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Trump just asked the Supreme Court to let him fire the CFPB’s head. The implications are enormous.

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On Tuesday, the Trump administration asked the Supreme Court to hear a lawsuit challenging the leadership structure of the Consumer Financial Protection Bureau (CFPB) — taking the same side as the people suing the government in a major constitutional dispute.

The administration essentially threw in the towel in the challenge to the consumer protection agency started by senator and presidential candidate Elizabeth Warren. As a general rule, the Justice Department has a duty to defend federal laws challenged in court. The administration, however, decided not to defend the law at issue in this case.

With the Justice Department urging the Court to weigh in, it is now very likely that the justices will do so. The policy implications of this suit, Seila Law v. CFPB, are unclear. In the narrowest sense, Seila Law is a case about whether a federal agency can be led by a single director that the president cannot remove at will. More broadly, however, the case is the most recent skirmish in a war over what kind of government our Constitution permits.

Most likely, the Supreme Court will hold that the president may remove the CFPB director. In the short term, that could give a big boost to a future Democratic president — potentially allowing a President Warren to replace Trump’s CFPB director with her own on the first day of her presidency.

But the Court could also go much further. There is a chance — albeit a very small one — that the Supreme Court could strike down the CFPB in its entirety. There’s a somewhat greater chance that the Supreme Court could disallow “independent” agencies in which the leaders of those agencies are protected against removal by the president.

President Trump, in other words, could gain the power to fire members of the Federal Reserve board who refuse to inject steroids into the economy while Trump is running for reelection.

Looming over all of this is an ideological battle over the “unitary executive,” the theory that all executive power in the United States government must be vested in the president, and over the legacy of the late Justice Antonin Scalia.

Most federal agencies are led by a Cabinet secretary or some other senior official who can be fired by the president. By contrast, independent agencies such as the Federal Trade Commission (FTC) or the Federal Communications Commission (FCC) are often led by bipartisan boards whose members serve staggered terms. Often, the members of such boards can only be fired by the president “for cause,” which typically prevents a president from removing a board member simply because they disagree with that board member’s policy views.

The CFPB is unusual. It is led by a single director, not by a board. But that director also is protected from a president who wants to fire them. By law, the president may only remove the CFPB Director “for inefficiency, neglect of duty, or malfeasance in office.”

This unusual arrangement enrages many conservatives. Indeed, one particularly conservative federal judge claimed that “consent of the governed is a sham” if the CFPB’s structure is allowed to stand.

To understand why this case inspires such intense feelings, turn back the clock about three decades to the Supreme Court’s 1988 decision in Morrison v. Olson. Morrison involved a federal law, which expired in 1999, that provided for “independent counsels” — a form of special prosecutor that could only be fired by the president for cause.

The Supreme Court upheld the independent prosecutor statute by a lopsided 7 to 1 vote, with Justice Antonin Scalia providing the sole dissenting vote.

The thrust of Scalia’s opinion: The Constitution provides that “the executive Power shall be vested in a President of the United States.” For Scalia, “this does not mean some of the executive power, but all of the executive power.” And because the power to bring prosecutions is invested in the executive branch of government, there cannot be a prosecutor who is neither answerable to the president or answerable to some lower official who is answerable to the president.

This is the theory of the unitary executive. The executive branch has a single org chart. And the president must be above everyone else in that chart.

Scalia’s dissent is quite broad. It does not simply attack the independent counsel statute. It also mocks the Court’s 1935 opinion in Humphrey’s Executor v. United States, which permitted the creation of independent agencies led by multimember boards.

If a majority of the Court embraced the full implications of Scalia’s dissent, the president could potentially gain the power to fire FCC Commissioners or destroy the independence of the Federal Reserve.

At the very least, however, the CFPB’s structure — with a single director who can’t be removed by the president — is anathema to proponents of the unitary executive. Like the statute at issue in Morrison, the statute challenged in Seila Law vests the kind of power traditionally held by the Executive Branch in a single person. Indeed, it does even more than that, giving that single individual command over an entire federal agency.

Many powerful conservatives now revere Scalia’s dissenting opinion the same reverence commonly associated with a religious text. One of them is Justice Brett Kavanaugh, who said in 2016 that he wanted to “put the final nail” in the Morrison majority opinion’s coffin.

A handful of judges have claimed that the entire CFPB must be eliminated because of this alleged constitutional defect in leadership structure. That’s unlikely to happen. As a lower court judge, Kavanaugh heard a very similar lawsuit that presented the same question of whether the CFPB could have a single director who cannot easily be fired by the president. Though Kavanuagh agreed that the director must be accountable to the president, he wrote that the CFPB may continue to operate with the president able “to remove the Director at will at any time.”

And without Kavanuagh’s vote, it’s hard to see how litigants who want the CFPB to die can find five votes on this Supreme Court.

At least in the short term, a decision embracing Kavanaugh’s view could potentially be a boon to Democrats, as it would allow a Democratic president to replace the CFPB director on the first day of their presidency. Kavanaugh’s position, which the Trump administration shares, would effectively transform the CFPB into an ordinary agency whose leadership changes whenever partisan control of the White House flips.

A more uncertain question is whether there are five votes to go the Full Scalia, and potentially eliminate independent agencies led by multimember boards.

Thus far, the Roberts Court has taken incremental steps towards a unitary executive, but it’s largely left Humphrey’s Executor in place. In its 2010 decision in Free Enterprise Fund v. Public Company Accounting Oversight Board, for example, the Supreme Court struck down a scheme that gave members of a particular government board “double for-cause” protection.

Members of the Public Company Accounting Oversight Board could be removed by the Securities and Exchange Commission (SEC), but only “for good cause shown.” Meanwhile, the SEC commissioners themselves could only be removed by the president for “inefficiency, neglect of duty, or malfeasance in office.” This double layer of insulation from the president was one layer too much for a majority of the Supreme Court.

Yet Roberts’s majority opinion in Free Enterprise Fund was careful not to go much further than that. “The point is not to take issue with for-cause limitations in general,” he wrote, emphasizing that “we do not do that.”

But the Supreme Court is now significantly more conservative than it was in 2010, and it is an open question whether Roberts will be willing to consider a broader holding in Seila Law. If he is, Trump could suddenly become much more powerful.

By |2019-09-18T20:35:05+00:00September 18th, 2019|

The astounding advantage the Electoral College gives to Republicans, in one chart

In 2016, Donald Trump won the presidency despite receiving nearly 3 million fewer votes than Democratic candidate Hillary Clinton. In 2000, George W. Bush pulled off a similar trick. According to a new study, these are not flukes. They are the kind of results we should expect from the Electoral College.

The study, by three economics researchers at the University of Texas, quantifies just how often the Electoral College will produce an “inversion” — that is, an election where one candidate wins the popular vote but the other walks away with the presidency. The numbers are simply astonishing.

In modern elections where one party prevails by just 2 points in the two-party popular vote, “inversions are expected in more than 30% of elections.” That number rises to 40 percent in elections with a 1 percentage-point margin.

Republicans, moreover, are far more likely to benefit from an inversion than Democrats. “In the modern period,” the study suggests, “Republicans should be expected to win 65% of Presidential contests in which they narrowly lose the popular vote.”

This Republican advantage can shift elections where the Democrat was a fairly clear winner in the popular vote. “A 3.0 point margin favoring the Democrat,” the study concludes, “is associated with a 16% inversion probability.” In other words, Republicans will win nearly one in six presidential races where they lose the popular vote by 3 points.

Indeed, to understand the magnitude of the GOP’s advantage in the Electoral College, consider this chart:

A chart showing the probability of a Republican win at various vote thresholds is skewed. Michael Geruso, Dean Spears, and Ishaana Talesara

The chart shows the probability of a Republican Electoral College victory across 92 different models. Notice that the chance of a GOP victory reaches 50 percent when Republicans have less than 50 percent of the vote. At the extremes, the chart suggests that there is still a small chance of a Republican victory even in elections where Democrats win the popular vote by about six points.

The study is authored by University of Texas at Austin economics professors Michael Geruso and Dean Spears, and Geruso’s research assistant Ishaana Talesara, who is also a student at UT Austin.

To reach their conclusions, the research team ran hundreds of thousands of simulated elections under various election models. The paper as a whole studies three periods in American history: the Antebellum period from 1836 to 1852, the Reconstruction period from 1872 to 1888, and the modern period from 1964 to 2016 (although many of their modern samples only look at the period from 1988 to 2016). These periods were selected to exclude eras when one party typically won in a landslide.

Overall, they conclude that “the high probability of inversion at narrow vote margins is an across-history property of the Electoral College system.” The Electoral College has, at various times, given an advantage to Democrats, Republicans, and the now-defunct Whig Party. Now it gives a clear advantage to Republicans.

The Electoral College skews elections by giving a structural advantage to small states. Each state receives a number of electoral votes equal to the number of United States House of Representatives members from that state, plus two. These two additional votes effectively triple the voting power of the smallest states, while having only a negligible impact on the voting power of large states.

Additionally, modern-day Democrats are disadvantaged because they “have tended to win large states by large margins and lose them by small margins.” In 2016, for example, Democratic candidate Hillary Clinton won California by nearly 3.5 million votes. Meanwhile, she lost the crucial swing states of Michigan, Pennsylvania, and Wisconsin by fewer than 80,000 votes combined.

It’s not hard to imagine 2020 producing an even starker inversion. Historically red states like Texas and Arizona are trending toward Democrats, but most likely not enough to flip those states in the next election. If Democrats narrow Trump’s margins in those states, while Trump barely holds onto states like Florida or Wisconsin, the next Democratic candidate could win the popular vote by 5 million votes or more — and still lose the Electoral College.

By |2019-09-17T12:33:42+00:00September 17th, 2019|

How to remove Brett Kavanaugh without impeaching him

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In 2006, years before Christine Blasey Ford publicly accused Supreme Court nominee Brett Kavanaugh of attempting to rape her when they were both in high school, the Yale Law Journal published a provocative paper.

The paper, “How To Remove a Federal Judge” by law professors Saikrishna Prakash and Steven D. Smith, lays out a road map for, well, how to remove a federal judge without resorting to the impeachment power. It argues that a provision of the Constitution stating that federal judges and justices “shall hold their offices during good behaviour” is widely misunderstood.

Contrary to the “virtually unquestioned assumption among constitutional law cognoscenti that impeachment is the only means of removing a federal judge,” Prakash and Smith argue that the term “good behavior” is a legal term of art that would have been understood by the founding generation to allow judges to be removed by “judicial process.”

Prakash, a professor at the University of Virginia, is a former law clerk to Justice Clarence Thomas. Smith, a professor at the University of San Diego, is a frequent contributor to conservative and libertarian publications. So even if the paper did not precede the Kavanaugh hearings by more than a decade, it would be difficult to argue that it was published in order to lay the groundwork for a liberal victory over a conservative Supreme Court justice.

The paper, which was published in one of the legal academy’s most prestigious journals but has had little impact on public policy so far, could wind up becoming important if Democrats capture Congress and the White House in the 2020 election.

On Saturday, the New York Times published a report bolstering the allegations against Kavanaugh.

The Times says that its reporters “found Dr. Ford’s allegations credible during a 10-month investigation” and that “at least seven people” corroborated a second allegation, by Kavanaugh’s Yale classmate Deborah Ramirez, who says that Kavanaugh “pulled down his pants and thrust his penis at” Ramirez without her consent. He has denied both allegations.

The report also revealed new allegations that Kavanaugh allegedly attended a drunken dorm room party in college “where friends pushed his penis into the hand of a female student” — although this third story is attributed to an alleged eyewitness and “the female student declined to be interviewed and friends say she does not recall the episode.”

The Times report, adapted from the forthcoming book The Education of Brett Kavanaugh: An Investigation, sparked calls for Kavanaugh’s impeachment, including from at least four presidential candidates.

But impeachment is a paper tiger. To remove Kavanaugh via impeachment, two-thirds of the senators present for such a vote would need to vote against Kavanaugh. And the Senate is malapportioned in ways that favor Republicans — in the current Senate, Democrats represent about 15 million more people, but Republicans control 53 percent of the seats.

Barring a historic political realignment, in other words, there is virtually no chance that there will ever be 67 senators who will vote to remove Kavanaugh. But, if Prakash and Smith are right about the Constitution’s good behavior clause, there won’t necessarily have to be.

The thrust of Prakash and Smith’s argument is that an official who is appointed during “good behavior” may keep their office indefinitely, but that an official who misbehaves may be removed through an ordinary court proceeding.

Misbehavior, they argue, was understood broadly by English courts and by early Americans. It can include “conviction for such an offense as would make the convicted person unfit to hold a public office,” but also may include much lesser offenses. The two professors cite the eminent 17th-century jurist Sir Edward Coke for the proposition that misbehavior may also include “abuse of office, nonuse of office, and refusal to exercise an office.”

For this reason, Prakash and Smith claim that it is a mistake to read the Constitution as preventing a judge from being removed from office except by impeachment. The Constitution, they note, only permits impeachment of civil officers for “treason, bribery, or other high crimes and misdemeanors.” But the term “good behavior” was understood to allow an official to be removed for much lesser offenses. Therefore, the Constitution’s invocation of this term suggests that federal judges may also be removed through a process other than impeachment.

To prove their claim that the term “good behavior” allows officials to be removed in a judicial proceeding, the professors cite a raft of 17th- and 18th-century English cases that support their argument. They quote early state constitutions suggesting that service during “good behavior” can be concluded by a court proceeding — the 1776 Maryland Constitution, for example, provides that judges “shall hold their commissions during good behaviour, removable only for misbehaviour, on conviction in a Court of law.”

They quote future President John Adams, who said in a debate with a contemporary that a judge serving during good behavior may be removed after a “hearing and trial, and an opportunity to defend himself before a fuller board, knowing his accuser and accusation.” And, in what is probably their single most persuasive piece of evidence, they quote a 1790 act of Congress providing that judges convicted of taking bribes ”shall forever be disqualified to hold any office of honour, trust or profit under the United States,” even though no impeachment may have occurred.

Prakash and Smith conclude by suggesting acts of Congress that would allow judges to be removed without impeachment, including a law automatically removing judges upon their conviction for certain offenses, one creating a separate judicial process to remove judges accused of misconduct by the Justice Department, and another empowering an internal review board whereby federal judges police their own.

The two professors’ argument is, to say the least, not universally accepted by scholars. Indeed, in the same year that Prakash and Smith published their Yale Law Journal piece, the Journal also published a response by Northwestern law professor Martin Redish, which takes issue with their definition of good behavior.

In his piece, Redish warns of “the extremely problematic effect that [Prakash and Smith’s] proposed interpretation would have on the vital role that federal judicial independence necessarily plays in preserving the foundations of our political and constitutional structure.”

But Prakash and Smith also offer a sharp rebuttal to this critique: “Any removal procedure authorized by Congress would have to be conducted by a court with all the traditional judicial safeguards.” Judicial independence, in other words, would be protected by the fact that the judiciary would ultimately decide which judges are removed.

Such a process is hardly unheard of in the United States. Former Alabama Chief Justice Roy Moore, for example, was twice stripped of his judicial responsibilities by a special court that hears complaints against the state’s judges.

A different critique of Prakash and Smith — and one that I personally find persuasive, at least in the abstract — is that stability in the law is important. Whatever English courts may have done in the 17th century, or whatever Congress may have done in 1790, the seemingly unbroken practice of two centuries of American history is that judges may only be removed by impeachment. Does it really make sense to toss out such a settled norm because two clever law professors dug up some centuries-old legal documents?

In an 1826 letter, James Madison explained why, as president, he did not veto legislation chartering the Second Bank of the United States after arguing that the first such bank was unconstitutional. The first bank’s acceptance by public officials and by the American people, Madison wrote, constituted “a construction put on the Constitution by the Nation, which having made it had the supreme right to declare its meaning.” A similar logic could be applied to the norm against removing judges without impeachment.

But the era when public officials stay their hands simply because longstanding norms advise them to do so appears to have passed. Not too long ago, there was a norm providing that Supreme Court nominees receive confirmation hearings, or that Congress should not use the debt ceiling to extract policy concessions from the president, or that filibusters should be used only rarely.

The question for Democrats, in other words, is not whether norms of governance must be obeyed in the United States — clearly they are not. The question is whether Democrats want to tear down one more norm in order to remove a judge they view as uniquely odious.

Because the courts would need to acquiesce in any attempt to remove Kavanaugh without impeachment, it’s possible that any effort to do so would fail. Nevertheless, it is also possible to imagine a scenario where the judicial branch would decide that it is better to strip Kavanaugh of his office than to allow him to remain at the apex of the judiciary.

Suppose that prosecutors showed that a justice perjured himself at his confirmation hearing — a crime that is, admittedly, very difficult to prove — and he is sentenced to some amount of time in prison. If he can only be removed via the impeachment process, that would mean that he would still be a member of the Supreme Court even as he serves out his sentence.

How would basic Supreme Court functions, such as the conferences where all nine justices meet in a room to decide which cases to hear, continue to operate when one of those justices is behind bars? And once the justice gets out, would federal courts really want to endure the spectacle of such a man weighing the fate of other criminal defendants?

Congress could, in other words, pass a law similar to the 1790 law referenced in Prakash and Smith’s paper, which disqualifies federal judges who’ve been convicted of certain crimes that call into doubt their integrity as a judge. And if Congress decides to go this route, the two professors’ paper will give the Justice Department the arguments it needs to defend such a law in court.

By |2019-09-16T15:33:39+00:00September 16th, 2019|