Executive privilege is not an absolute power, and it often must yield to other claims, such as Congress’s duty to properly conduct an investigation.
President Trump, whose reflex for pugnacity has its uses, threw a vicious and entirely fair constitutional body check when he named OMB Director Mick Mulvaney acting director of the Consumer Financial Protection Bureau. It is exactly how constitutional conflicts are supposed to be resolved: power checking power.
The problem is that in this case, the governing statute attempts to remove the pucks from the ice. The CFPB has been hermetically sealed from constitutional conflict. That is why Leandra English, the deputy director of the CFPB, was playing with fire in taking her claim to the acting directorship to the courts, and it is why even those of us normally skeptical of judicial remedies should hope the courts proceed to declare Title X of Dodd-Frank unconstitutional. It is almost always preferable for constitutional violations to be corrected by political mechanisms. The constitutional defect of the CFPB is that these mechanisms are mostly unavailable. The ailment that requires judicial remedy is the very fact that the courts are, given the setup of the CFPB under the Dodd-Frank law, the only available treatment.
The normal range of body-check remedies that Federalist 51 anticipates will maintain the separation of powers cannot operate in the case of the normal activities of the CFPB. Such remedies would ordinarily include the President firing an official to whom he objects or Congress defunding the agency in question. But Dodd-Frank was specifically designed to short-circuit normal constitutional processes in such a way that political checks cannot operate.
Under Dodd-Frank, the CFPB director can be fired for “inefficiency, neglect of duty, or malfeasance in office,” language chosen to bind the President under Humphrey’s Executor v. United States (1935) only to those reasons. (It is telling, incidentally, that statutes authorizing the administrative state speak of “inefficiency,” not “imprudence.” An agency’s purpose is invariably to act.) Meanwhile, Congress’ fiscal powers are eviscerated by the automatic and ample funding mechanism for the CFPB. The only tool left to lawmakers is the retrospective Congressional Review Act, in which case path dependence operates decidedly in the favor of the CFPB.
The authors of Dodd-Frank were determined to protect the “independence” of the CFPB from unholy interests, which of course overlooks the possibility that the CFPB might have interests of its own, whether they be policy agendas or less noble ambitions like bureaucratic survival. In any event, the result is an agency that aims to protect the people by denying them control, through their elected representatives, over a public institution. Title X thus runs up the white flag on self-government. Republican processes are supposedly so hopelessly corrupted that they must be turned over to a class of independent experts.
This assumption ought to be rejected not simply because it is anti-constitutional but also because it is anti-political. It lets the people off the hook for the burdens of citizenship by outsourcing their responsibilities. There is no corruption of politics that could outwit the plurality of votes required to win a congressional election or the vigilance of reasonably informed citizens paying a reasonable degree of attention to public affairs. To the extent these expectations are unreasonable, it is exactly because the multiplication of political activities that an uncontrolled administrative state fuels makes reasonable vigilance impossible. An administrative agency like the CFPB running on autopilot will exacerbate rather than alleviate this problem.
The reason to be skeptical of judicial remedies for such a problem is that they closely resemble the constitutional equivalent of the CFPB. They are the equivalent, that is, of relinquishing control to a class of experts—namely, judges—whose purported authority over a given question derives from their independence from politics.
But there is a substantial difference between a judge disrupting republican processes and a judge facilitating them. The judicial role in this case should not be to referee separation-of-powers disputes. It should be to enable political checks to operate that make a court’s authority unnecessary. Call this a healthier form of John Hart Ely: The courts should “clear the channels” of body-check constitutionalism. Ruling that the CFPB must be subject to regular appropriations would be an excellent start.
It’s worth observing how ironic it is that such a ruling would be necessary. Nominal critics of Title X control the White House and Congress and ought to be able to repeal it—a reminder both that the administrative state, once grown, rarely retracts, and that politicians have their reasons, and not always noble ones, for hiding behind administrative and judicial skirts.
Nevertheless, judicial intervention would serve the salutary purpose of forcing the people’s representatives to emerge. Normal power relations between them and the CFPB could be restored. This need not always entail explicit conflict: Regulators would simply have to take quiet, subtle account of congressional preferences before acting because they would know they faced accountability on Capitol Hill. A dynamic of, if not humility, at least not the arrogance of untouchability could be instilled.
It is regrettable that this series of events requires judicial intervention, but it is appropriate. It is equally appropriate to credit the Body Checker-in-Chief with instigating it.