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SCOTUS Upholds CFPB Funding: Are We One Step Closer to Tyranny? (Yep).
Wednesday, May 22, 2024

So Republicans are scared of Biden and his globalist agenda.

Democrats are scared of Trump and his fascist tendencies.

And I’m scared of all ya’ll.

Especially now.

The headline here is pretty mundane– Supreme Court determines CFPB (the primary regulator of banks and finance companies in the US) is constitutionally funded.

All the consumer finance lawyers out there are patting themselves on the back for being right that the Supremes wouldn’t knock out one of the biggest and most critical federal agencies in the nation. But no one is talking about why it matters.

Again, superficially it matters because the CFPB lives on and its rulings are still binding (even in the Fifth Circuit again). Cool. Fine. Great.

But also yawn.

The bigger story is that yet another constitutional safeguard designed to assure the separation of powers was just destroyed and it is highly dangerous in my view. Especially with Biden in power. And ESPECIALLY with Trump potentially about to be in power.

So let me explain.

As you all know the Czar is deeply into political philosophy–that was my major and my intellectual passion. My poor kids have endured the readings of Locke, Jean-Jacques Rousseau and Federalist Papers since they were still in diapers.

This is hardly spicy material of course–most everyone read this stuff in Seventh grade. But, as with nay religion, the simplicity of the core concepts underpinning our constitution is what gives it lasting power.

And perhaps the simplest concept is separation of powers. Ambition checking ambition.

Congress vs. the President vs. the Courts.

The critical centerpiece of the constitution-that these institutions would never align to serve one master other, perhaps, than the people themselves.

And as we all, indeed, learned in seventh grade Congress is the keeper of the “purse.” They spend the money. And they dictate to the executive branch–whose job it is merely to execute on the laws and never write them–how money is to be spent.

This is done through something called the Appropriations Clause of the Constitution, and it is the primary way the power of the “purse” is leveraged. (It is also why the government shuts down once in a while when the political parties–we’ll get to them–bicker.)

Essentially Congress has to vote on every penny spent in order for any of the gears of government to turn. Its a good thing. Assuring the people’s representatives are the guiding hand between all funding of the machinery of the beast we call the federal government.

Its actually a rather brilliant–if totally unwieldy–conceptual predicate for government operation, seemingly assuring government stays small and its operations within the understanding and eyesight of a handful of elected officials.

Of course, that’s not the way it actually works but it is the way it was supposed to work.

While the elegance of the process has been corrupted by a government that has grown entirely beyond the contemplation of the framers, the core concept that the Legislative branch controls the funding–even if through a legion of staffers and bureaucrats who work together in long shifts to provide funding directives in thousand-page funding tomes that are never read by the officials who vote on them–remained in place.

The executive branch could howl and moan but Congress, and only Congress, could provide funding directives. (Again, this separation of powers concept seems foreign and neutered in light of political parties where Trump can essentially tell a Republican-lead Congress what to spend money on and they will do it– very very very very very unconstitutional, but that is a misuse of the system by political conspirators (party members)–and not a bedrock problem with the system itself.)

But Congress recently cheated (in my view) and passed off to an executive branch agency (the CFPB) the power to provide for its own funding via a portion of funds from the federal reserve that it grows and shrinks based upon the CFPB’s own activities in fining banks and finance companies.

Essentially the CFPB is a perpetual motion machine that can determines its own funding levels, budget and activities based upon its own actions in collecting money from American businesses.

It is its own little sovereign. Capable of making its own laws (regulations) and enforcing those laws through its own executive operations (enforcement) and funding these operations through the fines it imposes and collects.

Very scary stuff. And plainly a Frankenstein’s Monser of political concepts that ought to have been unplugged by the Supreme Court.

But… nope.

Only two justices agreed with the framers of the Constitution that this runaway nightmare is unconstitutional– Justices Alito and Gorsuch. They interposed a lengthy dissent, but I think a single line suffices to explain matters quite nicely. As Alito writes:

In short, there is apparently nothing wrong with a law that empowers the Executive to draw as much money as it wants from any identified source for any permissible purpose until the end of time.

Yeah. That’s an issue.

Understand I am less concerned about the CFPB here than I am about the wholesale modification of the operations of our government from one where the executive is prevented from a wholesale moneygrab by the tinfoil requirement of a semi-annual appropriations process to one where blank-check funding is afforded the President once every four years or so.

Imagine a Congressional bill passed in February, 2025 giving President Trump (or Biden) “all necessary funding to provide for all requisite activities of the executive branch until this Act of Congress is revoked.”

Seems as if SCOTUS may have just blessed precisely this approach. At least, that’s how Alito and Gorsuch see it. And so do I.

It gets worse, of course.

The power of the purse is just one example of the separation of powers.

What if Congress went further and “delegated” authority to the President to make laws while they were at it. We might imagine a bill reading:

“Congress hereby delegates all legislative auhtority necessary to perform all Constitutional acts–with all necessary funding to provide for all requisite activities–to the person holding the Office of the President of the Unites States until this Act of Congress is revoked.”

I mean, why not? Congress already delegates legislative power to executive agencies on the reg.

Sure I am being a bit glib here. Wide-ranging delegations of authority exceed permissible bounds–or at least have historically–but given the extremely broad read of the Appropriations provision, I don’t see why equal “deference” won’t soo be afforded to delegations…

Maybe this is too slippery a slope. Perhaps I am batting at a windmill. Wouldn’t be the first time…

But in a world where the political parties have each seized control of the hearts and minds of tens of millions of Americans and convinced each other that a “final battle” to rid the world of the other may be necessary, those of us outside the paradigm are looking to certain cherished procedural protections built into the constitution to keep the train on the tracks until someone comes along and makes straight the paths (probably me, but I am waiting for someone else to come along before I have to do it myself.)

So yeah, I’m not too into this CFPB ruling. And, per usual, I shouldn’t be the only one talking about this.

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