Arbitrary power at the CFPB

by on October 13, 2016 at 1:39 pm in Current Affairs, Law, Political Science, Uncategorized | Permalink

That is the Consumer Financial Protection Bureau, part of Dodd-Frank.  Here is the Wall Street Journal on the recent court decision to restrict the powers of the Bureau:

The panel’s decision limited the broad discretion granted the five-year-old Consumer Financial Protection Bureau in the name of tilting the balance of power from industry to small borrowers, calling it a “gross departure” from the checks and balances normally imposed on regulatory agencies.

…If it stands, the decision from the U.S. Court of Appeals for the District of Columbia would reduce the agency’s independence, empowering the White House to supervise the agency and remove its director, in contrast to the current arrangement where the director’s five-year term is intended to outlast a president’s.

…In Tuesday’s ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, Judge Brett Kavanaugh, a George W. Bush appointee, wrote that Congress gave the CFPB director “more unilateral authority than any other officer in any of the three branches of the U.S. government, other than the president.” He said the problem of checks and balances was particularly acute because the CFPB “possesses enormous power over American business, American consumers and the overall U.S. economy.”

Megan McArdle offers comment.  Here are remarks from Kevin Drum.  I say the regulatory state already has too much arbitrary power, and this is a (small) move in the right direction.

1 EverExtruder October 13, 2016 at 1:46 pm

“I say the regulatory state already has too much arbitrary power, and this is a (small) move in the right direction.” – Tyler Cowan

Makes large move in the wrong direction by advocating Hillary Clinton for president…who will most likely be the executive actioniest of executive action presidents in history. This is why we can’t have nice things.

2 msgkings October 13, 2016 at 2:04 pm

It’s hard not to advocate for Clinton considering her opponent. It’s sad watching Reps, now that they realize it’s over, complaining about how bad Clinton is going to be. Yeah she probably will be, so maybe next time nominate someone who’s not a total clown to run against her. Almost any of the other 16 Reps that tried to get nominated would crush her in the general. I actually met with and donated to George Pataki (and I may have been the only one).

3 lxm October 13, 2016 at 2:23 pm

It’s sad watching Reps, now that they realize it’s over, complaining about how bad Clinton is going to be. Yeah she probably will be,

The ‘Reps’ have had two years in the majority. They have done nothing to reduce government regulation or to reduce government spending. ‘Reps’ will say well Obama would have vetoed anything we did. Maybe. But at least if the Reps had put forward reforms in line with their stated beliefs in less government regulation and less government spending we would know what they stand for.

Well, apparently, they stand for nothing.

Because that’s what they’ve done with their two year majority in the house and the senate.

So, yeah, Clinton will be bad, but maybe not as bad as the dismal Republican record of the last two years.

You want to know why Trump got nominated? You want to know why Reps may lose? You need to look no further than the dirt bags in congress.

4 Harun October 13, 2016 at 3:24 pm

Sequester. Rubio’s poison pill on risk corridor payments. No card check. No SCOTUS nominee, yet.

Not great. Not so horrible, except they promised a lot more and played too much “failure theater” on those promises.

5 Jan October 13, 2016 at 6:12 pm

So not one thing positive or proactive.

And HRC’s SCOTUS nominee will be someone they like even less. They’ve not just been ineffective, but stupid.

6 y81 October 13, 2016 at 3:49 pm

I’m confused. The Republicans did vote to repeal Obamacare, and Obama vetoed that bill. What more could they have done?

7 Sam The Sham October 13, 2016 at 3:59 pm

I don’t think that congress had any interest in repealing ACA unless they knew it would be vetoed. Pure virtue signalling.

I could be wrong, but that’s my impression. I have no problems with being a party of No, but… there was no effort justifying WHY No was good, and there was little positive aim (we want this vs you can’t have that).

8 Jan October 13, 2016 at 6:17 pm

Yeah, they’ve been no and nothing else. And even if a few in the caucus are trying to design a positive agenda, the party is so fractured they’ve got no shot at even getting their fellow GOPers on board.

9 lxm October 13, 2016 at 7:11 pm

What more could they have done???

You got to be kidding.

Dave Camp (R) proposed a tax reform plan in the House. (Everyone knows the tax code needs reform) Mitch McConnell said the Senate would not discuss it.

There’s lots of waste in government (Defense department, agriculture department, just to name two.) Republicans have proposed no legislation to address this. Entitlement programs, Social Security and Medicare, may bankrupt America sooner than later. The Republicans have totally failed to address these issues. Totally.

There’s lots of waste in medical programs. If the Republicans really believed in free market they would allow Medicare to negotiate drug prices. But I guess they favor pharmaceutical companies over American citizens. They might also allow US citizens to legally buy drugs from Canadian and overseas pharmacies. But I guess they favor pharma over citizens. Even after the Mylan scandal over pricing for epipens, the Republican congress has still done nothing. They, evidently, believe that Mylan’s robbery of American citizens is the correct path forward!

Even ISIS. When ISIS became a threat, several Republicans stated that ISIS was an existential threat to the United States. You know what they did after that?

They went on vacation.

10 lxm October 13, 2016 at 8:33 pm

Not to mention that they could have confirmed Merrick Garland to the Supreme Court. No one doubts he would be confirmed, overwhelmingly, if allowed to come to a vote.

Instead, the Reps hope to disinter Scalia.

11 Cliff October 14, 2016 at 12:22 am

I’m curious, what do you think Congress should have done about ISIS?

12 Sam the Sham October 14, 2016 at 6:22 am

My personal take on ISIS is that Congress should have acknowledged Iraq and Syria are failed states and let the Arab world figure it out. Maybe tell the Kurds that if they want a sovereign nation, it’s a free for all and this is their best chance, good luck, we’re all counting on you, etc. Possibly stop doing arms deals to every single faction involved.

As it turns out, the Middle East is really far away from the Midwest, and it doesn’t have to be our problem.

Supposing that was not a popular stance, then team up with Russia, get a congressional declaration of war, and end ISIS with extreme prejudice. Why do things halfway?

13 EverExtruder October 13, 2016 at 2:31 pm

I hate the oaf. I truly do. But I’m left to wonder the following:

– First, will either of these truly terrible people be more than single term presidents?
– Second, who is more likely to end up doing very little in the way of their policy positions either because they are stymied by the checks and balances, law, congress or the simple fact they lied? I.E. How many people voting for Trump actually think he’ll “build a wall”? How many people actually believe Hillary would effectively open the borders of the US?

On the second point, I truly believe the witch will do absolutely everything unconstitutional, illegal and unethical to push her policies (disclosed and undisclosed) forward. The evidence is overwhelming she will. I believe that the oaf will likely end up doing almost nothing, but not for lack of trying.

I know I’m not alone in feeling like 2016 is a dagger through my heart and my love for this country. This is the worst political season I’ve ever seen in my life, worse even than 2000 and I thought that’d never be the case. These candidates are a symptom of something much worse going on in American politics, culture and economics, not the cause. If it is not resolved I see civil war not immediately, but in the not-so-distant future. Politics is downstream from culture and divide is unlike I’ve ever seen it.

Whatever happens, whatever the outcome, there needs to be a massive movement in both parties that should’ve started months ago to put forward something more cohesive in 2020 and truly heal these wounds, not just say they’ll heal them. The commenter Zach in the thread is talking about Rome…like 80% of the country, I’m starting to feel there are far fewer good days ahead than there are behind.

14 msgkings October 13, 2016 at 2:39 pm

I couldn’t agree more that this election season is awful. But I’m not as pessimistic about ‘the witch’ (really? are you helping things?). She’ll have a Rep Congress full of people that can’t stand her pretty much preventing her from doing anything. Gridlock on steroids. And she’s a one-termer for sure. Cheer up.

15 anon October 13, 2016 at 2:45 pm

Clinton derangement is strong, but the GOP will be blowing up. While Trump losers really take down Ryan? What will come in his wake?

16 JWatts October 13, 2016 at 2:50 pm

I agree on the name calling. It’s just as juvenile to refer to Hillary as a ‘witch’ as it is to refer to Trump as the ‘orange guy’. Both contribute to the break down in discussion and civil discourse.

“Gridlock on steroids.”

I think that’s true to an extent, but I also expect Hillary Clinton to use an excellent legal staff and a Left leaning SCOTUS to bypass Congress. I expect her to push through fairly far reaching Executive Orders and Memorandum and force an expansion of the powers of the President.

Whether this results in a SCOTUS that is willing to constrain the office of President on Constitutional grounds or a SCOTUS that will largely acquiesce on political grounds is something I’m not capable of accurately predicting.

17 Lord Action October 13, 2016 at 2:59 pm

How much of the breakdown in discourse is the legacy of Obama, and how much is just Trump (who 1., has found a cheese tactic for elections, and 2., is an a-hole)?

I don’t get the impression Clinton is particularly bad in this respect.

18 msgkings October 13, 2016 at 3:09 pm

@JWatts: Trump has it coming, Clinton doesn’t. Come on, it’s ok to call a clown a clown, that doesn’t mean Clinton isn’t terrible.

And don’t worry too much about how Clinton will screw things up. The main things that matter, like the economic cycle and taxes, are out of her control. We’ve had bad presidents before and survived them.

Everyone needs to lighten up, election season brings out the apocalyptic in people.

19 EverExtruder October 13, 2016 at 3:25 pm

I agree…the namecalling does contribute to the incivility of the discourse and it’s hard not to.

On a psychological note though I am interested that it’s the ‘witch’ you latched on to and not the ‘oaf’ in my comment….

20 anon October 13, 2016 at 3:32 pm

It’s funny “Orange guy” was about as mild as I could go, to name a guy without naming names. Now it is unfair name calling, while “creeper” or “masher” (there’s a good old word) are just descriptive.

The times we live in ..

21 anon October 13, 2016 at 3:40 pm

BTW, I have really no respect for this form of “insert fantasy” politics:

“I think that’s true to an extent, but I also expect Hillary Clinton to use an excellent legal staff and a Left leaning SCOTUS to bypass Congress. I expect her to push through fairly far reaching Executive Orders and Memorandum and force an expansion of the powers of the President.”

If I say I expect the witch to use the bones of General Grant to control the soul of Paul Ryan it will have as much real meaning.

22 JWatts October 13, 2016 at 3:52 pm

“@JWatts: Trump has it coming, Clinton doesn’t. Come on, it’s ok to call a clown a clown, that doesn’t mean Clinton isn’t terrible.”

I’ll re-emphasize this: “Both contribute to the break down in discussion and civil discourse.

Saying one person “has it coming, but the other doesn’t” is going to convince the “other side” that you are Partisan.

23 anon October 13, 2016 at 3:56 pm

Pick a color JWatts. Call me it. I’ll be fine.

24 JWatts October 13, 2016 at 4:08 pm

“BTW, I have really no respect for this form of “insert fantasy” politics:”

anon, It’s not an absurd fantasy to say that Hillary Clinton will use Executive Orders if she can’t get legislation through Congress. It’s also become a pattern over the last two decades for President’s of both parties to keep pushing the boundaries with regards to Executive Orders (and Memorandum). What would be surprising if she didn’t attempt as much.

And these statements make it pretty clear that Executive Orders are already being considered as an option.

“During the fundraiser, which was hosted by Clinton friend and donor Amy Rao at her home in Palo Alto, California, a Project Veritas journalist spoke with former Senator Feingold and his donors about gun control. When asked what Hillary Clinton would do about the Second Amendment, Feingold said without hesitation, “Well, there might be an executive order.”

HRC’s on comments on the subject:
““I want to push hard to get more sensible restraints,” Clinton said on NBC’s “Today” show. “I want to work with Congress, but I will look at ways as president.”

““I’m going to try in every way,” Clinton said Monday. “I am going to get those guns out of people’s hands.”

25 anon October 13, 2016 at 4:16 pm

JWatts, if you merely mean HRC will continue the trend of recent Presidents to incrementally expand powers, at the margin, I don’t actually have a complaint. Though actually I think Obama was probably pretty close to the Constitutional limit already..

Still, your “to bypass Congress” has a lot of meanings.

Maybe explain how you interpret “I’m going to try in every way,” Clinton said Monday. “I am going to get those guns out of people’s hands.” I hope you don’t expect extra-legal confiscation by executive order.

26 JWatts October 13, 2016 at 4:34 pm

“Maybe explain how you interpret “I’m going to try in every way,” Clinton said Monday. “I am going to get those guns out of people’s hands.” I hope you don’t expect extra-legal confiscation by executive order.”

No, I don’t expect Hillary Clinton to order the Feds to go door to door and round up the guns.

I do expect her to almost immediately:

1) Remove legal protections from gun manufacturers that protect them from law suits.
2) Prevent anyone on the No-Fly list from buying guns.
3) Expand the number of people in-eligible to buy guns.
4) Ramp up background checks.
5) Restrict the sale of ‘military’ looking semi-automatic rifles.

Of the 5, I don’t much care about any but number 1. It will open up gun manufactures to an endless parade of law suits, with the potential result that all of the domestic manufactures will be driven out of business.

27 anon October 13, 2016 at 4:44 pm

It’s important to note that Obama didn’t go in and start governing by executive order immediately. He waited until deadlock, and then only moved on things that would have broad acceptance, if not broad support.

Might Hillary do a gun thing? She’d be dumb to do so immediately and I don’t think she’s dumb. Even if the GOP unites with a “zero votes for Hillary” hard line, I think she’d take some time, to let that pattern establish itself, and be hated by all but the most dedicated gridlock fans. Maybe after a government shutdown or two ..

But I’m not sure that’s what happens. Can a party with no leader still be unified on no action?

28 Art Deco October 13, 2016 at 5:05 pm

It’s important to note that Obama didn’t go in and start governing by executive order immediately. He waited until deadlock, and then only moved on things that would have broad acceptance, if not broad support.

You mean it’s all good if he’s impatient and can get away with it?

29 anon October 13, 2016 at 5:12 pm

If Obama correctly predicted public and Supreme Court reaction, who am I to care? If he gets it wrong and reverses or is overturned by the courts, I’m fine with that too. That is not a breakdown in government.

Really though I think it is strange that we spend all out time “modeling” the behavior of HRC and not that of Republicans in Congress. They are much more interesting to me. Their 8 year hunger strike hasn’t yielded them much. In fact it led to a populist mania that they must now hate. It put them in a no-win situation supporting or disavowing a skeevy self-promoter.

How many Republicans in Congress want to pave the way for then next Trump in 2020, and how many want to right the ship for Jeb or Kasich at this point?

30 JWatts October 13, 2016 at 5:36 pm

“It’s important to note that Obama didn’t go in and start governing by executive order immediately. ”

What? He absolutely did. Obama had signed 5 Executive Orders within the first two days.

31 anon October 13, 2016 at 5:44 pm

Not really the same thing:

“During a ceremony in Room 450 of the Eisenhower Executive Office Building, Mr. Obama signed the first executive order of his presidency, a measure intended to fulfill a campaign promise by closing the what he called the “revolving door” of people who immediately segue from government to lobbying.”

Some number of these are going to be management of the executive branch. And probably a few of the initial ones were reversing executive orders of the other-party President preceding.

32 chuck martel October 13, 2016 at 5:58 pm

““Maybe explain how you interpret “I’m going to try in every way,” Clinton said Monday. “I am going to get those guns out of people’s hands.” I hope you don’t expect extra-legal confiscation by executive order.”

Does she, and the rest of the anti-gun movement, think that putting manufacturers out of business and confiscating existing guns will solve the “gun problem”? The technology and knowledge necessary to manufacture effective firearms in the folks’ basement is now easily available. Like illicit drugs, illicit firearms, already a factor in crime, will become even more of an issue and a cash cow for the underworld. In the 1961 Broadway musical West Side Story gang members were realistically depicted bearing “zip guns”, home-made pistols that didn’t go out of use until gangs became just as affluent as the rest of society and could afford to buy S & W and Colt products. Anti-gun measures will have to become very draconian to have a meaningful effect.

33 anon October 13, 2016 at 6:14 pm

To talk about a “movement” is just scaremongering. Talk instead about the mainstream belief:

http://www.gallup.com/poll/1645/guns.aspx

34 Art Deco October 13, 2016 at 5:04 pm

You’re not going to heal any wounds, Gov. Daniels, because the raison d’etre of one of the parties is to make wounds. The one way you stop them is to beat them so severely that they give up (but, then, of course, they’ll be all covered in wounds).

35 ttt October 13, 2016 at 7:08 pm

when do you think this started ? because the ‘Reps’ were acting like assholes to my president for the past 8 years

36 Thiago Ribeiro October 14, 2016 at 5:02 am

“How many people voting for Trump actually think he’ll ‘build a wall’?”
What do you think they think when they hear someone talking about a wall and describing a wall?

37 Ray Lopez October 14, 2016 at 1:03 am

It’s just a small step but unless courts go back to the Lochner era in jurisprudence, Google this, which is extremely unlikely, this court ruling will never be expanded to cut back on regulation by the legislature.

38 Zach October 13, 2016 at 1:59 pm

Reading Roman history, you can see that one of the failure modes of the Republic was that they would keep creating new offices with greatly excessive powers to deal with each successive crisis. So then eventually you get things the Gracchi, who are tribunes, proposing legislation to the Popular Assembly, usurping the normal role of consuls proposing legislation to the Senate. So is the legislation valid or not? Or you get laws that include provisions where every Senator has to swear never to revoke it.

The CFPB seems like it could have been lifted wholesale from the bad part of Roman history. No appointment power by the president, no power of the purse for Congress, rulings that have the power of law but are seldom overseen by courts… If you were reading about it in a history book, you’d think “Yeah, that’s gonna be a problem at some point.”

39 mulp October 13, 2016 at 3:02 pm

The CFPB director is appointed by the President and the appointment confirmed by the Senate for a five year term.

You are entitled to your own opinion, but not your own facts.

Multiple other agencies have similar structures. Eg, the Fed commissioners and chair are appointed and confirmed for fixed terms. But other agencies have a single director with fixed term.

Of course, judges can’t be removed by the President who appoints them with Senate confirmation for terms only limited by incapacity, by death mostly.

40 Harun October 13, 2016 at 3:25 pm

so, show me the power of the purse.

Oh right, that fact was correct.

41 Zach October 13, 2016 at 3:32 pm

Not sure where you’re going with this. There are several innovations in the structure of CFPB, and they’re all bad.

No removal except for cause plus a term longer than four years is a direct weakening of the President’s oversight. No power of the purse is a direct weakening of Congressional oversight. The Courts have weakened their own oversight by being overly deferential to rule making by independent agencies. The net result is an agency that seems copied from the worst ideas of the Roman Republic — to whit: proliferation of overly powerful offices and steady erosion of restraints on their use.

42 Adrian Ratnapala October 13, 2016 at 5:19 pm

Indeed it is easy to see a future president pulling an Augustus and and simply claiming various regulatory offices for himself — thus grabbing a lot of procedural levers, delegated legislative power, effective (thanks to deference) judical power. You might claim would be unconstitutional — but when has that been a problem?

43 Zach October 13, 2016 at 5:37 pm

And I think that’s why Augustus got away with it — after a couple of generations of every possible power center being set against each other, people were willing to do away with the protections just to get rid of the conflict.

Separating powers and forcing cooperation is a fundamentally different approach to duplicating powers and forcing conflict. In the first case, division yields no action. In the second case, divisions yields many actions. Separation of powers is much more stable!

44 FE October 13, 2016 at 5:18 pm

In practice the term is longer than 5 years. Dodd-Frank says that the director can serve after the 5-year term has expired “until a successor had been appointed and qualified.” So if Trunp won the election, Cordray could serve for as long as Senate Democrats have the 40 votes to filibuster the nomination of his successor. As originally designed, the job was effectively Cordray’s for as long as he wanted it.

45 jpmirabeau October 13, 2016 at 2:00 pm

The checks/balances issue is only part of the story.

The Bureau lost on most of the other major issues–including its strange Section 8 interpretation, its departure from the prior HUD interpretation and retroactive application of its new interpretation, and its aggressive arguments on statute of limitation issues. The Bureau should be shell shocked by the extent of the reversal.

The Bureau had some gall to go so far on so many fronts. The Director even significantly increased the penalties at the administrative appeal. The steps leading up to this stunning reversal offer an interesting case study on the decision making processes at the Bureau, particularly as to whether anyone there is advancing alternative points of view. As such, the case is perhaps support for moving the Bureau toward a commission structure.

46 (Not That) Bill O'Reilly October 13, 2016 at 2:03 pm

Yes, as McCardle points out, the merits section is much more devastating to the agency than the constitutional ruling. It’s like Obama is going to remove Cordray for going after banks too aggressively when his own DOJ already bleeds them for funding.

47 JWatts October 13, 2016 at 2:20 pm

Kevin Drum – “And it works, because these days conservative justices treat hot button cases—and, tellingly, only hot button cases—as a way to enforce their political opinions when they can’t do so through the ballot box. This is not a healthy trend.”

LOL. Drum is usually a better writer than this. It’s quite obvious that liberal justices also overturn decisions at the ballot box. Has he conveniently forgotten California’s Proposition 8?

“Proposition 8, known informally as Prop 8, was a California ballot proposition and a state constitutional amendment passed in the November 2008 California state elections. The proposition was created by opponents of same-sex marriage in advance … Proposition 8 was ultimately ruled unconstitutional by a federal court ”

https://en.wikipedia.org/wiki/California_Proposition_8_(2008)

48 Art Deco October 13, 2016 at 2:36 pm

I’ve been hearing that bilge from liberals for 35 years or more. I’ve never figured out if the source of it was stupidity or mendacity.

49 JWatts October 13, 2016 at 2:51 pm

Kevin Drum isn’t stupid.

50 Adrian Ratnapala October 13, 2016 at 3:21 pm

I’d heard of Drum before, and assumed he was an intelligent lefity. But upon reading the MJ article, I switched back to this comment section for the very purpose of commenting “Kevin Drum isn’t very clever, is he”.

51 coketown October 13, 2016 at 3:28 pm

Smart people can say stupid things, and that article was very stupid.

52 charlie October 13, 2016 at 2:22 pm

All mood-affiliation aside, this ruling make no sense.

The president can’t delegate his authority? It is solved by making it at at-will position?

The ones that should be afraid of this is the FHFA.

I don’t see this making it through the Supreme Court.

53 Cliff October 13, 2016 at 4:30 pm

Are you a lawyer?

54 mulp October 13, 2016 at 2:28 pm

So, Well Fargo should be the standard for all banks?

I believe customers who were defrauded by bank policy were prohibited from using civil courtsociety for redress because almost all banks require agreeing to private arbitration at your expense using the equivalent of judges serving the banks.

Same for employees fired for failing to defraud customers to meet quotas. I can not understand what eight services, much less the ten, “services” the CEO and Chairman wanted to be sold to every customer.

Note that the agency did not prevent Wells management from innovating in ways to rent seek to the point it became fraud, but the police do not stop innovative robbers or killers, so the argument that CFPB did not prevent the Wells management is not a reason for no agency, just as robbery and murder occurring is no reason to eliminate police and prosecutors and judges who oversee the “regulation making” of prosecutors creating case law.

Legislatures do not define every possible way to commit a crime, so prosecutors and judges create the equivalent of regulation in case and common law. The complaint in my youth I heard was that applying workplace safety or fair labor or environmental protection laws was too arbitrary because a corporation or individual could be charged with a violation of law that could only be known to be a violation by the actual court judgement creating the case law that detailed exactly the line crossed by the defendent.

After all, Nixon created the EIS by executive order to eliminate the need to wait until a court ruled that your construction project or power plant did not violate the Clean Air or Water Acts. Congress then created and funded the EPA at Nixons request to process and review environmental impact statements to get projected going without the long delays of fighting out the details in court.

And it is ironic for a court reviewing CFPB action to claim that the agency is unique in being unaccountable. If it were unaccountable, the courts would not be reviewing actions of the CFPB. The arbitration clauses people are required to agree to all the time make one party unaccountable, because courts rarely allow parties to file a tort and get court review.

55 reed E Hundt October 13, 2016 at 2:50 pm

but you think putting this under WH control is a good idea? why not imitate the independent agency model of the FCC or FTC?

56 Harun October 13, 2016 at 3:29 pm

Do you think the FCC is “independent” or very good?

They did net neutrality even when they were shown it wouldn’t solve the problems consumers were upset about.

57 Troll me October 14, 2016 at 2:26 am

Net neutrality DID solve the problems people were worried about. (I’d hesitate to say “consumers” in general because most consumers don’t even know the debate exists.)

For example, my service provider must load up some indie sites I like to consumer just as as fast as Gmail, Facebook, Youtube, Netflix, etc. (who are still much faster because they spend on their side to speed things up). So you can check the box of on “consumers of indie websites don’t see vertically integrated media companies slowing down indie sites to a crawl”, and more importantly, this means that there is no credible excuse whereby security state peoples might interfere with access to speech that they do not approve of (if ISPs could shape bandwidth like that, it’d simply be impossible to know much of the time, and would be impossible to start investigating without already having information that you’re basically not going to get much of the time.

Also, the internet companies are not (technically) allowed to throttle (reduce your speed) when you use peer-to-peer sharing.

I think it’s difficult to understand how critically important both of those are for freedom, unless you really know at some personal level by understanding what would happen to you and/or the media you consume if the situation of net neutrality were significantly degraded.

58 Adrian Ratnapala October 13, 2016 at 3:41 pm

The thing is the court doesn’t dare destroy the agency, and has no right to rewrite it’s charter totally so it can only make the most minimal change possible to get it within constitutional bounds.

Making the head fireable by the president at will rather than on grounds is pretty minimial compared to changing the structure of the thing completely.

59 ohwilleke October 13, 2016 at 3:00 pm

The decision is fatally flawed because it relies on a dissenting opinion from a U.S. Supreme Court ruling that has never been overturned. I suspect that an en banc review or SCOTUS review will reverse it, or at a minimum, demand a different rationale for the result reached.

60 Hello@kitty.com October 13, 2016 at 10:39 pm

Because you like an desired unchecked power.

Of course u do.

61 coketown October 13, 2016 at 3:22 pm

Kevin Drum really has me figured out. I oppose all those things for the very reasons he states. Also, I oppose the death penalty because I’m concerned it will adversely affect the profitability of private prisons, and I oppose most zoning restrictions because I think the subliminal effect of so much imposing phallic imagery will make people more likely to vote Republican. He is a true luminary.

Were there really no better thoughts on this development from the left? Here are my objections to the CFPB, which I’m sure are vulnerable to thoughtful Progressive critique but which, I hope, will illuminate the subject a little better than Mr. Drum has managed:
– Dodd-Frank is the antithesis of prudent governance. It was hastily drafted in the emotionally charged aftermath of the financial crisis, received virtually no deliberation or criticism, was passed as a vaguely worded and sloppy mess, and delegated too much authority to its newly created agency, the CFPB.
– I oppose virtually all attempts at “massive overhauls” and “sweeping reforms” like Dodd-Frank and Obamacare. Reform should be prudent and gradual, and those two examples are the opposite.
– Because of how Dodd-Frank was passed, CFPB, probably more than any other agency, relies on extreme interpretive deference, which is why the court had a field day on the merits. It is one thing for administrative deference to settle a vaguely worded statute; it’s quite another to rely on it for the basic functioning of the agency and to abuse it so egregiously for the sake of expanding the agency’s power. CFPB seems to first identify transgressions, both past and present, and then craft an interpretation of the sweeping and convoluted text to go after that transgression.
– The structure of CFPB is egregiously illiberal, which Drum seems to appreciate when fretting over the possibility of a Trump appointee but dismisses because Hillary is likely to be elected. CFPB was designed to be as powerful and as independent as possible. Dodd-Frank consolidated several massive financial and consumer regulations (ECOA, FCRA, RESPA, etc), devised many more new ones, and put them all under CFPB’s control (which is a development I actually liked), and then tucked that agency away so as to be shielded from all executive and congressional influence. It exists inside the Federal Reserve, itself an independent agency, and is funded by the Fed, meaning Congress cannot deprive it of funding to reign in its excesses.

I also have criticisms that are less concerned with the agency’s structure than with how it’s been managed, but that’s not really pertinent here. As Tyler said this is a small move in the right direction, and if liberals want to criticize the decision they should offer better reactions than Drum has mustered.

62 carlolspln October 13, 2016 at 4:32 pm

The verbiage for both Frank ‘n Dodd & Obamacare were written by minions – the lobbyists and corporate lawyers of the banking and health insurance industries, respectively.

You get what you pay for.

63 Sam The Sham October 13, 2016 at 4:15 pm

So I will bring this up in every regulation thread. John Cochrane’s Rule of Law in the Regulatory State. Polemics of the article aside, he states that regulation should follow certain rules.

For example, the right of appeal. If you annoy the FCC, appealing the FCCs decision with the FCC is unlikely to be fruitful.

As another example, explicit vs vague rules. Don’t plant marigolds vs. “no ugly gardens”.

64 Kevin Erdmann October 13, 2016 at 6:49 pm

These vague and overbearing regulations are also difficult to document and quantify. There has clearly been an epic chilling effect on banks issuing mortgages to much of the borrower market. There isn’t a paper trail, per say, demanding that they stop. But there is a powerful agency with broad discretion whose champion is on TV every week wondering aloud why more financial CEOS aren’t in jail. How do you measure the effect of that?

65 Rock Lobster October 13, 2016 at 8:49 pm

Theory of the second best tho

66 Yancey Ward October 13, 2016 at 7:02 pm

More like a small step in the right direction before the giant leap in the wrong one. While the correct decision, it is certain to be overturned by the full DC circuit. All three judges on the panel were appointed by Republican presidents, a happy accident of the draw, but one the proponents of arbitrary power are sure to fix with the appeal.

67 Hello@kitty.com October 13, 2016 at 10:38 pm

Kevin Drum is wrong.

The Constitution is the main issue, and undermining it through legal sophistry (not our defending it through legal reasoning) is the problem and is what makes progressives actually totalitarians.

That their policies don’t help but hurt their fake charity objects, and that most of their lifves are just valid destructive virtue signaling, is secondary. Primary is their desire to rule by force unencumberued by law.

68 Troll me October 14, 2016 at 2:12 am

Let us know when it is established whether the right to take loans at 60% is beneficial for poor people, regardless of whether they might go hungry for a couple days while waiting for their next paycheque in the absence of said loan.

Among other things, when you know you can borrow $200 before payday, it’s easier to drop the last $20 at the bar and take a loan tomorrow. But really, that $20 should have gone to milk, eggs, a loaf of bread, some apples, maybe a few cans of beans, a small bag of rice and some sauce. Y’know, enough to get you to payday.

But then the payday loan enters into the picture. You order another beer, take the payday loan tomorrow, and the enslavement to the lending sharks begin …

69 Hello@kitty.com October 14, 2016 at 4:38 pm

Me: It’s a Constitutional issue not one of what we wish we were allowed to do

You: Here’s what I wish we were allowed to do and why I’m so wonderful for believing we should do it

Me: You’re an idiot and that you don’t know it is the problem with the world

70 Troll me October 15, 2016 at 1:39 pm

Dropping the words “the constitution” does not make you right.

Imagine what a world we would live in if no one were to ever state how things could be better, for the fact that it is not the present reality.

71 Hello@kitty.com October 13, 2016 at 10:40 pm

Naive question.

Why don’t these arguments apply to The Fed?

72 Yancey Ward October 14, 2016 at 1:42 am

The Fed is technically privately owned by the member banks. A fiction, yes, but a useful one.

73 Jon October 14, 2016 at 8:43 am

You mean the regional Federal reserve branches. These are entities separate from the Board in Washington.

74 Jon October 14, 2016 at 8:44 am

I should add that they are not entirely independent of the Board. The Federal reserve Board in Washington is not “private”; its members are appointed by the president and confirmed by Congress.

75 Adrian Ratnapala October 14, 2016 at 1:48 am

In addition to being nominally privately owned, I think the regional bank governers have real power, so it is the sort of commitee rule that is supposed to be allowed.

76 Jon October 14, 2016 at 8:42 am

Because the courts have accepted that these independent agencies are necessary for the functioning of government and the fact that they are governed by boards with several people people provides adequate checks and balances.

Their objection to the CFPB is it grants a huge amount of power to a single person who is effectively not accountable to the president. i.e a head of the CFPB can essentially function as a dictator. This crosses a gray line that the courts have drawn

On many issues the constitution is not explicit or is vague; hence much constitutional law is an interpretation of the objectives of the founders.

77 Jon October 14, 2016 at 8:46 am

While Tyler has a valid point that various agencies and boards have a scary amount of power, the alternatives are generally worse. We can’t have Congress legislating which toys are too dangerous, what drugs are effective, or all of the details of bank and financial market regulation.

78 Yancey Ward October 15, 2016 at 12:43 pm

Dumbass, Congress is legislating all those things through these boards, so it isn’t a case that we can’t have Congress doing that. Congress could, if it wanted, defund them all tomorrow.

79 Hello@kitty.com October 14, 2016 at 4:39 pm

Thanks. I think I knew most of that. Was looking for a more substantive difference. But the law is what it is…

I guess a single person vs. a board is a different concentration of power. Not sure that affects Constitutional issues at all.

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