Congress empowered the CFPB to “regulate the offering and provision of consumer financial products or services.” Allowed to define “financial products” spaciously, it can regulate almost everything touching finance — mortgages, financial advisers, retirement plans, car loans, etc. It can “declare,” by criteria it concocts, business practices to be “abusive,” “unfair,” “deceptive” or involving “discrimination.” For these offenses, which businesses often cannot know in advance are offenses, the CFPB can impose whatever penalties it deems suitable.
The CFPB, without accusing a tiny law firm of any wrongdoing, drove it out of business with time-consuming and money-devouring demands for documents. Such bullying, critics of the CFPB argue, is enabled by the bureau’s unconstitutional funding process, which insulates it from accountability.
The CFPB embodies progressivism as Woodrow Wilson envisioned it. Wilson, the first president to roundly criticize the nation’s Founding, was a thorough foe of the Constitution’s separation of powers. He provided the template for today’s progressivism: Ever more power should be concentrated in Washington, and ever more of it should be concentrated in executive agencies staffed by supposedly disinterested experts insulated from supervision by a marginalized Congress. But the New Civil Liberties Alliance says in its amicus brief, “The improper concentration of power within the Executive Branch is no less a separation-of-powers violation simply because Congress itself has acquiesced in the violation.”
If properly decided against the CFPB, this case will demonstrate that when the court energetically uses its power to enforce the separation of powers, it often enlarges not its power but that of Congress. By invalidating the CFPB’s funding, the court can say: Congress lacks the power to surrender its power of the purse.
The most significant aspect of Donald Trump’s takeover of the GOP wasn’t his obliteration of norms, but his re-configuring of the conservative brand into something reminiscent of European conservatism. Lacking our classical liberal revolution, conservatives there try to conserve long-held traditions involving geography, ethnicity, and religion.
There’s a reason many U.S. conservatives have made pilgrimages to authoritarian Hungary, where that country’s leader touts a “post-liberal” order. In Europe, conservatives are hostile to capitalism (it disrupts traditional businesses), believe in expanded welfare programs, and are fine with a government that controls the media. It’s a pessimistic approach, as it seeks to halt societal change (gay rights, immigration) that threatens the Old Ways.
We see the parallels in American politics, as the surly MAGA-dominated Republican Party jettisons Reagan-style optimism in favor of dark visions of immigrant invaders, dystopian cities, and elites who rig the financial system.
Few U.S. senators are more MAGA than Josh Hawley (R–Mo.), who is known for his fist pump on January 6. He recently introduced a bill that would cap the interest rates that private credit card companies can charge as a way to give “the working class a chance.” Such price controls—and rhetoric—are indistinguishable from something from the Left. He’s repeatedly blasted Wall Street and has called to regulate the tech firms.
Zaid Jilani noted in his recent Guardian piece that Hawley has authored bills to ban certain video game boxes, place price controls on pharmaceuticals, impose fees on foreign capital and require universities to pay off half the student debt of those who default. Jilani is a progressive so he was thrilled: “(F)or too long, the Republican party has embraced market libertarian thinking that pretends that the solution to any social problem is a change in individual behavior.”
It’s not just Hawley. In pitching his idea for “common good capitalism,” U.S. Sen. Marco Rubio (R–Fla.) argues, “The notion that, left unguided, the market will solve our problems will not restore a balance between the obligations and rights of the private sector and working Americans.” If not for quoting two popes, Rubio’s rhetoric could come straight from [Bernie] Sanders.