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Solicitor Tyler Green on Symposium: Why a Justice James Madison and a Justice Jerry Jones would vote for Seila Law

February 13, 2020

The State of Utah joined a 13-state amicus brief supporting the petitioner in Seila Law v. Consumer Financial Protection Bureau. Utah Solicitor General Tyler R. Green wrote the following article in the Supreme Court of the United States (SCOTUS) Blog. Read the article here.

Symposium: Why a Justice James Madison and a Justice Jerry Jones would vote for Seila Law

By Solicitor General Tyler R. Green

Seila Law v. Consumer Financial Protection Bureau might be this term’s most important case that nonlawyers outside of Washington, D.C., haven’t heard of. It presents classic governmental power struggles—the president versus Congress, and the federal government versus the states—that gripped the Founders in Philadelphia more than 200 years ago. They understood that the outcome of those struggles would shape how the Constitution protects individual liberty. Anyone still interested in that issue would do well to follow this case closely.

The facts giving rise to those questions here are straightforward enough. Prompted by the Great Recession, Congress passed a law in 2010 that came to be known as the Dodd-Frank Act (after two of its main sponsors). Among other things, Dodd-Frank created a new federal agency named the Consumer Financial Protection Bureau. The federal government describes the CFPB’s job as “regulat[ing] a substantial segment of the Nation’s economy.” In fact, the government says the CFPB wields “much of the authority to regulate consumer financial products and services that had been vested in other federal agencies.”

But those other federal agencies and the CFPB have vastly different leadership structures. At the other agencies, the bosses are either a group of commissioners—so official action requires a majority vote—or a single person whom the president may remove at will. In contrast, the CFPB’s director is one person appointed by the president and confirmed by the Senate to a five-year term. And during that five-year term, the president may remove the director only for “inefficiency, neglect of duty, or malfeasance in office.”

So constituted, the CFPB decided to investigate whether Seila Law, a solo-practitioner law firm, violated federal consumer-financial regulations when it helped clients obtain consumer debt relief. The CFPB asked Seila Law to give it documents and information related to its investigation. Seila Law responded by asking the CFPB to withdraw its demand for documents, arguing that the agency’s leadership structure violates the Constitution’s separation of powers. When the CFPB persisted, Seila Law responded to only part of the demand, continuing to argue that the agency’s structure is unconstitutional. The CFPB then obtained an order from a federal district court in California requiring Seila Law to comply with the CFPB’s demand (narrowed slightly). The U.S. Court of Appeals for the 9th Circuit affirmed that district court order.

What about those facts moved 13 states to file a friend-of-the-court brief urging the Supreme Court to agree with the federal government, which itself has conceded that the CFPB’s structure violates the separation of powers? Readers with enough time and interest can find full explanations in the states’ brief. For everyone else, here’s the CliffsNotes version of the two critical points. And to try to make those points even clearer, I’ll use a metaphor based on America’s apparent de facto religion: the National Football League.

Suppose you own an NFL team. You and millions of your fans share the same obvious goal—win the Super Bowl. That’s easier said than done; every year, 31 teams fall short. Consider all the pieces that must fall into place for you to become the champion: You need the right players executing the right plays at the right time for the better part of at least 19 weeks. With so many moving pieces, arguably the most important decision you’ll make is whom to hire to fit them all into place—who will be your head coach?

So much flows from that crucial decision. Your head coach sets your team’s tone, and not just by his personal demeanor. As head coach, he’ll make scores of critical choices that saturate every aspect of team life. He’ll hire an offensive and a defensive coordinator and position coaches. He’ll implement a practice system. He’ll need to communicate his vision to his staff and players and decide how to respond if they disagree with him or fail to meet expectations. In short, to paraphrase President Harry Truman, the buck stops with him.

Given those realities, if you decided to fire your head coach and hire a new one, no one would take seriously the suggestion that the new guy must retain the old one’s coordinators or position coaches—or that, going forward, the new coach could not make changes to his staff as he deems appropriate. You’ve given him a job to do; like Jerry Jones, you want to give your coach “carte blanche to form his staff as he sees fit.” Even players recognize that a new head coach doesn’t “want to inherit a whole lot of coaches” because “he has to make sure everyone he has in place is on the same page as him.”

So it is here. That’s the states’ first critical point. Truman was right—the buck does stop with the president. After a long campaign, Americans hire just one person to do the specific job of carrying out the federal government’s constitutional duties in a way that honors the Constitution’s text but reflects the majority’s political and policy preferences. The president must be able to pick his own department and agency heads—that is, his coordinators and position coaches—to give him the best chance of implementing his vision and keeping his political promises. Hence James Madison’s insistence, quoted in Free Enterprise Fund v. Public Company Accounting Oversight Board, that the president has “the power of appointing, overseeing, and controlling those who execute the laws.”

Dodd-Frank’s removal restriction on the CFPB’s director violates that intuitive order. And upholding it would break new constitutional ground. Never before has the Supreme Court held that Congress can restrict the president’s ability to remove a single-person agency head. This is no time for the court to change course and effectively hold that, like it or not, some presidents must do part of their job with a prior president’s person.

The states’ second point concerns the limits of the coach’s and team’s control. Though a head coach bears ultimate final responsibility for the parts of a player’s life bound up with the team, he has little control over a player’s choices outside that realm. Take nutrition, for example. Even if a team hires a dietitian to give its players nutritional advice, or provides some meals during training camp or other parts of the year, players can still hire their own consultants to advise on specific nutrition or other fitness needs. When that advice makes a player more valuable to the team, no harm done. But sometimes disputes arise between the team’s and the player’s preferences, and the coach needs unfettered flexibility to respond to them.

Just like the team and the coach, the federal government and the president have limits on their power. Madison wrote in Federalist No. 39 that the federal government’s “jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty.” And historically, consumer-protection laws have been the states’ domain. Yet as financial markets have matured, federal regulators—typically multi-member commissions—have begun to exercise some overlapping consumer-protection power in this area. Over time, state regulators and their federal counterparts have joined forces to create regulatory regimes that foster the consistency necessary to both protect consumers and keep financial markets stable. No harm, no foul.

Ironically, in the name of protecting consumers, Dodd-Frank created a system that threatens to upend that cooperative framework. The CFPB’s largely unremovable director can exercise vast amounts of regulatory power with no input from the president or any state legislature. The reality that one politically unaccountable federal agency head can make (or unmake) consumer-financial policies affecting millions of people and billions of dollars is more than a little hard to square with the Framers’ promise of retained state sovereignty.

At bottom, the states’ concerns here are not the separation of powers or state sovereignty for their own sake. The Framers deployed each of those devices for one overarching purpose: to protect individual liberty. A federal agency head with vast regulatory power over “a substantial segment of the Nation’s economy”—but who is largely insulated from the president’s political control, and who need not bother consulting with the states before acting—epitomizes the very type of threat to liberty that the Constitution guards against. Disapproving the restrictions on the president’s power to remove the CFPB director would affirm the Constitution’s first principles by protecting the structures that protect us.

Posted in Seila Law LLC v. Consumer Financial Protection BureauSymposium before oral argument in Seila Law v. Consumer Financial Protection BureauFeatured

Scam artists abound: Don’t fall for it.

Did someone contact you from the AG’s Office asking for money? 

It probably wasn’t us. It was a scam.

Don’t send them anything.  Call us instead: 801-281-1200.

Scam #1: Bogus Grant Program
Recently, scammers impersonating the attorney general have contacted victims through Facebook Messenger offering a grant worth thousands of dollars — for a small fee (see the screenshot, below). The scammer directed the victim to a bogus personal page where they went through a series of grant application questions. Once the application was “approved”, the victims sent payment and received a grant check in return. The check bounced, of course, but by then the scammer had disappeared, along with the victim’s money.

Scam #2: Arrest Warrant 
Just this week, someone impersonated the Utah Solicitor General and told a victim he had a warrant for his arrest.  The scammer said the victim would go to jail unless they sent personal information and a payment.  The scammer then used this information to drain the rest of the victim’s accounts. 

These are just two recent examples of many creative scams out there.  The goal in each case is the same: to fool you into sending money. Don’t do it. 

You can beat the scammers. Here’s how. 

1. Don’t wire money.
True lotteries, sweepstakes, or grants awarded do not ask for money – not for shipping and handling, taxes, or customs. State officials and agencies do not typically ask people to send money for prizes, grants, unpaid loans, or to keep from being thrown in jail. When they do, they follow a very formal process that you would recognize as legit.

2. Take a moment and think before you do anything.
Check with a trusted friend, family member, or your local Better Business Bureau. If the offer references a state agency or official, contact the respective office to verify its validity before moving forward. Do not let anyone bully you. If that starts, hang up. Report scams to law enforcement.

3. Do not share your financial or personal information. Ever. 
If you receive a call about a debt that you believe may be legitimate, call that company directly.

4. Don’t trust a name or number. 
No matter what name they use or how official an offer may sound, scammers lie. Also, scammers can disguise their number to look more legit. Often, calling the number back results in a message of “this number is not in use”. 

No matter what, don’t send money. You won’t get the grant. You will not be thrown in jail. You won’t get it back. 

5. Contact us.  If you receive a message, call, or email from someone claiming to be someone from our office or any other official, please contact our office to report and verify whether or not it is real.  We sometimes collect money following a court decision but we rarely do it by phone. We don’t do it via social media. You can contact us at 801-281-1200 or uag@agutah.gov. 

 

Screenshot of a bogus grant program. Report this to us. Do not send money. 

Utah Attorney General's Office

U.S. District Court Issues Permanent Injunction Against Department of Labor “Persuader Rule”

Proposed rule violates attorney-client privilege and would have chilling effect on First Amendment

SALT LAKE CITY November 18, 2016 – In an order issued this week, a district court has issued a permanent national injunction against a proposed Department of Labor (DOL) administrative rule. Utah was one of ten states nationwide, in cooperation with legal and business groups, to challenge the rule as an improper infringement on attorney-client communications. Attorney General Sean Reyes applauded the ruling.

“We are pleased that the court has permanently enjoined the Department of Labor’s so-called ‘persuader rule,’ which improperly infringes on attorney-client communications—an area of law historically the province of the states,” said Tyler Green, Utah Solicitor General. “The permanent injunction recognizes a key tenet of our federal system:  There are limits to what federal agencies can do.  Here, the Department of Labor exceeded those limits toward particularly harmful ends—invading and chilling confidential communications between attorneys and their clients.”

Instituted on March 24, the rule—known informally as the “persuader rule”—purported to reinterpret a section of the Labor-Management Reporting and Disclosure Act (LMRDA) that has long exempted from federal oversight communications between lawyers and clients during union-organizing campaigns. The persuader rule would have narrowed that exemption to exclude from it “indirect communications” by management-side consultants and lawyers during union-organizing campaigns—including speeches or scripts provided to supervisors to share with employees and intended to sway employees against unionizing. Besides redefining the statutory exemption to exclude such communications, the rule also required attorneys and consultants to report those communications to DOL, which would compile them and make them publicly available on its website, where they could be used against the employers by third parties.

Management-side attorneys and consultants subject to the rule argued in the request for the injunction that the rule would impose onerous reporting requirements when they act as indirect persuaders for employers that oppose unionization—reporting requirements that could interfere with their confidential relationship with employers. In particular, the rule would have required attorneys to violate attorney-client privilege, would have had a chilling effect on attorneys’ ability to provide advice to clients, and would have infringed on First Amendment speech rights.

This issuance of a permanent injunction of the persuader rule comes after the plaintiffs, state intervenor-plaintiffs, and the Department of Labor sought summary judgment on the injunction, which was initially issued in July.

In his July order issuing the preliminary injunction, Judge Sam Cummings, of the U.S. District Court for the Northern District of Texas Lubbock Division, issued an order preventing the new persuader rule from taking effect. The judge recognized that the rule forces employers to report any “actions, conduct or communications” undertaken to “affect an employee’s decisions regarding his or her representation or collective bargaining rights,” and would have required attorneys advising employers about labor elections to report their activities to the DOL for posting on public websites, effectively breaking the confidentiality of the attorney-client privilege.

Judge Cummings said that these requirements threaten to chill protected speech—and the “chilling of speech protected by the First Amendment is in and of itself an irreparable injury[.]”

A copy of the permanent injunction is attached.

Assistant Solicitor General John Neilsen Named 2016 NAAG Supreme Court Fellow

SALT LAKE CITY May 11, 2016 –The Office of the Attorney General announced today that Assistant Solicitor General John Neilsen has been named as one of six Supreme Court Fellows with the National Association of Attorney Generals for the October 2016 Term of the Supreme Court of the United States.

“Congratulations to John Nielsen for being named a Supreme Court Fellow for the 2016 Supreme Court Term with the National Association of Attorneys General,” said Attorney General Sean Reyes. “As an Assistant Solicitor General in the Office of the Attorney General of Utah since 2011, John has been a great asset to our criminal appeals division, where he has served with distinction. We are confident that his experience as a Supreme Court Fellow will make him a greater asset to our office and the citizens of Utah.”

“We applaud John’s selection as a NAAG Supreme Court Fellow,” said Utah Solicitor General Tyler Green. “The expertise he has developed while representing the people of Utah for many years has prepared him well to represent our State in this uniquely intensive national program focused on furthering the States’ interests before the U.S. Supreme Court.”

“I’m excited for the chance to aid States in cases before the Supreme Court and learn from eminent practitioners from around the country,” said Neilsen.  “The experience will make me a better advocate for the people of Utah in defending criminal convictions and promoting the orderly development of the law.”

The Supreme Court Fellows Program, begun in 1986, is designed to give state lawyers an opportunity to obtain direct and intensive hands-on exposure to Supreme Court practice. The Fellowship is an opportunity for state appellate attorneys to obtain direct experience of Supreme Court advocacy by observing argument at the Court, participating in the Project’s moot courts, and writing a state amicus brief.

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Utah Solicitor General Tyler Green Argues Before U.S Supreme Court in Utah v. Strieff

SALT LAKE CITY Feb. 21, 2016 – In the second case argued before it since the passing of the late Justice Antonin Scalia, the Supreme Court of the United States heard oral argument in Utah v. Strieff, a case that addresses the scope of the Fourth Amendment’s exclusionary rule when an illegal stop leads to the discovery of public information that justifies an arrest. Utah Attorney General Sean Reyes assigned Utah Solicitor General Tyler Green to argue the case on behalf of the State of Utah.

“Both sides argued their case very powerfully,” said Attorney General Reyes. “We congratulate Joan Watt and her team at the Salt Lake Legal Defender Association. The State of Utah and the Attorney General’s office were well represented today by our Solicitor General, Tyler Green. True to his reputation, he was extremely well-prepared, articulate and persuasive in handling challenging questions.

“The absence of Justice Scalia and his funeral this last weekend did not seem to distract the Court from being ready for vigorous questioning.”

The case began when police received an anonymous tip alleging that drugs were sold from a Salt Lake area home. Edward Strieff, Jr. was stopped by a detective surveilling the home. During the stop, the detective discovered an outstanding warrant for Strieff, as well as drug paraphernalia.

Audio of the oral arguments can be found on www.supremecourt.gov when posted in the coming days. Utah’s reply brief outlining the case and arguments can be found here.

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