« Textualism and Title VII
John Vlahoplus
| Main | Justice Thomas on Preemption by Agency Policy
Michael Ramsey »


Calvin TerBeek on Originalism and the Administrative State
Michael Ramsey

At House Divided, Calvin TerBeek: The GOP’s Flip Side of the Same Coin: Party Politics, Constitutional Politics, and the Administrative State.  From the introduction:

Easily missed in the tumult last week was the Supreme Court’s decision to review the constitutionality of the Consumer Financial Protection Bureau’s structure. The product of Obama era legislation and a constant source of partisan strife in its short existence, the Court is going to decide whether the CFPB head’s protection from at-will removal by the president violates the Constitution’s separation of powers—the “structural Constitution” as conservatives like to call it. The Court further told the parties to brief whether the entire agency must go if the agency head’s protection from presidential removal is held unconstitutional. Not incidentally, a group of conservative originalist law professors, the Cato Institute, and a handful of conservative public interest litigation groups filed briefs this past summer urging the Court to take the case.

News reportsliberal, and conservative analyses have focused on the legal questions and on whether Justice Scalia’s 1988 dissent in Morrison v. Olson will be “vindicated” (on which more below). But making sense of the Court’s decision to hear Seila Law v. CFPB profits from understanding the judicial and party politics that structure this choice. First, Chief Justice Roberts’ playbook in high salience areas such as this is now well established. Holding at bay the most enthusiastic conservative justices—Thomas, Alito, Scalia (†), and now Gorsuch—Roberts invites new cases where he patiently builds the requisite precedents to accomplish conservative and GOP legal policy goals methodically. Voting rights and campaign finance are pertinent examples of this strategy. Seila Law, then, should be understood as the opening salvo in what will be a line of cases where the Court will pare back aspects of the administrative state conservatives dislike. Indeed, Seila Law is part and parcel of the justices’ forays last term into agency deference and the non-delegation doctrine. As former White House counsel Don McGahn said in 2017, “There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin.”