Thursday’s Advocacy & Think Tank Roundup
- Dan Green writes an article entitled, “FHA Loan With 3.5% Down vs Conventional 97 Loan With 3% Down” which analyzes the benefits and drawbacks to each of the loan types mentioned. Based on the research, the conventional 97 loan seem to be more cost efficient over time for borrowers with higher credit scores; however, if an individual will not keep their initial home for a lifetime, then the FHA loan may be a better deal.
- Although the Trump Administration would like to reform Freddie Mac and Fannie Mae, the agency’s reform is not as pressing according to staffers of the Senate’s Banking Committee. “Dodd-Frank financial” reform and flooding relief are more of a priority for legislative reform.
- Harlem’s Community Board 11 has approved a potential 68 floor tower in the East Harlem community. This approval is contingent upon 50% of the units being affordable, members of the community board 11 having a preference when applying, and creating three new school buildings in the surrounding areas.
March 23, 2017 | Permalink | No Comments
March 22, 2017
Judge Gorsuch v. Uncle Sam
The Hill published my latest column, Where Does Judge Gorsuch Stand on Limiting the Federal Government? It opens,
This week, all eyes are on Judge Gorsuch’s confirmation hearing for a seat on the Supreme Court. While Gorsuch has not explicitly stated that he wants to drown or deconstruct the federal government, there is troubling language in his opinions that indicates that he shares that goal. While this will hearten many a Tea Partyer, moderate Republicans along with Democrats should be wary of someone who does not value the good that the federal government can and does do.
His opinion in Caring Hearts Personal Home Services v. Burwell describes a federal government that has ceased to function rationally: “The number of formal rules [administrative] agencies have issued thanks to their delegated legislative authority has grown so exuberantly it’s hard to keep up. The Code of Federal Regulations now clocks in at over 175,000 pages. And no one seems sure how many more hundreds of thousands (or maybe millions) of pages of less formal or ‘sub-regulatory’ policy manuals, directives, and the like might be found floating around these days.”
He continues, “This case has taken us to a strange world where the government itself — the very ‘expert’ agency responsible for promulgating the ‘law’ no less — seems unable to keep pace with its own frenetic lawmaking. A world Madison worried about long ago, a world in which the laws are ‘so voluminous they cannot be read’ and constitutional norms of due process, fair notice, and even the separation of powers seem very much at stake.”
While this opinion draws a colorful picture of a topsy-turvy government that plays well to the crowd, the fact is that the federal government runs pretty well given its size and complexity. Indeed, employees of large and profitable corporations can often be heard making the same kind of complaints about their employers. All large organizations have their catch-22s, their inconsistencies, their maddening snafus. But the fact remains that large organizations have been remarkably successful at navigating the modern world.
Gorsuch’s lazy originalism, with musings of Madison’s concerns about a legal code so massive that it is unknowable, may have packed a punch at the dawn of the administrative state a hundred years ago. Today it misses its mark. Indeed, the first lesson I teach my law students is that their job is not to know what the law is in advance, but rather to be able to figure it out when a case presents itself. The same could be said of any professional. A doctor need not know all of the medical literature. She just needs to be able to search it in order to diagnose her patient. In fact, the massive code is pretty knowable. Just use Google. It’s all there.
For those of us who work for large organizations, who deal with large amounts of data, who crisscross the world’s borders, who do business over state lines, we know that we can survive and thrive in this complex world. And there simply is no alternative. To deny this is to pander to silly romantics who pine for a time that passed more than a century ago for most people: when you only did business with your neighbors, when your justice of the peace lived down the block and when you walked to your job across town.
President Trump knows this. His businesses are scattered across the globe. Steve Bannon knows this. He worked at Goldman Sachs. And Judge Gorsuch certainly knows this. But they also know that people like to hear that we can go back to a simpler time that never really existed for most Americans.
We do not need that kind of patronizing nostalgia in the Supreme Court. Our ninth justice should be one who can craft solutions to our 21st century legal problems that are based on the values embodied in the Constitution, not the facts of life of a bygone era.
March 22, 2017 | Permalink | No Comments
Wednesday’s Academic Roundup
- Economic Policy and Systematic Risk: The Un-constitutionality of Rent-Control/Rent-Stabilization Statutes; Multiple Listing Systems; and the Licensing of ‘Real Estate Websites, Nwogugu
- Assessing Involuntary Termination Risk on Residential Mortgage Servicing Rights, Whalen
- Implicit Hedonic Pricing Using Mortgage Payment Information, Pace and Zhu
- The Time-Varying Price of Financial Intermediation in the Mortgage Market, Fuster, Lo, and Willen
- The Cross Section of Expected Real Estate Returns: Insights from Investment-Based Asset Pricing, Bond and Xue
March 22, 2017 | Permalink | No Comments
March 21, 2017
The Economic Implications of the Housing Supply
Ed Glaeser and Joe Gyourko posted The Economic Implications of the Housing Supply which is forthcoming in The Journal of Economic Perspectives. In it, they
review the basic economics of housing supply and the functioning of U.S. housing markets to better understand the impacts on home prices, household wealth and the spatial distribution of people across markets. Section II documents the state of housing affordability in the U.S., and begins with three core facts about housing supply. First, when building is unrestricted by regulation or geography, housing supply curves seem relatively flat, meaning that we can approximate reality by referring to a single production cost. Second, both geography and regulation severely restrict the ease of building in some parts of the country. These constraints raise building costs both directly, by increasing time delays and reducing the amount of available land, and indirectly, by ensuring the homes are produced more on a one-by-one basis rather than in bulk. Third, the supply of housing is kinked and vertical downwards because housing is durable. (2, citation omitted)
These are themes that Glaeser and Gyourko have touched on before, but this essay does a service by updating them ten years after the financial crisis.
Glaeser and Gyourko have consistently hit on some important points that can garner attention at the national level , but there has been no real action on them as of yet:
- where supply is regulated, housing costs more;
- heavy land use regulation in places like NYC and SF reduces the nation’s overall economic output; and
- existing homeowners tend to oppose new projects, which is consistent with their financial self-interest.
Glaeser and Gyourko do not give up hope that policymakers can craft solutions that deal with the political economy of housing construction. One first step would be to develop a toolkit of carrots and sticks that can be employed at the national and state level to incentivize local governments to take actions that are in the interest of their broader communities and the nation as a whole.
We know we need more housing in highly productive regions. We just need to figure out how to build it.
March 21, 2017 | Permalink | No Comments
Tuesday’s Regulatory & Legislative Roundup
- The United States Department of Agriculture (USDA) currently offers some of the lowest mortgage rates in the country. Recently, the government branch added another component to assist with providing Americans with affordable housing. Soon residents of all 50 states will be able to refinance their homes at lower rates.
- The Federal Reserve was examined by Congress’ Monetary Policy and Trade Subcommittee. The committee sought to analyze the agencies practice in balancing America’s financial plans in a more economically forward way. The committee found “‘masking’ of federal reforms and compromise” of the Obama administration which hurt the U.S. economy.
March 21, 2017 | Permalink | No Comments
March 20, 2017
United States v. CFPB
United States Court of Appeals for the District of Columbia Circuit, E. Barrett Prettyman Federal Courthouse
The Trump Administration has filed an amicus brief in PHH Corp. v. CFPB. The case is schedule for an en banc hearing in May. The filing is particularly newsworthy because the Trump Administration is siding with PHH, a mortgage lender, against the CFPB, a federal agency. The Trump Administration summarizes its position as follows:
In 2010, Congress created the Consumer Financial Protection Bureau (CFPB) as part of the Dodd-Frank Act, giving the CFPB authority to enforce U.S. consumer-protection laws that had previously been administered by seven different government agencies, as well as new provisions added by Dodd-Frank itself. See 12 U.S.C. § 5581(b). The CFPB is headed by a single Director who is appointed by the President, with the advice and consent of the Senate, for a term of five years, id. § 5491(b), (c)(1), and who may be removed by the President only for “inefficiency, neglect of duty, or malfeasance in office,” id. § 5491(c)(3).
The panel in this case held that this “for cause” removal provision violates the constitutional separation of powers. Op. 9-10. The panel explained—and neither party disputes—that, as a general matter, the President has “Article II authority to supervise, direct, and remove at will subordinate [principal] officers in the Executive Branch” in order to exercise his vested power and duty to faithfully execute the laws. Op. 4. The panel recognized as well that Humphrey’s Executor v. United States, 295 U.S. 602, 629 (1935), established an exception to that rule, holding that Congress may “forbid [the] removal except for cause” of members of the Federal Trade Commission (FTC)—a holding that has been understood to cover members of other multi-member regulatory commissions that share certain features and functions with the FTC. Op. 4.
The principal constitutional question in this case is whether the exception to the President’s removal authority recognized in Humphrey’s Executor should be extended by this Court beyond multi-member regulatory commissions to an agency headed by a single Director. While we do not agree with all of the reasoning in the panel’s opinion, the United States agrees with the panel’s conclusion that single-headed agencies are meaningfully different from the type of multi-member regulatory commission addressed in Humphrey’s Executor.
The Supreme Court’s analysis in Humphrey’s Executor was premised on the nature of the FTC as a continuing deliberative body, composed of several members with staggered terms to maintain institutional expertise and promote a measure of stability that would not be immediately undermined by political vicissitudes. A single-headed agency, of course, lacks those critical structural attributes that have been thought to justify “independent” status for multi-member regulatory commissions. Moreover, because a single agency head is unchecked by the constraints of group decision-making among members appointed by different Presidents, there is a greater risk that an “independent” agency headed by a single person will engage in extreme departures from the President’s executive policy. And as the panel recognized, while multi-member regulatory commissions sharing the characteristics of the FTC discussed in Humphrey’s Executor have existed for over a century, limitations on the President’s authority to remove a single agency head are a recent development to which the Executive Branch has consistently objected.
We therefore urge the Court to decline to extend the exception recognized in Humphrey’s Executor in this case. (1-2)
This is of course an obscure argument about administrative law jurisprudence, but it also has serious real world consequences. I have previously argued that the panel reached the wrong result in this case and I think that the en banc Court will overturn it.
This amicus brief does not add too much to the reasoning in Judge Kavanaugh’s majority opinion in PHH v. CFPB, although it does flesh out one important argument that it made. The brief provides some support for the position that multi-member commissions are better suited to run independent agencies than single directors. But while it makes the case that single director agencies may not be the best choice for agency design, it does not make the case that it is an unconstitutional one.
March 20, 2017 | Permalink | No Comments
