Power To The Regulators! – Guest Essayist: James D. Best

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The Founders believed that consolidating executive, legislative, and judicial powers would threaten liberty, so to avoid this tragedy, they built our constitutional framework with checks and balances. James Madison, the Father of the Constitution, wrote in Federalist 47 that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

Whew! Thank goodness we avoided that kind of government.

On second thought, we didn’t. Despite the Founders best efforts, Congress has concentrated executive, legislative, and judicial powers into regulatory agencies. Lazy legislators pass vague laws and then permit regulators to fill in the devilish details. Many of these regulatory agencies employ their own adjudication panels with internal appeal boards that judge the rightness or wrongness of their own actions. (A final appeal may be made to outside courts, but usually not until all of the agency’s protocols have run their course.) Lastly, regulatory agencies execute their own interpretation of laws, with—if White House responses to regulatory scandals are to be believed—no oversight by the top executive.

Surely, this can’t be right. It would violate every precept of the Founders. Unfortunately, it’s true. In fact, amassing vast powers in regulatory agencies has become so commonplace, few take notice anymore. At least, few took notice until the Consumer Financial Protection Bureau raised this liberty-sapping drift to a brand new level.

The Dodd–Frank Wall Street Reform and Consumer Protection Act created a committee, a study group, and a powerful regulatory agency.  (Respectively, the Financial Stability Oversight Council, the Office of Financial Research, and the Consumer Financial Protection Bureau.)  The Consumer Financial Protection Bureau (CFPB) has been assigned regulatory authority over more than twenty major laws, and the Dodd-Frank Act press-ganged civil servants from the Federal Reserve, the Federal Trade Commission, the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Department of Housing and Urban Development.

The CFPB operates as an independent regulatory agency that can draw money from the vast coffers of the Federal Reserve. How much? Whatever the CFPB director deems “reasonably necessary,” although the amount is capped at a stingy 12% of the Fed’s own prolific spending. This agency has its own source of money, broad powers over the most vital sector of the economy, and is so independent that the Dodd-Frank Act even puts restrictions on the president’s authority to dismiss the director. Congress does get periodic reports and testimony, but naked the power of the purse, all it can do is listen and grouse a bit. The Fed is prohibited from interfering and although the Financial Stability Oversight Council may issue a “stay” to the CFPB, it requires an appealable 2/3 vote. A high hurdle, indeed.

In other words, CFPB wields an absurd amount of power, sets its own budget, and is beholden to no one.

How could this possibly go wrong?

Well, how about this for starters.

  • The CFPB feels empowered to collect whatever financial data it judges necessary, including credit card transactions. The US Chamber of Commerce claims the CFPB needs a warrant or National Security Letter to demand account-level data, but the CFPB is proceeding anyway.
  • The cost to remodel the CFPB’s new home has soared from $55 million to $145 million—more per square foot than the Trump World Tower, the Bellagio Casino, or the Burj Khalifa in Dubai. Worse, through good planning or bad, one-third of CFPBs employees won’t fit in the lavish digs across from the White House. The CFPB is stonewalling FOIA requests about these overruns from newspapers and political groups.
  • Dodd-Frank gave the CFPB subpoena power, but the agency insists that regulatory precedents brush aside the statute of limitations and nondisclosure agreements.
  • As if the CFPB didn’t have enough control over the financial sector, the Financial Stability Oversight Council claims that insurance companies also fall under the agency’s purview. MetLife, in its court filing, stated “That conclusion was arbitrary and capricious, conflicts with the council’s statutory obligations under the Dodd-Frank Act and the rules and guidance that the council promulgated for designating nonbank financial companies, and was reached through a procedure that denied MetLife its due process rights and violated the constitutional separation of powers.”

None of this includes the CFPB regulatory dictates that are hampering our economic recovery. Of course, financial service providers may request a review of adverse findings. The reviewing committee is comprised solely of CFPB officials whose conclusion is reviewed by the Associate Director. The decision of the Associate Director is final, and the CFPB will not accept further appeals.

This is a very busy regulator that has startled people with the speed with which it got up and running in just a few short years. Is there hope for Congressional action to corral the most grievous CFPB excesses? If the hearings on the headquarters remodel overruns are an example, the answer would be no. The Consumer Financial Protection Bureau demonstrated its independence by ignoring the huffing and puffing of mere elected representatives.

The consolidation of legislative, executive, and judicial powers in regulatory agencies would have offended the Founders. Our complacency would sadden them.

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, and the Steve Dancy Tales.

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7 replies
  1. Ron
    Ron says:

    Mr. Best’s last sentence is the key, not just with respect to this issue, but with respect to pretty much all Constitutional issues. Fortunately, Constituting America and Hillsdale College have created nationwide online platforms for learning for those Americans who choose not to be complacent, creating a scenario much like when the persecution of Christians caused the disciples to scatter across the known world of the first century. There is hope for distribution of this Constitutional knowledge across our nation.

    In Georgia, where I live, the Georgia Department of Education will be distributing 120,000 Pocket Constitutions (funded fully by private contributions), to all fourth grade students during Constitution Week in September. Hopefully, some other states will follow Georgia’s lead. Readers of this forum can help make it happen in their states. Details are here: http://www.gadoe.org/External-Affairs-and-Policy/communications/Pages/PressReleaseDetails.aspx?PressView=default&pid=306.

    Reply
      • Ron
        Ron says:

        Thanks Mr. Best. Next week, I’ll be asking our local American Legion Post members to donate enough to pay for the cost of 3,500 books that will be distributed to our local school district. Hopefully, we’ll get more than enough contributions to pay our local school district costs and let the excess help pay the costs of distribution in our less-wealthy school districts.

        This is the true spirit of our Republic, where we take care of our needs at the lowest level rather than expecting the federal government to absorb the cost of things we want to do locally.

        Reply
  2. Ralph Howarth
    Ralph Howarth says:

    I would not call lawmakers “lazy” but rather “busy”. Lawmakers ever so have to rely on congressional aids and staffers to do the legwork because laws and regulations are so voluminous. If lawmakers would limit their purview to only the enumerated powers listed in the federal constitution, then they would have time to regulate the courts and government bodies better. Instead, the president and the media cry “government shutdown” whenever Congress is denying expansion of federal power to knuckle Congress to giving in and spending more money on objects of government the states never ratified to have done by the federal government.

    Reply
  3. Allan Hampton
    Allan Hampton says:

    “Surely, this can’t be right. It would violate every precept of the Founders. – See more at: http://constitutingamerica.org/power-to-the-regulators/#sthash.moRNaxnX.dpuf

    Yes, it isn’t right or constitutional. Congress cannot legally/constitutionally delegated it’s constitutional delegated powers to another entity, because that would be a violation of Article V – Congress cannot amend the Constitution.

    Article V is a Law and like all laws does not and cannot enforce itself. Nothing can stop a violation of a law. U.S. Lawmakers exercising a power not delegated to them by the Constitution is a crime of usurpation. Federal usurpers cannot remain in office without the complicity of the House of Congress. Representative in the House of Congress cannot remain in office without the complicity of Voters. Voters elect all 435 Representatives of the House in Congress every two years, Article I, Section 2, clause 1.

    Yes, “The consolidation of legislative, executive, and judicial powers in regulatory agencies would have offended the Founders. Our complacency would sadden them.” BUT needs to be worded a bit differently – should be offended the Oath of Office, the Constitution, and committed a grime against ever U.S. citizen.

    Reply

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