Author Topic: Symposium: Is now really the time to jettison sensible, longstanding limitations on presidential pow  (Read 248 times)

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SCOTUSblog by Deepak Gupta 2/13/2020

Symposium: Is now really the time to jettison sensible, longstanding limitations on presidential power?

The latest irregularities at the Department of Justice—a tweet by President Donald Trump, an abrupt about-face and the walkout of an entire prosecution team, all in the same day—remind us of the need to ensure that at least some government functions are independent of direct presidential control. We can all agree, I hope, that the president shouldn’t be directly interfering with pending criminal prosecutions (especially prosecutions of his own political operatives, for actions arising out of his own campaign).

But what about when a consumer-protection agency brings an enforcement action against a bank? Or when the Fed sets monetary policy? Should it be different?

By interfering in the Roger Stone case, the president may not have violated any enforceable legal requirements. But he surely shattered some essential legal norms. For independent agencies, and financial-regulatory agencies in particular, similar norms of independence have developed over time into a body of law. It’s that body of law that will come under the microscope on March 3, when the Supreme Court hears oral argument in Seila Law LLC v. Consumer Financial Protection Bureau. What a strange time in our history for the court to be poised to eliminate key constraints on presidential power.

As a former senior counsel at the Consumer Financial Protection Bureau—I was among those who helped launch the agency under Elizabeth Warren’s leadership—I am hopeful that the CFPB will continue to be permitted to fulfill its important mission to protect American consumers from predatory lending and deceptive and unfair financial practices. I filed an amicus brief for leading scholars of financial regulation in the Seila Law case, have participated in defending the agency against previous constitutional challenges and have testified on the issue before Congress. In this post, I’ll reflect a bit on what’s at stake. The bottom line: This case could end up being purely symbolic. Or it could end up disrupting American government for generations.


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