Big Business & Donald Trump vs Everyone Else

The government’s own website tells us “The Consumer Financial Protection Bureau [CFPB] helps consumers by providing educational materials and accepting complaints. It supervises banks, lenders, and large non-bank entities, such as credit reporting agencies and debt collection companies. The Bureau also works to make credit card, mortgage, and other loan disclosures clearer, so consumers can understand their rights and responsibilities.” Banks and financial institutions went rogue in the last decade by overstating real estate values and lending against those inflated numbers to completely unqualified borrowers who made no or minimal down-payments. The subprime mortgage crisis precipitated the Great Recession that began in 2007.

Despite pledges to clean up their act, after a massive bailout by the federal government, these institutional lenders continued to abuse their power. From interest-rate fixing (the LIBOR scandal) to foreclosures without genuine notice to credit card penalties to misleading student loans… well the litany of horribles continued. 

Championed by Massachusetts Senator and now presidential candidate, Elizabeth Warren, “The CFPB's creation was authorized by the Dodd–Frank Wall Street Reform and Consumer Protection Act, whose passage in 2010 was a legislative response to the financial crisis of 2007–08 and the subsequent Great Recession. The CFPB's status as an independent agency has been challenged in court but was upheld by United States Court of Appeals for the District of Columbia Circuit sitting en banc.” Wikipedia. 

Significantly was dissenting then DC-appellate Justice Brett M. Kavanaugh, who stated that it was unconstitutional to have a federal agency operated by a director who could not be removed by the president. It’s no secret that the Trump administration rails against any group, any governmental agency and even Congress itself that attempts to contain the President’s power. His autocratic proclivities seem to be a direct challenge to the notion of separation of powers among the legislative, judicial and executive branches of government. Donald Trump has always preferred to impose his will under his de facto effort to legislate by executive order. 

To the extent there are branches of government attempting to limit his executive power, most evident in his current refusal to cooperate with the House’s impeachment inquiry, Trump and his conservative base have fought hard to elevate his authority. His hope is that the recently reconfigured Supreme Court, tilting decidedly towards his perspective with his recent appointments, including Brett Kavanaugh. Trump believes that all federal agencies are subject to his right to hire and fire such agencies’ chief executives, and that any congressional attempt to limit that power is unconstitutional.

“The Trump administration urged the [Supreme] court to hear the case and reject the director’s semi-independent status. Since it launched in 2011, conservatives and business groups have long complained the agency has too much power… A ruling in the case could signal whether the court’s conservative majority is ready to rein in an array of other semi-independent agencies, such as the Securities and Exchange Commission, the Federal Communications Commission or even the Federal Reserve.

“Throughout the 20th century, Congress created independent agencies and shielded them from direct political control by the president. Usually, they are governed by a board with officials named by different presidents.

“But in recent decades, some conservatives, including the late Justice Antonin Scalia, championed the ‘unitary executive’ theory, which holds that all the executive power is entrusted solely to the president, who should be free to hire and fire any executive branch employee at will… Under the CFPB law, the president appoints a director with the approval of the Senate, but once appointed, the director may be removed only for ‘inefficiency, neglect of duty or malfeasance in office.’

“Kavanaugh said [in his role as DC appellate judge] the CFPB director had unusually broad powers that included issuing regulations, undertaking investigations and handing out sanctions and penalties… ‘The director enjoys more unilateral authority than any other official in any of the three branches of the U.S. government,’ aside from the president himself, he wrote last year before his nomination to the high court.

“Not surprisingly, the lawyers challenging the agency’s structure cited Kavanaugh’s dissent as reason for hearing the case. The case before the court, Seila Law vs. CFPB, began when the bureau looked into allegations that a law firm based in Orange had violated its rules regarding telemarketing sales… The bureau sent a demand for documents, but the firm refused to comply and went to federal court in Santa Ana [CA], arguing the agency itself was unconstitutional because of its structure.

“U.S. District Judge Josephine L. Staton upheld the agency and its subpoena, and the 9th Circuit Court of Appeals affirmed her decision in May… Judge Paul Watford, writing for the appeals court, said the Supreme Court in the 1930s had upheld the principle of independent agency officials who were not subject to firing by the president. Moreover, in 1988, the court upheld Congress’ creation of independent prosecutors who were shielded from firing by the president. Scalia dissented alone in that case, but more recently conservatives have cited his views as a basis for reversing course… The court will hear arguments early next year and issue a ruling by late June.” Los Angeles Times, October 19^th. Donald Trump hates the California-based Ninth Circuit!

What we face is a slow progression to autocracy. America is already labeled as a “flawed democracy” by the prestigious UK publication, The Economist, because of the disconnect between popular votes and the election process (particularly due to gerrymandering and voter exclusion), we now have a president whose primary goal seems to be his self-aggrandizement. This trend is an example of one of history’s clearest lessons of how democracies can morph into autocracy. Oddly, this case may be floating below the radar of most voters, but its significance could define whether the United States will continue as a democracy… or whether we will take a giant and perhaps irreversible step to dictatorship. For conservative white traditionalists, Trump’s ascendancy to that “unitary executive” is now equated with their ability to control of the values and polices for all Americans. The rest of us? Get used to it!

              I’m Peter Dekom, and for those who believe that it “can’t happen here,” think of how many countries – from Chile to Germany – simply allowed autocrats to take over.