« Bad News: The New York Times is Doing Great | Main | "Friendship in a Time of Cyberattack" »

Thursday, February 06, 2020

Will the Selia Case Provoke Bold Moves from the Roberts Court?

Originalist arguments may provoke bold moves from the Roberts Court this Term. In Seila Law LLC v. Consumer Financial Protection Bureau, the Court will decide whether an independent Consumer Financial Protection Bureau violates the Constitution. Leading originalist scholars have challenged the independent structures incorporated by the Bureau and a slew of other agencies as unconstitutional novelties. These agencies are independent, and arguably trammel on the President’s exercise of “the executive power” under Article II of the Constitution, because the President cannot remove their heads at will.

The originalist critique of independent agencies is no longer purely academic, thanks to a 2008 dissent that Justice Kavanaugh wrote as a judge on the D.C. Circuit. As he noted, the leading Supreme Court precedent supporting independent agencies, Humphrey’s Executor, has “long been criticized . . . as inconsistent with the text of the Constitution and the understanding of the text that largely prevailed from 1789 through 1935.” Free Enterprise Fund v. PCAOB, 537 U.S. 667, 694 (D.C. Cir. 2008). Then-Judge Kavanaugh conceded that he was unable to set aside Humphrey’s Executor, as it was “binding precedent.” Now that Kavanaugh is an Associate Justice of the Supreme Court, this constraint no longer applies.

Originalist arguments raise serious questions about the constitutionality of the Consumer Financial Protection Bureau and a multitude of other independent agencies. I will be part of the discussion of Selia and agency independence in the ABA’s upcoming issue of Administrative and Regulatory Law News. My contribution, Alexander Hamilton’s Independent Agency, will highlight the independent structure of an obscure, founding-era agency known as the Sinking Fund Commission. (For more background on the Commission, please see my working paper and earlier post.) In the article for the ABA, I conclude that the independent structures of the Consumer Financial Protection Bureau and the Federal Trade Commission are much closer to founding-era practice than previously thought.

It will be interesting to see how these issues play out at oral argument on March 3 and in the Court’s ultimate resolution of the Selia case. Given the complexity of the issues and the magnitude of the case, I suspect that Selia will be one of the Court’s end-of-term blockbusters this June. 

Posted by Christine Chabot on February 6, 2020 at 09:25 PM in Constitutional thoughts, Law and Politics | Permalink

Comments

To follow up on Asher’s question, general distinctions between single- and multi-member agencies have not been relevant to originalist arguments or underlying constitutional questions under Article II. The leading originalist argument against for-cause removal protections is Justice Scalia’s dissent in Morrison, which involved a single independent counsel. Originalist scholars went on to argue that Scalia’s logic supported arguments against the same for-cause removal protections afforded to heads of multi-member agencies such as the FTC and Federal Reserve. The number of independent officers was beside the point, as the fundamental constitutional concern was the President’s inability to control decisions made by these officers. From the perspective of Article II, the President’s inability to control decisions made by one independent officer is the same as his inability to control decisions made by a majority of independent officers. The Sinking Fund Commission provides evidence that the level of independence enjoyed by the FTC and CFPB is consistent with Article II.

Posted by: Christine Chabot | Feb 9, 2020 2:59:45 PM

Asher: I'm not aware that there *are* any purportedly "originalist" arguments that seek to distinguish Humphrey's. I'm certainly not aware of anything in the text or early history that would suggest a single/multiple distinction. That was something conjured up the day before last as a way of calling Humphrey's--and many other precedents--into question without having to overrule them expressly.

Posted by: Marty Lederman | Feb 9, 2020 1:28:08 PM

This is super-interesting and obviously is at least relevant to originalist arguments against Humphrey's, but how does it bear on originalist arguments against single-director independent agencies that purport to distinguish Humphrey's?

Posted by: Asher Steinberg | Feb 8, 2020 7:47:57 PM

You'll also want to check out the Bruff, et al., brief, which invokes your Sinking Fund paper.

https://www.supremecourt.gov/DocketPDF/19/19-7/129388/20200122111956423_19-7%20Amicus%20Brief%20of%20Harold%20H.%20Bruff%20et%20al..pdf

Posted by: Marty Lederman | Feb 7, 2020 6:38:32 PM

Thanks!

Posted by: Christine Chabot | Feb 7, 2020 2:02:46 PM

FWIW (Part II is on text and original understandings):

https://www.supremecourt.gov/DocketPDF/19/19-7/129635/20200122204142091_19-7bsacProfessorsMartinS.LedermanAndDavidC.Vladeck.pdf

Posted by: Marty Lederman | Feb 7, 2020 9:13:18 AM

It seems that the second link put by me, is not " hot " or active as such, so again putting it ( if not, just copy and past in browser of course shall do it):

www.scotusblog.com/case-files/cases/seila-law-llc-v-consumer-financial-protection-bureau/

Posted by: El roam | Feb 7, 2020 7:34:11 AM

Important and interesting case indeed. Just worth to note, that " not at will " ( removed ) means that only for the following reasons, I quote ( Sec 105 of Title 5 c(3) ):

"Removal for cause"

" The President may remove the Director for inefficiency, neglect of duty, or malfeasance in office "

One may reach the "petition for a writ of certiorari" here:

https://www.supremecourt.gov/DocketPDF/19/19-7/104482/20190628140628272_18-_PetitionForAWritOfCertiorari.pdf

Other related documents, here:

www.scotusblog.com/case-files/cases/seila-law-llc-v-consumer-financial-protection-bureau/

Thanks

Posted by: El roam | Feb 7, 2020 7:31:34 AM

Post a comment