Judicial rebuke for a heedless Congress

With Elizabeth Warren trying to take her progressivism from the legislative branch to the presidency, the judicial branch has something pertinent to say. On Tuesday, while 14 states hold Democratic primaries, the Supreme Court will hear oral arguments concerning a possible constitutional defect in her signature legislative achievement.

The Consumer Financial Protection Bureau deserves voters’ attention because it represents the distilled essence of progressive governance — agencies emancipated from accountability so that experts can work their will. Hence it suggests how a Warren administration would operate without constitutional inhibitions.

Created in 2010, the CFPB is empowered to “declare,” with little legislative guidance, that certain business practices it dislikes are “abusive.” Congress left this term undefined, so the CFPB can improvise criteria. Unlike most other entities Congress has created since 1789, the peculiarly sovereign CFPB is untethered from congressional control of its funding, which is “determined by the director,” who simply requests money, up to $663 million, from the Federal Reserve.

When the CFPB’s first director was asked in a congressional hearing about spending $215 million to refurbish a building valued at $150 million, he replied: “Why does that matter to you?” He was obnoxious but not more so than Congress deserved for creating a CFPB that mocks Congress’ duty to control spending.

The CFPB brags that its “funding outside the congressional appropriations process” guarantees its “full independence” from Congress. Testifying in 2018 to the House Financial Services Committee, the CFPB’s acting director said his agency is “not accountable to you. It’s not accountable to the public. It’s not accountable to anybody but itself,” adding: “I believe it would be my statutory right to just sit here and twiddle my thumbs while you all ask questions.” So spoke Mick Mulvaney, who now is Donald Trump’s acting chief of staff. Mulvaney is hostile to the CFPB, but his statement accorded with CFPB boasts.

On Tuesday, the court will not consider all the ways the CFPB floats above, and thereby damages, the Constitution’s assignment of powers. The court will consider only this:

Some precedence suggests that the director, whose fiveyear term is longer than that of the president, can only be removed by the president “for cause” (for “inefficiency, neglect of duty, or malfeasance”), not for policy reasons. So, if the president and the director disagree about important policies, the director prevails. Does this violate the separation of powers by diminishing the president’s authority to direct executive branch operations?

The answer: Yes, but. The court has not strictly enforced the “unitary executive theory,” which holds that nothing can constitutionally diminish direct presidential control of all executive branch officials. In 1933, Franklin Roosevelt fired a member of the Federal Trade Commission because the two differed on policy questions. In 1935, the court ruled 9-0 that Roosevelt could not remove the commissioner because the FTC is not “an arm or eye of the executive,” that it must “act with entire impartiality,” enforcing “no policy except the policy of the law.”

The FTC, however, unlike the CFPB, is run by five commissioners, and no more than three can be from the same party, which is a check against partisan abuses. The CFPB, which is independent in a way that no other agency ever has been, is controlled by one person, the director who can nullify a president’s preferences.

Ideally, the court will hold that the CFPB’s structure regarding its director — never mind its other gross defects — is unconstitutional. It is generally wholesome to prune presidential power, which has grown in tandem with Congress’ desire to delegate its powers to other institutions. Sometimes this desire is symptomatic of sloth. Other times it is symptomatic of defeatism, acknowledging the impossibility of Congress directing or even monitoring the sprawling administrative state that Congress has created. In this case, however, the court’s protection of presidential power would rebuke Congress for its slapdash construction of a CFPB that fits nowhere in the Constitution’s tripartite design of government.

This rebuke would underscore what has been a defining characteristic of progressivism ever since Woodrow Wilson first enunciated it, and is a conspicuous facet of the thinking of Elizabeth Warren, the architect of the CFPB. It is hostility to the Madisonian separation of powers, a supposed anachronism that prevents regulatory government from quickly working wonders through unfettered progressives.