written the script the never realized this is a problem. so president trump appoints somebody 2018 they serve through 2023 then-president could be in a different party and will not have the authority to do anything about that over three years so now if he goes to the terms then it comes in with consumer protection he cannot do it right before that election so looking at the reality that sounds great with the structure and

common-sense frankly so why would we buy into a concept with where we have never had this before? it is seems to affect liberty with this bizarre situation the key element of the president's platform. >> so but those were the president has to get the opportunity so it may be with respect to the ftc. >> and we just lived through a realtime example of how this works for girl --. so that just gives me pause of the ramification of

because those that will say we want that cfpb director out and that was justice scalia's wisdom. he saw that would have been effective in the future. >> the humphries executor said what is crucial for the president is to be sufficiently accountable. the president's removal authority. >> so let me give you a couple of questions. could congress pass a statute bin must me at the opposite party of the president?.

>> i don't know. >> could congress to back? the majority of the members must be the opposite party of the president. >> i don't know. >> the other thing to be careful about is to see what the statutes provide. so you could not get the automatic turnover. so i don't think that history is as solid as suggested with that diminution of presidential power. that is what is at issue?. >>. >> judge rogers, just with

the matter of the consumer financial protection act not in terms of what has happened but whether the act itself is unconstitutional. >> what is your response that it is your position with secretary of the treasury removable for province?. >> it will have an answer to that question i don't think the courts in this case needs to answer the question 130 years congress created a wide variety of agencies structure somewhat differently. >> so let's see if you agree

of this never before has so much federal power been concentrated in the hands one person so thoroughly shielded. is that true? does that make a difference?. >> that is not the basis but is that true in terms of the power that the bureau has?. >>. >> is that before - - troop that never for?. >> i would not like to speculate as the power of the chairman of the federal reserve board. >> what if they say the next cfpb director has a 30 year term?. >> in the decision of the

supreme court that there was no tenure limit in the court held that was problematic the president could remove the official. >> i am talking about a term with the cfpb director of congress passes that that is fine and anything goes. >> what is that based on? history?. >> i am trying. >> vessel did worse than i meant. >> what this court has to deal with is a director with a five-year term ftc serve seven years and will not speculate if it were 10 or 15 years.

>> if there is some kind of an anchor then that chefs. >> but all these agencies are different. >> one person over 20 years. >> that could be a different issue i don't know. with all those agencies the government has created that is more similar from the ftc. that is identical and that was upheld in the humphries

executor case. and whether the president can take care as long as the president could remove the official for ducasse's -- ducasse's. >> there is also that novelty. but this is a significant change. but that was never a consideration of the supreme court cases. but the humphries executor case focused on the functions of the ftc. not the agency's structure

there is a reason to believe that has less accountability that is headed by a single director. >> select to be a clue that referred to that as quasi of legislative. what were they thinking? essentially as a combination to recreate in one group of legislature among other things because legislatures have multiple members and the idea of the deliberation i think that said a law when it uses the term quasi and

then they focus so heavily on a single member executive because there recruiting this deliberative body. and also trying to you get bipartisan one person cannot simultaneously. >> is not a bipartisan if it is the federal trade commission they say no more than three members of one political party but those three republicans already on the commission that next appointment was described as a reagan democrat. that is not a matter of the federal reserve system that is a qualification of the

board of governors comes three different district. >> when i asked mr. olson why this case was not controlled by morrison the answer was the director was more than just limitations like the independent counsel to any authority of budgetary appropriations all aspects of the structure of the bureau distinguishes that from morrison. what is your answer to that? >> the bureau is funded much like other agencies like two thirds of the government outside. >> but they don't have

restrictions and this one does. >> but in fact, the oversight board and that puts the restriction he can put anything he wants that puts no restriction on congress congress is free to change the source or to limit the funding altogether >> if you confine them of the restriction that the president but it all adds up

so the question whether or not who controls this case because if you add all of these up it is with a greater threat that is his argument. >> if you look at those restrictions nine restricts the president whatsoever going through the budgeting authority and to see the bureau's budget what the court held in morrison if the president can removing an official the president

has sufficient authority. they have made assertions of how the bureau is more powerful than the ftc in 1935. i am drawn attention to the court's decision of natural petroleum refiners and believe it is that 483. but to have substantive rule but the ftc could not issue rules in 1935 so the bureau did. so the court held and then

it was enacted if that ftc had rulemaking authority. but then this court observed to use the court's words it was a quibble to distinguish so that pervasiveness of maya authority and the and they noted because the court noted the ftc so that on its authority and with the adjudication is based solely on the authority and then it

is subject to the authority. and the ftc has authority over the entire economy. >> and as was mentioned earlier in response to that point that congress could always change the statute to so is part of the response here that to make a part of

the federal reserve system and that itself is unique so to compare the powers of the central bank concept in that area it has been different so the combination doesn't have the same impact of preparing the power that might or is that a flawed analysis?. >> it is said that congress can change the provisions not to have any impact whatsoever so they have no impact on the separation of powers. >>.

>> that was analyzed separately perot so that responds so historically that has been recognized. >> but what i would say and that is zero with a for cause removal. at the end of the day you were still with the zero with 0 + 0 with the four cars removal position budget

that does but impinge on the president's authority. >> so what is argued back and forth and that applies to read. twenty or 30 years after the cause of action. >> so to discuss this a little bit more now so with respect to respa three year statute of limitations. >> but i'm asking for the administrative proceedings

is that still the feeling there is a statute of limitations. >> there is judicial code 2462. >> but that has no effect. that is the five-year statute of limitation. said is the tolling agreement. >> there is a case pending in the supreme court with that very statute. >> so you take the position that it does apply?. >> the five-year statute of limitations applies but

disgorgement goes to the treasury is covered by the statue of limitations for'' we're within that five years. so with respect to whether equitable relief such as the injunction or the consumer redress that equitable provisions would apply that occurred 20 years ago those equitable provisions would limit the bureau's authority his likely to occur that phh corporation conduct would likely occur. >> there is a notice that what is your position that

phh corporation was on notice that it was of a lawful? eric babysat on a 1997 letter. >> i am asking a slightly different question what affirmation as an actor in the market what is your reading that you know?. >> so section 8 of respa on page number three in the left-hand column at the bottom it says no persian show except a fee or kickback or value for referrals. >> but then the neck section says there is nothing in this section as to

prohibiting any person of day bonafide compensation or other payment with service is actually performed so that means to have a huge payment foretokens services. and then there is another requirement to be multiplied with notified that means on good faith. so we discuss that in our brief before the court but the supreme court explained

but not for purposes of the region but that is exactly what phh corporation was doing with their reinsurance operation. >> with your o plus o plus o so the ftc combines the cfpb into one agency for example, o plus o plus o. >> no. so what function it performs and during the humphries executor case was that was moving forward congress and signed regulation of securities to a period of time. >> you have to look at the functions of the agency and

what they do together would be very different city have to look at those functions but here those that are remarkably similar go no further than humphries executor. >> call love those zeros were added for causes perhaps you were relying on precedent of for cause removal to hold those officials accountable so if it was for cause?. >> so maya understanding of

what happens is that when the of president goes for cause they resign. >> but not regards to humphries executor. >> but he did leave the agency. >> now when he got the letter from president roosevelt. >> and then suing for back pay. >> there was a letter sent to president-elect trump who said since the founding of the republic to warn him that for cause removal would be subjected to enhance

public scrutiny it seems to me that the for cause removal and that does diminish the president's authority. >> is that the definition of authority but to make sure they are faithfully executed so what has on the fact. >> the congressmen may have said. >> betted response to my question that actually they do have to leave if removed for cause federally entitled

to back pay. >> he did not remove home 34 koch is. >> is that mean you have the injunction?. >> i dunno what that could imply. >>. >> it has not happened i don't know that it has but i would note that panel's decision sites independent regulatory agencies and they thought that for cause removal of that amounted to what?. >> it is that power the president does have to make

sure they are operating on the sleeve or competently so i agree with judge brown that they could exercise the power. >> i'm trying to figure out because i thought about this i have seen other commentary that says there is that for cause protection under humphrey's executor the only remedy available is back pay and they say there has never been a case and lots of commentators believe no court would have jurisdiction so how does

that cut with our analysis? is that toothless protection or does that mean, how do we think about that?. >> it is a toothless but with respect to analysis of the separation of powers issue as long as the president can remove beneficial for cause be assured they are performing his or her duties they cannot remove simply for policy disagreements. >> didn't the majority opinion say that?. >> as the meaning full

authority. and also with humphrey's executor in morrison but the one thing. >> i see if that is what happened with humphrey's executor and the court said no. i believe roosevelts letter said i would like to have a man there is what he said. >> so to reaffirm that understanding. >> now it was humphrey's executor because he died and was still alive when the court made that decision not to get his job back proposal

as long as the president is willing to cut a check even if the court disagrees even with humphrey's executor. >> that is not at this situation as applied. any more questions?. >> [inaudible] there has never been an agency like best owe plus o plus o with that agency are not zeros so that sum total

the request of authority to create the most powerful agency. given the power of those statutes this was a very powerful agency that does the president have the authority to be accountable to how those decisions with those 19 statutes are made? the president has then to use the panel decision that the buck stops somewhere else. the president says i cannot remove pan and. started with the proposition

and what this agency is doing is performing executive functions. there is no stopping point. it could be the treasury department or the epa warned that other agency of the federal government to have the same argument we're having here. it is part of hud and given to this agency and a bunch of others also. so stern for says marshall but that is what the supreme court said i submit this is since silent or slight as justice scalia said this comes as a wolf.

but the principle that would allow the entire executive branch to be swallowed up by a whole agencies so what said indonesia federalist papers they will do this all the time. >> all the arguments against teetwo you made my case. [laughter] but free enterprise look at the context of humphrey's executor this is the body of experts exercising quasi judicial legislative functions. >> they said they would require the expertise. >> i did not hear that question. >> so just to be clear

putting aside of tea today you have reserved so with the cfpb do you still have the constitutional argument. >> this agency goes further than that. is headed by the multi member. >> so as they stagger the terms bin to limit the authority of any individual and this is different. and but the panel decision

was willing to do. with just the removal provision does not take all of those heroes. there is no doubt that the founders of those countries to make that same decision over and over so what they have is the plurality of the executive. i understand by humphrey's executor so when the supreme court analyzes that to make it very clear to be very skeptical of those intrusions' because there is no stopping point that is as

far as it will go and our submission this director or individual to hire and fire at will has authority to hire and fire people with basically whatever he wants to do do and with respect to pending legislation and has broad litigation authority. i am understand why but each of those are a big deal but it is a very big deal but it is a stopping port --- a stopping point to be described with a free enterprise fund don't go any

further to go within the narrow confines of humphrey's executor it is nothing like we have here today. that is clearly inconsistent with article ii of the constitution but because there are interpretations of the statute it is very important that whatever happens and that would be resolved as well. so with respect to the statute was not a close case.

so people have to understand the rule of law. so those violations of statutes and those elimination's and that is the unconstitutional agency. this is what happens. >>

. >> i remember being a young lady. so basically let us know at a time when we were not at the table. . >> so to think about to be

avid readers of history even those you do not have the benefit of a college education like harry truman and the presidency so history matters. [inaudible conversations]