Are we a constitutional republic unless it’s inconvenient? This is a question the Supreme Court faces. Let us hope its answer is no.
This term, the court has seen multiple important cases challenging regulators’ use of powers, processes and funding structures that allegedly exceed constitutional limitations. One such case deals with whether regulators, in this instance the former superintendent of New York state’s financial regulator, can threaten firms for doing business with advocacy groups they disagree with.
This case cuts to the heart of the checks, balances and limitations on government action meant to protect American liberty.
To be sure, the superintendent’s lawyers argue that the conduct is, in fact, constitutional. If this is the case, the court should say so, as it did just this week by upholding the Consumer Financial Protection Bureau’s controversial funding structure. However, defenders of both challenged regulators have also pushed heavily on arguments that if the court finds against the government, it will hamper government action and may even result in chaos.
The superintendent allegedly used her power over banks and insurance companies to target groups whose message she disagreed with. This included public warnings that doing business with these groups could harm a firm’s reputation, something firms have an obligation to monitor and the regulator claims discretion to judge.
Supporters argue that if this were found to violate the First Amendment, it would risk making the financial system less safe and chill the ability of prosecutors and regulators to act.
These arguments boil down to the idea that fully enforcing the Constitution would make the government’s life too hard. That if regulators’ and prosecutors’ actions were subject to First Amendment scrutiny — and if bank and insurance regulators have their broad assertions of discretion questioned — they wouldn’t be able to function like they currently do, risking financial instability.
The court must not be persuaded by these arguments.
First, it’s highly unlikely these dire predictions will come to pass. As Professor Julie Andersen Hill’s work shows, it’s doubtful that regulators’ ability to pressure banks and insurance companies based on the reputation of their customers makes those firms meaningfully safer. And if regulators and prosecutors are unwilling to act while subject to First Amendment limitations, the action probably wasn’t justified or wasn’t that important — or we need new prosecutors.
Second, the Constitution wasn’t designed to make everything easy for the government. It places strictures on how the government operates. It is true that without these restrictions, the government might be better at achieving certain desirable ends. After all, forcing everyone to wear a GPS tracker would make solving and preventing crimes much easier. But that’s not the deal we made as Americans.
The government, including legislators, must figure out how to address problems within the limits of the Constitution. The court deferring to convenience would negate this obligation and risk us increasingly exchanging liberty for not even security, but mere bureaucratic ease.
Finally, the court should reinforce its responsibility to enforce the Constitution as it is. If the government exceeds that framework, even for a noble purpose, the answer is not to legitimize bending the rules; it’s to return to an approach that works within the Constitution or allow the people to settle the question through an amendment.
This is the core of self-government. The more the court deprives the people of that obligation, the more our ability to meaningfully self-govern will atrophy.
This would pose a far greater threat to the interests and liberty of the American people than any mere regulatory matter. The Constitution is far from perfect, but it’s vastly superior to a rule of government convenience.
Brian Knight is the director of Innovation and Governance and a senior research fellow with the Mercatus Center at George Mason University.
