CFPB Structure Again in Question

For a while, it looked like whoever was running the CFPB, or whatever the agency is called these days, was safe.

After all, the full Circuit Court of Appeals for the District of Columbia had rejected the argument of one of its own members and ruled that the structure of the agency is constitutional.

But since then, several events have occurred that mean whoever is running the bureau might want to keep his or her resume fresh.

First, Judge Loretta Preska of the Southern District of New York decided that the structure of the CFPB indeed is unconstitutional.

And then, the Fifth Circuit Court of Appeals ruled that the structure of the Federal Housing Finance Agency is unconstitutional because, as with the CFPB, the agency is run by a single director.

But most importantly, President Trump nominated Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals to take a seat on the U.S. Supreme Court.

As an appeals court judge, Kavanaugh wrote an opinion that found the CFPB structure to be unconstitutional; that opinion was eventually overturned by the full appeals court.

So, for those keeping score, we have two recent federal court decisions finding that single director agencies are unconstitutional.

And we are likely to have a new Supreme Court Justice who believes the CFPB is unconstitutional because of its single director structure.

And make no mistake about it, Kavanaugh was blunt in his opinion of the agency.

“As we will explain, the Director enjoys more unilateral authority than any other officer in any of the three branches of the U.S. Government, other than the President,” Kavanaugh wrote in his opinion.

Democrats are already pointing at Kavanaugh’s opinion as evidence that the nominee is prejudiced against consumers. That’s just one of many objections Democratic senators have to the nomination.

However, Democrats have limited options other than to find a couple of Republicans who agree with them.

In 2013, when the Democrats controlled the Senate, then-Majority Leader Harry Reid (D-Nev.) curtailed the right of senators to filibuster most nominations.

That means it will only take a majority of senators to approve the nomination, not the 60 votes it often takes to force action in the Senate.

So even as the Senate struggles with the confirmation process for Kathy Kraninger to take over as CFPB chief, the days of the single-director CFPB may be numbered.

That would be fine with the credit union trade groups, which have argued the CFPB should have no power over credit unions. But if the agency does continue to have some regulatory authority, the trade groups want the agency converted into a commission.

“The Bureau’s history heretofore suggests the Bureau has extraordinary political dependence that will almost certainly lead to wild swings in rulemakings, supervisory practices and enforcement policies if the Bureau’s structure is not addressed by Congress,” CUNA President/CEO Jim Nussle wrote in a letter to senators as they prepared for Kraninger’s confirmation hearing.

He added, “Only through the appointment of a bipartisan commission will the Bureau have the type of independence that proponents herald and the steady approach to regulation that consumers and regulated entities need.”

No Moratorium

Nobody can blame the slayings of five staff members of the Annapolis Capital Gazette newspaper on President Trump.

The man charged with the killing spree, Jarrod Ramos, had a personal, not political beef with the newspaper.

But one would have hoped that after the shootings, President Trump might lighten up on his inflammatory anti-press rhetoric for a little while.

Yeah, right.

It took only a short time before Trump again began referring to journalists as “the enemy of the people.”

I’ve used this space before to criticize that kind of talk, so I won’t belabor the point, except to say that sometime, some idiot who considers himself or herself to be a patriot is going to hurt a journalist for political purposes.

And that time, the violence will be Trump’s responsibility.

On the bright side, it has been heartening to see the response of news organizations to the Annapolis shootings. The Capital Gazette has an editorial staff of 31 and four of the five people killed were editorial staffers.

That left the newspaper decidedly short-staffed.

But Capital Gazette journalist Chase Cook made it clear that the slayings were not going to stop the newspaper from delivering the news.

“I can tell you this: We are putting out a damn paper tomorrow,” he tweeted shortly after the shootings.

And so, journalists from the Baltimore Sun, which is owned by the same company as the Annapolis paper, filled some of the gaps.

Then, newspapers across the country agreed to lend editorial staff members to the Capital Gazette.

By July 18, the newspaper had received more than 370 offers from people who said they were willing to help put out the newspaper – far more offers than the Baltimore Sun, which coordinated the effort, could handle.

The message was clear – no murderer was going to stop the newspaper from fulfilling its responsibility to its readers.

And it’s safe to say that some occupant of 1600 Pennsylvania Ave., who may not have read and certainly appears not to believe in the First Amendment, is going to stop journalists from delivering the news.

David Baumann is a correspondent-at-large for CU Times. He can be reached at dbaumann@cutimes.com.