INDIANAPOLIS – I thought the name rang a bell. Judge Kavanaugh wrote the decision in PHH Corp. v. CFPB, declaring the structure of the Consumer Financial Protection Bureau (CFPB) unconstitutional, a decision later reversed by the full D.C. Court of Appeals. Congress established the CFPB in the wake of the financial crisis to hold banks and other financial service providers accountable to American consumers, and it serves as both a rule-making body and enforcement agency. 

Now that it has returned over $12 billion to student loan borrowers, homeowners, and credit card holders in its short lifetime, it has a number of enemies. Judge Kavanaugh appears to be among them.

Following his nomination to the Supreme Court, I went back to read his decision. Kavanaugh is certainly no fan of the consumer watchdog agency, and his assertions about the agency should give us pause. Arguing that the CFPB’s power was “massive in scope,” Kavanaugh went on to argue that the director “possesses more unilateral authority – that is, authority to take action on one’s own, subject to no check – than…any other officer in any of the three branches of the U.S. Government, other than the President.” This is an ironic – and almost laughable – statement in the context of Kavanaugh’s exercise of judicial authority to overturn a CFPB enforcement action. 

Further, the director of the CFPB can be removed for inefficiency, neglect of duty, or malfeasance. And, after watching with gritted teeth as Vice President Mike Pence broke the tie and tipped the scales to overturn the CFPB’s arbitration rule – a rule that would have limited financial institutions’ ability to slip clauses into your contracts that take away your right to sue them in court – many of us can attest that there are checks on the agency’s power. 

But what’s even more alarming in the PHH decision is the hostility evidenced in Kavanaugh’s broad attack on independent agencies writ large. “The independent agencies collectively constitute, in effect, a headless fourth branch of the U.S. Government,” Kavanaugh wrote. “Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.” 

Independent agencies like the Securities and Exchange Commission, the Federal Reserve, and the National Labor Relations Board enjoy some measure of insulation from the White House for good reason. As Judge Pillard wrote in the en banc decision overturning Kavanaugh, “That independence shields the nation’s economy from manipulation or self-dealing by political incumbents and enables such agencies to pursue the general public interest in the nation’s longer-term economic stability and success, even where doing so might require action that is politically unpopular in the short term.”

Kavanaugh’s opinion in PHH is a blinking red light warning us that with Kavanaugh on the Supreme Court, there will be broader attacks on regulations, guidance, and the overall authority of independent agencies in the name of individual liberty. In other words, it will be open season on the protections that help level the playing field between working families and the companies that dump toxins in their soil, the employers that put the squeeze on their workers, and the financial institutions that use dizzying math and polished sales pitches to siphon away your hard-earned dollars.  

Sometimes, “individual liberty” seems to be code for “You’re on your own. Good luck!” It means a David-and-Goliath fight against sophisticated, well-financed corporations – except Goliath already got you to sign away your right to join an army or use a slingshot. If this is the kind of freedom Kavanaugh and his supporters envision, his appointment to the court could sound the death knell for a century’s worth of efforts to protect working families.  

Macey, PhD, is a policy analyst for the Indiana Institute for Working Families and Indiana Community Action Association.