The left’s infatuation with the direct election of senators and the “expansion of democracy” only lasted until Republicans managed to seize control of the Senate for more than two years, starting with the 97th Congress in 1981.
The enduring takeover of the senate by a Republican majority had leftists scrambling to find a legislative body more susceptible to their influence, that wasn’t subject to control by an ignorant electorate with a disturbing propensity to elect Republicans.
The problem was under the Constitution such a legislative body didn’t exist. So “progressives” did the next best thing by co-opting the judiciary. The result is much like the old system of appointing senators. In the bad old undemocratic days state legislators appointed senators who were sent to Washington to guard the interests of the individual state, which enhanced federalism.
Today activist judges have lifetime appointments with which to employ their new ability to legislate from the bench and guard the interests of leftist big government.
Which is what they do, completely immune to any objection from voters.
That’s why a court ruling The Washington Times called a “setback to Obama” was in reality a defeat for constitutional conservatives.
The ruling came from a court Obama has been diligently packing with leftists for his entire term, the Court of Appeals for the District of Columbia. The case involved the Consumer Financial Protection Bureau (CPFB), an intrusive government agency that was unconstitutional when passed by a Democratic-controlled Congress in 2010.
The bureau was unconstitutional because it violates separation of powers in two ways.
First it’s funding is completely outside the control of Congress, which under the Constitution has the power of the purse. Money to run the CFPB comes from fees generated by the U.S. Treasury and not from an appropriation voted on by elected representatives.
This means Congress can threaten to cut off funding for generals waging war on terrorists, but not bureaucrats waging war on capitalists.
Second, the director of the CFPB can only be removed by the president “for cause.”
This limits presidential discretion and gives the director a protection not enjoyed by any cabinet secretary, who serves at the pleasure of the president.
The case in question involved a $109 million fine “imposed by Director Richard Cordray [on mortgage lender PHH Corp.] after the agency accused the lender of arranging for kickbacks from insurers.”
PHH contended CFPB was unconstitutional and should be abolished.
Judge Brett Kavanaugh agreed with PHH. According to the Times, he ruled CFPB, “violates the Constitution’s separation of powers and was an example of a ‘gross departure from settled historical practice.’
“The court said the CFPB director had ‘massive' power, with more unilateral authority than any single officer in the three branches of the federal government, aside from the president…We therefore hold that the CFPB is unconstitutionally structured.’” This is why the Times felt the ruling was a “setback” since this court rarely goes against administration wishes.
The ruling would indeed have been a setback if the judge had followed the Supreme Court’s doctrine of “inseverability.” This doctrine states that if any portion of a law is unconstitutional, then the entire law is unconstitutional and rendered void — lock, stock and barrel. Judges can’t pick and choose between provisions of the law they like and those they dislike.
If Congress still thinks a problem exists that requires legislation, then it needs to approve a new law that will pass constitutional muster.
But that’s not what the judge did.
Instead Kavanaugh picked up his legislative pen and rewrote the law himself. The judge ordered that in the future the president can remove head of the CFPB “at will” — showing a strange deference to the president’s ability to say “you’re fired” to the director and no respect to Congress’ authority to write the director’s paycheck.
And the worst omen for conservatives is this usurpation of legislative authority comes from a man leftists’ complain “cut his teeth in the conservative political movement” but evidently is now wearing Teddy Roosevelt’s dentures.
Conservatives mindlessly applauding the judge’s ruling by calling it “a major step in the right direction” are evidently okay with judges rewriting the law as long as it’s conservative penmanship.
But that is the problem. Writing law is the job of Congress, not judges, regardless of their political philosophy. In spite of the baleful example set by Chief Justice Roberts in his Obamacare ruling, judges don’t serve as copy editors for Congress.
And that’s why this ruling is a defeat. If a so-called conservative judge confidently rewrites legislation — a function completely outside the scope of the Judicial Branch — there is little hope for a return to the separation of powers as originally intended by the Founders.
Michael R. Shannon is a commentator, researcher for the League of American Voters, and an award-winning political and advertising consultant with nationwide and international experience. He is author of "Conservative Christian’s Guidebook for Living in Secular Times (Now with added humor!)." Read more of Michael Shannon's reports — Go Here Now.
© 2025 Newsmax. All rights reserved.