Ilan Wurman (Arizona State) has filed this amicus brief on behalf of Separation of Powers scholars in support of the petitioner in Seila Law LLC v. Consumer Financial Protection Bureau, challenging the single director/for cause removal structure of the CFPB. I'm honored to join the brief along with Steven Calabresi, Michael McConnell, Saikrishna Prakash, Jeremy Rabkin, Michael Rappaport and Professor Wurman. As the list of signatories indicates, it's basically an originalist brief. Here is the Summary of the Argument:
1. The Consumer Financial Protection Bureau (CFPB) is a regulatory agency headed by a single director insulated from presidential control and removal, yet wielding executive power. This agency structure is unconstitutional because Article II of the Constitution vests “[t]he executive Power” in the President of the United States and charges the President with the duty to “take Care that the Laws be faithfully executed,” a duty that cannot be discharged without authority to supervise, control, and remove subordinate executive officers. U.S. Const. art. II, §§ 1, 3. To be sure, the Constitution assigns some of the historical executive power away from the President: Article II, Section 2, for example, gives the Senate a share in the appointment power. Id. § 2. But except as specifically qualified, the executive power is vested in the President. Therefore, if the power to remove principal executive officers is part of “[t]he executive Power” or essential to carrying out the duty to “take Care that the Laws be faithfully executed,” it is vested in the President.
As this Court recognized in Myers v. United States, 272 U.S. 52 (1926), the power to remove is a necessary element of the executive power. Two important historical sources confirm that, whatever else might be contained within “[t]he executive Power,” that power includes the ability to remove executive officers who assist the chief executive magistrate in carrying the laws into execution. First, in eighteenth-century English law and practice the executive magistrate had the power to remove principal executive officers as part of the executive power to carry law into execution. See, e.g., 1 William Blackstone, Commentaries on the Laws of England *243, 261–62, 327 (1st ed. 1765–69); Michael Duffy, The Younger Pitt 18–27 (2013); Murray Scott Downs, George III and the Royal Coup of 1783, 27 The Historian 56, 72–73 (1964).
Second, in 1789 the First Congress concluded that, although not expressly mentioned in the Constitution, this removal power was constitutionally vested in the President on the basis of the two overlapping and complementary textual grounds discussed above: because the power of removal is part of “[t]he executive Power” vested in the President, and because such a removal power is necessary for the President to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, §§ 1, 3.
As a result, the structure of the CFPB is unconstitutional. The CFPB, among other duties, is charged with law enforcement. 12 U.S.C. §§ 5492(a)(10), 5581(b)(5)(B)(ii). It is headed by a single director who may be removed by the President only “for inefficiency, neglect of duty, or malfeasance in office.” Id. §§ 5491 (b)(1), (c)(3). Thus the President does not fully control the CFPB’s law execution.
2. In recent decades, revisionist scholars have argued that the President’s authority over the Treasury Department, financial regulators, and “Article I” agencies is distinct from the President’s authority over “Article II” agencies tasked with assisting the President in exercising inherent constitutional power. The Framers and Founding generation, however, recognized no such distinction. To the extent financial agencies enforce the law, they exercise executive power.
3. Not only is the CFPB’s structure unconstitutional, it is unprecedented. In 1935, the Court in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), in addressing the structure of the Federal Trade Commission (FTC), created space for Congress to establish multi-member commissions charged with “quasi-legislative” and “quasi-judicial” responsibilities, led by commissioners with staggered terms. The Court’s efforts in Humphrey’s to distinguish Myers and avoid the force of Article II, Sections 1 and 3, were and remain unpersuasive. The Constitution only recognizes legislative power that can be exercised by Congress, judicial power that can be exercised by the judiciary, and executive power—even if the exercise of this executive power sometimes takes regulatory or adjudicatory forms—that is vested in the President.
Humphrey’s is thus inconsistent with the Constitution’s text and original meaning and should be revisited—or, at minimum, should not be extended. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 484 (2010) (declining to extend Humphrey’s to multiple levels of removal protection). Here, the CFPB’s structure concentrates unsupervised executive power in a single person outside the executive itself. It represents an unprecedented extension of the exception created by Humphrey’s. The Court should reject that extension and reaffirm the original meaning of Article II’s Vesting Clause.
Posted at 6:35 AM