They didn't overturn old rulings, they didn't significantly limit the powers.

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Speaker 1: They essentially said that they had the director had to

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Speaker 1: be fireable at will. Now again we will talk about

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Speaker 1: the accountability of the CFPB. It's I think, much broader,

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Speaker 1: much more holistic than just this one decision. But at

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Speaker 1: the end of the day, whether however this comes down,

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Speaker 1: the CFPB will largely thrive and continue to do its

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Speaker 1: work in the way the people envisioned it well, Adam,

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Speaker 1: one argument that's being made by the company in this

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Speaker 1: case is that the three judge panel didn't go far

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Speaker 1: enough that they should have just struck down the entire

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Speaker 1: agency rather than just changing the rules for firing the director.

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Speaker 1: Do you agree with that, Well, it's true, the court

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Speaker 1: could have gone further, much further. Um, I don't know

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Speaker 1: it's fair to sort of just describe the court's thorough

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Speaker 1: decision to ideological leaning. I mean, if that's the case,

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Speaker 1: then it's sort of disparages all judges on that court,

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Speaker 1: including the Obama point viees that are the case today.

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Speaker 1: But the fact is that Judge Kavanaugh, Judge Randolph on

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Speaker 1: the three judge panel saw the CFPB structure as being

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Speaker 1: unconstitutional under both existing precedent um and under the Constitution itself.

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Speaker 1: They could have struck down the entire act. I think

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Speaker 1: they took the right approach in trying to solve the

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Speaker 1: specific constitutional problem that they saw, namely the CFPB directors

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Speaker 1: independence from the president his his grant of of limited

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Speaker 1: independence from the president, combined with the fact that the

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Speaker 1: CFPP director unlike the traditional multi member commissions, including the

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Speaker 1: ones on which Elizabeth Warren originally proposed to model the CFPP,

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Speaker 1: the CFPP just lacks that multi member commission structure. I really,

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Speaker 1: I just fundamentally disagree with the criticism of the panel decision.

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Speaker 1: I think it's actually very well rude in the original

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Speaker 1: theory of independent agencies going back to the nineteen thirties, uh,

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Speaker 1: and I think it was a very thoughtful uh dissection

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Speaker 1: of that precedent and ensure in order to ensure that

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Speaker 1: that precedent was not extended into something still further uh

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Speaker 1: like the CFP b which I do think is much

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Speaker 1: more independent uh and much less accountable uh than my

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Speaker 1: friend suggests. You're listening to Bloomberg Law. Donald Trump hasn't

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Speaker 1: said much about the Consumer Financial Protection Bureau itself, but

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Speaker 1: he's been unsparing about the law that created it, known

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Speaker 1: as Dodd Frank. You know, dud Frank is a disaster,

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Speaker 1: and we're going to be doing a big number of

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Speaker 1: God Frank we're talking about the Federal Appeals Court Appeals

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Speaker 1: Court argument today that deals with the structure and powers

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Speaker 1: of the Consumer Financial Protection Bureau. Our guests are Adam

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Speaker 1: White of the Hoover Institution and Mike Console of the

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Speaker 1: Roosevelt Institute. Mike Adam was talking before about how the

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Speaker 1: CFPB is perhaps a little different from from other agencies

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Speaker 1: uh in Washington. Is is it really so unique as

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Speaker 1: unique as the three judge panels that it was. I

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Speaker 1: don't think so. It was very if you look at

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Speaker 1: the legislative language and the people who are creating it,

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Speaker 1: it was very purposely designed to look like the Office

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Speaker 1: of Controller of the Currency of the o c C,

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Speaker 1: a bank regulator that was seen as being too bank

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Speaker 1: friendly and downgraded consumer safety. It has a single director,

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Speaker 1: it has a dedicated funding source, and it has a

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Speaker 1: dedicated mission, much like the o c C. There's a

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Speaker 1: lot of debate about whether or not you can fire

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Speaker 1: the o CC director. The president could It hasn't been

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Speaker 1: done and it's legally ambiguous. UM. You know, there's many

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Speaker 1: agencies like the CFPB, the Social Security Administration's agency f

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Speaker 1: h f A that has the thing that's under under

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Speaker 1: review right now, I don't think there's any good reason

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Speaker 1: to think a commission structure is more accountable to the public.

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Speaker 1: I mean, the Constitution doesn't design specific agency structures. It's

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Speaker 1: and so it should be viewed holistically. And you know,

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Speaker 1: we know Richard Cordray is in charge of the CFPB.

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Speaker 1: You know what can we account for the dysfunction at

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Speaker 1: the SEC or the CFTC. Have five people all point

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Speaker 1: to each other. And just as a last quick note,

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Speaker 1: the CFPP has a consumer financial protection beer, has a

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Speaker 1: ton of factors that insurance accountability, from mandatory audits to

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Speaker 1: not being funded by the industry itself, a big regulatory

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Speaker 1: capture driver, can be overruled by other regulators, and has

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Speaker 1: the baseline administrative law that all the other agencies have.

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Speaker 1: So I want to make sure we understand that people

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Speaker 1: who designed it designed it to be accountable to the

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Speaker 1: public and to consumers. Adam, let me ask you to

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Speaker 1: respond to that. Pick pick whatever parts of it you'd like. Well,

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Speaker 1: it's probably more parts in there that we have time

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Speaker 1: to fill. I mean, everything's from suggesting that the CFPP

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Speaker 1: is meaningfully reviewed by other agencies, and in fact, the

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Speaker 1: other agencies have extremely limited detail over a small subset

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Speaker 1: of CFPP rules non enforcement actions, and they have to

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Speaker 1: have a supermajority volt but just in general. So it

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Speaker 1: was interesting the way he tried to compare the CFPP

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Speaker 1: with the OCC because, of course the CFPP is not

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Speaker 1: like the to see for the very reason identified by

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Speaker 1: the PC Circuit Panel, CFPB director calling Beer moved for

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Speaker 1: cause blcc uh. The head of BCC can be fired

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Speaker 1: at any time, so long as the President just communicates

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Speaker 1: a raised as the Congress, there isn't a real serious

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Speaker 1: debate over that at all. I think at the end

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Speaker 1: of the day, the real virtue of the panel decision

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Speaker 1: was that it looked back at the original origins of

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Speaker 1: independent commissions, the fact that they were seen as quasi

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Speaker 1: judicial and quasi or quasi legislative. They're constructed to be

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Speaker 1: more like courts, are like Congress than sheer executive power.

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Speaker 1: And the reason for that is, as we all know,

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Speaker 1: a deliberative body is fundamentally different from a single headed

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Speaker 1: agency for the reasons that the Framers identified and the

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Speaker 1: constitutional debates and the Federal's papers to the reasons we

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Speaker 1: see today when the FCC makes a policy decision, sure

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Speaker 1: it might wind up going in the direction the president wants.

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Speaker 1: The first, it has to go through meaningful deliberation, with

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Speaker 1: the members of the commission pushing against one another's arguments

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Speaker 1: and then issuing a majority opinion and descending opinions, which

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Speaker 1: then make the record all the more wholesome when it

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Speaker 1: goes to judicial review. A single member agency like the

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Speaker 1: CFPB or the e p A enjoys all the energy

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Speaker 1: of a president, but without any of the inn intra

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Speaker 1: agency checks that multi member commissions have. I'm not saying

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Speaker 1: that one form of agency is better than another, but

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Speaker 1: I am agreeing with the panel that if we're going

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Speaker 1: to have an independent agency uh this limited exception that

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Speaker 1: the Supreme Court drill up in the general rule presidential

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Speaker 1: removal power, well then it needs to be structured like

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Speaker 1: those quaisi judicial quasi legislative bodies up. On the other hand,

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Speaker 1: we want an agency that's energetic like the e p

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Speaker 1: A administrator, well then we need to make that agency

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Speaker 1: fully accountable to the President, who has a constitutional duty

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Speaker 1: and an oath to take care of that the laws

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Speaker 1: are faithfully executed. Mike, I want to at least touch

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Speaker 1: on a different issue, which is the position of the

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Speaker 1: Trump administration. So in court today there were three different parties.

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Speaker 1: There was a company, there was the CFPB, and there

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Speaker 1: was a Trump administration. And the Trump administrat position is

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Speaker 1: in some ways a middle position. It basically said do

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Speaker 1: with the three judge panel. Did leave the CFPB intact,

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Speaker 1: but give the president more power, the power to fire

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Speaker 1: the director for any reason. Were you surprise, given Donald

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Speaker 1: Trump's rhetoric beforehand, that the administration didn't go further and

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Speaker 1: say throughout the entire agency. I wasn't totally surprised. Um.

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Speaker 1: You can see the House Republicans, which obviously have been

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Speaker 1: big critics of Dot Frank and the CFPB from the

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Speaker 1: get go um. This year they've changed their focus on

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Speaker 1: how to change the CFPB and their ideal legislation, something

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Speaker 1: called the Choice Act. Last year, they wanted to replace

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Speaker 1: the CFPB with a commission structure with a dual mandate

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Speaker 1: to kind of weaken its its regulatory mission and change

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Speaker 1: the funding stream. This year, in the new version of

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Speaker 1: their Choice Act, which just went through House Financial Services Committee,

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Speaker 1: they want to keep the single director presumably because they

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Speaker 1: think that and make them removable at will by the president,

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Speaker 1: presumably because they think that they can do more to

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Speaker 1: undo dot Frank with a single director than by working

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Speaker 1: through a commission structure. Um, so that change was a

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Speaker 1: little telegraphed in advance. Um. You know, it was interesting

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Speaker 1: that Donald Trump did not try to fire Richard Cordrey,

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Speaker 1: as many people encouraged him to do, for either either

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Speaker 1: claiming he had the right to do it or for

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Speaker 1: misconduct on day one or early on an administration. Seems

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Speaker 1: like they've taken a little slower approach than some some

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Speaker 1: of the more energetic people might have thought. Adam, we

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Speaker 1: only have about thirty seconds. But what happens if if

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Speaker 1: the Trump administration position prevails? Does Donald Trump immediately fire

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Speaker 1: Richard Cordrey? Well, it's hard to say, as he could.

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Speaker 1: I think he as as my friend says, he already

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Speaker 1: has power under the statute to do so. There's plenty

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Speaker 1: of cause, just occasions, whether it's the allegations of racial

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Speaker 1: discrimination within the agency, the lavish overspending on the part

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Speaker 1: of Director Cordray, the cord is profound, and the sustained

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Speaker 1: refusal to meaningfully respond to Congressional oversight. There's more than

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Speaker 1: enough reason under the statute for President Trump fire him

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Speaker 1: or under the Constitution, and I think our guests Adam

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Speaker 1: Right of the Hoover Institution and Mike Console of the

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Speaker 1: Roosevelt Institute