Politics and Constitutionality

By Michael Dorf

For this final post of 2017, I just want to direct readers to my latest essay on Verdict, where I argue that insofar as the new tax law punishes blue states and their residents, it is unconstitutional--even as I acknowledge that it would be very difficult to prove the claim in court. Here I simply want to add that I am aware of a potential critique, according to which it is never illicit for Congress to favor residents of the states with a majority of representatives; that's just politics, the critique goes; if you want more benefits for your state, win more elections.

I would say three things in response. First, there's a difference between members of a legislature looking out for their own constituents--which we expect--and looking to punish voters in jurisdictions that voted for the minority party--which we have not hitherto expected. Second, as I said, I realize that this distinction in principle will be very difficult to apply in practice, which is why I expect any such claim to fail in court. And third, as I say in the column, failure of an objection in the courts does not mean the objection is invalid; it just means that there are institutional limits to where the claim can be pursued.

Happy new year and thanks to all the DoL readers.

The Tax Bill Is a Huge Win for Democrats

by Neil H. Buchanan

Surprising everyone (including themselves), Congressional Republicans joined hands earlier this month and said, "Look at us, we're finally doing something!"  They then passed a blatantly regressive and extremely unpopular tax bill and started celebrating.  Donald Trump signed it, and here we are.

It did not matter to Republicans:

-- that no one (other than Republican donors and ideologues) thought that changing the tax system was even a medium priority,

-- that the bill was written for (and in some cases was literally written by the lobbyists for) the largest corporations and wealthy people, 

-- that the bill received the worst poll ratings of any major piece of legislation in history,

-- that the bill made the tax system even more complicated than it already was,

-- that the process of creating the bill was chaotic, compressed, and entirely partisan,

-- that the Republicans went out of their way to take a whack at taxpayers in blue states, hypocritically violating the Constitution by deliberately setting up discriminatory treatment among the states (and all but dooming many of the sixteen blue-state Republicans in the House who lamely voted against the bill), or

-- that the Republicans lied nonstop about the magical growth effects of tax cuts.

With this mess now the law of the land, and the process of exposing its numerous hidden loopholes only beginning to flower, the next battle is over people's perceptions of the new law.  Republicans have convinced themselves that they can turn this around, that people will come to love this exercise in stroke-the-rich lawmaking.  They are fooling themselves.

District Court Tries Too Hard To Duck Emoluments Clause Case

by Michael Dorf

Last week Federal District Judge George B. Daniels of the SDNY dismissed the lawsuit pending in his court against President Trump alleging violations of the (foreign and domestic) Emoluments Clauses on multiple procedural grounds. In under 30 double-spaced pages, Judge Daniels concluded that: the private plaintiffs who run businesses that compete with Trump's businesses lack Article III standing because their injuries are too speculative; they also lack Article III standing because their claims are not redressable; they lack prudential standing because their injuries do not fall within the zone of interest protected by the Emoluments Clauses; the institutional plaintiff CREW (Citizens for Responsibility and Ethics in Washington) lacks Article III standing; the case presents a non-justiciable political question; and the lawsuit is not ripe.

Wow! That's a lot of flaws. How could the plaintiffs' cast of all-star lawyers have filed such a weak case?

The short answer is they didn't. I argued back in January that the case for Article III standing by CREW under existing Supreme Court and especially Second Circuit precedent is pretty strong. I argued in April that the addition of the competitor plaintiffs should have made the argument for standing "bulletproof." Was I wrong?

So thought some skeptics, who took to Twitter last week and retweeted the tweet by Take Care promoting my April essay, thereby implicitly criticizing the "bulletproof" characterization. Fair enough, I suppose, but I wrote in both my January blog post and the April Take Care essay that I thought it quite possible that the Supreme Court would overrule or narrow out of existence the key decision upon which CREW relied for standing. After all, the majority opinion in that case was authored by Justice Brennan, and given the ideologically rightward drift of the SCOTUS over the last 35 years, there was and remains a worrying possibility of a de facto or de jure overruling should the case end up before the justices.

What I did not expect was that a federal district judge would simply fail to apply the law that currently binds him. Yet that's more or less what Judge Daniels did. His opinion rejecting jurisdiction may ultimately be upheld by higher courts that either fail to follow or expressly overrule existing precedent.

So in a sense the skeptics are right, but only because a bulletproof vest provides no protection against a dirty bomb.

My SCOTUS 12 Days of Christmas Wish List

By Eric Segall

This term the Supreme Court is tackling an array of important constitutional questions, including how states organize their voting districts, the relationship between sexual orientation discrimination and freedom of speech and religion, and whether states may charge state employees mandatory fees for the work public sector unions do on their behalf. I certainly have a rooting interest in all three cases: please do something about partisan redistricting; don't cave to the discrimination is really free speech/freedom of religion trope; and, of course,s tates can charge fees to public sector union workers without first amendment restraint. However, my wish list is less substantive, but still important. So here goes:

How Will Democrats Respond to the Republicans' Tax Travesty?

by Neil H. Buchanan

Possibly the most infuriating aspect of the tax circus that we have witnessed over the last few months is the Republicans' insistence that they are doing something difficult.  This is a "big win," say the Republicans, and the supposedly skeptical press prints headlines like "McConnell Gives Trump Gift to Celebrate Tax Win" and "U.S. House to Vote Again on Tax Bill, Trump on Verge of Win."

I suppose the press justifies this by saying that the Republicans view it as a win, and the Democrats voted against it, making it accurate to score this as a W for the Republicans.  The problem is that this framing continues to ignore the fact that the Republicans can do whatever the hell they want to do.  They temporarily have the numbers to pass anything they want in both houses of Congress, limited only by whatever rules they decide to continue to impose on themselves.

In other words, even if this bill is a victory for Republicans in some sense, it is hardly something that should be hailed as a mighty accomplishment in the face of tall odds.  This is merely Republicans doing what Republicans have always wanted to do (after beating each other up for a few months).  They have done nothing that requires skill, unless not tripping over their own feet counts as a skill.

Is the Tax Bill a New Low in American Politics?

by Neil H. Buchanan

The Republicans have now passed their stroke-the-rich tax bill, and we might (or might not, as I will explain tomorrow) be dealing with the consequences of this mess for years.  It continues to be ridiculous to call this a "fundamental tax overhaul" or "sweeping reform," as the major media outlets insist on doing ad nauseam, but the final bill did surprise me by being relatively large.

I say "relatively" because George W. Bush's first big tax cut bill in 2001 was scored as a $1.35 trillion revenue loser over the standard ten-year budget window, whereas this one is somewhere between $1 and $1.5 trillion.  With national income having almost doubled from 2001 to 2017, the new tax cut is much smaller in any meaningful sense than Bush's bill.

Indeed, The Washington Post's fact-checker ran the numbers and found that the current bill is not only not especially large, but it is actually smaller than two tax cuts passed during Barack Obama's presidency.  (Shhh ...  Don't tell Trump!)

On the other hand, Ryan Grim at The Intercept offers a provocative claim that this is the largest tax increase by far in U.S. history.  His argument is that the Republicans actually cut taxes on their favored patrons (corporations and rich people) by $6 trillion and then made up $4.5 trillion of that amount by increasing regular people's taxes, so that the bill, "properly described, is two things: the largest tax cut — and also the biggest tax increase — in American history."

In other words, as unprincipled and ridiculously ad hoc as this bill is, it certainly represents something significant in that it is a hugely regressive piece of legislation.  Whatever its net cost might be, it dramatically redistributes income upward.

And that is before we even take into account the assault on Medicare, Social Security, Medicaid, and "welfare" that the Republicans have promised for next year (partly justified by a supposed deficit problem that they deliberately intensified with this tax bill).

My expectation that the Republicans would fail to get themselves organized enough even to accomplish their ill-conceived ends turned out (quite unfortunately) not to be true.  Whereas I expected them to bicker among themselves until eventually settling on some minimalist rump bill that would cut taxes in a blunt way (reducing rates, for example), they actually got nearly every Republican in the House along with all 52 senators to vote for this ambitiously antisocial tax bill.

As much as I would like to diminish the significance of something that Trump will call "huge," what they did was certainly more consequential than I thought it would be.

I believed that some Republicans would balk at various pieces of the plan as it was hashed out because I continued to believe that there would be some lingering levels of substantive and procedural decency on the Republicans' part.  I was wrong.  They all exposed their utter lack of shame, arguably bringing us to a new low in recent American political history.

But is this truly the lowest point that we have reached in recent decades?  I will consider a few competing moments before explaining why this tax debacle is plausibly worse than any of them.

Why Not "Just Say No" to Sexual Harassers?

by Sherry F. Colb

My column for this week examines the case of Carpenter v. United States, which presents some important Fourth Amendment privacy issues. In particular, I consider Justice Gorsuch's peculiar reluctance at oral argument to utter the word "privacy" in connection with the Fourth Amendment right against unreasonable searches, a reluctance that I suggest has substantive implications. In this post, I want to discuss a different sort of privacy invasion and how an experience of my own might bear on the question of why people do not always contemporaneously protest this type of invasion.

When police want to search a person's car (or suitcase or house), they frequently ask for their target's consent. This is at least in part because an officer's desire to search does not always coincide with probable cause, a warrant, or whatever else might be required for a lawful search to take place. If a suspect gives consent to the police, however, then that consent renders the search that follows legal even in the absence of any ex ante factual basis for suspecting the target of wrongdoing. Consent trumps a lack of probable cause.

Susan Estrich Plays the Feminist Card, Hopefully for the Last Time

by Michael Dorf

Yesterday, Ninth Circuit Judge Alex Kozinski retired effective immediately in response to the growing number of accusations of sexual harassment and misconduct by his former law clerks and others. Having yesterday described Judge Kozinski as a "bosshole" who nevertheless was genuinely fond of the law clerks he gratuitously overworked, I want to praise him today for having made the right call. Given his statement that he "cannot be an effective judge" in the face of the allegations, I assume that Judge Kozinski means to retire completely, rather than to take senior status.

Whether Judge Kozinski's retirement fully ends the controversy over his conduct remains to be seen. In the meantime, I want to dwell a little bit on the role that his lawyer, Susan Estrich, briefly played in the saga. Late last week, Estrich issued the following statement on behalf of Judge Kozinski: "Many of the things that are being said about me are simply not true, but I deeply regret that my unusual sense of humor caused offense or made anyone uncomfortable. I have always treated my male and female law clerks the same."

That statement was inadequate on its face for at least three reasons. First, "just kidding" has never been a good defense for touching a woman's breasts without her consent, not in the mid-1980s or last year, when, according to the WaPo story cited above, Kozinski allegedly did those things. Second, a fair number of the allegations come from people who were never Kozinski's law clerks. And third, it should be obvious to anyone with even the most passing familiarity with the law of sexual harassment--and both Kozinski and Estrich have more than a passing familiarity--that treating male and female supervisees exactly the same can amount to the creation of a hostile environment for the women but not the men (or, in rarer cases, vice-versa), depending on what the "same" treatment is.  Images of naked women and sexual talk are pretty much a textbook example.

Kozinski thus seemed to be left with the Donald Trump/Roy Moore defense that all of the stories were made up for no apparent reason. Or at best with the Al Franken defense that some of the stories were made up for no apparent reason. Except that Estrich provided a reason. And it's a doozy.

Judges, Bossholes, and Coaches

by Michael Dorf

[*** Update: Judge Kozinski has apparently decided to retire (by which he appears to mean retire entirely rather than take senior status). Although my piece below discusses Judge Kozinski, its main points are more general and thus, I hope, continue to be relevant to our national conversation about sexual harassment, sexual assault, and, as is the focus here, workplace bullying regardless of its gendered dimensions. Now back to what I wrote before learning of Judge Kozinski's retirement.]

I do not have a #metoo story to relate of sexual harassment by Judge Alex Kozinski, at least nothing in which I figured as a victim of any sort of abuse. But I do have a story . . . or rather, I know some stories. In any event, I'll start at the beginning.

Con Law Exam 2017: Pardon Power, Trump, Braavos, and More

by Michael Dorf

Per my usual practice, I have set forth below the exam I recently gave to my first-year constitutional law students. It's got two questions with two parts each and was an 8-hour open-book take-home with a 2,500-word limit. Feel free to submit answers in the comments. I'm busy grading the students' exams, so I won't comment further on answers submitted here.

Question 1

On January 10, 2018, Special Counsel Robert Mueller’s investigation of alleged Russian interference in the 2016 election and related matters leads to a grand jury indictment of Donald Trump, Jr. In response, President Trump issues a full pardon to his eldest son. Sustained criticism ensues, with critics in the press and elsewhere complaining that the president is abusing his power by favoring a close family member. On January 13, Trump tweets:

Making a Murderer Postscript: The Perversion of Henry Friendly's Innocence Concern

by Michael Dorf

In 1970, the University of Chicago Law Review published an article titled Is Innocence Irrelevant? Collateral Attack on Criminal Judgments by federal appeals court judge Henry Friendly. Judge Friendly was a judicial conservative in the small-c sense, non-ideological, committed to deciding cases narrowly, and an expert legal craftsman. As a young lawyer, Chief Justice John Roberts clerked for Friendly during Friendly's later years, and Roberts is fond of quoting (though not always abiding by) Friendly's aphorism that if it is not necessary to decide an issue to decide a case it is necessary not to decide the issue.

Is Innocence Irrelevant? was somewhat uncharacteristic of Friendly in that it offered a controversial policy proposal on a politically contentious issue. Writing in a period of transition from the Warren Court to the Burger Court, Friendly lamented that federal habeas corpus petitions by prisoners sentenced under state law were too often succeeding based on procedural irregularities that had no connection to innocence. To use the more nakedly political argot, federal courts were letting guilty state prisoners off on technicalities. Quoting Justice Hugo Black's dissent in a then-recently-decided case, Judge Friendly offered what he regarded--and what many still regard--as a self-evidently sensible proposition: "the defendant's guilt or innocence is at least one of the vital considerations in determining whether collateral relief should be available to a convicted defendant."

The ensuing nearly five decades have proven Judge Friendly prophetic--but probably not in a way that he would have approved. In 1976, the Supreme Court held that habeas corpus would not be available at all for petitioners claiming that otherwise-reliable evidence obtained in violation of the Fourth Amendment was used to convict them. The next year, the Court would make it considerably harder for petitioners who had failed to raise their objections in compliance with state court rules to obtain relief in federal court on otherwise meritorious claims. Other judicial narrowings followed and then, in 1996, Congress passed and President Bill Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA), which further limited habeas corpus.

The Court decisions and AEDPA have made it much more difficult for prisoners without plausible constitutional claims that bear on innocence to obtain relief via habeas corpus. To my mind, that is understandable if not ideal: understandable because innocents serving prison sentences or awaiting execution suffer a much graver injustice than guilty parties whose proceedings were tainted by constitutional error; not ideal because habeas review once served, but no longer serves, as a means of ensuring that state court judges under political pressure to be tough on crime give full effect to the constitutional rights of criminal defendants.

But even if one thinks that Congress and the courts were right to cut back on habeas in cases where prisoners raise claims that speak only to the fairness of the proceedings, not to guilt or innocence, there is cause for alarm. Modern habeas law honors only half of Judge Friendly's agenda. It makes the bringing of habeas petitions by guilty defendants considerably harder than in the Warren Court era. But it also makes it extremely difficult for the innocent to obtain habeas relief. That proposition was on full display late last week in an en banc ruling by the US Court of Appeals for the Seventh Circuit.

Spoiler Alert: I will now discuss a case that figures in the Netflix documentary series Making a Murderer. If you intend to watch it but have not yet done so, you might want to bookmark the column and come back here after viewing.

The Embattled Trump Presidency: Lessons from Fiction

By William Hausdorff

It’s easy to get overwhelmed by information overload regarding the colorful Trump White House, its defenders and its attackers.  But as I learned from Libra, Don DeLillo’s fictionalized account of the John F. Kennedy assassination, one doesn’t need to know exactly what is happening to understand the main plot lines. 

That novel suggested that the essence of the Kennedy story was that there were at least three potentially murderous groups who felt aggrieved. These included Mafia figures furious that he named his brother as Attorney General, anti-Castro figures seething at Kennedy’s lack of support for the Bay of Pigs invasion, as well as pro-Castro figures outraged at the administration’s open hostility to Cuba.

As described in Philip Shenon’s excellent non-fiction analysis, the latter group, to which Lee Harvey Oswald belonged, may have been especially enraged by the news of US attempts to assassinate Castro.  In some ways, then, it didn’t matter who ended up pulling the trigger.

What are the broad lines of the Trump story here?

When Liberty and Equality Conflict -- And When They Don't

by Michael Dorf

My latest Verdict column dives into the weeds of the Masterpiece Cakeshop case. To summarize and over-simplify, I argue that while there are hard cases that pit liberty against equality, Masterpiece Cakeshop should be deemed an easy case. That's not because the baker has no interests in this case. He may well have a substantial stake in the outcome of the case. It's just that he cannot win on his free speech claim without blowing up anti-discrimination law, and his claim that he has suffered discrimination based on religion does not find support in the record.

Here I want to address an issue I use to frame the discussion in the column: Should we understand apparent conflicts between liberty and equality as genuine--as value pluralists like Isaiah Berlin and Bernard Williams argued--or should we regard them as spurious--as Ronald Dworkin did? I'm not going to try to definitively resolve that question, but I am going to try to use it as a way of distinguishing two kinds of cases: those in which the (real or apparent) sacrifice of liberty for the sake of equality is a source of moral regret and those in which it is not.

Republicans' Vapid Defenses of Reverse-Robin Hood Policies

[Note: This column was revised and edited for clarity at 8:05pm on December 11, 2017.]

by Neil H. Buchanan

As the Republicans in Congress try to drag their highly unpopular tax bill across the finish line, they have become ever more brazen in admitting what they really think about non-rich people who dare to complain about the feed-the-rich shamelessness of the Republicans' plan.  In case anyone had forgotten, Republicans are again making it clear that they think that non-rich people are lazy, shiftless leeches.

An op-ed by two analysts at the New America Foundation cuts through the nonsense and points out the fundamental reality: "Republicans Are Bringing ‘Welfare Queen’ Politics to the Tax Cut Fight."  Senator Orrin Hatch's recent complaint about "people who won’t help themselves, won’t lift a finger and expect the federal government to do everything" merely reminds us of Speaker of the House Paul Ryan's "makers and takers" meme and especially of Ryan's former running mate's infamous "47 percent" comments.  These, in turn, were mere updates of Ronald Reagan's infamous (and completely imaginary) "welfare queen" in 1976 who supposedly worked the system to the tune of millions of dollars of undeserved benefits.

Republicans also make arguments that, if taken seriously (which they should not be), would ultimately prove that all taxation (even regressive taxation) is immoral.  Although some Republicans might be willing to own up to that claim, a party that is obsessed with Pentagon spending and spending money to keep brown- and black-skinned people in their places -- which often means out of the country entirely -- needs to have some way of separating acceptable forms of taxation from unacceptable forms.

Republicans are stuck, because they have no way to justify tax cuts for the rich without insulting everyone else, and they cannot make choices among taxes because they are committed to the belief that all taxes are inherently bad.  What we end up with is the current mess of a tax bill and the shockingly bad salesmanship on display from the Republicans.

The Year of the Terrible

By Eric Segall

The Year of the Terrible started on January 20^th when the newly elected President of the United States gave his inauguration speech to the largest, most devoted crowd in the history of inauguration speeches. During that speech, he made clear what kind of role model and world leader he was going to be by proudly proclaiming “From this moment on, it's going to be America First…. We will follow two simple rules: buy American and hire American.” Of course, while Trump was speaking, his National Security Advisor Michael Flynn was allegedly on the phone texting a comrade that a joint nuclear power project with Russia was “good to go.” The melding of the Kremlin and the White House was off to a very good start.

The Other Kind of Sexual Harassment

by Sherry F. Colb

In my column this week, I discuss what I take to be at least one reason for the longstanding reluctance (by men and women) to believe women who say they have been raped or sexually harassed by seemingly normal, ordinary men. The reason has to do with the disturbing implications of acknowledging that such conduct has occurred. Disbelief in individual cases then functions as a form of denial across the board. In this post, I want to talk about a type of sexual harassment that has not been on the national radar lately but that is nonetheless a significant impediment to women's equality and to their sense of safety and wellbeing in the workplace.

Estates, Death, and Relentless Republican Lies

by Neil H. Buchanan

The repeal (or near-repeal) of the estate tax is by no means the largest part of the Republicans' tax plans, but it is at the philosophical core of their anti-tax efforts.  Understanding how and why Republicans insistently lie about the estate tax provides a window into their longstanding effort to reward the wealthy simply for being wealthy and to punish everyone else for not being virtuous enough to be rich.

Untroubled by evidence and unencumbered by logic, the Republicans have been telling tall tales about the estate tax literally for decades.  Shamefully, many Democrats have bought into those lies, with the result that the estate tax is now a husk of what it should be.  Rather than full repeal, I suspect that the current political mess will leave an even smaller and less effective estate tax in place, thus allowing Republicans to continue to campaign against it -- and to continue to use it to raise funds from wealthy donors.

No matter whether my prediction turns out to be true, perhaps the most interesting and depressing aspect of the Republicans' anti-estate tax howling is that it shows how completely they are willing to put ideology before reality.  And they have been doing so for decades, long before Donald Trump's garish reality show allowed other Republicans to pretend to occupy a somewhat higher ground.

After briefly summarizing how the estate tax works, I will use Senator Chuck Grassley's recent arguments (and I use that term loosely) against the estate tax to illustrate the rank dishonesty and elitism of the Republicans' anti-tax crusade.

Three Problems With the SG's Klan Hypo in the Masterpiece Cakeshop Oral Argument

by Michael Dorf

During the oral argument in the Masterpiece Cakeshop case, Solicitor General Noel Francisco repeatedly used the following hypothetical example to make the point that a baker's creation of a custom cake (regardless of whether it contains an articulate message) is speech: Could the government "compel an African American sculptor to sculpt a cross for a Klan service?", the SG asked. And if not, doesn't that show that sculpting for a ceremony to which one objects--whether the medium is wood for a cross or dough for a cake and whether the ceremony is a wedding or a cross-burning--is expression to which the compelled speech doctrine applies?

The argument in the case was wide-ranging, with various outcomes possible. For at least some justices the case poses difficult line-drawing problems. But the SG's cross example does not do the work that he seems to think it does. Here I'll highlight three objections to it. One of them was offered during the oral argument itself by the lawyers opposing the baker, but went by quickly enough that it might not be sufficiently appreciated. The other two objections are my own contribution.

Originalism and Textualism in Action: Not Constraining and Not Neutral (Part 2)

by Joseph Kimble

      Several readers made thoughtful comments on my original post. They deserve equally thoughtful responses, which I’ll try to provide below.

     The short references are to the two articles I cited in the original post, one in The Scribes Journal of Legal Writing and the other in the Wayne Law Review.

     Most of the comments centered on the Wayne article about overrulings by the Michigan Supreme Court. (Reminder: the 81 overrulings by the Republican majority were 96.3% ideologically conservative.) Few readers addressed the evidence about Justice Scalia’s opinions in the Scribes article: 6 empirical studies (pp. 30–35) and 11 scholarly examinations (p. 35, note 96) that seriously militate against any claim that his textualism was nonideological, politically neutral, objective — the simple product of rule-of-law judging. How much evidence does it take to confirm what (in Prof. Dorf’s words) is “blindingly obvious” to anyone familiar with the tilt of those opinions?

Dialing the Shamelessness and Dishonesty Up to Eleven .. Twelve ... Thirteen ...

by Neil H. Buchanan

I am not the only observer who was surprised that the Republicans managed to get out of their own way and actually pass two versions of a relatively large change to the U.S. tax system.  (What will happen as they try to agree on a final version is, of course, anyone's guess.)  I was not, however, especially surprised by the added degrees of shamelessness and dishonesty that the Republicans were willing to bring to their effort.

After all, anyone who has been paying attention -- and who is not either a partisan Republican or a diehard believer that both parties are always equally to blame -- has seen this coming.  Each time a big policy debate has erupted over the past generation, the Republicans have outdone themselves and degraded our political system in ways that were once unthinkable.

Capitalists Against Capitalism

by Neil H. Buchanan

I have no idea why it still surprises me, but I am always amazed when conservatives who present themselves as the brave defenders of capitalism inadvertently reveal that they have absolutely no idea what capitalism is or how it works.  A serial offender is Donald Trump's budget director, Mick Mulvaney, who is now in the midst of a fight to take over the Consumer Financial Protection Bureau (CFPB).

As part of his public relations campaign, Mulvaney announced several days ago that Trump "wants me to get [the CFPB] back to the point where it can protect people without trampling on capitalism."  This is more than a bit odd, because Mulvaney has made it clear that he never thought the CFPB was at the point where it was not trampling on capitalism, and he and Trump clearly want to destroy the agency, not bring it back to some golden age of capitalism-friendly consumer protection.

The big point that Trump and Mulvaney are making, after all, is that the agency that has aggressively enforced anti-fraud laws to the benefit of American citizens must be stopped because its efforts to force Wall Street banks to obey the law are an affront to capitalism itself.  Notice that this is not even a statement that the underlying laws that the CFPB enforces are anti-capitalist (although I am sure that conservatives oppose those laws as well).  Mulvaney and Trump apparently believe that forcing banks not to break the law is itself a problem.

This is what we might call the Dumb Guy's Version of Capitalism.  A not-very-bright man hears that rich guys with lots of power say that they like capitalism and that they hate anything that limits their power, especially governments and labor unions.  Therefore, anything that rich, powerful guys like must be what capitalism is, and everything they hate must be an assault on baseball, hot dogs, apple pie, and (especially) Chevrolet.

It just so happens that that is completely wrong.  It was never true that what's good for General Motors is automatically good for America, and it is now even more important to understand the difference between being in favor of capitalism and being slavishly in favor of everything that business leaders say they want.

Importantly, this applies not just to the relatively small debate over the future of the CFPB but to every aspect of the Republicans' agenda.  Trickle-down tax cuts, gutted environmental regulations, weakened consumer and worker protections might lead to record-setting stock prices, but they are bad for capitalism and bad for America.