Fourth Branch of Government
Most people probably viewed this week’s duel over leadership of the U.S. Consumer Financial Protection Bureau as merely one more fight between President Donald Trump and Democrats in Congress. It wasn’t.
It was the fourth branch of government flexing its muscles.
In establishing the three branches they meant to hold power — the executive, legislative and judicial — the nation’s founders worried that a strong military leader might take over. Later in history, there were warnings about the robber barons, other special interests and the military-industrial complex. All the while, the real fourth branch, the bureaucracy, was growing in power.
Consider what happened at the CFPB. When its former director, Ohioan Richard Cordray, left office, he designated his chief of staff, Leandra English, to become acting director. Meanwhile, President Donald Trump was sending the head of the White House Office of Management and Budget, Mick Mulvaney, over to become acting director.
Now, the CFPB is an executive branch agency. The president heads the executive branch. At some point, Trump will nominate a permanent director and send that person’s name to the Senate for confirmation.
Obviously, then, the president has can name an acting director, right?
Wrong, said English and Democrat leaders in Congress. They claimed the law creating the CFPB was that its director, not his boss the president, has the final say on an acting director.
Fortunately, a federal judge ruled against English. She had sought a court order enjoining the president from naming an acting director. Judge Timothy Kelly said no, noting such action would be “extraordinary.”
It would indeed. In effect, it would have given Cordray and English powers superior to that of the head of the executive branch of government.
There are situations in which it is proper for government officials to say no to a president. If his order is unconstitutional, it can be disobeyed. In serious situations such as when war threatens, a chief executive can be thwarted if a case can be made that he is mentally unsound.
These are extreme situations, however. In the CPFB case, there was no emergency. The issue was whether a few bureaucrats could tell their boss to go pound sand.
Democrats usually side with the bureaucrats, because those who run the bureaucracy tend to have liberal viewpoints. One wonders whether Sen. Chuck Schumer and Rep. Nancy Pelosi have thought about how they would have reacted had English, in announcing her would-be takeover, added, “And oh, by the way, I’m a closet conservative who thinks Donald Trump is too liberal.”
Who’s to blame for the bureaucracy’s power, which sometimes (think FBI, CIA and IRS) extends to refusing to cooperate with Congress?
Congress, of course. For decades, probably beginning in President Franklin Roosevelt’s administration, lawmakers have been delegating power to federal agencies.
Look at the Environmental Protection Agency. By law, it has the authority not just to enforce rules, but to create them.
Want more evidence? Do you really believe what you were taught in school, that Congress and state legislatures make the law?
Wrong. Look at the enormous body of “administrative law” created by state and federal agencies without consulting legislators. Often, lawmakers complain about it — but they never seem to do anything about it.
Why? Again, liberals are fine with the bureaucracy as a fourth branch of government because most bureaucrats are liberals. Even when a conservative governor or president is elected and re-elected, he can’t possibly replace everyone out in the agencies. That problem is illustrated by the old anecdote about a reformist governor meeting with agency heads on his first day in office.
“Governor,” they tell him, “what you need to understand is this: We were here when you came in, and we’ll be here when you go out.”
Myer can be reached at: firstname.lastname@example.org.