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02/28/2020

John McGinnis on Originalism and Independent Agencies
Michael Ramsey

At Law & Liberty, John McGinnis: Independent Agencies Brought to Heel? (discussing the Seila Law case, to be argued to the Supreme Court next week).  From the introduction:

Independent agencies—agencies whose heads cannot be fired by the President at will—raise profound questions of constitutional structure and political accountability. The Constitution vests the executive power in a single person—the President of the United States. Yet independent agencies can wield some of that power outside of presidential control. Democratic political theory prizes policy accountability to elected officials. But once appointed, the principal officers of independent agencies are not directly accountable to anyone. Such agencies, like the Securities and Exchange Commission (SEC) and the Federal Trade Commission (FTC), continue to grow in importance with the burgeoning of the administrative state.

...

Next Tuesday, the Supreme Court will hear arguments about the constitutionality of the Consumer Financial Protection Bureau (CFPB) [ed.: in Seila Law LLC v. Consumer Financial Protection Board]. I predict that the Supreme Court, probably in an opinion by Chief Justice John Roberts, will find that this agency is unconstitutional without ruling directly that all independent agencies are unconstitutional. The CFPB is different from most traditional independent agencies in two ways: It has a single director, rather than a board of politically balanced commissioners, and it has an independent funding source because it enjoys access to a percentage of the revenues of the Federal Reserve, another independent agency. It thus trenches on the President’s authority more than the traditional independent agency because he may face the power of a single director appointed by a President of an opposing party and because he has no leverage in the appropriation process, where he would generally be able to wield his veto power.

It is not clear how much difference these formal distinctions make for the actual freedom of action of independent agencies. But the opinion will likely mirror a previous opinion that the Chief Justice wrote in Free Enterprise v. Public Accounting Oversight Board, in which he took the unitary executive promised by Article II’s vesting of executive power in the President and the political accountability that it provides as the constitutional baseline. The opinion will almost certainly not challenge independent agencies run by bipartisan commissions and dependent on yearly appropriations because they have previously been upheld by the Court. But these agencies will be treated as exceptions to the general rule that the President should control his agents. The unitary executive will become the background rule with islands of historical exceptions. As I have noted before, this approach is the characteristic way that John Roberts deploys originalism—not to overturn precedent that contradicts original meaning but to limit its generative force.

I hope he is right; this is the approach urged in the originalist separation of powers amicus curiae brief in Seila Law.

I also think Seila Law undermines the complaint that originalism has become so multifarious in its forms that it can't agree on any outcomes of consequence.  (For example, in this recent review by Jeremy Telman, and also in an array of commentary by leading originalism critic Eric Segall.)  To the contrary, I see widespread agreement among originalist scholars and originalist-oriented judges and Justices that "independent" (that is, for-cause removal) agencies, to the extent they exercise executive power, are inconsistent with the original meaning of Article II.  To be sure, there are opposing textual and historical arguments advanced by scholars and judges who are not themselves originalists.  But I think within the originalist "family" there is a strong consensus here (even if there is not full agreement on the methodology, the normative justifications, or the modern implications).

RELATED:  In The Atlantic, Mario Loyola: Trump’s DOJ Interference Is Actually Not Crazy (among other things, describing broad support for the idea of presidential control over executive and independent agencies among conservative and originalist scholars and judges).   (Via Iain Murray at Instapundit).