The recent decision by the Supreme Court, Seila Law LLC v. Consumer Financial Protection Bureau, has been praised by constitutional conservatives as another incremental step toward protecting the constitutional law theory known as the unitary executive. The unitary executive theory holds that the president of the United States possesses the sole power to control the entire executive branch under Article II of the Constitution.
Put another way, Seila was both a boost to the president having the last word over appointments in the executive branch and a blow to the so-called “deep state” that would clearly love to weaken his authority to appoint and remove.
A key to understanding Seila was the brief that preceded the decision from the Landmark Legal Foundation.
In Seila, the court decided not to extend the holding of a previous case from the New Deal era (1935), Humphrey's Executor v. United States. In Humphrey's Executor, the high court found "... the power of the President alone to make the removal, is confined to purely executive officers, and, as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed except for one or more of the causes named in the applicable statute."
Put in plain English, Humphrey's Executor limited the president's authority to remove officials in the executive branch.
Eighty-five years later, the court faced more questions in Seila: one, whether the office of the director of the CFPB violated the separation of powers doctrine; and two, whether or not the legal question was severable from the Dodd-Frank Act. The Dodd-Frank Act is a law passed under President Barack Obama in 2010 that sought to address the climate that surrounded the “too big to fail” financial crisis that occurred in 2008. One of the provisions of the bill was the establishment of the CFPB, among other legislative reforms.
Landmark Legal's amicus curiae notes that the court cited "the board's nature as a body of apolitical experts engaging in quasi-legislative and quasi-judicial, as opposed to executive, functions."
Further, the brief highlights "The Director [of the CFPB] does not answer to the President or the Federal Reserve, however. To make matters worse for the President, the Federal Reserve System itself has a structure of multi-level protection of leadership from removal that is constitutionally dubious after this Court's decision in Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd. (Free Enterprise), 561 U.S.477 (2010)."
In addition, Landmark Legal's citation of the Free Enterprise Fund case showed the argument that the president's "executive power" applies to the removal of officials.
The logic noted in the Landmark Legal brief, in fact, actually parallels the opinion of the court.
In that ruling, Chief Justice John Roberts cites Free Enterprise Fund in ruling that the CFPB leadership is under a sole director "removable only for inefficiency, neglect, or malfeasance violates the separation of powers."
Quoting directly from Free Enterprise Fund, Roberts acknowledges, "The President's removal power has long been confirmed by history and precedent. It 'was discussed extensively in Congress when the first executive departments were created' in 1789. Free Enterprise Fund, 561 U. S., at 492."
In contrast, the liberal wing of the court sought to undermine the argument of litigant Kannon Shanmugam by claiming that the separation of powers question should be addressed separately from the severability question.
Had this argument held, it would have remanded the core constitutional question to another case down the road. As former Solicitor General Noel Francisco argued, "For a single-headed agency, often the only restraint on the exercise of power is a political or democratic accountability restraint. And once you remove that, you've now vested enormous executive power in somebody who is not subject to the procedural constraint that multi-member commissions have and are not subject to the political constraint that everyone else has."
The ruling written by Roberts provides the court and legal scholars with another defense of the president's executive power by differentiating between the applications of Humphrey's Executor and Free Enterprise Fund.
In ruling as he did, the chief justice has helped the president “drain the swamp” by disallowing for-cause dismissal restrictions to apply to single-headed agencies.
One can conclude with confidence, then, that Seila is one small step against the swamp and one giant leap in defending the framers' original intent.
(Michael Cozzi is a Ph.D. candidate at the Catholic University of America in Washington, D.C.)
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