A government agency answerable to no one

The CFPB nullifies Congress’s power to use the power of the purse to control bureaucracies because its funding — “determined by the director” — comes not from congressional appropriations but from the Federal Reserve. Untethered from all three branches of government, unlike anything created since 1789, the CFPB is uniquely sovereign: The president appoints the director for a five-year term — he can stay indefinitely, if no successor is confirmed — and the director can be removed, but not for policy reasons.

One CFPB request for $94 million in Federal Reserve funds was made on a single sheet of paper. Its 2012 budget estimated $130 million for — this is the full explanation — “other services.” So it has been hiring promiscuously and paying its hires lavishly: As of three months ago, approximately 60 percent of its then 958 employees were making more than $100,000 a year. Five percent were making $200,000 or more. (A Cabinet secretary makes $199,700.)

The CFPB’s mission is to prevent practices it is empowered to “declare” are “unfair, deceptive, or abusive.” Law is supposed to give people due notice of what is proscribed or prescribed, and developed law does so concerning “unfair” and “deceptive” practices. Not so, “abusive.”

The term, Cordray concedes, is “a little bit of a puzzle.” An “abusive” practice may not be unfair or deceptive yet nonetheless may be illegal. It is illegal, the law says, if it “interferes with” a consumer’s ability to “understand” a financial product, or takes “unreasonable” advantage of a consumer’s lack of understanding, or exploits “the inability of the consumer to protect” his or her interests regarding a financial product. This fog of indeterminate liabilities is causing some banks to exit the consumer mortgage business.