Ben Sasse and Eight Other Senators Throw Down the Gauntlet on the CFPB

It appears Republicans are not going to allow Elizabeth Warren’s pet project to operate as long as she, Chuck Schumer and Nancy Pelosi are rallying around Leandra English. Contrary to the wishes of Warren and the Congressional Democratic leadership duo, Mick Mulvaney is the acting director of the Consumer Financial Protection Bureau (CFPB).

Sen. Ben Sasse (R-Neb) and eight other senators have sent a letter to Mulvaney saying if English prevails in court to say she is the acting director, they will take steps to see she will not be able to do any work so long as the constitutionality of the CFPB’s structure is litigated in court.

Sasse said:

“We don’t have four branches of government – we have three. King Richard can’t leave to run for office and handpick his successor without any say from the American people. There’s no clause anywhere in the Constitution like that.”

The text of the letter is below:

Dear Mr. Mulvaney:

Congratulations on your appointment to serve as Acting Director of the Consumer Financial Protection Bureau (CFPB). We write because we are disturbed by efforts of a rogue CFPB employee to serve as Acting Director of your agency despite President Trump’s designation of you as Acting CFPB Director. Unfortunately, this rogue employee is trying to follow former CFPB Director Cordray’s example and run the agency as an unaccountable fourth branch of government. Should this employee prevail in court and successfully serve as Acting Director, we would support legislative efforts to invalidate any new rules finalized by the agency during this employee’s service, including the use of the Congressional Review Act. We would also fight to ensure that Congress defunds the CFPB until this employee has relinquished control of the CFPB.

This effort to stay on as Acting Director is especially concerning because more is at stake than interpreting the Federal Vacancies Reform Act of 1998. Successful control of the CFPB would give this employee – as the single head of an independent agency who refuses to answer to the President – great, unconstitutional power to shape regulatory policy. As a recent Treasury Report argued, the CFPB faces “few of the traditional checks and balances necessary to restrain regulatory abuses and arbitrary decision-making,” including the annual appropriations process. As Judge Kavanaugh explained in PHH Corporation v. CFPB:

[T]he single-Director structure of the CFPB represents a gross departure from settled historical practice. Never before has an independent agency exercising substantial executive authority been headed by just one person.

These recent events are a clear demonstration of the dangers of the CFPB’s unconstitutional, unaccountable structure. We believe in protecting consumers but disagreement about how to do so must not come at the expense of our constitution. Our nation’s founders instituted multiple checks and balances on the unrestrained use of executive power. This outrageous attempt to subvert your appointment as Acting Director of the CFPB violates those foundational principles.

Thank you for your consideration. We look forward to working with you as Acting Director of the CFPB.

Sincerely,
Senator Ben Sasse
Senator Johnny Isakson
Senator Ted Cruz
Senator Rand Paul
Senator James Inhofe
Senator Dan Sullivan
Senator Mike Lee
Senator Roger Wicker
Senator Michael Enzi

Good for them. The CFPB is a joke. Democrats established it with the clear intent of implementing Democratic policies while purposely making it difficult for Congress (the Federal Reserve funds it) or the President (no “at will” firing) to reign in the agency.

Hopefully, this is just the first step in doing away with the agency altogether.