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08/03/2018

Amicus Brief in the CFPB Removal Power Litigation
Michael Ramsey

Ilan Wurman (Arizona State) recently filed an amici curiae brief (now posted on SSRN) on behalf of separation of powers scholars in the 5th Circuit CFPB removal power litigation, Consumer Financial Protection Board v. All American Check Cashing, Inc.  I signed the brief, along with Steven G. Calabresi (Northwestern), Michael McConnell (Stanford), Saikrishna Prakash, (Virginia), Jeremy Rabkin (George Mason/Scalia) and Michael Rappaport (USD).  Here is the introduction:

Amici separation of powers scholars seek to alert this Court to important points of constitutional text, structure, and history that support appellants’ constitutional arguments respecting the Consumer Financial Protection Bureau. Amici in particular respond to points raised by amici separation of powers scholars in PHH Corp., et al. v. Consumer Financial Protection Bureau, 881 F.3d 75 (D.C. Cir. 2018) (en banc), and on which the en banc court in that case relied. The exact same issues are present here, and amici believe this Court should reach the opposite conclusion. 

As discussed below, insulating a principal officer serving as the single director of an administrative agency from the President’s removal power violates the Constitution’s provisions for executive power. Although the amici separation of powers scholars and the D.C. Circuit in PHH Corp. relied on the revisionist argument of recent decades that there is a difference between “Article I” agencies created pursuant to Congress’s Article I, § 8 powers and “Article II” agencies that assist the President in exercising inherent executive powers, there is simply no evidence that the Founding generation ever conceived of such a distinction. 

In Humphrey’s Executor v. United States, 295 U.S. 602 (1935), the Supreme Court created a different sort of exception, one grounded in the structure of the Federal Trade Commission (FTC). As the Court explained, the FTC was “nonpartisan,” composed of a multimember, bipartisan commission that was to deploy administrative expertise in a particular field. To consider a principal officer who alone directs an entire department of government as “nonpartisan” would be to defy all human political experience. The exception of Humphrey’s Executor should not extend to this case.