Confirm Judge Kavanaugh for the betterment of the CFPB

Supreme Court nominee, Judge Brett Kavanaugh, is no fan of the Consumer Financial Protection Bureau (CFPB).

While serving as a Judge on the Court of Appeals for the District of Columbia Circuit, Kavanaugh was an outspoken critic of the CFPB’s centralization of power and overall dubious constitutionality. The Judge even went on so far to publicly rename the title of the CFPB Director to the “President of Consumer Finance” due to the unilateral power and lack of oversight and accountability that the director has. 

If appointed to the Supreme Court, Justice Kavanaugh could do much more than implement a simple title change.

{mosads}Since its formation after the financial crisis in 2008, the CFPB has had enormous, unilateral control over American businesses, consumers, and the overall U.S. economy. The Bureau’s sole director has the power to regulate just about any consumer product within the financial industry, including mortgages, credit cards, personal loans, and other consumer products. In just the first six years of its inception, the Bureau managed to create over $2.8 billion in regulatory costs from only 26 regulations; proving how costly and burdening the Bureau can be.

During his tenure with the D.C. Court of Appeals, Kavanaugh had a strong history of siding with free market policies over the overreaching government. One way–which Judge Kavanaugh demonstrated by stating in a previous district court ruling–is that cost-benefit analysis should be conducted in all agency rulemakings.  

This precedent would be an important implementation for all CFPB rulemaking. Consider the CFPB’s regulation of payday lenders. 12 million Americans rely on payday loans to get from paycheck to paycheck. Yet under former Obama-era director Richard Cordray, the CFPB finalized a rule that would have eliminated up to 75 percent of the industry without even bothering to consider the impact on millions of people who would no longer have access to credit. A simple cost-benefit analysis done prior to the CFPB Payday loan rule would have determined that the rule posed an enormous economic burden to both lenders and consumers alike.

But more than just the overburdening and costly regulations that the CFPB created, Kavanaugh has continued to question the constitutionality of the CFPB.

While on the bench in the DC Circuit, Judge Kavanaugh declared the CFPB to be “unconstitutionally structured” in a case involving a New Jersey mortgage service provider, PHH Corporation. While this decision was later overturned, it set an important notion that has made many policymakers further question the structure of the Bureau and its sole director.

In the PHH V CFPB opinion, Judge Kavanaugh went on to say that the Bureau’s structure, how its written, gives the CFPB Director “more unilateral authority than any other officer in any of the three branches of the U.S. Government, other than the President” and by “that combination of power that is massive in scope…triggers the important constitutional question at issue in this case.”

Since its creation, the CFPB has not only remained unaccountable and its Director almost unstoppable, the agency also continues to be a hostile work environment plagued with a history of discrimination allegations based on gender, age, race, and sexual orientation. The Bureau’s power, authority, and workplace must be reined in and changed. 

Judge Kavanaugh is a principled and honest defender of individual liberty and Constitutional separation of powers. If confirmed, Kavanaugh’s views of the CFPB will most certainly carry over with him to the US Supreme Court; while the future of the CFPB’s power and structure, remain uncertain.

Gregory T. Angelo is National President of the Log Cabin Republicans