The progressives are setting themselves up for another constitutional beat down. Just how stupid and corrupt are these people?
Mick Mulvaney Is the True Pope
Once again, naked progressive overreach sets Donald Trump up for a win.
William McGurnNov. 27, 2017 6:38 p.m. ET
Protesters outside the Consumer Financial Protection Bureau headquarters in Washington, Nov. 27. Photo: Jacquelyn Martin/Associated Press
By
William McGurn
Once upon a time, the world had two popes. Today we have two acting directors of the Consumer Financial Protection Bureau.
In 1378, two men each claimed the papacy. One was Urban VI, an Italian who was elected by cardinals in Rome. The other was Clement VII, who was elected by French cardinals and reigned from Avignon—where a succession of French popes had lived for most of that century.
Monday morning, Americans awoke to similar competing claims for who the real acting director of the CFPB is. Mick Mulvaney says he is the true acting director because he was appointed by President Donald Trump. Leandra English, a CFPB executive, says she is the true acting director because former Director Richard Cordray anointed her such on his way out. Unlike the 14th century, when pope and antipope held court in different countries, Mr. Mulvaney and Ms. English are not only in the same city—Washington—but claim the same physical office.
It’s not over. And as so often happens when progressives overreach so publicly, the likeliest winner will be President Trump.
Republicans, of course, have distrusted the CFPB since its inception. Partly the objection is practical, because its creation embodies the classic Beltway approach: rather than fix a broken regulatory system, throw another powerful agency atop the heap.
In this case, however, the objections are also constitutional. Philip Hamburger, a Columbia University law professor and author of “Is Administrative Law Unlawful?,” notes that the lack of democratic accountability almost defines the CFPB.
“This agency is so independent that it does not need congressional funding, and it now has declared itself self-appointing—even in opposition to the president’s appointee,” he says. “The CFPB is thus a reminder of how the administrative state can go to dangerous extremes.”
In this battle over legitimacy, Mr. Mulvaney boasts two impressive credentials. First, he was appointed by the man whom the Constitution gives authority over the executive branch, the president. Second, Mr. Mulvaney is on record as saying he doesn’t “like the fact that the CFPB exists.” If only more heads of more administrative agencies came to their jobs with such a healthy reservation about government power.
All of which gives Mr. Trump and the Republicans an unexpected opening. One perpetual difficulty with advancing regulatory reform is that it’s not a sexy issue, so it’s difficult to drum up public support. But the longer the absurdity at the CFPB goes on, and the more attention it generates, the more the American people will see that the CFPB’s lack of accountability was meant not as a bug but a feature.
On strictly legal terms, Mr. Trump’s hand is strong. A year ago, a three-judge panel of the D.C. Circuit Court of Appealsthrew out provisions that insulated the CFPB director from presidential accountability and said the CFPB would do its job “as an executive agency akin to other executive agencies.” More recently, the Justice Department’s Office of Legal Counsel invoked the Vacancies Reform Act to uphold the president’s right to make this appointment. For good measure, even the CFPB’s own general counsel, Mary McLeod, says Mr. Mulvaney’s appointment by Mr. Trump is legitimate.
With Donald Trump, of course, it’s always possible that someone will find some federal judge somewhere who will allow personal antipathy for the president to get in the way of the law and the Constitution. But the arrogance on display this week by Ms. English & Co. should also invite congressional correction.
Behind the metaphor of “the swamp,” after all, is the idea, not without justification, that today’s Washington is far removed from government of, by and for the people. In this context the CFPB is a good proxy for the beau ideal of modern American progressivism: appointed bureaucrats, unaccountable to the elected representatives of the people, who wield their regulatory authority as a weapon. As if this were not outrageous enough, Ms. English argues the CFPB also has the right to self-perpetuate by the laying of hands on a successor by her predecessor when he leaves.
On Monday Mr. Mulvaney took his place in the director’s office, brought doughnuts for employees and met with senior staff. Meanwhile Ms. English sent an email signed “acting director.” And just as France and Scotland recognized the antipope Clement VII, Sens. Chuck Schumer and Elizabeth Warren say they recognize Ms. English as the CFPB’s true acting director.
In the end, the rebellion at the CFPB is about far more than an acting director. The defiance is a gift to Republicans, giving them a rare political opening to clip the wings of an agency designed to go rogue—while highlighting to the American people what happens when federal power is divorced from democratic accountability.
Anyone really think Mr. Trump loses this one?
Write to mcgurn@wsj.com.
Mick Mulvaney Is the True Pope
Once again, naked progressive overreach sets Donald Trump up for a win.
William McGurnNov. 27, 2017 6:38 p.m. ET
Protesters outside the Consumer Financial Protection Bureau headquarters in Washington, Nov. 27. Photo: Jacquelyn Martin/Associated Press
By
William McGurn
Once upon a time, the world had two popes. Today we have two acting directors of the Consumer Financial Protection Bureau.
In 1378, two men each claimed the papacy. One was Urban VI, an Italian who was elected by cardinals in Rome. The other was Clement VII, who was elected by French cardinals and reigned from Avignon—where a succession of French popes had lived for most of that century.
Monday morning, Americans awoke to similar competing claims for who the real acting director of the CFPB is. Mick Mulvaney says he is the true acting director because he was appointed by President Donald Trump. Leandra English, a CFPB executive, says she is the true acting director because former Director Richard Cordray anointed her such on his way out. Unlike the 14th century, when pope and antipope held court in different countries, Mr. Mulvaney and Ms. English are not only in the same city—Washington—but claim the same physical office.
It’s not over. And as so often happens when progressives overreach so publicly, the likeliest winner will be President Trump.
Republicans, of course, have distrusted the CFPB since its inception. Partly the objection is practical, because its creation embodies the classic Beltway approach: rather than fix a broken regulatory system, throw another powerful agency atop the heap.
In this case, however, the objections are also constitutional. Philip Hamburger, a Columbia University law professor and author of “Is Administrative Law Unlawful?,” notes that the lack of democratic accountability almost defines the CFPB.
“This agency is so independent that it does not need congressional funding, and it now has declared itself self-appointing—even in opposition to the president’s appointee,” he says. “The CFPB is thus a reminder of how the administrative state can go to dangerous extremes.”
In this battle over legitimacy, Mr. Mulvaney boasts two impressive credentials. First, he was appointed by the man whom the Constitution gives authority over the executive branch, the president. Second, Mr. Mulvaney is on record as saying he doesn’t “like the fact that the CFPB exists.” If only more heads of more administrative agencies came to their jobs with such a healthy reservation about government power.
All of which gives Mr. Trump and the Republicans an unexpected opening. One perpetual difficulty with advancing regulatory reform is that it’s not a sexy issue, so it’s difficult to drum up public support. But the longer the absurdity at the CFPB goes on, and the more attention it generates, the more the American people will see that the CFPB’s lack of accountability was meant not as a bug but a feature.
On strictly legal terms, Mr. Trump’s hand is strong. A year ago, a three-judge panel of the D.C. Circuit Court of Appealsthrew out provisions that insulated the CFPB director from presidential accountability and said the CFPB would do its job “as an executive agency akin to other executive agencies.” More recently, the Justice Department’s Office of Legal Counsel invoked the Vacancies Reform Act to uphold the president’s right to make this appointment. For good measure, even the CFPB’s own general counsel, Mary McLeod, says Mr. Mulvaney’s appointment by Mr. Trump is legitimate.
With Donald Trump, of course, it’s always possible that someone will find some federal judge somewhere who will allow personal antipathy for the president to get in the way of the law and the Constitution. But the arrogance on display this week by Ms. English & Co. should also invite congressional correction.
Behind the metaphor of “the swamp,” after all, is the idea, not without justification, that today’s Washington is far removed from government of, by and for the people. In this context the CFPB is a good proxy for the beau ideal of modern American progressivism: appointed bureaucrats, unaccountable to the elected representatives of the people, who wield their regulatory authority as a weapon. As if this were not outrageous enough, Ms. English argues the CFPB also has the right to self-perpetuate by the laying of hands on a successor by her predecessor when he leaves.
On Monday Mr. Mulvaney took his place in the director’s office, brought doughnuts for employees and met with senior staff. Meanwhile Ms. English sent an email signed “acting director.” And just as France and Scotland recognized the antipope Clement VII, Sens. Chuck Schumer and Elizabeth Warren say they recognize Ms. English as the CFPB’s true acting director.
In the end, the rebellion at the CFPB is about far more than an acting director. The defiance is a gift to Republicans, giving them a rare political opening to clip the wings of an agency designed to go rogue—while highlighting to the American people what happens when federal power is divorced from democratic accountability.
Anyone really think Mr. Trump loses this one?
Write to mcgurn@wsj.com.
