On Tuesday, the Trump White House scored its first victory in the struggle for control of the Consumer Financial Protection Bureau. A federal judge denied an effort by Leandra English, an Obama administration holdover, to block President Trump’s appointee from taking over as acting director. At first glance, the dispute might seem to be a tempest in a Beltway teapot, with little relevance to Americans with the holiday season on their minds.
But much more is at stake than musical chairs at a powerful federal agency. Trump has the rare opportunity to restore unity and decision to the executive branch, strike a blow against administrative bloat and overregulation, and resurrect the Founders’ designs for the presidency.
Congress created the CFPB in 2011 as an “independent agency” with the power to regulate most of consumer finance, from credit cards to home loans. In a bid to shield the bureau from legislative control, Congress freed it from the appropriations control that Congress exercises over all other major agencies by granting it permanent Fed funding. To free the CFPB from executive control, Congress barred the president from removing its director except “for inefficiency, neglect of duty, or malfeasance in office.”
Rep. Jeb Hensarling (R., Texas), Congress’ leading CFPB critic, described it as “arguably the most powerful, least accountable agency in U.S. history.” Sen. Elizabeth Warren (D., Mass.), the principal architect of the agency, told MSNBC that Democrats wanted to “push it as far away from politics as we can.” This freedom from democratic accountability permitted the CFPB’s first and only director, Richard Cordray, to regulate subjects clearly outside its mandate, such as auto loans, and to try to drive others out of business, such as payday lenders.
On his way out the door to run for governor of Ohio, Cordray left Trump a parting gift. Cordray hastily designated English as the deputy director, so that she could become the acting director upon his departure and thereby block the president from appointing a director. Rather than gracefully stepping aside once Trump named Mick Mulvaney as acting director, English sued in federal court. English no doubt will appeal Tuesday’s loss.
Trump should not wait for the courts, but instead should immediately move to defend presidential prerogatives. Article II of the Constitution gives the president the sole responsibility to “take Care that the Laws be faithfully executed” and vests in him “the executive power” of the federal government. As Justice Antonin Scalia wrote, dissenting against the constitutionality of the independent counsel law in Morrison v. Olson (1988), “this does not mean some of the executive power, but all of the executive power.” These provisions make the president constitutionally responsible for the way that all executive officers carry out federal law.
To be sure, the Constitution does not specifically give the president the means to control his subordinates. Yet since the debates of the First Congress in setting up the first three executive agencies — State, War, and Treasury — and as acknowledged by the Supreme Court in Myers v. United States (1926), Article II has been read to grant the president the power to fire executive officers. This authority ensures that the president can implement a coherent law enforcement program throughout the government. This executive unity, the Framers believed, would yield great benefits. “That unity is conductive to energy will not be disputed,” Alexander Hamilton wrote in Federalist 70. “Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man.”
Congress, however, prefers a fractured executive to maximize its own influence over the administrative state. During the New Deal, Congress vested vast regulatory power in a slew of agencies and limited the president’s ability to fire their commissioners. In Humphrey’s Executor (1935), and later Morrison, the Supreme Court mistakenly upheld these blemishes on the Framers’ design. The CFPB represents the apotheosis of the move to shield parts of the vast administrative state from presidential control.
Trump can reverse this trend, which saps the executive of accountability, abets overregulation, and supports a bloated welfare state. He should immediately fire English. If she is the acting director, as she claims, Trump could remove her on the theory that refusing to follow the president’s interpretation of federal law amounts to “inefficiency, neglect of duty, or malfeasance in office.” Reading “for cause” removal to include refusal to follow presidential policy would move much of the independent agencies back under executive control. Trump could adopt an even more aggressive approach and claim that the CFPB statute unconstitutionally limits his removal power. In a 2010 case, the Supreme Court recognized that hiding one independent agency within another, as the independent Federal Reserve Board protects the CFPB, violates the president’s control over the executive branch.
Alternatively, Trump could fire English from her permanent job. The CFPB statute does not protect the deputy from presidential removal. By firing English, the president would make clear that his removal power extends not just to agency heads, but to any inferior officer who executes federal law. While the civil service laws protect career employees who carry out executive policy, firing English would make clear that any officer in the executive branch remains subject to presidential control, as the Constitution demands.
Firing English might pour gasoline on a small fire. But by reestablishing control over the CFPB, Trump could truly strike a blow that will benefit future presidents and the constitutional order. We have only one president at a time. Neither English nor any other officer can reign over their administrative fiefdoms as mini-presidents.
John Yoo is a law professor at UC Berkeley, visiting scholar at the American Enterprise Institute, and author of “Striking Power: How Cyber, Robots, and Space Weapons Change the Rules for War.” email@example.com
Saikrishna Prakash, James Monroe distinguished professor and Miller Center senior fellow at the University of Virginia, is the author of “Imperial from the Beginning: The Constitution of the Original Executive.” firstname.lastname@example.org