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A Badly Written Law

During my decade in State Government, I studied law making very carefully. With the help of my colleagues and two outstanding Governors (Askew and Graham), a number of my bills were enacted into law. One of the guiding principles of effective law making is understanding the clear separation of powers among the three branches of government--legislative, executive, and judicial. Probably the clashes that happen most often are the legislative and executive branches encroaching on one another. A case in point is the current brouhaha over the Federal Consumer Financial Protection Bureau ("CFPB"). The Obama Administration pushed the legislation proposed by then Harvard Law School Professor Elizabeth Warren to address the financial crises in the early part of Obama's first term.

The CFPB was created as a part of the controversial Dodd-Frank legislation. It was a forced fit into the Federal Government, located inside the Federal Reserve, which has presidential appointments. The financial industry argued that the whole bill was an overreaction to the crises. No surprise, the Trump Administration would love nothing more than to repeal as much of Dodd-Frank as possible, and especially the CFPB.

Now back to the principle of law making. Once the legislative branch passes legislation, it is up to the executive branch to carry it out. Carrying it out includes managing it and supervising the appointment of the key people at the CFPB. There is the rub.

Incredibly, the law creating the CFPB was written to authorize the head of the agency, not the President (Executive Branch) nor the head of the Federal Reserve, to appoint his replacement as head of the agency. Senator, I have criticized President Trump for being ignorant of government, and now you are doing the same thing--ignoring the separation of the branches of government.

Said bluntly, this is a badly written law because of a clearly unconstitutional provision on the management of an important Federal Agency. The Federal Court agreed this week.

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