Those who march under the #Resist banner speak piously about norms of governance and the rule of law, and they warn darkly that President Trump will cause some sort of constitutional crisis.
The #Resistance is seemingly so eager to see its prophecy come true that it occasionally tries to induce just such a crisis all on its own. That’s what some of its plucky freedom fighters are doing at the Consumer Financial Protection Bureau, where Democrats attempted to install their own acting director, against the clear letter of the law, against the opinion of the agency’s own general counsel, and against the U.S. Constitution.
The substantive decision about who serves for a few weeks as acting director of the federal financial regulator is not the most consequential matter in Washington. But it is exquisitely pertinent to debate about the relative competence of Trump and his critics, because it perfectly demonstrates the cynical and destructive politicking of the #Resist movement. It also throws into sharp relief the Left's silly and hubristic regulatory project at the CFPB.
In an editorial earlier this month, we pointed out how the Left intentionally made the CFPB unresponsive to democratic checks and balances. They saw that the dozen other federal financial regulators had failed to prevent the financial crisis. They blamed this, with some truth, on “regulatory capture,” which is the tendency of regulators to become the clients of those they are supposed to regulate.
Undeterred, as ever, by the realities of the political economy, Sen. Elizabeth Warren, D-Mass., and other progressives set out in the 2010 Dodd-Frank bill to create a new financial regulator that wouldn’t be captured. They tried to insulate the CFPB from democratic accountability. As a result, it is funded by the Federal Reserve rather than by congressional appropriations. They also tried to insulate the agency from the executive branch in which it is situated.
Richard Cordray, a Democratic politician, who was director of the CFPB, stepped down over the weekend so that he could run for governor of Ohio. This sent Democrats into a frenzy. They had created the CFPB to be run by Warren and her ilk. It wasn’t supposed to fall into unclean hands, by which they meant Republican control.
As he left the building, and presumably aware that it could win points with left-wingers, Cordray picked a fight with the Trump administration confident that the left-leaning news media would report it as a story of a Republican administration in disarray.
On his last day in office, Cordray elevated his chief of staff, Leandra English, to be deputy director of the agency. English declared that she was, by law, acting director of CFPB upon Cordray’s resignation. But the president has the legal power to appoint both a director of the CFPB and an acting director, and he named budget director Mick Mulvaney to head the agency.
Mary McLeod, CFPB’s general counsel, who has decades of experience in the federal government, has made it plain that Mulvaney is legally the director. Yet, English showed up to work Monday and called herself the “rightful” head.
We could waste our breath examining the tissue-thin case that English, Cordray, Warren, and the #Resistance have made. But we don’t think even they believe it. Even Barney Frank, co-author of the law that created the CFPB, could go no further than saying he preferred English to Mulvaney. On the legal point, he said only that it was "not as clear-cut as I wish it was.”
Actually, it is. It's slam-dunk clear that Trump has the power to appoint the acting director, just as he has the power to nominate all agency heads. The Democrats' takeover attempt is entirely lawless. In being so, it perfectly fits the CFPB, a rogue agency if ever there was one. The party of the Left created it to be unaccountable and to be run by their people. So far as they are concerned, the law be damned.