WASHINGTON – Following oral argument at the Supreme Court this morning in Seila Law LLC v. Consumer Financial Protection Bureau, Constitutional Accountability Center Chief Counsel Brianne Gorod, present for today’s proceedings, issued the following reaction:

The Constitution gives Congress broad discretion to determine how best to structure federal agencies, and Congress has chosen to give the CFPB and some other agency heads some degree of independence from the president by providing that they can only be removed for cause. If the Court were to gut that removal restriction in the name of upholding it, it would, as the attorney defending the CFPB, Paul Clement, noted, be at odds with Congress’s plan in including that restriction in Dodd-Frank. It would also, as Justice Gorsuch recognized, be tantamount to overruling decades of Supreme Court precedent upholding identical removal restrictions.

The Supreme Court has long upheld these removal restrictions because they don’t interfere with the President’s ability to take care that the laws are faithfully executed. That is no less true of that restriction as it applies to the CFPB. To be sure, as Chief Justice Roberts noted, the Bureau has budgetary independence, but so do most independent financial regulators. And to be sure it is headed by a single director, not a multimember commission. But if anything that makes the CFPB more accountable to the President, not less. The Chief Justice noted that most independent agencies have been headed by a multimember commission, but so long as the relevant removal restriction allows the President to take care that the laws are faithfully executed, the question whether the agency should be headed by a single director or more than one is a policy judgment. And the Constitution assigns that judgment to Congress, not the courts.

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Resources:

CAC case page in Seila Law LLC v. Consumer Financial Protection Bureau: https://www.theusconstitution.org/litigation/seila-law-llc-v-consumer-financial-protection-bureau/

CAC White Paper: “Constitutional and Accountable: The Consumer Financial Protection Bureau,” by Brianne Gorod, Brian Frazelle, Simon Lazarus, October 20, 2016: https://www.theusconstitution.org/think_tank/constitutional-and-accountable-the-consumer-financial-protection-bureau/

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Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at www.theusconstitution.org.

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