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10/18/2019

Cert Granted in CFPB Removal Case
Michael Ramsey

The Supreme Court has granted cert in Seila Law LLC v. Consumer Financial Protection BureauThe issue is: 

Whether the vesting of substantial executive authority in the Consumer Financial Protection Bureau, an independent agency led by a single director, violates the separation of powers.

The Court also asked the parties to brief whether the removal provision can be severed from the rest of the statute creating the CFPB.

As noted, I joined an amicus brief on behalf of "Separation of Powers Scholars" -- but really, on behalf of originalist separation of powers scholars -- written by Ilan Wurman of Arizona State law school, encouraging the Court to grant cert (along with Steven Calabresi, Michael McConnell, Saikrishna Prakash, Jeremy Rabkin and Michael Rappaport).  Here is the introduction:

The for-cause removal provision respecting the director of the CFPB creates an unprecedented concentration of unsupervised executive power, threatens the separation of powers and democratic accountability, and is unconstitutional. The Constitution vests the executive power in the President of the United States. U.S. Const. art. II, § 1 (“The executive Power shall be vested in a President of the United States of America.”). Whatever else this power includes, at a minimum it includes the power to appoint, control, and remove principal executive officers. To be sure, the Constitution assigns some of this executive power away from the President: Article II, Section 2 gives the Senate a share in the appointment power. But other than the Constitution’s specific assignments away from the President, the executive power of the laws rests with the President. The Take Care Clause supports this structural inference, implying that the President has that species of power—the ability to direct and remove officers—to ensure the faithful execution of the laws. Id. § 3 (“he shall take Care that the Laws be faithfully executed”).

Two important sources confirm that the power to remove executive officers was part of the “executive power.” William Blackstone, whose Commentaries on the Laws of England guided the Framers’ drafting of the Constitution, included within his conception of “the executive power of the laws” the power to conduct prosecutions, to issue proclamations binding on subjects (and, therefore, subordinate officers) as to how the laws are to be executed, and to appoint assistants—strongly suggesting the power to direct and remove subordinate executive officers engaged in the kind of enforcement function at issue in this case. Further, the First Congress concluded that, although not expressly mentioned in the Constitution, this removal power was constitutionally vested in the President because it was part of the executive power—an inference supported by the Take Care Clause. 

But as also noted, cert seemed inevitable once the Fifth Circuit found a single-director for-cause agency unconstitutional in a separate case.  Also the CFPB filed a brief finding itself unconstitutional (so the argument for constitutionality will be presented by an appointed counsel).