It’s a modern War of Roses over at the Consumer Financial Protection Bureau (CFPB).
Instead of dueling families, it’s dueling directors: President Obama's appointee Leandra English claims the title of director is hers, given to her by departing director and fellow Obama-appointee Richard Cordray. President Trump, however, has passed the title to his Senate-confirmed director of the Office of Management and Budget, Mick Mulvaney.
Both English and Mulvaney are in the building, sending out dueling emails about who is in charge. On Sunday evening, English took Trump and Mulvaney to court in a final effort to assert her authority.
Predictably, Democrats are throwing tantrums over Trump’s alleged lawlessness — a point over which they are legally wrong. Irrefutably so. The rule of law here is as clear as it can be. The core of executive power is, as James Madison said, that of “appointing, overseeing and controlling those who execute the laws.”
The left’s repeated opposition to the obvious is, as Ben Domenech notedrecently, “the most recent and most clarifying example of the #Resistance folks being completely and utterly corrupted by their opposition to this president.”
However, the furor over the status of CFPB as an “independent agency” — an entity of the government, but somehow outside the scope of the president’s authority — highlights the troubling degree to which independent agencies have accumulated power outside of the purview of the executive (and to that end, the Constitution).
Independent agencies, unlike their other executive branch counterparts such as the Department of Agriculture, Department of Energy, and so on, are so named because they were created with a modicum of self-governing authority that, allegedly, resists the pull of politics.
However, their independence is not all encompassing. The Federal Reserve, probably the most well-known of the independent agencies, still has to rely on Congress for its funding – and thus, its oversight. The Securities and Exchange Commission, another independent agency, was told by the Supreme Court in 2010 that the president “may hold the commission accountable for everything ... it does.”
The CFPB, however, was created in 2010 as something else entirely — a freak hybrid of authorities that attempted to put the agency entirely outside the scope of congressional and executive oversight. That is, an agency with a tremendous amount of power to impact the daily lives of Americans, with accountability to no one.
In practice, the CFPB has been a partisan disaster, becoming a politicized behemoth that regularly overreaches into areas outside of its mandate.
As a practical matter, its structure is unlikely to ultimately survive the basic threshold test of constitutionality (indeed, the D.C. Circuit Court of Appeals struck it down as unconstitutional in 2016, though the matter is still unresolved), but its existence points to a troubling trend indicating where independent agencies may be heading.
As D.C. Circuit Judge Brett Kavanaugh observed, CFPB-type agencies constitute “a headless fourth branch of U.S. government,” which, “in the absence of presidential supervision and direction,” can “pose a significant threat to individual liberty and to the constitutional separation of powers and checks and balances.”
This is especially true in the power these agencies hold to issue regulations over American companies and individuals. While independent agencies are subject to limited congressional scrutiny and oversight, their regulatory authority is nearly unchecked.
Unlike their executive branch counterparts, independent agencies go through none of the rigors of cost benefit analysis or the good governance tests required by the Office of Management and Budget.
This would be less of problem if the regulations put out by these independents weren’t so significant — and growing.
A rough measure of this trend can be found in the Office of Management and Budget’s record of independent agency’s “major" rules — regulations with an economic impact estimated to be $100 million or more.
According to OMB, independent agencies have increased their output of major rules from just 10 in 2007 to 23 in 2012. As the data primarily relies on agency self-reporting, this is likely a low estimate.
To his credit, President Trump has taken an aggressive approach to reining in the excess of the regulatory state. More than any of his recent predecessors, he is responsible for reducing burdensome regulations and emphasizing restraint on new regulations promulgated under his administration.
But as the rumpus over at CFPB suggests, the bureaucracy fights back. When Trump is vindicated in court, as he is likely to be, he should be encouraged to further curtail the authority of independent agencies to assert their will on an unsuspecting public without critical oversight.
Rachel Bovard (@RachelBovard) is the senior director of policy for The Conservative Partnership, a nonprofit group headed by former South Carolina Sen. Jim DeMint aimed at promoting limited government.