But what if King John's usurpation of the estates of his gentry was put to good use, in a way that benefited the broader community? In other words, what if King John were less like King John and more like,… well, Robin Hood. Would this justify the appropriation of assets from defenseless beneficiaries?

Related: Is regulation a lagging indicator?

This is the precise question fiduciaries must grapple with in the current era of politically correct decision making (see "When Does 'Socially Responsible' Investing Violate Fiduciary Duty?" FiduciaryNews.com, May 23, 2017). You'd think, with the Magna Carta story a fundamental civics lesson for elementary school students, the answer would be clear. In a free society like America, where individual rights trump collective rights, it's common sense that no one can do anything with your money unless you specifically tell them they can.

But the temptation to do "good," being all the rage with the arbiters of all that doing good means, has been increasingly insistent over the last couple of decades. So much so that, in 2008, the Labor Department, then under the auspices of the Bush administration, issued a policy statement that specifically reaffirmed the long-standing legal tradition that Robin Hood, despite the pureness of his heart, still operated outside the law.

Interpretive Bulletin 2008-1 (IB 2008-1) states: "ERISA's plain text thus establishes a clear rule that in the course of discharging their duties, fiduciaries may never subordinate the economic interests of the plan to unrelated objectives, and may not select investments on the basis of any factor outside the economic interest of the plan except in very limited circumstances enumerated below." In case you're wondering, the "very limited circumstances" require the alternative investments to be of "equal economic value."

But, in the spirit of equal time, we should add that the Bush-era IB merely re-iterates a similar policy from the Clinton DOL. Interpretive Bulletin 94-1 says, in part, "The Department has construed the requirements that a fiduciary act solely in the interest of, and for the exclusive purpose of providing benefits to, participants and beneficiaries as prohibiting a fiduciary from subordinating the interests of participants and beneficiaries in their retirement income to unrelated objectives."

There. That did it. As clear as clear can be. No further questions need be asked.

Except…

In 2015 the Obama DOL reversed the Bush DOL with its own Interpretive Bulletin (IB 2015-1). Here's the relevant passage from that IB (I've spelled out the acronyms for clarity): "the Department does not believe ERISA prohibits a fiduciary from addressing economically targeted investments or incorporating environmental, social and governance ("ESG") factors in investment policy statements or integrating ESG-related tools, metrics and analyses to evaluate an investment's risk or return or choose among otherwise equivalent investments."

Notice the linking "or" phrases at the end. That means you only need consider one of the components, not all of them. In essence, selecting ESG-based investment no longer need be the done only when it represents an economic equivalent.

In the press release that accompanied it, then Labor Secretary Tom Perez actually said these very words: "Investing in the best interests of a retirement plan and in the growth of a community can go hand in hand."

While employing language that makes IB 2015-1 sound like IB 2008-1, the press release ends with this statement: "The guidance also acknowledges that environmental, social, and governance factors may have a direct relationship to the economic and financial value of an investment. When they do, these factors are more than just tiebreakers, but rather are proper components of the fiduciary's analysis of the economic and financial merits of competing investment choices."

In these words, the DOL has taken on the role of securities analyst by mandating that previously non-economic public policy factors be treated as if they were economic factors.

That's a fancy way to steal from the rich and give to the… whoever.

It's never a good idea to play politics with other peoples' money. Every fiduciary doesn't. Why doesn't the DOL?