David R. Henderson  

The Highs and Low of Today's Wall Street Journal

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The November 29 issue of the Journal has some great editorials and one bad one.

The Wall Street Journal's 3 editorial pages are 3 of my favorite pages of any newspaper.

I want to highlight one excellent, one very good, and one misleading editorial.

The excellent: Holman W. Jenkins, Jr., "Seven Days in November."

Jenkins, one of my favorite Journal columnists, uses the title of his piece to remind readers of the famous coup attempt in the fictional movie "Seven Days in May."

Jenkins writes:

In a Putinesque move, Ms. Warren removed herself from consideration as the agency's [Consumer Financial Protection Bureau] head and encouraged President Obama to appoint one of her protégés, Richard Cordray.

Flash forward to a new and hostile administration of the opposite party. Mr. Cordray, with one year left on his statutory term, announces his resignation. He also, citing a passage in the agency's founding statute, asserts his right to name his own successor, which he does in the person of Leandra English, another Warren loyalist.

Ms. English immediately launches a lawsuit to nullify President Trump's presumed power, under a separate law, the Vacancies Act, to name an acting director to replace Mr. Cordray. Now if Ms. English can prevail in court and Senate Democrats can block a new appointee after Mr. Cordray's term expires next year, presumably Ms. English can remain acting director as long as she wants, with power to name her own successor.

Voilà, an agency of the federal government becomes the dynastic possession of Ms. Warren and her designated cronies. Vladimir would be impressed.


Pretty creepy. Jenkins goes on to point out how Cordray went beyond his statutory powers to indirectly regulate auto dealers.

The very good: Jim Harper, "Is It Unreasonable to Expect Cellphone Privacy?"

Harper, formerly at the Cato Institute and now vice president of the Competitive Enterprise Institute, often writes very good pieces on privacy. This piece is no exception.

An excerpt from near the end of the piece:

Gauzy appeals to privacy expectations only complicate what ought to be straightforward: Searching is searching; seizing is seizing.

Cellphone privacy policies give consumers many rights to control their telecommunications data. Essentially these are property rights, which on their own should require that the government obtain a warrant before searching and seizing digital records. In Carpenter the court may find that such contracts help create an "expectation of privacy." Or it may find that there isn't a reasonable privacy expectation. Seizing data and examining its contents would become neither seizure nor search, giving government agents a free hand.


The misleading: "Fourth Amendment Showdown."

To their credit, the editors ran the Harper piece. I say to their credit, because their own unsigned editorial "Fourth Amendment Showdown" takes the opposite position. Unfortunately, the editorial doesn't even mention, let alone contend with, the Harper piece on the opposite page.

Why is it misleading? The editors emphasize the heinous crimes (a string of armed robberies) that the defendant, Timothy Carpenter, engaged in. In doing so, they're setting it up so that the reader will not be sympathetic to the guy. I'm not. And then at the end of the editorial they write:

It's also important to know that Congress created the legal framework for getting this data. Police must present "specific and articulable facts" showing that the records are "relevant and material to an ongoing criminal investigation." A judge must sign off. If more protections are needed, Congress can add them. But where is the process misused today? If the threat of abuse is as large as privacy activists claim, they ought to be able to find a better champion than Timothy Carpenter.

But of course Carpenter is not a good choice for a champion. Imagine that the police access your cell phone records, without a warrant, to figure out your location and then find nothing. You won't be charged with anything and so your case will never come up before the Supreme Court: you won't be the "champion."

Whose case will come up? Someone who's guilty as sin. The records were used to find Carpenter's locations--they corresponded with where the robberies were--and then and only then did the police get a warrant. His only way to fight, once found guilty and after exhausting other appeals--is to make a Fourth Amendment unreasonable search and seizure claim. So it's often--and actually, almost always--going to be the case that you will find the defendant not a very attractive champion.

The Journal editors know all this.


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CATEGORIES: Media Watch




COMMENTS (3 to date)
Steve Winkler writes:

Great point about champions not being moral role models, etc. look no further than Miranda v. Arizona. https://en.m.wikipedia.org/wiki/Miranda_v._Arizona#Arrest_and_conviction

Michael Byrnes writes:

I think the CFPB editorial seems to conflate a number of different issues while also being wrong, in a kind of scaremongery way.

Obviously, this issue seems to be well on the way to being resolved in favor of the administration position. (As I understand it, Enlish's claim is still before the court, but the decision to decline to issue an injunction to bar Mulvaney from taking over immediately suggests English is unlikely to prevail on the merits.)

That issue aside, I find that editorial to be full of nonsense.

In a Putinesque move, Ms. Warren removed herself from consideration as the agency's [Consumer Financial Protection Bureau] head and encouraged President Obama to appoint one of her protégés, Richard Cordray.

A Putinesque move? Really? The discussion at the time was that there was not a snowball's chance of Warren getting through Senate confirmation, whereas Cordray was nominated by the President and confirmed by the Senate with 66 votes, in accordance with the constitution. What exactly is "Putinesque" about that? What would the "non-Putinesque" move have been?

Flash forward to a new and hostile administration of the opposite party. Mr. Cordray, with one year left on his statutory term, announces his resignation. He also, citing a passage in the agency's founding statute, asserts his right to name his own successor, which he does in the person of Leandra English, another Warren loyalist.

I think the important phrase here is "citing a passage in the agency's founding statute", everything else is inflammatory nonsense. On this specific matter Cordray and English acted within their interpretation of the law, which is now under review by the courts. Isn't that how things are supposed to work? What does the matter of English being a Warren loyalist have to do with anything related to the issue in dispute here?

Ms. English immediately launches a lawsuit to nullify President Trump's presumed power, under a separate law, the Vacancies Act, to name an acting director to replace Mr. Cordray.

This seems to take as a matter of fact that the Trump administration's interpretation of the Federal Vacancies Act is correct, without offering any argument in support of that interpretation. (Well, beynond the unstated premise that the CFPB is bad, and Liz Warren is bad, and thus having people called "proteges of Liz Warren" running the CFPB is bad.)

The author also seems to leave open the possibility that English might prevail in the courts despite having the wrong interpretation of the law. (If her interpretation of the law was correct, then she should prevail in the courts, no?)

Now if Ms. English can prevail in court and Senate Democrats can block a new appointee after Mr. Cordray's term expires next year, presumably Ms. English can remain acting director as long as she wants, with power to name her own successor.

Ms English, should she prevail in court, would be the acting director of the CFPB. (If she loses, as seems likely, then Mick Mulvaney is the acting director of the CFPB.)

As acting director, she isn't entitled to fill the rest of Cordray's term - rather, she is entitled to fill the role in an interim basis until a new director is confirmed by the Senate. There is nothing stopping Trump from appointing a new director and no way Senate Democrats could block the appointment (which would require 51 votes).

If Trump waited until 2019 to appoint a director and the Democrats won 51 Senate seats in the 2018 midterms and Trump's nominee was unable to win over any Democratic support, then this author's, I guess, nightmare scenario could come true. But a lot has to happen to get there, including Trump abdicating his own constitutional authority to appoint a director.

I think it is a bigger concern that Trump might ultimately choose not to appoint a director at all, instead opting to use the Vacancies Act to appoint a series of interim directors. The CFPB was intended to be an independent agency (something like the Fed) rather than one under the President's direct authority. Like it or not, that is the law. If Trump replaces Cordray with a series of interim directors who also report directly to him in other capacities (as Mulvaney does), then he undercuts the law.

An interim director is understandable following a resignation. But I would like to see Trump nominate someone for Senate confirmation, whether it be Mulavaney or someone else. If he's concerned about getting blocked in the Senate, then he should do that sooner rather than later.

Phil writes:

But the records the police obtained where not Carpenter's records; they were the phone company's records. The law is well established (Smith v. Maryland) that when you share your information with a third party -- like a bank when you write a check, or the phone company when you dial a phone -- you can no longer say it is your private information. Exceptions, of course, exist under specific laws protecting school records and health records, but not phone records.

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