Per Judge Brett Kavanaugh [Randolph concurring, Henderson not joining the constitutional holding] in PHH Corporation v. Consumer Financial Protection Board (holding unconstitutional the statutory provision making the CFPB's director independent of the President). From the introduction to the opinion [the opinion itself being 102 pages long]:
This is a case about executive power and individual liberty. The U.S. Government’s executive power to enforce federal law against private citizens – for example, to bring criminal prosecutions and civil enforcement actions – is essential to societal order and progress, but simultaneously a grave threat to individual liberty. The Framers understood that threat to individual liberty.
When designing the executive power, the Framers first separated the executive power from the legislative and judicial powers. “The declared purpose of separating and dividing the powers of government, of course, was to ‘diffus[e] power the better to secure liberty.’” Bowsher v. Synar, 478 U.S. 714, 721 (1986) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)). To ensure accountability for the exercise of executive power, and help safeguard liberty, the Framers then lodged full responsibility for the executive power in the President of the United States, who is elected by and accountable to the people. The text of Article II provides quite simply: “The executive Power shall be vested in a President of the United States of America.” U.S. CONST. art. II, § 1. And Article II assigns the President alone the authority and responsibility to “take Care that the Laws be faithfully executed.” Id. § 3. As Justice Scalia explained: “The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government 4 but to preserve individual freedom.” Morrison v. Olson, 487 U.S. 654, 727 (1988) (Scalia, J., dissenting).
…
The independent agencies collectively constitute, in effect, a headless fourth branch of the U.S. Government. They exercise enormous power over the economic and social life of 5 the United States. Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.
To help mitigate the risk to individual liberty, the independent agencies, although not checked by the President, have historically been headed by multiple commissioners, directors, or board members who act as checks on one another. …
In other words, to help preserve individual liberty under Article II, the heads of executive agencies are accountable to and checked by the President, and the heads of independent agencies, although not accountable to or checked by the President, are at least accountable to and checked by their fellow commissioners or board members. No head of either an executive agency or an independent agency operates unilaterally without any check on his or her authority. Therefore, no independent agency exercising substantial executive authority has ever been headed by a single person.
Until now.
… In this case, the single-Director structure of the CFPB represents a gross departure from settled historical practice. Never before has an independent agency exercising substantial executive authority been headed by just one person. The CFPB’s concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency. …
This new agency, the CFPB, lacks that critical check and structural constitutional protection, yet wields vast power over the U.S. economy. So “this wolf comes as a wolf.” Morrison v. Olson, 487 U.S. at 699 (Scalia, J., dissenting).
In light of the consistent historical practice under which independent agencies have been headed by multiple commissioners or board members, and in light of the threat to individual liberty posed by a single-Director independent agency, we conclude that Humphrey’s Executor cannot be 10 stretched to cover this novel agency structure. We therefore hold that the CFPB is unconstitutionally structured.
(Via How Appealing).
That all seems correct as a matter of original meaning, for the reasons stated by Justice Scalia in the Morrison v. Olson dissent. (Fittingly, Ted Olson is counsel for the claimants in the case). Whether it is consistent with precedent (even under a narrow view of non-originalist precedent as I've sketched here) is a different matter. See this comment by Stuart Benjamin at Volokh Conspiracy: D.C. Circuit buries Supreme Court precedent [he says that like it's a bad thing]:
Today the D.C. Circuit rejected as unconstitutional the for-cause removal protection for the head of the Consumer Financial Protection Bureau (CPFB). Brett Kavanaugh’s opinion relies on historical practice (because it finds the constitutional text doesn’t resolve the question). The opinion found inapposite the examples of single heads with removal protection (e.g., the single head of the new Federal Housing Finance Agency). One arguable historical precedents for placing great power in the hands of a single official whom the President could not remove freely (that is, the President could remove only for cause) is the independent counsel statute, as independent counsels were removable only for cause. This historical example has a particular legal pedigree: the Supreme Court upheld the independent counsel law in Morrison v. Olson.
And therein lies a story. Rehnquist wrote the majority opinion, and Justice Scalia dissented (joined by nobody). I regard that dissent as the best and most persuasive opinion Scalia ever wrote, and I’m not alone in that judgment. My sense is that over time more and more people have come to be persuaded by the dissent.
But today it reached a new level. When it invokes Morrison, Kavanaugh’s opinion mainly cites Scalia’s dissent as authority. …
Posted at 6:41 AM