Mick Mulvaney, Defender of the Constitution

There’s no greater sin in politics than the flip-flop, and Mick Mulvaney has committed a doozy: a very public reversal of a heretofore firm position. Or has he? 

As a lawmaker in Congress, Rep. Mulvaney was well known as a steadfast critic of the Consumer Financial Protection Bureau. “I don’t like the fact that CFPB exists, I’ll be perfectly honest with you,” he said at the time. He even called the agency a “sad, sick joke” and co-sponsored legislation to eliminate it.

Yet today he is the acting director of the CFPB (as well as director of the Office of Management and Budget) and making full use of his new authority. He recently told his new employees that he “had no intention of shutting down the bureau.”  

Is this another politician “growing in office,” – perhaps becoming part of the swamp? 

The CFPB was created in the wake of the financial crisis of 2007 by President Obama and a Democratic Congress to protect consumers from “unfair, deceptive, and abusive” financial practices. The bureau is designed to operate outside of the public eye and is subject to virtually none of the traditional checks. It has an independent source of revenue, is largely insulated from both legislative and executive oversight, and has broad latitude and discretion to determine and enforce its own rulings based on vague legislative language.

At the time, Congressman Mulvaney took strong issue with this vast addition to the administrative state. He consistently disparaged the CFPB in remarks and debate as well as through legislation every chance he got. He saw CFPB as a “wonderful example of how a bureaucracy will function if it has no accountability to anyone.” 

Then last fall Mulvaney was appointed acting director of CFPB by President Trump, after the departure of former director Richard Cordray. (Cordray simultaneously tapped deputy director Leandra English for the role, sparking an ongoing legal controversy.) 

But while Rep. Mulvaney changed jobs, he has not changed his opinion — and that’s what matters. “I still have the same fundamental principled misgivings about the way this bureau is structured,” Director Mulvaney said recently. “I think it is wrong to have a completely unaccountable federal bureaucracy.” 

How is it not inconsistent for Mulvaney to head up that unaccountable bureaucracy? 

Mulvaney thinks the same yet acts differently because he went from being a representative in the legislative branch, which makes laws, to a director in the executive branch, which executes those laws. Put in terms of the separation of powers, he no longer holds legislative power but now has an obligation to faithfully execute the law. This difference is made possible — indeed, it is required — because his oath of office has not changed: to uphold the Constitution and “well and faithfully discharge the duties of the office on which I am about to enter.” 

Ideological zealots use powers to advance agendas; they are boundlessly aggressive in doing so and thus sometimes act in spite of the law. By contrast, the rule of law depends on a different approach, as the new sheriff at CFPB explains: 

I intend to exercise our statutory authority to enforce the laws of this nation. I intend to execute the statutory mandate of the bureau to protect consumers. But we will no longer go beyond that mandate. If Congress wants us to do more than it set forth in the Dodd-Frank Act, it can change the law.

Precisely. 

Last March, President Trump issued executive order 13781, which called for an overall government reorganization to:

improve the efficiency, effectiveness, and accountability of the executive branch by directing the Director of the Office of Management and Budget [OMB] to propose a plan to reorganize governmental functions and eliminate unnecessary agencies, components of agencies, and agency programs.

As OMB Director, Mick Mulvaney is at the forefront of this effort. At CFPB — perhaps the most unconstitutional agency in our vast regulatory state — Mulvaney gives us a model for deconstruction. Until Congress changes the underlying laws (hint, hint), the administration’s job is to follow the law as narrowly as possible — and go no further.  

In the administration budget request just released to Congress, we’ll see what Mulvaney’s government reorganization plan means for those underlying laws. We already have a clue: Obama’s CFPB Director Richard Cordray requested $217.1 million for the CFPB for his final quarter; Mulvaney just sent his first quarter request to the Federal Reserve for $00.00. 

In an essay entitled “Consistency in Politics,” Winston Churchill approvingly quotes a scathing Ralph Waldo Emerson: “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” Churchill goes on to explain that “the only way a man can remain consistent amid changing circumstances is to change with them while preserving the same dominating purpose.”

The dominating purpose of Mick Mulvaney — as it should be for any legislator, executive, or judge sworn under the Constitution — is to carry out the duties of his office under the constitutional rule of law with fidelity. No less, and no more.   

Matthew Spalding is Associate Vice President and Dean of Educational Programs for Hillsdale College in Washington, DC, where he is the Allan P. Kirby, Jr. Chair in Constitutional Studies.