Supreme Court Issues Orders on Ban 3.0: What This Means

by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law - University Park, Sirine Shebaya, senior staff attorney, Muslim Advocates and , and Abed Ayoub, legal director, American-Arab Anti-Discrimination Committee

*This piece was originally posted on Medium. 

What happened at the Supreme Court? On December 4, the Supreme Court issued orders staying the injunctions placed on certain aspects of Ban 3.0 by federal district courts in Hawaii and Maryland. What this means is the third version of the ban can take full effect pending a decision of the Government’s appeal in the Fourth and Ninth Circuit Courts of Appeals and pending a decision of the Government’s petition to the Supreme Court to hear the case. Justices Sotomayor and Ginsburg would have denied the application giving rise to these orders.

Did the Supreme Court give a reason for these orders? No. The Court did not provide a specific reason for the orders beyond the fact that both cases would be heard on an “expedited basis” at the appellate courts. This means that the Supreme Court expects the decisions soon after oral arguments which are scheduled for December 6 at the Ninth Circuit and December 8 at the Fourth Circuit.

Did the Supreme Court Rule on the Legality of the ban? No. The Supreme Court did not make a decision on the legality of the ban. The legal challenges to Ban 3.0 have been wide ranging and were successful at the Hawaii and Maryland courts. The challenges have been constitutional and statutory. Whereas the Hawaii court focused on the statutory arguments to conclude that Ban 3.0 violates the immigration statute by denying immigrant visas based on nationality, the Maryland court focused on the likelihood that Ban 3.0 violates the Establishment Clause of the First Amendment to the U.S. Constitution.

What about pending cases at the courts of appeals? The Government appealed the Maryland and Hawaii decisions. Oral arguments are scheduled for December 6 in the Ninth Circuit and for December 8 in the Fourth Circuit.

Who is covered by Ban 3.0?

  • Chad, Libya and Yemen: all immigrants and those entering as tourists or business travelers
  • Iran: all immigrants and nonimmigrants, EXCEPT F, J and M visa holders (extra scrutiny)
  • North Korea and Syria: all immigrants and nonimmigrants
  • Somalia: immigrants (and nonimmigrants subject to extra scrutiny)
  • Venezuela: certain nonimmigrants government officials and their family members

What is the scope of the ban? These suspensions only apply to people who:

  • are outside the United States on the applicable effective date
  • do not have a valid visa on the effective date
  • do not qualify for a visa or other travel document by the terms of the Proclamation

Who is exempt from Ban 3.0?

  • Lawful permanent residents (green card holders)
  • Foreign nationals admitted or paroled to the United States on or after the effective date
  • Foreign nationals with travel documents that are not visas that are valid before or issued after the effective date
  • Dual nationals traveling on a passport that is not one of the affected countries
  • Those travelling on a diplomatic or related visa
  • Foreign nationals who have already been granted asylum, refugees who have already been granted admittance, and those who have been granted withholding of removal, advanced parole, or protections under the Convention Against Torture

If I am covered by the ban can I still enter the country? A consular officer may, on a case-by-case basis and within their discretion, grant a waiver to affected immigrants for certain reasons. The person seeking entry must prove that:

  • denying entry would cause the foreign national undue hardship;
  • entry would not pose a threat to the national security or public safety of the United States; and
  • entry would be in the national interest.

Please seek the advice of an immigration attorney before seeking a waiver.

What should I do if I am from one of the eight countries, outside the United States and want to travel to the United States? If you are from one of the eight countries, are covered by the ban and do not yet have a visa then cannot obtain one at this time, unless you qualify for a waiver. If you are from one of the countries and do have a valid visa on the effective date (which as of this writing is unclear) you may be able to enter the United States. If you choose to travel, please talk to an immigration attorney and arrange for assistance by a lawyer or advocate at the airport you are flying into. Finally, please make sure you know and understand your rights.

What should I do if I am from one of the eight countries, am in the United States with a valid visa and want to travel outside the country? The third version of the ban states that no visas will be revoked and that those with a valid visa on the effective date (which as of this writing is unclear) are not covered by the ban. Nevertheless, travel outside the United States at this time carries a lot of risk. If you plan to travel, please visit an immigration attorney so you can understand the risks and responsibilities of leaving the United States. Also, please arrange for assistance by a lawyer or advocate at the airport you are flying back into.

Where can I find more resources?

Yes, Every Mueller Document Is Rife With Clues

by Dan Froomkin

Federal prosecutors – even those not working on cases of major public interest – may well uncover facts in the course of their investigations that if made public would have explosive political ramifications.

But Justice Department rules are extraordinarily strict: Neither prosecutors nor the FBI can tell anyone what they've discovered unless it's in the fulfillment of their official duties.

That's important: the process of investigation often turns up things that are not true, or do not amount to crimes, but that could nevertheless ruin reputations. (The November 2017 update of the U.S. Attorney's Manual includes new language about the "General Need for Confidentiality" that is different, but consistent, with the previous version.)

Not everyone follows those rules. Special counsel Kenneth Starr, who serially investigated Bill and Hillary Clinton in the 1990s, ran an office that was notorious for leaking profusely to reporters. Plus, he was instructed to file an extensive report to Congress and a judge approved the almost unprecedented release of the related grand jury transcripts. So we learned an awful lot about his investigation, both in real-time and soon after.

By contrast, special counsel Robert Mueller's investigation into possible Trump campaign collusion with the Russians has been remarkably leak-free. As far as I can tell, all the folks talking to the press are either witnesses or their confidantes.

The only information coming out of Mueller's office is in the way of a growing number of official court filings. On December 1, he released a criminal information, statement of the offense, and plea agreement related to Mueller's indictment of former national security adviser Michael Flynn for lying to the FBI.

Those documents are rife with clues about what Mueller has been finding out; for instance, he was exceedingly specific about what Flynn was lying about and when and to who. It is of course possible that the inclusion of all those clues was accidental, and simply the inevitable byproduct of a necessary legal maneuver. But it's more likely that the timing and the details are all Mueller's way of providing the public with as much information as he legally can.

As a result, the extraordinarily close scrutiny of these documents by the media is not only entirely appropriate, it is necessary. (See, for instance, Charlie Savage's deconstruction and former U.S. attorney Harry Litman's 10 Key Takeaways in the New York Times.)

If every fact that Mueller provides is a dot, connecting them is the obvious next step. This is a time for informed speculation, ideally informed by people knowledgeable about how federal public corruption cases work. (University of Chicago Law professors Daniel Hemel and Eric Posner's informed speculation on the Trump campaign's apparent violation of the Logan Act is a good example.)

Some observers made the mistake of thinking that Flynn only being charged with lying to the FBI meant that Mueller is coming up empty and the story is dying down. But almost every fact Mueller has now established on the record leads to new questions – particularly when examining Trump's contemporaneous tweets alongside his new ones.

On December 4, Mueller's team filed a brief arguing against any easing of the bail conditions for former Trump campaign director Paul Manafort, who was indicted in October for money laundering. The brief said Manafort should not be trusted because he was violating the district court's gag order.

But it was clear to observers that the brief's contents had at least as much to do with messaging as with the law. The brief stated that Mueller's team had discovered that Manafort was ghostwriting an editorial regarding his political work for Ukraine, along with "a long-time Russian colleague of Manafort's who is currently based in Russia and assessed to have ties to a Russian intelligence service."

That was a Mueller shot-across-the-bow to Manafort and any other witnesses and subjects in the investigation, warning them not to mess with him. But it was also another major public clue that Mueller has information about Russian contacts with Trump campaign officials that hasn't come out yet.

Reportage of this story has been aggressive. But even when prosecutors lay down a trail of breadcrumbs in their official statements, establishment-media reporters don't always follow them.

Case in point, establishment journalists covering the Scooter Libby trial in 2007 consistently stopped short of reporting the obvious conclusion to which special prosecutor Patrick Fitzgerald repeatedly pointed: that the case was not really about Libby at all, but about Vice President Dick Cheney, the man who Libby was lying to protect. (See my washingtonpost.com column at the time: The Cloud Over Cheney.)

Libby, of course, famously lied to the FBI, denying that he had told any journalist about Valerie Plame's identity as a CIA operative in an attempt to discredit her husband, Iraq war critic Joseph Wilson. As Fitzgerald made abundantly clear in his rapid-fire closing statement, on February 20, 2007, he was lying to protect Cheney, who had sent him out to do so.

"There is talk about a cloud over the vice president. There is a cloud over the White House as to what happened. Don't you think the FBI, the grand jury, the American people are entitled to a straight answer?" Fitzgerald asked.

"People want to know who did it. What role did they play? What role did the defendant play? What role did others play? What role did the Vice President play…?"

Fitzgerald argued that the No. 1 talking point drafted at Cheney's direction -- "It is not clear who authorized Joe Wilson's trip to Niger" -- was a de facto instruction to Libby and others to discuss Valerie Plame.

Libby, he said, "stole the truth from the judicial system."

The Washington Post, the New York Times and the Associated Press, among others, didn't write that story the next day. Instead, they simply summarized the fireworks of the dueling closing arguments.

It's an object lesson in the importance of reporting the dots – but not just stopping there.

It took Fitzgerald nearly two years to indict Libby – so Mueller is obviously working at a brisker pace. Nevertheless, he is slowed by the need to put his case together meticulously. And unlike Starr, he has not been given either orders or permission to submit a report to Congress. (See our May 24, 2017, blog item: We Can't Count on Robert Mueller to Tell Us What We Need to Know.)

So, with Mueller so constricted in how and what he can say publicly, it's worth considering everything he says as a clue. And with Trump himself being one of the few people who knows what Mueller could be finding out, it's worth considering that his tweets and comments attempting to delegitimize the FBI, the special counsel, and the judiciary itself, are themselves clues as well.

Masterpiece Cakeshop: The Artistry is Irrelevant

by Caroline Mala Corbin, Professor of Law, University of Miami School of Law

On Tuesday, the Supreme Court will hear arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The case centers on a cake, but at stake is the future of LBGTQ civil rights. The main issue is whether Colorado’s public accommodations law violates the Free Speech Clause.

Jack Phillips, owner of Masterpiece Cakeshop, refused to sell his baking services to Charlie Craig and David Mullins, a Denver couple seeking a wedding cake. He was fined for violating Colorado’s public accommodations law, which bans discrimination on the basis of sexual orientation in places open to the public. Phillips is religiously opposed to same-sex marriage, and believes that to avoid condoning same-sex marriage, Jesus himself would refuse to employ his carpentry skills to make a bed for this couple. Phillips argues that forcing him to make a cake for Craig and Mullins would violate the Free Speech Clause by compelling him to use his creative talents to express approval of same-sex marriage. He is wrong.

First, creating a wedding cake is not protected by the Free Speech Clause. The reason is not that wedding cakes lack artistry. The reason is that for claims arising from compelled expressive conduct, compelled creativity is not enough to trigger free speech protection. Otherwise every single activity with a creative component would be covered by the Free Speech Clause. As the Supreme Court once cautioned, “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”

Rather, in order for compelled expressive conduct to trigger free speech protection, the compelled expressive conduct must communicate a message with which the actor disagrees, and that message must be understood by its audience. The actor’s subjective belief about the message being conveyed is not enough. The audience must also understand that message. If we understood the creation and sale of wedding items to mean that the retailer that provided them approved of the wedding, then Phillips might have a claim. However, when a store sells a good to a member of the public, even a good made with considerable artistry, we generally do not read that transaction as communicating a message of endorsement. A gallery could sell a Picasso to a couple, yet we would not conclude that the gallery was expressing approval of the couple, their home, or their marriage. We simply do not read commercial sales as endorsement, and there is no reason to start now.

Second, no right is absolute, including free speech. Even assuming the creation and sale of a wedding cake triggers Free Speech Clause scrutiny, Colorado’s public accommodations law would survive rigorous scrutiny. Actually, since the public accommodation law is a content-neutral regulation of conduct, the scrutiny would be intermediate rather than strict. Nonetheless, anti-discrimination law survives strict scrutiny.

There is no interest more compelling then ending discrimination. Discrimination not only denies gay and lesbian couples access to services available to everyone else, but also denies them the dignity of being treated as a member of the community like everyone else. That another bakeshop might be willing to provide a wedding cake might address the first harm, but not the second. Only a complete ban on discrimination guarantees full and equal citizenship. This was self-evident during the civil rights era, when the Supreme Court dismissed a segregated barbeque restaurant’s request for an exemption from public accommodation law as “patently frivolous.” It should be just as self-evident today.

The Dangers of National Security Secrecy to our Democracy

Sudha Setty is a professor of law and associate dean at Western New England University School of Law. Her book, National Security Secrecy: Comparative Effects on Democracy and the Rule of Law, was recently published by Cambridge University Press.

For decades, the balance of national security power has become progressively unmoored from the basic democratic premise that the power to decide what the government does resides with the people through their representatives. Yet post-September 11 national security-related policies have distorted both of these concepts of democracy: exceptionalism and emergency are consistently invoked in the national security context to justify programs that would otherwise be viewed as outside of the legal, structural, and value constraints that society places on government—like extraordinary rendition, torture, and the targeted killings of Americans overseas. On top of that, the secrecy with which certain programs are conducted inverts the democratic structure of transparency in ways that undermine the effectiveness of our governmental structures and lessens our commitment to a society based on the rule of law.

This is not a partisan issue—the problem of too much secrecy in national security matters has spanned all three post-September 11 administrations. The Bush, Obama, and Trump administrations pushed the boundaries of national security exceptionalism in separate ways to suggest that a different set of laws and rules apply to government counterterrorism efforts, and that the public does not have a right to know what those laws are. Congress, for its part, allocated vague but expansive powers to the government immediately after September 11, such as the Authorization for the Use of Military Force, which is still widely relied upon for the government’s counterterrorism and warmaking actions around the world. Courts remained reluctant to challenge executive branch policies for many years, allowing the government to erect procedural and doctrinal barriers, and dismissing cases dealing with rendition and torture based on the state secrets privilege, thereby enabling a lack of accountability for systemic human rights abuses.

The last months have amply demonstrated how the Trump administration’s national security policies are trying to adhere to the post-September 11 playbook of an enormous increase in the authority granted to and taken by the executive branch to exercise counterterrorism measures, without a concomitant commitment to oversight and accountability. Here I cite three examples.

Targeted killings: the Obama administration oversaw a massive expansion in the use of drones to kill people outside of active theaters of war. Obama voluntarily disclosed certain portions of the administration’s drone policy in 2013 and the underlying policy in 2016, though his administration withheld certain aspects of its decision-making, including how it determines whether someone meets the “imminent threat” threshold that justifies targeting. Trump relies heavily on the use of drones, reportedly loosening the parameters that govern who can be targeted, but refusing to heed calls that he disclose how the drone policy has shifted, or the legal basis for those changes. Further, Trump has continued the problematic Obama-era policy of improperly disclosing the number of civilians who have been killed in drone strokes, even though reports suggest significant civilian casualties.

North Korea: Trump’s inflammatory rhetoric about the dire security situation prompted Congress to consider taking the extraordinary step of limiting the president’s authority to initiate a first strike. The Trump administration decried such legislation as unnecessary because the United States would only initiate a first strike if North Korea posed an “imminent threat.” As with targeted killings, however, that constraint provides cold comfort when the definition of “imminent threat” is nonpublic and unclear.

The Travel Bans: Trump has issued two executive orders and one presidential proclamation creating a set of immigration restrictions on a variety of Muslim-majority countries. His administration defended the most recent order as being carefully crafted and based on research into the domestic vetting processes in each of over 200 nations. Yet administration lawyers balked at a district court judge’s request to share the research underlying the proclamation, citing national security concerns and arguing that the court was improperly looking into the president’s motives behind the order. The partial injunction on this ban is currently being weighed by the Supreme Court.

In these three contexts—targeted killings, North Korea, and the travel bans—it is unsurprising that the Trump administration is changing the applicable legal standards, not disclosing all of those legal standards, and chafing at efforts by courts, the public and Congress to hem in presidential power. After all, asserting tremendous counterterrorism power and simultaneously claiming the ability to keep the parameters of that power secret are long-standing executive branch stances. What’s new is the willingness of Congress and the courts to engage with these matters. Whether because of their own skepticism as to the wisdom of these manifestations of presidential power or the validity of the underlying decisions of this administration, or because President Trump’s bombastic rhetoric alienates other branches of government and the public, this long overdue level of scrutiny and oversight probably hasn’t been seen since Watergate.

The grab for executive power, coupled with the fear of another large-scale attack, justified the layers of secrecy surrounding national security laws and policies. National security secrets are often genuinely necessary to maintain the integrity of a particular program or policy, gain a tactical advantage, or simply protect the individuals involved in running a program. Yet I argue in my book, National Security Secrecy: Comparative Effects on Democracy and the Rule of Law, that we must ask harder questions about whether our post-September 11 political and legal culture is necessary and appropriate, or whether its corrosiveness means that secrecy need to be curtailed by improving oversight by Congress and the Courts and hemming in executive power.

Whether the new levels of engagement by the courts, Congress, and the public portend a reset in the dynamic among the branches of government when it comes to national security matters or simply represents something that will endure for this presidency depends on the extent to which President Trump is perceived as dangerous and irresponsible. One silver lining to this presidency may be a willingness to exercise more oversight and take seriously the responsibility to ensure a transparent and accountable government, even in matters of security. If that’s the case, it would be a win for democratic values and the rule of law.

Points of Rebellion and A Constitutional Faith: ACS’s Perfect Constitutional Primers

What texts should the American Constitution Society use to introduce its members to progressive constitutional values? I mean besides our nation’s founding texts, The U.S. Constitution and The Declaration of Independence as well as The Federalist Papers.

First principles are in order. “Alternative facts” derange political discourse. Soundbite screaming matches mock Socratic dialogue. Yellow journalism dumbs down public opinion. We’re in a cold civil war of red states and blue states.

We need principled idealists to wake us up from our dogmatic slumbers. Our liberal/conservative debate must again approach civility. For productive conversation and mutual constructive criticism, it’s high time that ACS reframe the national debate. To this end, I move that two books initiate ACS members into the mysteries of constitutional law: Associate Justice William Douglas’ Points of Rebellion and Associate Justice Hugo Black’s A Constitutional Faith.

William Douglas’ 97-page manifesto should initiate ACS members into the hardboiled liberalism of the New Deal, the Fair Deal, the Great Society, and beyond. Points describes how We the People should command the “Establishment”: “We must realize that today’s Establishment is the new George III. Whether it will continue to adhere to his tactics, we do not know. If it does, the redress, honored in tradition, is revolution.”

Douglas’ analogy prompts us to pay close attention to The Declaration of Independence’s bill of particulars against George III. It invites us to consider how American colonists’ complaints against the King resonate with many American citizens’ contemporary complaints against the Pentagon and the police state. Points thus suggests how we Americans should frame our founding text. It outlines revolution through altering, not abolishing, government.

Points offers a goldmine of soundbites. Consider Douglas’ criticism of “socialism implicit in vast subsidies to the military-industrial complex,” and “the upside down welfare state [that] helps the rich get richer and the poor, poorer.” ACS would do well to encourage its members to explore Douglas’ lines of inquiry:

What does he mean by “folklore of the corporation state”? How are universities “symbols of the Establishment”? Regarding our apartheid state, what about these four axioms: “Police practices are anti-Negro. Employment practices are anti-Negro. Housing allocation is anti-Negro. Education is anti-Negro.”

Points brims with rhetorical possibilities. It reframes The Declaration of Independence for today’s cutting edge of activism, rather than a mere historical curiosity dated July 4, 1776. Points sketches a new Reconstruction. We the People should work out its details to command and control the Establishment.

Furthermore, Points epitomizes Douglas’ more expansive common-law constitutionalism, which contrasts Hugo Black’s more fundamentalist strict constructionism. A Constitutional Faith articulates Black’s Fourteenth Amendment originalism. His principled conservatism provides a compelling alternative to those who claim the title “conservative,” yet spin-doctor the zero-sum society sanctioned by Lochner, and dog-whistle the apartheid state mandated by Dred Scott.

Black’s 66-page credo frames conservatism in humane, rather than formalist, terms. A Constitutional Faith puts our written constitution in the historical context of English experience. His ideal judges, guardians of our constitutional rights, defend public welfare and affirm the public good by deciding cases according to the terms of The Constitution, not their own subjective views of “fairness,” “reasonableness,” or “justice.” Goldilocks chose the porridge “just right.” Likewise, judges should neither legislate their policy preferences as judicial activists, nor evade their constitutional responsibilities through so-called judicial restraint.

Black strictly construes due process as a matter of procedural protections of life, liberty, and property. Black frames the due process clauses of the Fifth and Fourteenth Amendments in terms of Magna Carta’s “law of the land.”

Black’s First Amendment views are especially noteworthy: “The right to think, speak, and write freely without governmental censorship or interference is the most precious privilege of citizens vested with power to select public policies and public officials.” To Black, the right of free speech is an absolute, notwithstanding occasional “time, place and manner” restrictions. It is a necessary condition for representative democracy. Hence his strict constructionist mantra that “no law means no law.”

A Constitutional Faith conceptualizes how we Americans may fulfill our written constitution’s purpose, which, according to Black, is government controlled by the people. It provides historical context for our constitution even as Douglas’ polemic impresses power to the people.

Douglas and Black, the progressive liberal and the progressive conservative, championed the public good. They transcended the factionalism that is subverting our democracy, what James Madison complained about in Federalist no. 10. Thus, Points of Rebellion and A Constitutional Faith are the perfect ACS primers. Many ACS members are youthful lawyers on the make. What better appeal to youthful idealism than the credos of real-life Atticus Finches?

Now Who Is A Sad Sick Joke?

by Paul Bland, Executive Director, Public Justice

It has become common knowledge in Washington that, if you want to bury bad news, the best time to do so is on a Friday afternoon, or over a holiday weekend. So it is especially telling that, when it came time to strike at one of the most effective agencies in the federal government, the Trump Administration chose a two-for and announced its plans for the Consumer Financial Protection Bureau on Friday evening over Thanksgiving weekend. While most of the country was (the White House hoped) distracted by black Friday sales and family gatherings, President Trump announced he had installed Mick Mulvaney – who once referred to the CFPB as a “sad sick joke” – as acting director of the agency. The move is just the latest in a long line of Presidential appointments designed to dismantle government agencies from the inside by placing their fiercest critics in charge of their work. But Trump’s move at the CFPB is probably illegal, politically risky, and could backfire in a big way.

While public trust and confidence in the federal government is sagging, to say the least, the CFPB has managed a nearly impossible feat: Both Republican and Democratic voters agree, overwhelmingly, that the agency has an important job and has done it well. That bipartisan support is likely due to the unique independence the agency enjoys, which was a key part of its original plan. By ensuring the Director would not be beholden to the President, Congress also ensured it would be free to take on big banks, payday lenders and Wall Street’s bad actors without fear of political repercussion or retaliation. It allowed former Director Rich Cordray to go after Wells Fargo – to use just one example – even while the bank filled the campaign coffers of candidates from both political parties.

The result has paid very real dividends for consumers. Since its founding, the CFPB has returned $12 billion to consumers cheated, defrauded and wronged by the financial services industry.  It’s a narrative that should play bigly with the President’s campaign promises to look out for the little guy. But the President, instead, has put politics – and Wall Street – ahead of the voters who put him in the White House.

In selecting Mulvaney, who will also retain his position as director of the Office of Management and Budget, Trump has installed his own direct report at the agency, wiping away any sense of independence the CFPB once had. This is flatly contrary to the provisions in Dodd-Frank, the statute that created the CFPB, that require that the head of the Bureau be completely independent (like the Chair of the Fed).  But with a political appointee whose main job (at OMB) is controlled by the President, rather than having the freedom to go after corporations based on what they’ve done wrong, Mulvaney will now undoubtedly have to seek the President’s blessing to do so. And anyone who doubts where Trump’s allegiance is needs only to look at the long line of Wall Street bankers who now hold top positions in his Administration.

That, in turn, leaves little doubt as to why Trump has chosen to appoint – at least for now – an “acting” head of the agency. By doing so, the White House hopes to avoid a Senate confirmation hearing that would almost certainly come with withering questions about the Administration’s assault on an agency that has become increasingly popular among its own voters. But voters deserve those answers, and the White House should not be allowed to use political loopholes as part of its strategy to deliver a death knell to the agency.

In fact, Mulvaney’s appointment is, itself, of questionable legitimacy. Cordray’s Deputy Director at the agency, Leandra English, has filed suit to stop the OMB head from taking over, citing language in the law creating the agency that makes clear the President cannot avoid Senate confirmation of a new Director, and that the Deputy Director (in this case, English) should serve as the agency’s head until the Senate approves a White House nominee. It may be an uphill struggle, but we strongly urge Senators to insist that the Administration begin to respect the idea that the agency serve as an independent watchdog.  If the White House ignores this principle, at least if there are public hearings, those will give the consumers the agency is charged with protecting the option of weighing in with their elected representatives.

Sadly, the President seems intent, instead, on making sure the wolf is put in charge of the hen house, with the apparent goal of making the CFPB the latest casualty in the White House’s war on competence. And while defeating any eventual permanent nominee for the agency may be its own uphill battle, every consumer who feels like Wells Fargo already has enough friends in high places should get ready to fight like hell to protect the last friend the little guys have left in official Washington.