The Consumer Financial Protection Bureau, Senator Elizabeth Warren’s brainchild, is the epitome of the administrative state.
CFPB is a law unto itself, immune from oversight, not dependent on the ordinary appropriations process, and immensely powerful because it writes and enforces rules and regulations that can be used to harass businesses of which CFPB director and staff disapprove.
Today the Supreme Court is hearing arguments in a case that tests whether the way this virtually untouchable agency was established goes against the separation of powers.
The case is Seila Law v. CFPB. Ballotpedia describes the case this way:
Seila Law v. Consumer Financial Protection Bureau is a U.S. Supreme Court case about the extent of the president’s appointment and removal powers. The question before the court is whether the U.S. Constitution allows Congress to create an agency like the Consumer Financial Protection Bureau (CFPB), which has a director who is protected from at-will termination by the president. The court will decide whether that agency structure violates separation of powers principles.
Predictably, the New York Times today urges the Court, as a headline puts it, to “keep independent agencies independent.” In other words, it is good to have agencies within the federal government that are impervious to oversight.
One option the Court could take is merely to sever the “for cause” provision and allow the CFPB to continue. There would still be no oversight from Congress. Or the Court might declare the way the agency is set up is unconstitutional.
The editorial board of the Wall Street Journal observes this morning:
This is all the more important these days when the very structure of the separation of powers is under assault. The liberal legal scholar Cass Sunstein, normally a serious fellow, wrote recently that the Justice Department should be independent of the President. Alexander Hamilton would have devoted several Federalist Papers to refuting that idea of a chief executive for prosecutions.
If the Supreme Court lets the CFPB stand as it is, and merely skirts around the edges of its illegality by barring the “for cause” provision, this will not be the last such agency that Congress creates. The administrative state will become even less accountable to political control than it already is.
The CFPB may claim that it protects consumers. But mostly is tries to restrict the choices avail to consumers and bring the ordinary consumer’s choices more in line with the choices that the administrative elite would make on their behalf.