The Trump administration has featured a succession of little battles between the establishment and the Trump people — between #MAGA and #Resist. But none are quite as odd as the one playing out at the Consumer Financial Protection Bureau, which as of Tuesday morning has two acting directors.
The battle for supremacy between two claimants, each asserting that theirs is the true right to rule, is something we associate more with medieval kingdoms than modern bureaucratic democracies. Still less do you expect it to be fought over such small stakes — in this case, in the final analysis, they’re battling for brief control over a minor agency with limited impact on the economy.
But the CFPB was dear to the hearts of the Obama administration. A creation of the Dodd-Frank financial reform, it was placed in charge of protecting consumers from financial institutions. It was crafted to be unusually insulated from the political process, so that bankers couldn’t use their political influence to neuter it. Consumer activists love it, and bankers hate it.
The agency is so well insulated, in fact, that it’s not even clear whether its leadership structure is even constitutional. But the lawsuit challenging that structure is still wending its way through the courts. In the meantime, it’s unclear whether the president has the authority to fire the head of the agency. This allowed bureau head Richard Cordray — who is not, to put it lightly, beloved of Republicans — to cling to his job.
This month, however, he abruptly resigned. And just before he left, he appointed Leandra English to the post of deputy director. According the agency’s charter, the deputy director immediately becomes acting director upon departure of the boss. But before Cordray could hand the keys over, President Donald Trump also appointed an acting director, Mick Mulvaney, who until last week was the head of the White House’s Office of Management and Budget.
Phew! Got that?
The legal arguments around this are fascinatingly arcane, as detailed in The Washington Post by Case Western University law professor Jonathan Adler. What is much more interesting is the implicit political position that English and her supporters are taking, neatly summed up by Adler:
”… that Cordray could place the vast powers of the CFPB in the hands of someone who was never named or confirmed by either the president or the Senate, and that there’s nothing (short of getting a new CFPB director confirmed) that the president can do about it. This would take agency independence to a new level.”
This, of course, sounds splendid when you are fighting the good fight to continue the Obama administration’s splendid work. But it might give you pause when you stop to consider that eventually, Trump is going to appoint a replacement, and liberals might not fancy turning that person into a sort of mini-king who not only cannot be ousted but also gets to hand the agency over to any heir, voters and politicians be damned.
Which brings me to the even more fascinating question raised by this little contretemps: Why bother? I can see why the Trump administration is bothering: Not only does this give them a head start on any changes they want to make, but it gives the other side terrible publicity, because very few people outside of the Democratic base are going to be sympathetic to the idea that an agency should be able to operate completely outside of presidential oversight. But what does the other side get out of it?
Republicans are, after all, still in control of the Senate. Confirming a permanent replacement for Cordray will take time, but it shouldn’t take long. At best, this move has gained a few months of continued control by the old guard before they are ousted, and the agency begins its transformation into whatever it will become under Trump.
My heart thrills as readily as anyone’s to the sight of a doomed soldier playing Horatius at the Bridge. But at least Horatius Cocles had a purpose: He secured an orderly retreat, allowing the army to live to fight another day. What, exactly, do English and her supporters hope to achieve, other than a spectacle for wonky Washingtonians?
The most they can get is a brief period of business as usual, during which it will be hard to enact binding decisions because the legitimacy of her leadership will be in doubt. At worst, they get a humiliating smackdown from the courts, cementing their place in history as elitists who thought they were above petty restraints like elections or the Constitution.
And in the broader political picture, if you think Mulvaney is a bad, dangerous man who will privilege the interests of rich bankers over those of ordinary Americans, you’d probably rather have him running the CFPB than in his current job — overseeing the entire federal budget. Even if English wins and sends him back to OMB, this seems like a Pyrrhic victory for the left.
This seems like a microcosm of the year-long anti-Trump insurgency. I have my quarrels with the Trump administration — many, many quarrels. But when I look at the tactics of the anti-Trump resistance, I wonder why so many fall into the same pattern: showy and dramatic, but in ways that garner a great deal of bad publicity for the anti-Trump opposition and do very little to actually restrain the president. Nor do they advance the project of defeating Trump in 2020; rather the opposite, in fact, for they energize his base and confirm his claims that he’s fighting an existential battle against a nefarious league of violent radicals and entitled Beltway insiders. (Luckily for the opposition, Trump is doing a pretty good job of destroying his own electoral chances. But why help him by confirming his favorite political narrative?)
Our politics seems to be increasingly disconnected from any pragmatic end. Trump’s first year in office has featured virtually nothing in the way of major legislation; instead, he has focused on foreign-policy fist-shaking unmoored from any obvious long-term goal, and domestic symbolism like tut-tutting at national anthem protests. On the other side, we get antifa antics that force the left to waste time explaining that it’s not all about bullying professors and setting stuff on fire, and pointless procedural maneuvers like the showdown at the CFPB.
More and more often, I wonder if anyone has any actual goals they consider more important than demonstrating their contempt for the other half of the country. The hope of doing anything more concrete recedes every time someone decides to take another precious, pointless stand.
McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of “The Up Side of Down: Why Failing Well Is the Key to Success.”