Faculty Review Recent Developments in U.S. Law and Policy

“It was a very eventful summer,” said Professor Olatunde Johnson, the vice dean for intellectual life, as she welcomed students and faculty on Sept. 13 to a noontime Lawyers, Community and Impact (LCI) panel on recent developments in U.S. law and politics. “I think it’s hard to say it hasn’t been a time of real disruption of what came before.”

Johnson brought together three Columbia Law School professors—Kathryn Judge, Elora Mukherjee, and David Pozen—to discuss how financial regulation, immigration, and constitutional norms have been impacted by the Trump administration. The panel was the most recent in an LCI series initiated by Dean Gillian Lester, the Lucy G. Moses Professor of Law, as part of her commitment to expand opportunities for meaningful dialogue between students and faculty outside the classroom.

Why the consumer protection financial bureau is here to stay

Judge discussed how the financial crisis of 2008—and the collapse of Bear Stearns and Lehman Brothers—led to the 2010 adoption of the Dodd-Frank Wall Street Reform and Consumer Protection Act. She explained that the House of Representatives recently passed legislation known as the Choice 2.0 Act that would “gut” substantial provisions of Dodd-Frank, but she believes it would never pass the Senate in its current form.

The creation of the Consumer Financial Protection Bureau (CFPB) under Dodd-Frank “was one of the, if not the single most, controversial propositions,” she said.

In fact, Republican opposition was so intense that many believed that a GOP-controlled House and Senate would try hard to eliminate the CFPB. But Judge now thinks that the agency is here to stay. “The CFPB has really gotten out there and been incredibly active and managed to make itself very visible as an advocate of consumers,” she said. “It’s so well-entrenched that while there’s likely to be meaningful changes in terms of the scope of its authority and leadership structure, there isn’t the political will to actually do away with it.”

Immigration in the age of Trump

Mukherjee, who leads the Law School’s Immigrants’ Rights Clinic, has been working overtime since the president introduced his first executive order on immigration—the so-called travel ban on immigrants from seven Muslim-majority countries—on Jan. 27. She was part of the effort that had the executive order enjoined on Jan. 28. Mukherjee reported that even immigrants who are lawful permanent residents of the U.S. are ever more fearful and want to secure their place in this country. “There has been a dramatic increase in applications for citizenship—dramatic increases—and a faster increase than in any point in U.S. history,” she said.

“For those who are here and undocumented,” she continued, “there is a level of panic I have not seen in my lifetime. There are many families who are not sending their children to school. Many families who aren’t going to medical appointments and hospitals when they need care because they are afraid they will come into contact with immigration enforcement officers. People are afraid to leave their homes. These fears, unfortunately, are founded.”

Turning her attention to the president’s plan to terminate the Deferred Action for Childhood Arrivals (DACA)—which may have been saved later that very night when the president made a deal with Senate Majority Leader Chuck Schumer and Speaker of the House Nancy Pelosi—Mukherjee explained that some 800,000 people known as “dreamers” have benefited from DACA, which offers temporary legal status to young immigrants who were brought into the United States as children. She noted that between 150,000 and 200,000 of the dreamers’ permits to stay in the U.S. expire on Oct. 5.

“What I will put out there for everyone to know is that our clinic here at the Law School is open and would be thrilled to work on DACA renewal applications for anyone who needs them in the Columbia community,” she said. “I am also in touch with United We Dream, the main dreamers' organization, to say we are willing to do these renewal applications for anyone who needs help, even remotely we’ll do it.”

Upending constitutional norms

Before addressing the “growing chorus of critics who suggest President Trump should be removed from office,” Pozen discussed how Trump has upended constitutional norms. “The unwritten norms that help to structure how policy is made in Washington and how political conduct is managed,” he said, “they are not written down anywhere and are not enforceable in court.”

Pozen said that he believes the one area where Trump is vulnerable to judicial review or censure is the Constitution’s emoluments clause, which states: “No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

“I think the charge that President Trump is violating the foreign emoluments clause day in and day out through his business interests is a substantial charge,” he said. “Nonetheless, this may be another constitutional norm that is breached and there is no remedy.”

Pozen thinks impeachment is highly unlikely unless “congressional Republicans come to believe that Trump is politically toxic,” he said, adding that  “the only realistic game in town” for the president’s removal is being voted out of office in 2020. “The only thing I feel really confident about in all this is that in the foreseeable future constitutional law will continue to be interesting and challenging.”

During a Q&A period with students, Pozen was asked whether the lawsuits alleging Trump is violating the emoluments clause was a tactic to force him to reveal his tax returns. “We’ll get disclosure through the discovery process,” said Pozen. “We’ll learn about the president’s business interests abroad in a way we haven’t yet. For those of you who are future litigators, this would be a classic instance of the winning through losing phenomenon.”

Further Reading

“The Deceptively Clear 25th Amendment” (National Constitution Center)

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Posted on September 19, 2017