In 1977, former President Richard Nixon sat down for a series of interviews with relatively obscure British television presenter David Frost. See Transcript of David Frost’s Interview with Richard Nixon, Teaching Am. History, https://teachingamericanhistory.org/library/document/transcript-of-david-frosts-interview-with-richard-nixon (last visited Dec. 12, 2019). In Part 3 of the televised series, President Nixon famously told Frost, “Well, when the President does it, that means it is not illegal.” Id. Although referring to matters of national security, Tricky Dick’s words capture the essence of the unitary executive theory. See Tom Head, Unitary Executive Theory and the Imperial Presidency, ThoughtCo., https://www.thoughtco.com/unitary-executive-theory-the-imperial-presidency-721716 (last updated Sept. 17, 2019). Proponents of the unitary executive theory believe that Article II of the Constitution vests the President with all executive power, and they seek to contest any limits to presidential authority. See id. On October 18, 2019, those in the unitary executive’s corner scheduled their latest prize fight. See Amy Howe, Justices to Review Constitutionality of CFPB Structure, SCOTUSblog (Oct. 18, 2019, 3:56 PM), https://www.scotusblog.com/2019/10/justices-to-review-constitutionality-of-cfpb-structure/. Granting certiorari to a Ninth Circuit decision, the Supreme Court agreed to hear a challenge to the statutory restrictions protecting the director of the Consumer Finance Protection Bureau (CFPB) from presidential removal. See id. The Court will now weigh in on a decades-long constitutional bout between the Legislative and Executive Branches. See id. Although independent agencies have survived previous rounds, the Roberts Court seems poised to declare the CFPB down for the count. See id.
I. The History
Although federal agencies are created by Congress through statute, they operate within the Executive Branch and are tasked with executing the law. See Ian Millhiser, The Supreme Court Will Decide if Trump Can Fire the CFPB Director. The Implications are Enormous, Vox, https://www.vox.com/policy-and-politics/2019/9/18/20872236/trump-justice-department-supreme-court-cfpb-unitary-executive (last updated Oct. 18, 2019, 3:03 PM). Serving at the pleasure of the President, the directors of these agencies can be removed at-will. See id. There are, however, certain so-called “independent agencies” that are led by a bipartisan board of directors, like the Federal Trade Commission. See Commissioners, Fed. Trade Commission, https://www.ftc.gov/about-ftc/commissioners (last visited Dec. 12, 2019). These directors can only be removed “for cause,” which limits the President’s ability to corrupt an agency by replacing those directors with whom they disagree. See Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935). This insulation from presidential removal is diametrically opposed to the notion of the unitary executive. See Millhiser, supra. In fact, the protection from presidential removal led unitary executive adherents to challenge the Ethics in Government Act (the Act) in 1988’s Morrison v. Olson, 487 U.S. 654 (1988).
In Morrison, the Supreme Court voted 7–1 to uphold “the constitutionality of the independent counsel provisions of the [Act].” See id. at 696–97. Justice Antonin Scalia penned the lone dissent, arguing that the power to prosecute rests with the Executive Branch alone. See id. at 697. (Scalia, J., dissenting). Therefore, under Justice Scalia’s dissent, a special prosecutor who did not answer to the Oval Office represented a constitutional violation of the separation of powers principle. See id. at 715. While the Act itself expired in 1999, conservatives continue to laud Scalia’s stance, dubbing the diatribe “The Great Dissent.” See Erica Orden & Jacob Gershman, Expired Independent-Counsel Law Leaves More Power with Justice Department, Wall St. J. (May 10, 2017, 5:59 PM), https://www.wsj.com/articles/expired-independent-counsel-law-leaves-more-power-with-justice-department-1494453577?ns=prod/accounts-wsj; see Gary Lawson et al., The Great Dissent: Justice Scalia’s Opinion in Morrison v. Olson, Fed. Soc. (Oct. 7, 2018), https://fedsoc.org/commentary/videos/the-great-dissent-justice-scalia-s-opinion-in-morrison-v-olson?autoplay=1. Justice Brett Kavanaugh even stated in a 2016 speech at an American Enterprise Institute event that he would like to overturn Morrison. See Manu Raju, Trump Supreme Court Pick: I Would ‘Put the Nail’ in Ruling Upholding Independent Counsel, CNN, https://www.cnn.com/2018/07/18/politics/brett-kavanaugh-independent-counsel-comments/index.html (last updated July 18, 2019, 10:48 AM). He further stated: “It’s been effectively overturned, but I would put the final nail in.” Id. Understandably, the Supreme Court’s grant of certiorari in Seila now appears particularly opportunistic. Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, 2019 WL 5281290, at *1 (U.S. Oct. 18, 2019). If a majority of the Court embraces the unitary executive model as laid out in Scalia’s dissent, the Executive will gain an unchecked ability to remove the directors of independent agencies and special counsels on a whim. See Howe, supra. The independence of crucial executive agencies, like the FTC or Federal Reserve, could be just weeks from a humiliating knockout.
II. The Contenders
Congress created the CFPB as part of the Dodd-Frank Wall Street Reform Act following the 2008 mortgage crisis. See Melissa Quinn, Supreme Court to Weigh Constitutionality of Financial Watchdog Agency Created by Elizabeth Warren, Wash. Exam’r (Oct. 18, 2019, 3:55 PM), https://www.washingtonexaminer.com/policy/courts/supreme-court-to-weigh-constitutionality-of-the-financial-watchdog-agency-created-by-elizabeth-warren. The brainchild of Massachusetts Senator Elizabeth Warren, the CFPB polices “the offering and provision of consumer financial products.” Id.; see 12 U.S.C. § 5491(a) (2012). While the CFPB is run by a single director, not a board of directors, it still enjoys the for-cause limitation on presidential removal. § 5491(b)(1), (3). Thus, its director can only be removed for “inefficiency, neglect of duty, or malfeasance in office.” § 5491(b)(3). The position of the CFPB director was once characterized by Brett Kavanaugh as wielding “power that is massive in scope, concentrated in a single person, and unaccountable to the President.” PHH Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 166 (D.C. Cir. 2018) (Kavanaugh, J., dissenting). Thus, when the Seila law firm received CFPB interrogatories regarding telemarketing violations, they refused to respond and argued––you guessed it––that the CFPB’s structure violates the Constitution. See Consumer Fin. Prot. Bureau v. Seila Law LLC, 923 F.3d 680, 682 (9th Cir. 2019), cert. granted sub nom. Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, 2019 WL 5281290 (U.S. Oct. 18, 2019).
After the trial court ruled to enforce the CFPB’s requests, Seila appealed. See id. The Court of Appeals for the Ninth Circuit acknowledged that Seila’s argument was “not without force,” but ultimately affirmed the trial court’s ruling. See id. at 683. The Ninth Circuit explained: “[W]e view Humphrey’s Executor and Morrison as controlling here. Those cases indicate that the for-cause removal restriction protecting the CFPB’s Director does not ‘impede the President’s ability to perform his constitutional duty’ to ensure that the laws are faithfully executed.” Id. at 684 (quoting Morrison v. Olson, 487 U.S. 654, 691(1988)).
Seila subsequently sought review from the Supreme Court. See Howe, supra. It contended that this case is “exceptionally important” and that the time has come to “resolve the long-running debate about the constitutionality of the CFPB.” Id. Interestingly enough, the CFPB agreed that the Justices should grant certiorari and argued that the for-cause insulation of the agency’s director “impermissibly infringes the separation of powers fundamental to our constitutional structure.” Brief for the Respondent at *16, Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, 2019 WL 5281290 (U.S. Oct. 18, 2019). This position is particularly suspect considering the CFPB’s former acting director, Mick Mulvaney, now serves as President Trump’s acting chief of staff. See Robert Rampton & Steve Holland, Trump Picks Mulvaney as Chief of Staff – for Now, Reuters (Dec. 14, 2018, 1:28 PM), https://www.reuters.com/article/us-usa-trump-staff/trump-taps-budget-director-mulvaney-as-acting-chief-of-staff-idUSKBN1OD2FV. Regardless, the Supreme Court granted Seila’s petition for certiorari and instructed the parties to brief an additional question: if the provision limiting the President’s ability to remove the CFPB director is unconstitutional, can that provision be separated from the rest of the Dodd-Frank Act? See Seila, 2019 WL 5281290, at *1. If the provision is deemed inseparable from the Dodd-Frank Act as a whole, the entire agency may be struck down as unconstitutional.
The Justices will not hear oral arguments until March 3, 2020. See Seila Law LLC v. Consumer Financial Protection Bureau, SCOTUSblog (Dec. 16, 2019), https://www.scotusblog.com/case-files/cases/seila-law-llc-v-consumer-financial-protection-bureau/. However, with an openly anti-Morrison Justice on the bench and the CFPB arguing against its own interests, the fix is already in. The current Administration has effectively disqualified the CFPB before the fight. An autonomous agency devoted to protecting the rights of American consumers is anathema to the notion of an omnipotent chief executive. The Supreme Court will almost certainly rule in the President’s favor. Thus, the only remaining question is: how far is the Court willing to go? A complete dismantling of the agency, delivered with a sense of shamelessness that would make Richard Nixon blush, may be inevitable. The nation’s remaining independent agencies may have no choice but to throw in the towel.
*Andrew Will is a second-year day student at the University of Baltimore School of Law, where he is a staff editor for the Law Review and a member of the Royal Graham Shannonhouse III Honor Society. Andrew currently serves as a judicial intern for Judge George Russell III and will soon join Pessin Katz Law, P.A. as a summer associate.