//  8/24/20  //  In-Depth Analysis

In June, the Supreme Court held in Seila Law LLC v. Consumer Financial Protection Bureau that tenure protection for the Director of the Consumer Financial Protection Bureau is unconstitutional.  The decision garnered criticism from proponents of independent regulatory agencies, but the decision’s reasoning may be more important—and worrisome—than the holding itself.

The question of who can fire executive officers in the federal government implicates one of the oldest debates in constitutional law.  Apart from providing for impeachment of civil officers, the Constitution says nothing explicit about who can terminate federal executive officers and under what circumstances.  The First Congress debated the question at length and apparently concluded in the so-called “Decision of 1789” that presidents hold the power to fire the officers they appoint.

The Supreme Court has vacillated over the centuries about whether, even assuming presidents hold this removal authority, Congress may limit the circumstances under which a president can exercise it.  In Seila, the majority settled on the view that tenure protections—statutory provisions that allow firings within a specified term only for “cause,” rather than at will—are constitutional only for multi-member regulatory agencies, such as the Securities and Exchange Commission and Federal Communications Commission, and for inferior officers “with limited duties and no policymaking or administrative authority,” such as the independent counsel that the Supreme Court upheld in the 1988 case Morrison v. Olsen.

Seila’s holding has the virtue of respecting precedent, and the vice of making little practical sense.  A majority of justices at present is clearly hostile to such tenure protections, which they view as impairing the President’s constitutional authority to oversee the executive branch, and thus as limiting the government’s democratic accountability.  To the extent those concerns are valid, they seem equally applicable to multi-member bodies and inferior officers with significant powers, yet Chief Justice Roberts’s majority opinion distinguished past cases upholding tenure protections for those two categories of positions.  With respect to the putatively novel circumstance of a tenure-protected, single-member agency head, the Court invalidated removal limitations.

Is this holding a big deal?  Maybe.  The CFPB holds quite significant powers with respect to interpreting and enforcing several statutes that protect consumers from financial fraud and other nefarious banking practices.  Congress presumably intended tenure protection to enable the agency to exercise these powers based on the director’s sense of the public interest, without regard to the President’s preferences or short-term political interests.  Seila means that Presidents will now be able to fire CFPB heads who defy their wishes.

Seila’s holding, however, is at least symmetric across administrations.  It enables a deregulatory president to fire a more pro-regulatory director, but by the same token it prevents a pro-regulatory president from getting stuck with a torpid CFPB.

To my mind, the more unsettling feature of Seila is the reasoning the Court employed to support this result.  The Court could have held simply that because Article II of the Constitution obligates the President to “take Care that the Laws be faithfully executed,” the President must have authority to remove officers who execute the laws in a manner the President finds unsatisfactory.  But the Court held instead that the President holds such removal power because the CFPB’s powers ultimately belong to the President himself.

Article II’s so-called Vesting Clause states, “The executive power shall be vested in a President of the United States of America.”  Seila reasoned that this clause is not merely a placeholder for other executive powers conferred by Article II, but instead confers all power to execute federal laws on the President personally.  “The entire ‘executive Power,’” Chief Justice Roberts wrote, “belongs to the President alone,” meaning that executive officers such as the CFPB head are mere assistants to the President, “whose authority they wield.”  This view implies that the President could personally issue CFPB regulations or initiate enforcement actions, without regard to the CFPB head’s views.  Though the Court did not address this issue, the Court’s reasoning might further imply that the President could even delegate the CFPB’s statutory powers to someone other than the CFPB head, so as to ensure those powers are exercised as the President desires.

Although proponents of the so-called “unitary” executive branch have long favored this view of presidential power, it defies the way our government has actually worked since the very beginning of the Republic.  In keeping with the prior understanding in Britain that the king could execute the law only through his ministers, Congress from the beginning has vested statutory powers in particular officers rather than the President.  Those officers are then accountable to the President for their exercise of those powers, and generally may be fired if they act contrary to the President’s wishes, but the President cannot simply take over the officers’ powers for himself.

Accordingly, to take a recent example, President Trump may well have wanted to fire Special Counsel Robert Mueller and terminate the Trump-Russia investigation.  But because control over criminal investigations and the power to appoint special counsels belongs to the Attorney General, not the President, Trump likely could have gotten his way only by firing Deputy Attorney General Rod Rosenstein, who was then exercising the Attorney General’s powers with respect to the special counsel.  Doing so would have greatly elevated the political salience, and thus the likely political costs, of Trump’s action.

In an earlier post, I described this effect of vesting statutory authorities in particular offices as the “fire alarm function” of office-holding.  When a particular officer must carry out a particular function, the President may be able to get his way by firing and replacing the officer, but the officer can set of an alarm, as it were, by forcing the President to take such action if the officer feels the President’s planned action is either unlawful or profoundly unwise.

Vesting powers in offices in this way may shape how the executive branch operates, making certain policies and outcomes more or less likely and allowing political enforcement of good-government norms and expectations.  In a forthcoming article, I argue that Congress holds the same power to vest duties in offices even with respect to military functions, which are widely presumed to be an area of special presidential prerogative.  At any rate, much of administrative law operates on the assumption that particular officers, rather than the President himself, exercise most powers of the government.

By suggesting that all the executive powers of the federal government necessarily belong to the President personally and that other officers are merely the President’s “assistants” in discharging those powers, Seila’s reasoning calls into question this fundamental congressional power over the executive branch’s structure.  Fortunately, this aspect of the majority opinion is only dicta; courts may disregard it in any future cases.  Let’s hope they do.  Otherwise, we may end up with a still more imperial presidency than the one we already have.

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.

The Federal Judiciary Needs More Former Public Defenders

8/3/20  //  Commentary

By Orion de Nevers: The composition of President Trump’s record-setting number of judicial appointments has been widely criticized for its overwhelmingly white-male skew. But another, quieter, source of troubling homogeneity has also emerged: President Trump is loading the bench with former prosecutors.

Take Care

Versus Trump: Are Tax Returns Coming Soon?

7/18/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the Supreme Court's pair of decisions governing Trump's tax returns. Are they coming soon? Did the Democrats make a mistake in not being more aggressive in invoking the impeachment power? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP