The federal Department of Education and the Consumer Financial Protection Bureau appear to be next on the chopping block, now that President Trump and Elon Musk have all but scuppered the United States Agency for International Development. It's all part of the evolving drive by Mr. Musk & Co. "to shrink federal agencies and slash the size of the government workforce" via "executive actions," the Wall Street Journal reports.
These columns are all for scaling back the Beltway bureaucracy and curbing the power of the federal Leviathan. Rethinking or closing the federal Education Department and the CFPB are a logical early step toward those goals. Yet as with Usaid, these two agencies — one a cabinet-level department — are creatures of Congress. So it's not quite so simple a matter of shuttering them by executive fiat. Legislation, pesky as it often is, would seem to be required.
This is especially true of the Education Department, which White House aides are considering closing down via executive order, the Journal reports. The presidential decree "would shut down all functions of the agency that aren't written explicitly into statute or move certain functions to other departments," followed by "a legislative proposal to abolish the department." As with Usaid, though, such haste puts the constitutional cart before the horse.
Congress, after all, created the educational agency in 1979 when it passed the Department of Education Organization Act, cobbling together several offices from different federal agencies. It's been a bête noire of the right since then. Republicans going back to Reagan have pledged to shut it down. The GOP platform in 1996 vowed to close it. Mr. Trump's first education secretary, Betsy DeVos, averred that her own department "should not exist."
The GOP's inability to do so reflects a key aspect of the Framers' constitutional scheme. It is hard, in part because of the checks and balances and the separation of powers in the Constitution, to get things done. That's especially true absent a bipartisan consensus. While this might prove frustrating to activists in both parties, this feature of constitutional government has helped preserve the contours of American democracy, due process, the rule of law.
On the other side of the coin, arguments are afoot that the CFPB, a creature of Senator Warren, is a more novel entity within the federal scheme and therefore could be more vulnerable to executive action. That's the argument put forward by a former Harvard Law professor, Hal Scott. In a Wall Street Journal op-ed, he contends that "the bureau is operating illegally." He traces this to its irregular funding scheme — via the earnings of the Federal Reserve.
With the Fed currently losing money, though, in a higher interest rate environment, Mr. Scott explains, the Fed has failed to produce "earnings" since September 2022. The losses, indeed, have run to some $220 billion. Where, then, are the Fed earnings by which the CFPB is funded? Since the consumer finance bureau "is operating illegally, the president can close it immediately by executive order," Mr. Scott concludes.
Mr. Scott distinguishes between "eliminating the CFPB," as Mr. Musk has backed, as opposed to "closing it." While erasing it would be better, in Mr. Scott's view, he concedes "elimination would require legislation." That's a refreshing contrast with the nebulous reply of Speaker Johnson — whom one might expect to be a tiger in the defense of legislative prerogatives — when he was asked if Mr. Trump can shut down agencies: "I don't have all the answers."
The Manhattan Institute's Brian Riedl is warning that under the Musk-Trump array of executive actions there "is an erosion of our democracy." The rhetoric on the left is far more hyperbolic. At least one voice on Capitol Hill is vowing that Congress will act in defense of the Constitution, if needed. "We've got oversight," avers Senator Tillis of North Carolina. He vows that if Mr. Trump "goes too far, I'll be the first person to step up."
Comments
Post a Comment