• October 24, 2016
    Guest Post

    by Keith Bradley

    Who do you think is the most powerful individual in government, after the president? Some might say the Secretary of Defense, the Attorney General or the Chair of the Federal Reserve Board. According to a panel of the D.C. Circuit, it is actually the director of the Consumer Financial Protection Bureau. On that ground, the court in PHH v. Consumer Financial Protection Bureau has just held it unconstitutional that, under the Dodd-Frank Act, the director can only be dismissed for cause.

    For those unfamiliar with the agency, it is the federal regulator of consumer protection in financial services—things like mortgage and credit-card lending, consumer reporting, debt collection, checking accounts, etc. The Dodd-Frank Act created the Bureau, inspired in large part by then-Professor Elizabeth Warren’s idea for a finance analog to the Consumer Product Safety Commission. The Bureau has a budget of about $480 million and just over 1,500 employees—a quarter or so as big as, say, the USDA’s Agricultural Research Service. The Bureau is certainly influential in its sphere; in a six-month period it reports securing $244 million in relief for consumers harmed by violations of federal consumer financial law. Yet, whether you think the Bureau is doing a good job or a bad job in the various areas it regulates, it is not immediately evident that its director is the second-most powerful official in the entire government.

    The opinion’s rhetoric reveals that this panel lost its mooring to the Constitution. The judges’ concern was that the director has “unilateral power,” by which the court really meant that the director runs the Bureau by himself, not as part of a multi-member commission or board. A commission or board is superior, the court said, because it poses less threat to individual liberty. To be sure, the Supreme Court has observed that the separation of powers protects individuals as well as the rival branches. But individual liberty is not the Constitution’s only value. To assess the validity of the Bureau, the question is not simply how it affects liberty, but how it measures up against the actual framework of the Constitution.

    To see the all-consuming importance of individual liberty to this D.C. Circuit panel, it will be useful first to run through the other justifications it offered.

    First, the opinion professed to be suspicious because having a single agency head with for-cause protection is novel. Setting aside whether that mode of constitutional analysis is wise, the panel’s historical review was incomplete. The National Bank Act of 1864 established the Comptroller of the Currency and it permitted (and still permits) the President to remove the Comptroller only “upon reasons to be communicated . . . to the Senate.” Textually and in terms of effect, “upon reasons” seems pretty similar to a “for cause” limitation. Assessing this historical example would be important for any careful examination of whether for-cause protection for a single agency head is a novelty. The D.C. Circuit panel dismissed it in a footnote stating that the Comptroller is an at-will official—for which the court cited no precedent and provided no explanation.

  • October 24, 2016
    Guest Post

    *This piece was originally posted on Homeroom, The Official Blog of the U.S. Department of Education

    by Jeffrey RosenPresident and CEO of the National Constitution Center

    Earlier this week, U.S. Secretary of Education John King gave an inspiring speech on civic education at the National Press Club. As part of his speech, he called for a commitment to nonpartisan constitutional education in our classrooms. At the same time, he recognized that civic education is not easy. Even for teachers and administrators with the best of intentions, these conversations—which often cover some of the most contested issues at the center of our public life—can skew partisan. This is no small problem.

    To navigate these conversations effectively, teachers must have training on how best to facilitate these discussions and must receive support from their principals, their administrators and the wider community. However, teachers must also have access to trusted, nonpartisan information about our Constitution and its history—information that can be hard to find in our polarized age. That is where the National Constitution Center comes in.

    As a national headquarters for civic education, the National Constitution Center delivers balanced, trusted educational programming and online resources that inspire, excite and engage Americans about the U.S. Constitution—its text, its history and its enduring importance. The centerpiece of our civic education efforts is our Interactive Constitution—already dubbed an “internet sensation” by USA Today.

  • October 19, 2016
    Guest Post

    *This piece was originally posted on the Brennan Center for Justice's blog

    by Andrew Cohen, Fellow, Brennan Center for Justice

    There used to be an old saying about legal education in America: Law school does not prepare you to take the bar exam and the bar exam does not prepare you to be a lawyer. I do not know if that is still true or not, although I suspect it is. It sure was 25 years ago when I graduated from law school, took the bar exam and then began practice as a baby lawyer in Denver.

    Next week I will be in my beloved Boston—what, no World Series game at Fenway?—to speak to law school students, professors and alumni and I cannot help thinking that there is one critical course that is missing from the curriculum at even the most forward-thinking law schools across the country. Too many of those schools teach students about what they wish the law to be rather than what the law really is.

    First-year students take criminal law and criminal procedure and they learn about mens rea and the Model Penal Code. What’s missing from law school curricula, however, is a required course that ought to be titled: “Criminal Injustice.” The course would track the countless ways in which our nation’s justice systems fail to provide justice to countless Americans. Only such a class would adequately prepare new lawyers—whether they end up being prosecutors, defense attorneys, judges or not—for the reality of what is happening in the nation’s courtrooms, prisons, jails and police stations.

    The imaginary syllabus I have conjured almost writes itself. It would begin with a section on police training, recruitment and unions so that students could better understand why police reform is so hard to achieve. We would also address in this section the culture of prisons and how they are so often staffed with overworked and underpaid men and women, to understand why our prisons are a national disgrace. The culture of silence, of a lack of accountability and transparency, helps explain why there are so many excessive force cases and wrongful convictions and documented instances of abuse and neglect in confinement.

  • October 19, 2016
    Guest Post

    by Thomas Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department 

    The statement from the International Association of Chiefs of Police (IACP) at their annual conference in San Diego has been described as “historic” and “significant” in acknowledging and apologizing for “actions of the past and the role that our profession has played in society’s historical mistreatment of communities of color.”  This apology is “historical” in coming from an organization that has long remained mute in the face of the oppression, racism, discrimination, violence and criminal wrongdoing that have characterized policing for many black and brown men and women in the United States. 

    Terrence Cunningham, the IACP President, offered, “There have been times when law enforcement officers…have been the face of oppression for far too many of our fellow citizens,” but “that this is no longer the case.” (Author emphasis). And so, according to Cunningham, “today’s officers are not to blame for the injustices of the past,” as if what has gone on in Baltimore; Ferguson, Missouri; Chicago; New York City; Cleveland; Waller County, Texas; North Charleston, South Carolina; Washington, DC; Charlotte, North Carolina; Baton Rouge; Tulsa; and Falcon Heights, Minnesota, since 2014, is some distant, forgettable and forgivable part of the history of long ago and far away. 

    Observers and commentators have called Cunningham’s remarks a commendable first step and it is. And one should acknowledge that the IACP necessarily needs to frame its “apology” in terms that are palatable to the 800,000 law enforcement officers who work in the 18,000 law enforcement agencies in the United States. Words need to be chosen very carefully so as not to offend the sensitivies of the members of the Fraternal Order of Police (FOP) who are suffering the debilitating symptoms of the so-called “Ferguson Effect,” while simultaneously fighting the so-called “War on Cops.” 

  • October 19, 2016

    by Caroline Fredrickson

    From First Lady Michelle Obama’s speech in New Hampshire to accusations by Fox News’ Gretchen Carlson against Roger Ailes, sexual harassment and sexual assault have been dominating the headlines for months. 

    Also in the news has been the topic of forced arbitration agreements that limit victims’ ability to have their day in court. Very much a part of the Wells Fargo scandal has been the bank’s argument that it shouldn't have to face its clients at trial.

    These two stories actually have more in common than is often mentioned. First, of course, Fox tried to shut down Carlson’s suit by saying her contract’s arbitration clause prevented her from using that public forum. Few realize how common it is for women and men who allege harassment at work to be shunted into a secretive process that often prioritizes the interests of the employer.

    As I described in my book, Under the Bus: How Working Women Are Being Run Over, while many Americans may think that they can always bring a lawsuit if their employer violates the law, for almost a third of nonunion workers (or approximately 36 million people) that is no longer true. Using a new weapon to undermine workers’ rights, more and more companies are forcing prospective and current employees to sign away their right to sue in order to get hired or to avoid being fired and to agree that all disputes will be resolved in private arbitration, rather than in normal courts.