Established in 2011 as part of a series of reforms responding to the financial crisis, the Consumer Financial Protection Bureau (CFPB) will soon be at the center of a Supreme Court battle on the fundamental nature of the Constitution’s separation of powers.
Government agencies such as the Consumer Financial Protection Bureau exist in a nebulous fourth dimension, outside of and free from ordinary constitutional constraints, empowered to act sometimes like a legislative body, sometimes like a judicial one, and sometimes like an executive/enforcement agency. Concentrated power of this kind is just what the three-branch structure of the Constitution was designed to preclude. Its authors believed that government bodies exercising all three of these kinds of power were bound to act tyrannously, with no real incentive for self-restraint.
And the CFPB is unique even among other such agencies in that its current structure prevents the president from firing its director except in cases of “inefficiency, neglect of duty, or malfeasance in office.” The Constitution, on the other hand, empowers the president to dismiss any officer of the executive branch at any time, for any reason. The current law not only insulates the CFPB’s director from democratic accountability by neutering one of the president’s constitutional powers, it establishes a funding stream for the bureau that exists outside of Congress’ normal appropriations process.
The CFPB and its proponents have hailed this funding approach for ensuring that the CFPB is truly independent of Congress, meaning that the CFPB somehow exists as a thing apart from both political branches. Like other similar agencies, it amounts to a de facto annulment of the Constitution’s three-branch system and, in principle, a disavowal of the rule of law. Should this provision of the law that created the bureau be found unconstitutional, the question remains whether the Court can separate it from the rest of the statute, that is, whether the rest of the law—and thus the bureau itself—can be salvaged.
Brief and drafted in general (and frequently vague) terms, the Constitution is America’s political Rorschach test, apparently able to accommodate the full spectrum of mainstream political positions, everyone sure that her political positions are consistent with the legal requirements set out in its text. Without a philosophical mooring—that is, a principled appreciation of the idea of the separation of powers itself—it is easy enough to square just about any political system with the Constitution. The fight over the CFPB represents a much older one on exactly what kind of government Americans should have.
As political scientist Joseph Postell observes, the Progressive Era witnessed a fundamental rebuke of “the theory of government by consent through elected representatives,” regarded “by progressive reformers as undemocratic and outmoded,” and as “antithetical to an administrative state that rested on expertise rather than political accountability.”
It is unfortunately necessary to point out here that this style of administrative government, based on the arbitrary prerogative power of unelected officials, is not at all liberal, but is a conscious repudiation of liberalism, which stands for the rule of law (as opposed to the rule of expert discretion). The counter-revolution of Progressivism wanted a new kind of government in which trained, credentialed experts would act as the independent administrators of social and economic relations. Thomas C. Leonard explains: “The state expert does not merely police unfair and inefficient trade practices; the state expert administers trade, in the same way that the business expert—the scientific manager—administers a large business organization, via planning, management, and centralized direction.”
The problem is that, in the government context, “independent” just means not in any way accountable to the people, not responsive to the democratic process. Predicated on the fundamentally undemocratic idea that experts in government simply know better than either the people or our representatives, progressivism would have an “independent” expert body charged with solving every perceived social ill.
Government bodies should never act independently, at least not in the sense that progressives favor. Such bodies and their actions are legitimate only insofar as they represent the will of the people and are consistent with the rights of free and sovereign individuals. To the extent that “independence” means anything in the case of the CFPB, it means that a relative handful of bureaucrats, accountable to no one, should have the power to make rules—really laws—that all must follow. If the political term for this is “independence,” the more straightforward term is “illegitimate exercise of power.”
Anything approximating a good government, if such an idea can be invoked with any seriousness today, would be a mere service provider, offering, like a market actor, a needed service (protection) for a reasonable price. Today’s U.S. government has no incentive whatever either to confine itself in such a way or to charge a fair price. It acts only as we should expect it to given the circumstances—that is, given its independence from the will of the people and from the constraints provided by individual rights. It takes what it wants and does what it wants, quite without thought to that will or those constraints. A more effective check on the power of financial institutions would be for Americans to develop the sense that it is they, not federal government agencies, who should be independent. But don’t hold your breath.
David S. D’Amato (firstname.lastname@example.org) is an attorney, former law professor, and writer living in Chicago. He is a policy advisor to The Heartland Institute and the Future of Freedom Foundation, and he’s a columnist at the Cato Institute’s Libertarianism.org.