Is it possible that the courts - one of our most important "auxiliary precautions" - are undermining republican liberty?
When Leandra English, former chief of staff to the former director of the Consumer Financial Protection Bureau, asked a federal judge to block President Trump’s appointment of Mick Mulvaney to replace her departing boss Richard Cordray, and to install her as the CFPB’s rightful leader, Judge Timothy J. Kelly of the Federal District Court in Washington, D.C., denied her request. Yet English’s legal team, rejecting the idea that President Trump held the directorship in his hands pursuant to the Federal Vacancies Reform Act of 1988 and Article II of the Constitution, has since vowed to continue its resistance to the President’s action.
Regardless of what happens next in the CFPB matter, this episode illuminated a crisis of authority pervasive in American politics today. The dysfunction it laid bare tells us that we have forgotten what authority means and are thus no longer capable of identifying where it resides in our political system. The result is a post-political order that delegitimizes conflict and undermines the institutions on which we depend to resolve disagreement and forge compromise in a pluralistic society.
If asked, most people today would likely equate authority with power. Power is rightly understood as the ability to compel obedience through intimidation and force. But unlike power, authority does not compel through such coercion. Rather, it is self-evident; people submit to authority voluntarily. Authority, properly understood, transcends the back-and-forth of political life. In that way, it resides outside the government.
In America, authority resides in the people and is expressed in the Constitution. In 1796, James Madison acknowledged this relationship between popular authority and the Constitution, arguing that, prior to its ratification, the Constitution “was nothing more than the draught of a plan, nothing but a dead letter until life and validity were breathed into it, by the voice of the people.”
By virtue of this authority, the Constitution gives the government its power and stipulates both the ways in which that power may be used and the ends to which it may be directed. The Constitution also provides the means by which the people can check the government when it abuses its power.
This relationship between a people, their written Constitution, and the government made possible a political system powerful enough to preserve order but not one so powerful that it could threaten individual liberty. The Framers appreciated the fact that these two ends of politics—order and liberty—were in tension and viewed political conflict as crucial to sustaining a healthy balance between them.
Similarly, Niccolo Machiavelli attributed the success of the Roman Republic to “good” conflict. In his Discourses on Livy, (1531), Machiavelli writes that “those who condemn the disturbances between the nobles and the plebeians condemn those very things that were the primary cause of Roman liberty.” In doing so, Machiavelli continued, “they give more consideration to the noises and cries arising from such disturbances than to the good effects they produced.” As it would in the American experience over a thousand years later, the conflict transpiring within the Roman political sphere maintained balance between the patricians and plebeians, and thereby perpetuated liberty and order.
In the American context, the Constitution’s institutions make political conflict legitimate. Taken together, they create the space where the people and their elected representatives can peacefully resolve their differences. By engaging in politics, Americans affirm their fidelity to the Constitution’s authority and its institutions as instruments of legitimate political rule.
Conversely, rejecting the legitimacy of outcomes reached via the Constitution’s institutions severs the vital link between that document’s authority and the government’s power. The result is that the decisions government makes are no longer legitimate in and of themselves. Lacking authority, properly understood, the government is left with no choice but to rely on a mix of intimidation and force to compel obedience with its edicts.
Routinely looking outside the political sphere to resolve disagreements undermines that sphere and narrows the issues over which political conflict is considered legitimate. In the absence of a universally accepted source of authority, it is impossible to maintain a shared space in which to resolve political disagreements. When authority is disconnected from the Constitution, we lose sight of its proper source in American politics.
The CFPB controversy encapsulates this well. English, in trying to enact Cordray’s plan for his succession, denies the existence of an authority above the government (above, in this case, the CFPB) that resides in the people and is expressed in the Constitution and the laws enacted pursuant to it.
But this crisis is not unique to the CFPB and its supporters. Prevalent among political actors of all stripes today is a worrisome tendency to dismiss the Constitution’s constraints when those constraints run counter to a desired outcome. It is also reflected in the widespread view by both sides that the administrative state and the judiciary are the primary places where politics occurs today. In different ways, government agencies and the courts try to solve the problem of disagreement and legitimacy by substituting reason and technocratic expertise for the messy realities of republican politics. In doing so, they seek to take conflict out of the political sphere and, thus, out of politics.
Such thinking is possible to the extent that we unconsciously functionalize authority and the legitimacy it bestows on government action. Instead of defining legitimacy as that done in accordance with the Constitution, we define it as action which serves a specific function.
In the case of Cordray and English, that function is consumer protection. In their eyes, resistance to Trump is acceptable regardless of what the statute or the Constitution says because the ultimate authority in these matters lies not with the people, but with whether the outcome fulfills the function of consumer protection.
This thinking is reflected in English’s court complaint. In it, she cites Mulvaney’s description of the CFPB as a “sad, sick joke” and points to the fact that Mulvaney, who also serves as head of the Office of Management and Budget, cosponsored legislation proposing to eliminate the agency when he served in the House of Representatives, as reasons why the court should block his appointment. She even quotes Mulvaney as saying, “I don’t like the fact that CFPB exists, I’ll be perfectly honest with you.”
This is to argue that Mulvaney should not be acting director because he opposes the function of consumer protection through the CFPB. By extension, Trump lacks the power to name Mulvaney acting director because, in doing so, he would not be using his power to fulfill the function of consumer protection. For English, everything is rationalized to serve this one end, and “consumer protection” becomes synonymous with her prevailing against those who would seek to prevent her victory. She does not acknowledge that there exists an authority separate and apart from the government to which she and Mulvaney (and the courts) must submit, regardless of their personal views on consumer protection.
Even if the district judge had ruled in her favor, the fact remains that judges and bureaucrats cannot bestow legitimacy on their decisions because they lack the authority to do so. They need the Constitution, all of its institutions, and the resulting political sphere to compel obedience to their decisions.