The Corner

Law & the Courts

I Don’t Care What the CFPB Does

I really don’t. At least I don’t care in the context of our debates over the agency’s structure. When debating separation of powers, policy consequences are a red herring; a distraction; the preferred topic of those who would subordinate the law to their preferences. Any useful conversation will remove them swiftly from its agenda.

Alas for last few days, far too many people have conflated the question of the CFPB’s structure with the question of whether the CFPB does “good” things or is “necessary” or “helps people.” If we are to stay focused, we must insist that these matters be kept separate. The question before us this week is not whether the CFPB is a nice organization, or whether we need it per se, or whether Elizabeth Warren’s political philosophy is the correct one for America. The question before us is whether Congress can (and did) pass a law that lays out a succession plan that undermines the Federal Vacancies Reform Act and Article II of the United States Constitution, and, more broadly, whether it is legal for the legislature to establish an agency that is ultimately accountable to nobody. To complain about how the banks were before the ascension of Obama is in no way to answer those questions.

Which is again to say that, for the purposes of our current contretemps, it doesn’t matter one whit what the CFPB actually does. The issues at stake would be precisely the same if the outfit had been charged with handing out candy or branding runaway llamas or washing the feet of the poor. This is a constitutional and statutory question; it is not a political one. It is not inherently “anti-CFPB” to be appalled by the way the body was established, any more than it is “anti-children” to believe that any legislation aimed at helping minors must pass through both houses and be signed by the president. Nor, by the same token, can one’s view on this matter be taken as a proxy for one’s view of the various actors lining up into their camps. It is not “pro-Trump” or “anti-Warren” to contend that this president enjoys the same powers as does any other, or “pro-Republican” to acknowledge that the statutory controversy here is an elementary one to resolve. One can be a card-carrying member of the #resistance and still want to avoid the de facto establishment of a fourth branch. One can loathe conservatives and still accept that both the CFPB’s internal counsel and the D.C. Circuit have concurred with their objections. One can wish the United States had dramatically stricter financial regulation and still acknowledge that this is about good government and the maintenance of norms. This is a legal dispute, nothing more, nothing less. “Should” doesn’t enter into it.

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