It May Be Dark Days for Democracy, but Lawyers are Having a Field Day
You may have noticed the bustling in many a hedgerow in Lawyerland these days, so many in fact that significant developments can go unremarked, especially those involving the conservative law-bots salted throughout the federal judiciary. For example, the Fifth Circuit Court of Appeals down in New Orleans.
The former president* managed to install five Federalist Society prime A-1 meat puppets on that panel, which has produced perhaps the most reactionary activist court since Justice Roger Taney bit the dust. (A particular winner lodged there by El Caudillo del Mar-A-Lago is Judge James Ho, who has already marked his tenure by declaring himself a nasty full-time culture warrior, announcing that he would no longer be hiring clerks from Yale Law School because something something cancel culture something wokeism something.)
The Fifth came riding to the attack again last week when it dealt a potentially fatal blow to the Consumer Financial Protection Bureau in pursuit of the noble goal of freeing up payday lenders from the bureau’s regulations. And it did so in such a way as to call into question the ability of federal agencies to regulate practically anything. In brief, the court ruled that the CFPB was unconstitutional because it was not funded by periodic congressional appropriations.
The CFPB is funded through the Federal Reserve System, but only to a certain level, beyond which it must request additional money through Congress. Most experts agree that this arrangement is constitutional under the Appropriations Clause because the CFPB must ask Congress for any money it receives out of the Treasury, and these experts point to several other federal agencies that operate under similar arrangements, including the FDIC. But these experts did not reckon with the Fifth Circuit’s wrecking ball.
As the Constitutional Accountability Center points out:
The Fifth Circuit itself seemed to recognize the devastating consequences that could emerge from striking down the funding practices of all independently funded government agencies, and so it attempted to limit its reasoning to the CFPB. It claimed that the CFPB’s authority is unlike those of other federal regulators, and that its funding independence “goes a significant step further.” But even assuming the Fifth Circuit is right that there are differences between the CFPB and other agencies, it never explains why those differences are constitutionally significant. And despite the court’s attempt to carve out a special rule for the CFPB, its reasoning would seemingly apply to the host of other financial regulators that are independently funded, including the Federal Reserve Board, which supervises and regulates numerous banking institutions. Indeed, notwithstanding its protestations to the contrary, the panel hints at the broad implications of its decision by quoting an earlier Fifth Circuit concurrence which lamented that “if the [Bureau]’s funding mechanism is constitutional, then what would stop Congress from similarly divorcing other agencies from the hurly burly of the appropriations process?”
Meanwhile, in New York, a billionaire named Tom Barrack is being tried on charges that he worked as an unregistered foreign agent on behalf of the United Arab Emirates. Barrack was an old crony of the former president*, and he was the chairman of the former president*’s ethically leprous inauguration committee.
Barrack’s accused of leveraging that relationship on behalf of various sheikhs and emirs. Testifying in his own defense on Monday, Barrack said that his relationship with the former president* was “disastrous” for his business and that it amounted to a “professional death march.” Which doesn’t sound good at all.
And finally, the good folks at Dominion Voting Systems are warming up for their $1.6 billion mega-suit against Fox News for slandering their product in pursuit of The Big Lie. Dominion’s CEO, John Poulos, took to 60 Minutes this weekend to arraign FNC for acting with reckless disregard for the truth when it trafficked in wild charges regarding Dominion’s voting machines. From USA Today:
“We told them. We told them in real time. Others told them. Government officials told them. Partisan government officials told them. People inside the Trump administration told them,” Dominion CEO John Poulos said during a recent “60 Minutes” interview. “This is not a matter of not knowing the truth. They knew the truth.”
Poulos told Anderson Cooper that as a result of FNC’s dragging the company off into fantasyland, Dominion lost contracts it had with several states. Moreover, Dominion’s rank-and-file workers found themselves targeted as well.
“People have been put into danger. Their families have been put into danger. Their lives have been upended and all because of lies. It was a very clear calculation that they knew they were lies. And they were repeating them and endorsing them. It’s important to me. It’s important to all the people whose families have been impacted by this. Anderson, my kids still are not allowed to get any package from the front door until we verify that it’s actually from a trusted sender.”
Someday this will be known as The Age of Lawyers.