The Left’s long war against separation of powers
The Democratic Party and its media allies continued their campaign to delegitimize the Supreme Court last week, this time attacking Justice Clarence Thomas for the crime of giving love and support to his impoverished great nephew decades ago.
Although ethics rules do not require judges to disclose when third parties pay tuition for distant relatives, Democrats want people to believe it is somehow scandalous that Justice Thomas’s personal friend Harlan Crow funded a scholarship for Thomas’s relation at the same school Crow had attended.
Crow had no business before the Supreme Court at the time the scholarship was funded, nor has he had any since. But Democrats still want people to believe the incident requires the creation of a separate independent ethics body empowered to investigate and pass judgment on ethics complaints filed against Supreme Court justices.
When the Supreme Court was firmly in liberal hands, creating new rights to abortion and same-sex marriage, no one ever scrutinized the personal lives of already-confirmed justices for possible ethical lapses. But now that Roe v. Wade has been overturned, suddenly decades-old transactions and tuition payments are threats to the republic.
In a larger and more historical sense, however, there is nothing new about Democrats’ push to disrupt the founders’ careful balancing of legislative, executive, and judicial powers by creating new supposedly independent bodies that would dispassionately and objectively rule everyone. They are not bothered by the fact that the Constitution does not provide for a fourth branch of government.
From the Federal Trade Commission of 1914 to the Federal Communications Commission of 1934 to the Federal Election Commission of 1974 to the Consumer Financial Protection Bureau of 2010, Democrats have long been dedicated to taking power away from the three politically accountable branches of government and instead transferring it to elite, credentialed, and politically unaccountable experts.
When Sen. Elizabeth Warren (D-MA) pushed for the creation of CFPB, she specifically sought for the agency to have funding independent of Congress, precisely so that the bureaucrats at the CFPB would be unaccountable to Congress. This anti-democratic structure guarantees that once activists are seated at CFPB, they essentially have unfettered power to interfere with everyone’s business. In recent years, the CFPB has tried to ban car dealers from giving loan discounts to people with good credit because bureaucrats at the CFPB decided that would be racist. They have also sued mortgage lenders for making public statements about the relative safety of different neighborhoods, again alleging racism.
How does any of this protect consumers? Not at all. In fact, the actions of these “fourth branch” agencies almost always harm consumers in pursuit of ideological goals.
Although the Constitution does not contain the words “separation of powers,” its very structure evinces James Madison’s belief that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many … may justly be pronounced the very definition of tyranny.”
For too long, the federal courts have tolerated the creation and proliferation of unaccountable independent agency power. It is past time for the courts to strike down these power-sharing schemes — to return executive power to the executive and legislative power to the legislature.