Drain the Swamp

For the past four years, the Left’s political strategy was to wage a war in courtrooms around the country to prevent the 45^th President from becoming the 47^th.  Political hitmen, holding titles like special counsel, state attorney-general, and district attorney, twisted laws to the point of absurdity to harm Donald Trump, who they considered a danger to their priorities. For these political hacks, the ends justified the means.  Fortunately, the voters last November disagreed.

Stretching the law, however, isn’t a new tactic. From New Deal bureaucrats using the Commerce Clause to regulate subsistence farmers, to Justice Department lawyers unlawfully applying an obstruction statute in January 6^th cases, to the FCC trying to regulate speech under the guise of “net neutrality,” people in positions of power find new ways to stretch the law for their own ends. Sometimes that is politics. Or self-aggrandizement. Or personal vindication and the need to win. Regardless of motive, every time government power is expanded, individual rights are diminished, liberty is threatened, and the potential for the law to be weaponized by bureaucrats grows alarmingly.

This is at the heart of Harvey Silverglate’s thesis in Three Felonies A Day: How the Feds Target the Innocent. When the regulatory state covers so much conduct that the average person inadvertently commits three felonies a day, bureaucrats can pick and choose who to target when it suits their needs. 

MSNBC commentator and professional Trump antagonist Andrew Weissmann is a perfect example of the consequences of stretching the law. Two decades ago, Weissmann was trying to make a name for himself at the Department of Justice and used a creative reading of the law to target the accounting firm Arthur Andersen. It got him the headlines he wanted. But it also put Andersen out of business, costing thousands of Americans their jobs. Three years later, the Supreme Court rejected Weissmann’s approach in a 9-0 decision. But by that time, the damage was done. Weissmann, on the other hand, rode the Arthur Andersen case to left-wing fame.

The Consumer Financial Protection Bureau maybe the most egregious warper of the law today.   The CFPB was born from an idea by Senator Elizabeth Warren (D-MA), approved largely by Democrats on party-line votes in the House and Senate, and signed into law by Barack Obama.  Its leadership is unaccountable to either the President or Congress. It determines its own budget each year and can write itself a check to pay for whatever it needs. These are design features, not flaws. A product of the DC Swamp, the CFPB has become a power unto itself.

The CFPB’s latest target? Strategic Financial Solutions, a company that connects people with lawyers to help negotiate down their credit-card debt. The CFPB has succeeded in killing the company by unilaterally interpreting the telemarketing statute to cover legal services involving face-to-face discussions. The company was raided, computers were unplugged, and a thousand employees were fired.  Nearly seventy-thousand customers, facing enormous debts, were left hanging out to dry without the lawyers they retained and desperately needed to represent them.  Despite the fact that there was no crime charged and no finding of fault by any court, the CFPB destroyed the business, and misinterpreted the law to do so.  To CFPB bureaucrats, the ends justify the means.

While this is just one case, bureaucrats running wild is emblematic of a government whose powers can be used arbitrarily against unpopular companies, politically incorrect organizations, or opposing politicians.  And the public’s frustration with an unaccountable bureaucracy was one of the reasons Donald Trump rode to victory in the November elections.

Until last year, there was little that could be done to rein in bureaucrats when their legal interpretations stretched the bounds of credulity.  Under a legal rule called the Chevron Doctrine, courts were required to defer to agency interpretations of laws passed by Congress, so long as they were “reasonable.”  Essentially, the courts had to give federal regulators the benefit of the doubt.

However, last year, the Supreme Court flatly overruled the Chevron Doctrine in a huge win for limited government in a case called Loper Bright.  Now judges must look at whether regulators are actually acting within the boundaries set by Congress. No longer can bureaucrats and political hitmen creatively “interpret” statutes without constraint.

Not only is Loper Bright a victory for the rule of law, it will reinvigorate the separation of powers that our Founders envisioned: Congress makes laws, the Executive Branch implements them as written, and the Judiciary is charged with keeping both sides honest.

Unfortunately, the Loper Bright decision won’t stop regulators from continuing to push the limits of their authority.  And when they do, the burden will fall those unfairly targeted to respond in court.  Sadly, the cost of litigation is often too high to fight. And even if victims win in court, the damage done by out-of-control regulators isn’t easily repaired. 

A federal court of appeals has the opportunity to apply Loper Bright to the CFPB in the case of Strategic Financial Solutions.  But that doesn’t help others who are victimized by Elizabeth Warren’s swamp creature.  

The CFPB already replicates the missions of other agencies.  The Federal Trade Commission deals with consumer protection. The Justice Department handles fraud. State attorneys-general have powers of their own to protect their constituents. Congress should snuff out Elizabeth Warren’s bad idea. Until then, however, the CFPB needs new leadership.

On January 20^th, Donald Trump will go to the Capitol, place his hand on the Bible, and be sworn in again as President of the United States – despite the best efforts of so many political hitmen. The voters have given him a mandate to reform government and “drain the Swamp.” He should begin with the duplication, waste, and abuse at the CFPB.

David Safavian is the chief operating officer of Unify.us and the former general counsel at CPAC. Andrew Langer is the President of the Institute for Liberty.