This afternoon (at 2pm), I'll be testifying before the Senate Judiciary Committee on the constitutionality of the Consumer Financial Protection Bureau and the Dodd Frank Act. The title for today's hearing gives you a flavor of the sweeping (and fringe) legal theories being advanced by the CFPB's opponents: "The Administrative State v. The Constitution: Dodd-Frank at Five Years."
As I explain in my written testimony, the challengers' theories (which have uniformly failed in court after court) are based on separation-of-powers arguments at odds with eight decades of settled precedent. They aren't so much attacks on the CFPB and Dodd-Frank as attacks on the modern administrative state itself. In that sense, the hearing's title is apt.
Here's the bottom line: The Bureau's political opponents, lacking the votes to kill the agency through the normal democratic process, are trying to constitutionalize their objections. In so doing, they're asking the courts to roll back the clock to before 1935–the height of judicial hostility to the New Deal.
A parallel dynamic is playing out in the appropriations process as well, where Republicans who don't have the votes to pass regular legislation are attaching a variety of anti-CFPB riders to must-pass funding bills–including a troubling rider that would kill the CFPB's arbitration study through a strategy of paralysis by analysis.
The majority witnesses at today's hearing will be C. Boyden Gray (former White House Counsel to Bush I and lead counsel for the plaintiffs in State National Bank of Big Spring, Texas v. Lew); Mark Calabria (Cato Institute); and Neomi Rao (George Mason Law). I'll be testifying alongside Adam Levitin of Georgetown Law, whose written testimony is here.
You can watch the hearing live here.
