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It's primary gimmick is the following: it isn't dependent on funding from US Congress. At one time, it even used to be independent of the US Executive Branch until a court ruling in 2016 that the US President could fire the head of the agency.
A three-judge panel on the 5th Circuit Federal Court of Appeals ruled this week that the CFPB's structure is unconstitutional because Congress has no control over the agency's budget, which is funded entirely by the Federal Reserve. Under the terms of Dodd-Frank, the CFPB is entitled to receive a budget totaling up to 12 percent of the Federal Reserve's annual operating expenses, and the Federal Reserve is not allowed to refuse the CFPB's requests for funding.
Now, that funding model has been used to reverse a ruling by the CFPB as unconstitutional with the potential to put all its rulings since formation into question on the same constitutional basis.
Why it matters: The reasoning behind the ruling, if upheld, could potentially invalidate all the rules enacted by the CFPB over its 11-year existence — including regulations underpinning the U.S. mortgage system.
This is one of the big reasons I oppose the passing of bad law even when it serves a concrete good. It can take a long time to fix the massive problems that such law brings.
And note that a key argument by the court was that there was no precedent for the CFPB's unconstitutional structure. If there had been other agencies with similar setups, this could have been very hard to overturn. Similarly, the CFPB is a precedent for future breaking of the US Constitution along these lines. Without the ruling, there would have been a stronger case for future misdeeds of this sort.
(Score: 4, Interesting) by Anonymous Coward on Saturday October 22 2022, @11:31AM (40 children)
That is simply not true. As noted by https://www.vox.com/policy-and-politics/2022/10/20/23414311/cfpb-unconstitutional-fifth-circuit-supreme-court-trump-community-financial [vox.com]:
You haven't provided anything to really show that this is a bad law. It's simply not true that Congress doesn't control the agency's budget. All Congress has to do is pass a law that amends their own 2010 law. The Constitution does not mandate that agencies be subject to the annual appropriations process. In fact, this exists because of laws passed by Congress such as the Budget and Accounting Act of 1921 and the Congressional Budget and Impoundment Control Act of 1974. Congress created the annual appropriations process and therefore they also have the right to carve out exceptions where agencies are funded through means outside of this process.
The ruling is complete nonsense, and you've provided nothing of your own to indicate why this is actually a bad law.
(Score: -1, Troll) by Anonymous Coward on Saturday October 22 2022, @06:32PM (32 children)
You and your linked article are heavily biased liberal brainwash. Article says "The decision by the conservative United States Court of Appeals for the Fifth Circuit relies on a novel reading of an obscure provision of the Constitution". Note the biasing adjectives.
You liberals communicate in very authoritarian ways, which is an immediate turn-off for me and many others. Again, today, I saw a TV political ad mentioning "women's constitutional right to abortion". How is it legal to lie like that? I'd imprison anyone who makes such statements.
Please, someone, show were the US Constitution says anything about abortion, or anyone's right to kill an unborn child.
(Score: 4, Insightful) by Anonymous Coward on Saturday October 22 2022, @07:13PM (29 children)
Nowhere in your comment did you address a single one of the points I made regarding the constitutionality of the CFPB. This ruling amounts to nothing more than three judges that were appointed by Donald Trump using their positions to legislate from the bench. The drivel you posted does zero to address this and devolves into offtopic rambling about abortion. I'm going to keep this on-topic.
This ruling relies on Article 1, Section 9, Clause 7 of the Constitution [cornell.edu], referred to as the appropriations clause. Here is what the Constitution actually says:
This merely indicates that money cannot be spent out of the Treasury without authorization by Congress. That's it. It doesn't restrict how Congress can authorize appropriations under law, only that the appropriations have to be authorized by Congress. As the link notes, there is abundant judicial precedent that Congress has a lot of flexibility in how appropriations are made:
The CFPB was created by an act of Congress, specifically the Dodd-Frank Act of 2010 [wikipedia.org], which authorizes funding for the CFPB through a means outside of the annual appropriations process. The Constitution does not require that appropriations be made on an annual basis, only that Congress must authorize drawing money from the Treasury, and that an accounting of that money is spent must be made available to the public. There is nothing in the Constitution saying that funds must be appropriated on an annual basis, and in fact the annual appropriations process exists because of other laws enacted by Congress.
If Congress wishes to change how the CFPB is funded, they have the ability to do so by amending the Dodd-Frank Act. Power has not been usurped by the Executive Branch because Congress already authorized the appropriations. Again, Congress can modify the CFPB's budget at any time by passing a law to do so. There is nothing in the Constitution that requires this to be subject to the annual appropriations process. This ruling, however, is a case of the judicial branch usurping authority by claiming that Congress' appropriations in the Dodd-Frank Act of 2010 are unconstitutional for reasons that make zero sense, are totally inconsistent with judicial precedent, and arbitrarily restrict the ability of Congress to appropriate money through law. You've provided zero basis for how this actually violates the Constitution, instead posting off-topic drivel that has nothing to do with the CFBP.
(Score: 5, Insightful) by Anonymous Coward on Saturday October 22 2022, @08:51PM
They are using the usual culture war bs to distract from the fact that Republicans are trying to dismantle every system that prevents them from extracting more wealth from a population that has pretty much nothing left to give. It is a disgusting display of sociopathic greed, and matches very well with Republucan's refusal to pass laws to prevent child marriages.
Here I thought White ISIS and Y'all Qaeda were poignant jokes, but we're seeing that the GOP truly does want to follow Iran's footsteps. Pure insanity, but the money is behind them since the money loves fascism that serves their interests.
(Score: -1, Troll) by khallow on Sunday October 23 2022, @12:37AM (26 children)
For a glaring example of how this is violated, what did the present congress do to authorize the CFPB? Even the Federal Reserve - which funds the CFPB - has no say in how that money is spent. The game being played here is that a regulatory agency was created in a way that made it extremely difficult for future Congresses to monitor via unaccountable funding and leadership. Both of those policies have been reversed.
(Score: 0) by Anonymous Coward on Sunday October 23 2022, @01:43AM (3 children)
Full-of-himself smartass parent doesn't understand US govt. structure. He thinks Congress has to figure out what's Constitutional and what isn't. (Hint: that's Supreme Court's job).
Then when SCOTUS incorrectly makes laws (not their mandate), if said law is favored by libtards, then it's correct govt. functioning.
I tried to point out the fundamental flaw in his "thinking", but I guess I'm trolling (truth hurts, whiners downmod).
Tell smartass parent to challenge CFPB funding in court as unconstitutional, and appeal up to Supreme Court.
(Score: 1) by khallow on Sunday October 23 2022, @01:54AM (1 child)
Clue: it's everyone's responsibility to do that, not just some punks in the Supreme Court. I did it. When are you going to do it?
(Score: 0) by Anonymous Coward on Sunday October 23 2022, @11:55PM
No, my little fuzzy khallow, you did not. Thinking you have interpreted the Constitution is not the same as understanding the Constitution. Common Republican failure, for who things like the Constitution are magic words that you just have to recite, without any understanding. And, you are arguing in bad faith again, khallow. Strange that you can still find anyone willing to attempt to obviously rebut your take.
(Score: 1, Informative) by Anonymous Coward on Sunday October 23 2022, @02:16AM
Yeah, they are supposed to figure it out, before they pass a law, not just throw it out there and let the courts sort it out, that's lazy bullshit. We are supposed to elect people that know the law, at least the constitution. Since congress is supposed to control the purse, we can expect them to do so, and we need to demand more transparency. Of course, none of that will happen
(Score: 0) by Anonymous Coward on Sunday October 23 2022, @06:27AM (21 children)
Future Congresses are limited by their willingness to pass laws that amend or repeal the original law authorizing the funding. The fact that future Congresses have not yet chosen to reconsider funding for the CFPB does not mean that the funding mechanism is improper.
The Constitution was not intended to require every Congress to authorize every appropriation. In fact, Article I does explicitly require that every Congress authorize one, and only one, particular type of appropriation:
This explicitly requires that every Congress must authorize appropriations to support armies. This is also the only such restriction in Article I. If the Constitution was intended to require that every Congress would have to authorize other types of appropriation, we can reasonably conclude that it would have been explicitly stated in Article I.
You could certainly argue that Congress has delegated too much of its authority to the Executive Branch, and that this is poor governing. I would even agree to a large extent about this, in particular with matters like the use of military force. But poor governing is not inherently unconstitutional, just poor governing. The fact that the current Congress has not voted on appropriations to authorize the CFPB does not mean that it is unconstitutional. If the Constitution was intended to require that every Congress vote on these types of appropriations, this would have explicitly been stated in Sections 8 or 9 of Article 1.
In my previous post, I cited a specific example of Congress delegating its authority over appropriations without further direct oversight by Congress. That law did not violate the Constitution. Neither does the law authorizing the CFPB.
(Score: 1) by khallow on Sunday October 23 2022, @11:35AM (20 children)
Future Congresses haven't considered funding the CFPB and yet it got funded. That's what makes the mechanism improper.
(Score: 0) by Anonymous Coward on Sunday October 23 2022, @03:01PM (18 children)
Repeating the same nonsense doesn't make it true.
There is one, and only one, type of appropriation that every Congress must consider. That is appropriations to support armies, which must be considered every two years. Otherwise, Article I does not place limits on the length of appropriations or the mechanism involved.
Here is the actual ruling: https://aboutblaw.com/5mY [aboutblaw.com]. It attempts to address this issue:
Much like your posts, this is also nonsense. There are specific restrictions on the types of laws Congress can pass, and this is in Article I, Section 9. Moreover, Article I, Section 8 limits the authority of Congress by listing the legislative powers granted to Congress. Contrary to what the ruling states, a law could be unconstitutional because it explicitly violates the restrictions in either of these sections, regardless of the ability of Congress to later repeal an unconstitutional law. However, neither of those conditions are satisfied in this instance. The argument made by the judges is, at best, quite misleading.
Instead, this court arbitrarily imposed limitations on the mechanisms that Congress can use to appropriate funds beyond what is stated in the Constitution. This ruling violates the separation of powers and is an unconstitutional action taken by these judges.
(Score: 1) by khallow on Monday October 24 2022, @02:32AM (17 children)
The obvious rebuttal is what has Congress appropriated here? You merely claim that they have. A revenue stream in perpetuity is not a legitimate appropriation.
(Score: 0) by Anonymous Coward on Monday October 24 2022, @08:37AM (16 children)
Once again, the revenue stream is perpetual only until Congress chooses to amend or repeal the law authorizing the payments. Any future Congress can take up the matter whenever they choose by passing legislation that will modify or eliminate the revenue stream.
It is your opinion that the CFPB's funding is not legitimate. However, nothing in sections 8 and 9 of Article I restrict the length of appropriations with a single exception. We've already covered that exception, which limits appropriations for armies to two years in duration. There are no other restrictions imposed on how Congress may authorize appropriations. Here are the only places where appropriations are mentioned in Article I:
Neither of these restrict the length of appropriations except to fund armies. Restrictions on the length of appropriations are not imposed elsewhere in the Constitution, either. No other articles of the Constitution mention appropriations as this power is reserved solely for Congress. The court is imposing an arbitrary restriction on the length of appropriations even though Article III does not grant the judiciary any powers here. This ruling violates the separation of powers and amounts to legislating from the bench.
Again, if the Constitution restricted the length of appropriations for entities like the CFPB, you would certainly have said where in the Constitution this restrictions is imposed. Because you have not done so after multiple replies, we can reasonably conclude that you are full of shit and talking out of your ass.
(Score: 1) by khallow on Monday October 24 2022, @02:45PM (8 children)
Or the courts strike it down as unconstitutional. Guess which is happening first.
(Score: 0) by Anonymous Coward on Monday October 24 2022, @07:22PM (1 child)
Which will rely on the most tenuous application of nearly irrelevant case law or some originalist take on the Constitution or something. Iy is REALLY telling that you're getting so worked up over such a small issue. It is pathetically transparent that Big Money simply doesn't want to be held accountable and you have nothing else to argue with aside from trying to say it is unconstitutional.
As usual Republicans whine about legislating from the bench until it suits their interests. Very fascist, much wow. Khallow is a rightwing stooge promoting feudalism under the guise of liberty. What a jerk.
(Score: 1) by khallow on Monday October 24 2022, @08:46PM
Yes, they must be cheating or something. It's so weird how a scheme that spent so much effort to dodge accountability ended up being unconstitutional.
There's a reason they said this scheme was unique in the annuals of legislative failure.
(Score: 0) by Anonymous Coward on Tuesday October 25 2022, @05:05AM (5 children)
If this actually violates the Constitution, you should have no problem showing where the Constitution forbids this sort of funding mechanism. If I can quote Article I to show where appropriations for armies are limited to two years in length, surely you can quote the text that forbids this funding mechanism for the CFPB.
(Score: 1) by khallow on Tuesday October 25 2022, @01:29PM (4 children)
(Score: 0) by Anonymous Coward on Tuesday October 25 2022, @06:10PM (3 children)
Interesting, now show us the part of the Constitution that forbids abortion. Go ahead, we'll wait.
(Score: 1) by khallow on Tuesday October 25 2022, @11:57PM (2 children)
How about you perform that exercise? I'm not interested because it's not relevant.
(Score: 0) by Anonymous Coward on Wednesday October 26 2022, @10:53PM (1 child)
If you can't take responsibility for real rights being removed by Republicans then why should anyone give a shit about your whiny comolaints about the CFPB? Shows how bankrupt rightwing morality is, thanks pal.
(Score: 1) by khallow on Wednesday October 26 2022, @11:21PM
I can't take responsibility for Republicans any more than I can take responsibility for your irrationality. It's a non sequitur.
(Score: 0) by Anonymous Coward on Monday October 24 2022, @11:15PM (6 children)
And certainly if the constitution supported the many restrictions we have on free speech, we could easily point out where such restrictions are enumerated. And then this:
"time to time"... Nice and vague, ain't it? The interpretation of what is written seems to depend on personal bias.
(Score: 1) by khallow on Tuesday October 25 2022, @01:27PM (5 children)
Here, you're just weaseling that the underlying constitutional mandate is vague. Sure, it is. But the rules and regulations that sprung up from that are far from vague. It's not personal bias, but generations of rules. The court is quite right to strike down CFPB because it's evading those without cause.
(Score: 0) by Anonymous Coward on Tuesday October 25 2022, @11:21PM (4 children)
No, it had good cause, it was to prevent a partisan congress from defunding it, doesn't work of course, because any law can be repealed by congress.
The damn thing was just toothless featherbedding the bureaucracy anyway, good riddance to it. Unfortunately, consumer protection is dead
(Score: 1) by khallow on Tuesday October 25 2022, @11:55PM (3 children)
No, it's that other thing: a terrible cause. Seriously, you can't evade democracy legally just because there are partisan congresses out there.
(Score: 0) by Anonymous Coward on Thursday October 27 2022, @08:56PM (2 children)
Why? It's no different than giving the judges lifetime appointments. That's a complete bypass of "democracy". Let's sunset that first
(Score: 1) by khallow on Friday October 28 2022, @01:56AM
Which are allowed by the Constitution. Further, Judges can be impeached and removed by an elected Congress, for example. There's no explicit allowance in the Constitution to remove the head of the CFPB, remember? To do that, you basically have to revoke the charter of the CFPB first.
Funny how you just can't think about why this anti-democratic stuff sucks so much. Remove that programming and think for yourself!
(Score: 1) by khallow on Sunday October 30 2022, @04:04AM
Also, let us note that lifetime appointments is centuries old. They've had a long time to work out the problems.
Creating a permanent bureaucracy that deliberately bypasses what we've been using for centuries is not.
And of course, this is just a lousy whataboutism. As I've noted before, whataboutisms fail when your side does worse. The CFPB is very different from a judicial branch that was deliberately set up to be independent of the other branches of government. What really is the reason for a regulatory agency to be independent of both the legislative and executive branches?
(Score: 0) by Anonymous Coward on Sunday October 23 2022, @07:07PM
So far it looks like the constitution has no sunset provisions on congressional appropriations. But then, even the "Global War on Terrorism"™ and the defense budget has to be renewed every year. Unfortunately we don't demand more transparency in the process. Consumers need a bigger voice in government that principally serves a mercantile system
(Score: 0) by Anonymous Coward on Sunday October 23 2022, @01:17AM
Whoosh!!
(Score: 0) by Anonymous Coward on Monday October 24 2022, @07:25PM (1 child)
Translation: It pisses me and my friends off when you "liberals" show yourselves to be smarter than us!
Really? So, tell us, what are your thoughts on the 2020 election? Was it "stolen"?
(Score: 1) by khallow on Tuesday October 25 2022, @01:41PM
The original post just asserted stuff - the authoritarian fluff AC1 complained about. And it boiled down to "The Constitution doesn't explicitly outlaw this particular, blatant dodge around centuries of rules and regulations which comply with constitutional law." Well, the Constitution doesn't have to explicitly outlaw a particular, blatant dodge for it to be unconstitutional.
(Score: 1) by khallow on Sunday October 23 2022, @02:02AM (6 children)
But it does mandate that Congress doesn't have the power to create entities that are unaccountable to Congress! Here, no entity, including Congress, has the power to change CFPB's funding without an act from Congress to first reverse that immunity. That's unconstitutional. I get you don't understand why, but it still remains that it's unconstitutional.
Keep in mind that there's decades of attempts to create laws and funding streams that can't be simply reversed by future legislatures. For another example, the use of international treaty to create space projects and obligations (particularly the ISS) that are immune to defunding by US Congress. Or the funding stream of Social Security which allowed for hundreds of billions to be put into general revenue without the appearance of increasing taxation.
This is the natural next step: create agencies with power, funding, and leadership completely immune to elected leadership. It's folly to let this continue.
(Score: 0) by Anonymous Coward on Sunday October 23 2022, @02:20AM (2 children)
CIA and IRS come close
(Score: 1) by khallow on Sunday October 23 2022, @11:49AM (1 child)
(Score: 0) by Anonymous Coward on Sunday October 23 2022, @07:12PM
Our system is one of extortion, with criminal cartels making *offers that can't be refused* to the politicians.
(Score: 0) by Anonymous Coward on Sunday October 23 2022, @11:33PM (2 children)
Whataya know, it's the next weekend, khallow. Hey, I just remembered, wasn't Russia supposed to bomb Seattle, about now?
(Score: 1) by khallow on Monday October 24 2022, @02:33AM (1 child)
(Score: 0) by Anonymous Coward on Monday October 24 2022, @03:04AM
Oh, it looks like Putin has traded some bluster and hubris, for a slice of humble pie with a dollop of reality for savor. It's a great combination; you might try it. Careful that it doesn't get stuck in your craw.
He's been stuck in pointless ten-year wars, before.