One of the things Democrats achieved back in 2009-2010 was create The Consumer Financial Protection Bureau as part of the Dodd-Frank Act. Now, the CFPB is at the center of a Constitutional battle between the White House and its self-appointed acting director.
The situation began on Friday, when CFPB head Richard Cordray announced his resignation. Cordray selected Leandra English to act as acting director. Meanwhile, Trump selected Office of Management and Budget director Mick Mulvaney to be acting director. The Justice Department and CFPB’s own legal counsel sided with Trump’s interpretation of the Federal Vacancies Reform Act, but that did not stop English from filing a stunt of a lawsuit in stop Trump’s appointment of Mulvaney.
English’s rationale is that Dodd-Frank states that the current director may appoint someone to “serve as acting director in the absence or unavailability of the director.” The DOJ countered by saying Cordray’s resignation gives Trump the power to appoint an interim replacement until the Senate confirms a new and permanent director.
Timothy Keller, the District Court judge that heard English’s appeal, rejected English’s request for a temporary restraining order. This effectively allows Mulvaney to continue as acting director.
The United States has three branches of government. One branch, the legislative branch, is charged with making laws under Article I of the Constitution. Another is the executive branch, which carries out the laws passed by Congress under Article II. It oversees the various department and agencies that make up the federal government.
These are basic facts that anyone who has taken fifth grade civics should know. However, as the current CFPB fight demonstrates, Democrats seem to have a hard time mastering these basic concepts.
The CFPB is not funded by Congress, as Article I mandates all executive agencies should be. This leaves a body that purports to advocate on behalf of the people unaccountable to the people’s representatives. It passes regulations that carry the force of law outside the normal bounds of the Executive Branch, violating Articles I and II. It is unaccountable to the executive branch, as its director cannot simply be removed by the President. This is another violation of Article II. Finally, its director can–or has at least tried to–appoint an acting director, as Cordray tried to do with English. This is yet another violation of Article II.
Even if English’s interpretation of Dodd-Frank and the FVRA is correct, it simply makes the CFPB’s structure more unconstitutional. This has already been acknowledged by the courts in a ruling currently being appealed.
An “Independence” Problem
One of Dodd-Frank’s namesakes, former Massachusetts Congressman Barney Frank, unwittingly acknowledged this fact on Monday. Frank said in a CNN interview that, “We gave a lot of attention to how to structure the CFPB and how to protect its independence…”
In other words? Frank, Chris Dodd, Elizabeth Warren, and other Democrats designed a fourth branch of government and justified it by citing its “independence.”
This would be equivalent to the Secretary of Defense or a members of the Joint Chiefs of Staff being unfireable, and having the power to name their respective successors. Even if a debacle took place that shook the President’s confidence in the Pentagon’s war fighting apparatus, the military would be untouchable.
If we wouldn’t want a military autocracy, why would we want a bureaucratic one?
Upholding the Rule of Law
The Constitution takes precedence over “consumer protection.” This does not change just because Donald Trump is President, or because some Director of the CFPB wants to be governor of Ohio and enhance his resume by sticking it to Trump.
Trump has power under Article II to decide who leads the various governmental organizations, just as George Washington did back in 1789. By creating an “independent” organization, Democrats created a politburo that doubles as a money laundering scam. It is the latest example of unconstitutional bureaucracy run amok.
For the sake of sound Constitutional governance, the CFPB should be shut down indefinitely.