Reagan’s maxim lives on with latest Supreme Court ruling
Ronald Reagan once said the creation of a government bureau was “the nearest thing to eternal life we’ll ever see on this earth.”
The U.S. Supreme Court this week had an opportunity to prove the Gipper wrong. Sadly, the justices didn’t take it — although they did toss conservatives a rare bone amid a flurry of session-ending decisions that broke decidedly left.
At issue was the Consumer Financial Protection Bureau, then-Professor Elizabeth Warren’s brainchild. Created in 2010 by the Dodd-Frank financial industry regulation law, the bureau’s intent was prima facie noble as the nation clawed its way out of the Great Recession: shielding the little guy from the predation of capitalism run amok.
Yet as with all Democratic-engineered programs, the bureau was granted too much centralized authority, and not enough accountability.
Almost since its inception, conservatives maintained the CFPB was an illegal hot mess worthy of repeal.
As Oliver Dunford of the conservative Pacific Legal Foundation explained back in February, that argument hinged on two things.
First, although the bureau is nominally part of the executive branch, the law mandated that the president could only get rid of the director for “inefficiency, neglect of duty, or malfeasance in office.” In short, the president did not have the power to install his own leader.
“Also,” Dunford noted, “because the CFPB is funded by the Federal Reserve — instead of by Congress as the Constitution requires — the CFPB is virtually immune from oversight by both the [p]resident and Congress.”
Complicating that situation was the fact that the bureau was empowered by law to create its own rules, carry out its own enforcement and hand down its own punishment to violators.
Dunford noted, “the CFPB captures the roles and responsibilities of all three branches of government under one roof. So much for separation of powers.”
“This concentration of powers is unconstitutional,” he continued. “If allowed to stand, the CFPB will be allowed to write wide-ranging rules affecting tens of thousands of businesses, ranging from major corporations to small family-owned businesses. And if the CFPB targets a business, for any reason, it may charge that business with violation, try the business in front of a CFPB-employed arbiter, and level major fines and penalties — all without the due process protections that would be afforded in a court of law.”
In an odd twist, Reuters reported last September, as this case headed toward the Supreme Court, that CFPB Director Kathy Kraninger for the first time in the agency’s brief history openly admitted that “the bureau can no longer argue in the lower courts that its structure is constitutional.”
This week, the Supreme Court, in a 5-4 ruling, struck down the law’s ability to dictate to the president who shall lead the CFPB. But the majority left intact the rest of the agency’s structure.
The Wall Street Journal rightly dubbed this “faux judicial restraint.”
“By ratifying most of the bureau’s unconstitutional design, the ruling will encourage Congress to create more agencies that violate the separation of powers. The majority essentially says the Court will preserve an agency’s structure as long as the law includes a severability provision,” the Journal pointed out.
Half a loaf may be better than none at all. But unless Trump gets re-elected, and gets a second bite at this particular apple, the Gipper’s maxim will remain secure.
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