Why Much Is at Stake in the CFPB Court Case
The Supreme Court’s decision to consider the constitutionality of the Consumer Financial Protection Bureau gives the conservative majority on the court yet another opportunity — thus far unrealized — to validate and re-enforce the Constitution’s separation of powers.
The Constitution vests all law-making authority in Congress, but also gives the president and the executive branch the exclusive authority to enforce the laws. The Framers created this separation because they believed that putting the power to make and enforce the laws in the same hands would endanger the peoples’ liberty.
The power of executive branch agencies — which many call the administrative state — has grown rapidly since the New Deal. This has occurred because Congress has been unwilling or unable to make the difficult choices involved in legislating. Instead, it has enacted broadly phrased laws, essentially delegating the key legislative choices to administrative agencies and violating the Framers’ constitutional plan of separation.
The CFPB case is not only an example of this problem, but represents a different and more dangerous tack — creating an agency with vast legislative authority that is answerable to no one, not even Congress.