Is the NCUA Constitutional?

April 12, 2017 at 9:14 am Leave a comment

The inspiration for today’s sensationalistic headline comes from this article in the CU Times, which is reporting that Donald Trump has selected Neomi Rao to head  the White House Office of Information and Regulatory Affairs, within the Office of Management and Budget. Don’t get me wrong, the NCUA isn’t going anywhere anytime soon, but as Jonathon Adler commented in the Washington Post this may be the most important position you have not heard of. In this role she will be able to put thumbs up or thumbs down on every regulation which must be approved by the White House.

Rao’s nomination warms the heart of conservative legal geeks, such as myself. She is the founding director of George Mason’s Center for the Study of The Administrative State and she has not been afraid to argue that independent agencies are unconstitutional regardless of how they are structured. If she is right this means that even the NCUA is unconstitutional.

As I explained to a group of credit union folks last night at the Southern Tier Chapter dinner, while I am pessimistic about seeing major regulatory reforms passed by congress anytime soon, love him or hate him we have already seen a major shift in regulatory priorities under President Trump, and this shift  will only gain momentum as the terms of directors of independent agencies expire. Remember that Richard Codray’s term ends in July 2018.

Ideas matter. Cass Sunstein held this position in the opening days of the Obama Administration and his view that regulations could be used to nudge consumers to make the right choices continues to be hugely influential. The selection of Ms. Rao  mean’s that those of us who believe that the existing regulatory system bears little resemblance to powers actually authorized under the constitution are no longer simply obscure bloggers in need of an additional cup of coffee.

Hensarling Talks Up CHOICE 2.0

Confirming what we had already heard from CUNA, the House Financial Services committee publicly announced yesterday that it would be introducing the second version of Chairman Hensarling’s Regulatory Reform Proposal by the end of the month

CHOICE 2.0 is not in bill form yet, but is likely to include substantial mandate relief including measures to scale back the powers of the CFPB. While this is of course positive news, in comments last week Senate Banking Committee Chairman Mike Crapo indicated that major legislation dealing with regulatory reform is unlikely to become law anytime soon.

On that note enjoy your day!



Entry filed under: General, Regulatory. Tags: .

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Authored By:

Henry Meier, Esq., General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association.

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