SLOAN: Who’s regulating the regulators?
One Monday last month in Zimbabwe, long-time dictator Robert Mugabe woke up to be told, much to his chagrin, that he no longer dictated. It was in fact quite unclear who did, a coup having taken place over the weekend, spurred by revelations of political maneuvering by Mugabe to ensure his wife would inherit the reins of power upon his death. After the drama played out a few days, featuring the usual farcical posturing, the world’s longest-serving head of state was out, popular sentiment and his opponents armoured vehicles having prevailed over Mugabe’s bluster and indignation. A momentous, and rather welcome, event for Zimbabwe, to be sure; but nonetheless pretty standard stuff for a nation whose grasp of the rule of law – as in most of the world – is tenuous and opportunistic at best.
A week or so later, in Washington D.C., the Consumer Financial Protection Bureau found itself in a similar state of chaos, its denizens waking up one Monday morning to find they, too, had little idea who was in charge of their little fiefdom. Their erstwhile director, Richard Cordray, anointed to his post in 2011 by then-President Obama and someone named Elizabeth Warren, had attempted his own bit of political maneuvering, resigning a few days earlier in an attempt to pass the reins off to his own hand-picked successor, Leandra English, before his 5-year diktat expired. President Trump, assuming that as chief executive he had some level of authority over executive departments, appointed a caretaker, Mick Mulvaney, instead – much to the chagrin of Cordray and English who decided that, no, English in fact was entitled to the position by something akin to hereditary right.
So for a couple of days, Washington was subjected to the amusing sideshow of a major federal agency doing its level best to emulate the machinations of a third-world power struggle, complete with two competing directors carrying on as if each were in charge.
What makes the political temper tantrum which erupted at the CFPB interesting is how symptomatic the episode if of both the specific distortions of that particular agency, and those of the bureaucratic regulatory state in general. It was not especially surprising that this occurred at the CFPB. As the D.C. Court of Appeals put it when ruling its structure unconstitutional, “when measured in terms of unilateral power, the Director of the CFPB is the single most powerful official in the entire US Government, other than the president. Indeed, within his jurisdiction, the Director of the CFPB can be considered even more powerful than the President.” Well.
The CFPB is somewhat unique, having been purposely established as something of a government unto itself. The remaining federal agencies just act as though they are.
The gestation of the administrative state and its accumulation of power is not new. Western Coloradans, for instance, have been living for decades under the thumb of the various federal agencies which oligopolistically exert control over the economic life of much of the western part of the nation.
Nor is it a phenomenon exclusive to the federal government. Virtually every business owner in Colorado, for instance, has, at one time or another, come into painful contact with some part of the state’s agglomeration of agency-established rules and regulations, thereafter left with no recourse but to submit to the tender mercies of bureaucracies which exercise near despotic authority.
The steady accumulation of responsibility and power assumed by these bodies over the decades, in response to crisis-fueled whims of the day, tests the elasticity of governmental checks and balances, and feeds on itself to the point where we now have far more to fear from the agency regulator – especially if we happen to own a small business – than from what the agency allegedly exists to protect us from.
Small victories are here and there accomplished. The Court’s rejection of Ms. English’s ridiculous contention in the CFPB case assures us that there at least remains some official recognition of the separation of powers. Senator Cory Gardner, aided by Rep. Doug Lamborn, is taking positive steps to restrain the bureaucratic excesses of the Veterans Administration, another unwieldly federal monolith. And members of both parties in the state House appear to be getting closer each year to a compromise bill which will at least curb the tendentiously punitive approach that state regulators have adopted towards business owners over the years. And yet, dealing conclusively with deeply entrenched ideologies within the administrative state will prove difficult hurdles.
So where to go from here? It may be time to dust off the old idea of sunset laws for regulatory agencies, at all levels. After all, if the sun can finally, mercifully, set on even as entrenched a rogue as Robert Mugabe, then surly it can for such rogues as the CFPB, can it not?

