ACSBlog

  • October 13, 2016
    Guest Post

    by Jack Beermann, Professor of Law and Harry Elwood Warren Scholar, Boston University School of Law

    In PHH Corporation v. Consumer Financial Protection Bureau, the U.S. Court of Appeals for the D.C. Circuit, in an opinion by Judge Brett Kavanaugh, held that it was unconstitutional for the CFPB to be headed by a single Director who could not be removed by the president without cause. The consequences of the court’s decision were muted by its decision not to declare the agency completely unconstitutional. Rather, as the Supreme Court did with the Public Company Accounting Oversight Board (PCAOB), the court simply excised the Director’s “for-cause” protection and its implication that the Director was beyond the president’s control and otherwise left the agency and all of its decisions, intact. Thus, the CFPB can go on as before, with the only change being that the president can remove the Director at will and can order the Director to act in accord with presidential policies and priorities.

    Judge Kavanaugh’s reasoning in support of this outcome is surprising. The basis for the decision was not that the president, as head of the Executive Branch, needs the power to control the CPFB. Recall that the need for presidential control was the Supreme Court’s basis for invalidating the PCAOB’s for-cause protections. In the case of the CFPB, Judge Kavanaugh’s expressed reason for invalidating the Director’s protection was that “[t]he CFPB’s concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency.” In Judge Kavanaugh’s view, the multi-member structure of most independent agencies provides a check on abuse of power that was, unconstitutionally, absent in the case of the CFPB. (Judge Kavanaugh also relies heavily on the history and tradition of plural heads of independent agencies. In this blog, I focus only on the pragmatic reasoning, not the reasoning based on tradition.)

  • October 13, 2016
    Guest Post

    by Joshua A. Douglas, law professor at the University of Kentucky College of Law. Professor Douglas specializes in election law and voting rights, with a specific focus on the constitutional right to vote, election administration and post-election disputes. He is the co-editor of a new book, Election Law Stories.

    When disaster strikes that impacts the ability to vote, election administrators should do what they can to preserve the fundamental right to vote.

    That was the message from U.S. District Judge Mark Walker at Wednesday’s hearing in Florida regarding the state’s voter registration deadline. The court found that shutting off voter registration on October 11, the statutory deadline, impermissibly would deny the right to vote to individuals who faced obstacles before that date because of Hurricane Matthew. The judge in essence replaced the days lost due to the hurricane by extending the voter registration deadline to October 18.

    Other instances of unexpected disaster also have forced election administrators to alter the rules to ensure robust voting rights. On September 11, 2001, New York City was in the midst of a primary election when the terrorist attacks began. The city quite rightly halted the election, postponing it for two weeks. In 2012, New York and New Jersey both altered their voting rules to allow voting for those who Hurricane Sandy had displaced. Even South Carolina Governor Nikki Haley extended the voter registration deadline for South Carolina voters in the wake of Hurricane Matthew last week. (North Carolina refused to extend the voter registration deadline beyond this Friday, but voters still have further opportunities to register during early voting. A lawsuit is now pending in Georgia asking the state to extend its voter registration deadline because of the storm.)

  • October 13, 2016
    Guest Post

    by Ngozi J. Nezianya, JD/MBA Candidate, Northwestern University; President, ACS Student Chapter at Northwestern University School of Law; Next Generation Leader and Student Member, ACS National Board of Directors

    Imagine a world in which registering to vote took only a simple form and no more than a few minutes of your time. Imagine a world in which the myriad ways that our government entities use to identify you could ensure that you get a say in exactly who does the verifying. Imagine a world in which casting your ballot could be completed on your way to work, on your lunch break or on your way home before you pick up the kids from school.

    Such a utopia need not be reserved for the depths of our imagination. In fact, for some in our country, much of this is already a reality. Thirty-one states and the District of Columbia currently offer online voter registration and five states automatically place their citizens onto voter rolls whenever they interact with government agencies. In the last presidential election, the average time it took to vote actually fell across the country – from 16.7 minutes back in 2008 to 13.3 minutes in 2012.

    Yet, despite those positive developments, one need only scratch the surface of these rosy data to reveal the discordant truths that coexist in our democratic process. Seven states maintain strict laws that require forms of photo identification that 11 percent of eligible voters do not have. Federal law requires states to maintain updated voter registration lists; however, when those laws result in the purges of millions of citizens from the rolls every two years, various states and their officials seem to disproportionately remove the poor, mistakenly remove Asian and Hispanic voters because they matched their surnames to the wrong people and in some cases outright intimidate black voters by sending police officers door-to-door to challenge those voters’ registrations. (And those are not even the most egregious purges.) Lastly, countless stories have documented how the closure of polling locations in heavily populated voting districts and the shortening of early voting periods across the country have caused citizens to wait up to five and seven hours in the blistering sun to exercise a right that the Supreme Court, dating back to 1966, had previously deemed “fundamental.” In other words, the extraordinary degree of variance at the other end of the voting experience skews our democratic process toward dystopia.

  • October 12, 2016
    Guest Post

    by Matthew Stanford,  Senior Law Student at the University of California, Berkeley School of Law; Articles & Essays Editor of the California Law Review and President of the ACS Student Chapter at the University of California, Berkeley School of Law

    To the surprise of no one, the first presidential debate was short on substance, long on bluster. But one real issue that emerged from the spin-induced haze was the constitutionality of “stop-and-frisk.”

    During the debate, moderator Lester Holt suggested that the controversial and long used police practice of stopping people on the street and patting them down for weapons had been deemed “unconstitutional in New York, because it largely singled out black and Hispanic young men.”

    An onslaught of Trump and Clinton surrogates followed with their respective positions on the constitutional upshot of U.S. District Court Judge Shira A. Scheindlin’s 2013 decision.

    Prognostications about the narrow ruling’s certain demise on appeal––that is, if the appeal had continued to fruition––inevitably led to accusations of moderator bias. Most notably, former New York Mayor Rudy Giuliani penned an op-ed suggesting that the Second Circuit’s removal of Judge Scheindlin from the case amounted to a reversal of her underlying ruling. To be sure, that logic is flawed: removing a judge is an administrative decision, not a ruling on the merits.

    But a more disturbing trend has emerged from the week’s stop-and-frisk chatter. Far from discussing the merits of the decades-old doctrine that allows police discretion to stop people on the street, the campaigns prefer instead to carry on with the punch and parry about moderator bias and candidate performance––sacrificing yet another critical discussion on the altar of media ratings that has come to define contemporary electoral culture.

  • October 11, 2016
    Guest Post

    *This post was originally published on creditclips.org.

    by Adam Levitin, Professor of Law, Georgetown University Law Center

    The headlines look pretty bad: the DC Circuit Court of Appeals held the CFPB’s structure to be unconstitutional in a case called PHH v. CFPB, which deals with kickbacks in captive private mortgage reinsurance arrangements allegedly in violation of the Real Estate Settlement Procedures Act. In fact, however, the ruling is a blessing in disguise for the CFPB. While the 110 page decision is filled with inflammatory rhetoric, it gives the CFPB’s detractors very little succor in the end. The CFPB lost on the decision’s rhetoric, but won on the practical implications. Although the CFPB’s current structure was declared unconstitutional, the court also immediately remedied the flaw by declaring that the CFPB Director is now removable by the President at will, rather than only "for cause" as provided for by the Dodd-Frank Act. There are four critical implications from this ruling:   

    ·    First, the CFPB’s existing rule makings and enforcement actions remain valid and unaffected. That is a huge win for the CFPB. It is business as usual at the CFPB for all intents and purposes.

    ·    Second, the CFPB’s Director is now under direct Presidential political control, but that does not have partisan implications: a GOP-appointed director could be removed as easily by a Democratic president as a Democratic-appointed director could be removed by a Republican president. Now the CFPB Director, instead of running on a five-year term will be on a five-year term that might get curtailed with every change in Presidential administration. That is not a particularly big deal.