B
Neither
Humphrey's Executor
nor
Morrison
resolves whether the CFPB Director's insulation from removal is constitutional. Start with
Humphrey's Executor.
Unlike the New Deal-era FTC upheld there, the CFPB is led by a single Director who cannot be described as a "body of experts" and cannot be considered "non-partisan" in the same sense as a group of officials drawn from both sides of the aisle.
In addition, the CFPB Director is hardly a mere legislative or judicial aid. Instead of making reports and recommendations to Congress, as the 1935 FTC did, the Director possesses the authority to promulgate binding rules fleshing out 19 federal statutes, including a broad prohibition on unfair and deceptive practices in a major segment of the U. S. economy. And instead of submitting recommended dispositions to an Article III court, the Director may unilaterally issue final decisions awarding legal and equitable relief in administrative adjudications. Finally, the Director's enforcement authority includes the power to seek daunting monetary penalties against private parties on behalf of the United States in federal court-a quintessentially executive power not considered in Humphrey's Executor . 4
The logic of
Morrison
also does not apply. Everyone agrees the CFPB Director is not an inferior officer, and her duties are far from limited. Unlike the independent counsel, who lacked policymaking or administrative authority, the Director has the sole responsibility to administer 19 separate consumer-protection statutes that cover everything from credit cards and car payments to mortgages and student loans. It is true that the independent counsel in
Morrison
was empowered to initiate criminal investigations and prosecutions, and in that respect wielded core executive power. But that power, while significant, was trained inward to high-ranking Governmental actors identified by others, and was confined to a specified matter in which the Department of Justice had a potential conflict of interest. By contrast, the CFPB Director has the authority to bring the coercive power of the state to bear on millions of private citizens and businesses, imposing even billion-dollar
In light of these differences, the constitutionality of the CFPB Director's insulation from removal cannot be settled by Humphrey's Executor or Morrison alone.
C
The question instead is whether to extend those precedents to the "new situation" before us, namely an independent agency led by a single Director and vested with significant executive power.
Free Enterprise Fund
,
1
"Perhaps the most telling indication of [a] severe constitutional problem" with an executive entity "is [a] lack of historical precedent" to support it.
After years of litigating the agency's constitutionality, the Courts of Appeals, parties, and
amici
have identified "only a handful of isolated" incidents in which Congress has provided good-cause tenure to principal officers who wield power alone rather than as members of a board or commission.
First, the CFPB's defenders point to the Comptroller of the Currency, who enjoyed removal protection for
one year
during the Civil War. That example has rightly been dismissed as an aberration. It was "adopted without discussion" during the heat of the Civil War and abandoned before it could be "tested by executive or judicial inquiry."
Myers
,
Second, the supporters of the CFPB point to the Office of the Special Counsel (OSC), which has been headed by a single officer since 1978.
6
But this first enduring single-leader office, created nearly 200 years after the Constitution was ratified, drew a contemporaneous constitutional objection from the Office of Legal Counsel under President Carter and a subsequent veto on constitutional grounds by President Reagan. See Memorandum Opinion for the General Counsel, Civil Service Commission,
Third, the CFPB's defenders note that the Social Security Administration (SSA) has been run by a single Administrator since 1994. That example, too, is comparatively recent and controversial. President Clinton questioned the constitutionality of the SSA's new single-Director structure upon signing it into law. See Public Papers of the Presidents, William J. Clinton, Vol. II, Aug. 15, 1994, pp. 1471-1472 (1995) (inviting a "corrective amendment" from Congress). In addition, unlike the CFPB, the SSA lacks the authority to bring enforcement actions against private parties. Its role is largely limited to adjudicating claims for Social Security benefits.
The only remaining example is the Federal Housing Finance Agency (FHFA), created in 2008 to assume responsibility for Fannie Mae and Freddie Mac. That agency is essentially a companion of the CFPB, established in response to the same financial crisis. See Housing and Economic Recovery Act of 2008,
With the exception of the one-year blip for the Comptroller of the Currency, these isolated examples are modern and contested. And they do not involve regulatory or enforcement authority remotely comparable to that exercised by the CFPB. The CFPB's single-Director structure is an innovation with no foothold in history or tradition. 8
2
In addition to being a historical anomaly, the CFPB's single-Director configuration is incompatible with our constitutional structure. Aside from the sole exception of the Presidency, that structure scrupulously avoids concentrating power in the hands of any single individual.
"The Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty."
Bowsher
,
The Executive Branch is a stark departure from all this division. The Framers viewed the legislative power as a special threat to individual liberty, so they divided that power to ensure that "differences of opinion" and the "jarrings of parties" would "promote deliberation and circumspection" and "check excesses in the majority." See The Federalist No. 70, at 475 (A. Hamilton); see also id ., No. 51, at 350. By contrast, the Framers thought it necessary to secure the authority of the Executive so that he could carry out his unique responsibilities. See id ., No. 70, at 475-478. As Madison put it, while "the weight of the legislative authority requires that it should be ... divided, the weakness of the executive may require, on the other hand, that it should be fortified." Id ., No. 51, at 350.
The Framers deemed an energetic executive essential to "the protection of the community against foreign attacks," "the steady administration of the laws," "the protection of property," and "the security of liberty."
Id
., No. 70, at 471. Accordingly, they chose not to bog the Executive down with the "habitual feebleness and dilatoriness" that comes with a "diversity of views and opinions."
To justify and check
that
authority-unique in our constitutional structure-the Framers made the President the most democratic and politically accountable official in Government. Only the President (along with the Vice President) is elected by the entire Nation. And the President's political accountability is enhanced by the solitary nature of the Executive Branch, which provides "a single object for the jealousy and watchfulness of the people."
Id.,
at 479. The President "cannot delegate ultimate responsibility or the active obligation to supervise that goes with it," because Article II "makes a single President responsible for the actions of the Executive Branch."
Free Enterprise Fund
,
The resulting constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials will still wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President. Through the President's oversight, "the chain of dependence [is] preserved," so that "the lowest officers, the middle grade, and the highest" all "depend, as they ought, on the President, and the President on the community." 1 Annals of Cong. 499 (J. Madison).
The CFPB's single-Director structure contravenes this carefully calibrated system by vesting significant governmental power in the hands of a single individual accountable to no one. The Director is neither elected by the people nor meaningfully controlled (through the threat of removal) by someone who is. The Director does not even depend on Congress for annual appropriations. See The Federalist No. 58, at 394 (J. Madison) (describing the "power over the purse" as the "most compleat and effectual weapon" in representing the interests of the people). Yet the Director may
unilaterally
, without meaningful supervision, issue final regulations,
The CFPB Director's insulation from removal by an accountable President is enough to render the agency's structure unconstitutional. But several other features of the CFPB combine to make the Director's removal protection even more problematic. In addition to lacking the most direct method of presidential control-removal at will-the agency's unique structure also forecloses certain indirect methods of Presidential control.
Because the CFPB is headed by a single Director with a five-year term, some Presidents may not have any opportunity to shape its leadership and thereby influence its activities. A President elected in 2020 would likely not appoint a CFPB Director until 2023, and a President elected in 2028 may never appoint one. That means an unlucky President might get elected on a consumer-protection platform and enter office only to find herself saddled with a holdover Director from a competing political party who is dead set against that agenda. To make matters worse, the agency's single-Director structure means the President will not have the opportunity to appoint any other leaders-such as a chair or fellow members of a Commission or Board-who can serve as a check on the Director's authority and help bring the agency in line with the President's preferred policies.
The CFPB's receipt of funds outside the appropriations process further aggravates the agency's threat to Presidential control. The President normally has the opportunity to recommend or veto spending bills that affect the operation of administrative agencies. See Art. I, § 7, cl. 2; Art. II, § 3. And, for the past century, the President has annually submitted a proposed budget to Congress for approval. See Budget and Accounting Act, 1921, ch. 18, § 201,
3
Amicus
raises three principal arguments in the agency's defense. At the
Next, amicus offers a grand theory of our removal precedents that, if accepted, could leave room for an agency like the CFPB-and many other innovative intrusions on Article II. According to amicus , Humphrey's Executor and Morrison establish a general rule that Congress may impose "modest" restrictions on the President's removal power, with only two limited exceptions. Brief for Court-Appointed Amicus Curiae 33-37. Congress may not reserve a role for itself in individual removal decisions (as it attempted to do in Myers and Bowsher ). And it may not eliminate the President's removal power altogether (as it effectively did in Free Enterprise Fund ). Outside those two situations, amicus argues, Congress is generally free to constrain the President's removal power. See also post , at 2232 - 2236 (KAGAN, J., concurring in judgment with respect to severability and dissenting in part) (hereinafter dissent) (expressing similar view).
Finally,
amicus
contends that if we identify a constitutional problem with the CFPB's structure, we should avoid it by broadly construing the statutory grounds for removing the CFPB Director from office. See Brief for Court-Appointed
Amicus Curiae
50-53; Tr. of Oral Arg. 57-62. The Dodd-Frank Act provides that the Director may be removed for "inefficiency, neglect of duty, or malfeasance in office."
We are not persuaded. For one,
Humphrey's Executor
implicitly rejected an interpretation that would leave the President free to remove an officer based on disagreements about agency policy. See
Amicus
and the House also fail to engage with the Dodd-Frank Act as a whole, which makes plain that the CFPB is an "independent bureau."
(listing the CFPB as an "independent regulatory agency"). Neither amicus nor the House explains how the CFPB would be "independent" if its head were required to implement the President's policies upon pain of removal. See Black's Law Dictionary 838 (9th ed. 2009) (defining "independent" as "[n]ot subject to the control or influence of another"). The Constitution might of course compel the agency to be dependent on the President notwithstanding Congress's contrary intent, but that result cannot fairly be inferred from the statute Congress enacted.
Constitutional avoidance is not a license to rewrite Congress's work to say whatever the Constitution needs it to say in a given situation. Without a proffered interpretation that is rooted in the statutory text and structure, and would avoid the constitutional violation we have identified, we take Congress at its word that it meant to impose a meaningful restriction on the President's removal authority.
The dissent, for its part, largely reprises points that the Court has already considered and rejected: It notes the lack of an express removal provision, invokes Congress's general power to create and define executive offices, highlights isolated statements from individual Framers, downplays the decision of 1789, minimizes Myers , brainstorms methods of Presidential control short of removal, touts the need for creative congressional responses to technological and economic change, and celebrates a pragmatic, flexible approach to American governance. See post , at 2224 - 2238, 2241 - 2243, 2245.
If these arguments sound familiar, it's because they are. They were raised by the dissent in
Free Enterprise Fund
. Compare
post
, at 2224 - 2238, 2241 - 2243, 2245, with
Free Enterprise Fund
,
As we explained in
Free Enterprise Fund
, "One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts."
IV
Having concluded that the CFPB's leadership by a single independent Director violates the separation of powers, we now turn to the appropriate remedy. We directed the parties to brief and argue whether the Director's removal protection was severable from the other provisions of the Dodd-Frank Act that establish the CFPB. If so, then the CFPB may continue to exist and operate notwithstanding
As the defendant in this action, petitioner seeks a straightforward remedy. It asks us to deny the Government's petition to enforce the civil investigative demand and dismiss the case. The Government counters that the demand, though initially issued by a Director unconstitutionally insulated from removal, can still be enforced on remand because it has since been ratified by an Acting Director accountable to the President. The parties dispute whether this alleged ratification in fact occurred and whether, if so, it is legally sufficient to cure the constitutional defect in the original demand. That debate turns on case-specific factual and legal questions not addressed below and not briefed here. A remand for the lower Courts to consider those questions in the first instance is therefore the appropriate course-unless such a remand would be futile.
In petitioner's view, it would be. Before the Court of Appeals, petitioner contended that, regardless of any ratification, the demand is unenforceable because the statutory provision insulating the CFPB Director from removal cannot be severed from the other statutory provisions that define the CFPB's authority. See Brief for Appellant in No. 17-56324 (CA9), pp. 27-28, 30-32. If petitioner is correct, and the offending removal provision means the entire agency is unconstitutional and powerless to act, then a remand would be pointless. With no agency left with statutory authority to maintain this suit or otherwise enforce the demand, the appropriate disposition would be to reverse with instructions to deny the Government's petition to enforce the agency's demand for documents and dismiss the case, as petitioner requests.
Accordingly, there is a live controversy over the question of severability. And that controversy is essential to our ability to provide petitioner the relief it seeks: If the removal restriction is not severable, then we must grant the relief requested, promptly rejecting the demand outright. If, on the other hand, the removal restriction is severable, we must instead remand for the Government to press its ratification arguments in further proceedings. Unlike the lingering ratification issue, severability presents a pure question of law that has been fully briefed and argued by the parties. We therefore proceed to address it. 12
It has long been settled that "one section of a statute may be repugnant to the Constitution without rendering the whole act void."
Loeb v. Columbia Township Trustees
,
"Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact."
Free Enterprise Fund
,
The only constitutional defect we have identified in the CFPB's structure is the Director's insulation from removal. If the Director were removable at will by the President, the constitutional violation would disappear. We must therefore decide whether the removal provision can be severed from the other statutory provisions relating to the CFPB's powers and responsibilities.
In
Free Enterprise Fund
, we found a set of unconstitutional removal provisions severable even in the absence of an express severability clause because the surviving provisions were capable of "functioning independently" and "nothing in the statute's text or historical context [made] it evident that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will."
So too here. The provisions of the Dodd-Frank Act bearing on the CFPB's structure and duties remain fully operative without the offending tenure restriction. Those provisions are capable of functioning independently, and there is nothing in the text or history of the Dodd-Frank Act that demonstrates Congress would have preferred
no
CFPB to a CFPB supervised by the President. Quite the opposite. Unlike the Sarbanes-Oxley Act at issue in
Free Enterprise Fund
, the Dodd-Frank Act contains an express severability clause. There is no need to wonder what Congress would have wanted if "any provision of this Act" is "held to be unconstitutional" because it has told us: "the remainder of this Act" should "not be affected."
Petitioner urges us to disregard this plain language for three reasons. None is persuasive. First, petitioner dismisses the clause as non-probative "boilerplate" because it applies "to the entire, 848-page Dodd-Frank Act" and "appears almost 600 pages before the removal provision at issue." Brief for Petitioner 45. In petitioner's view, that means we cannot be certain that Congress really meant to apply the clause to each of the Act's provisions. But boilerplate is boilerplate for a reason-because it offers tried-and-true language to ensure a precise and predictable result. That is the case here. The language unmistakably references "
any
provision of this Act."
Second, petitioner points to an additional severability clause in the Act that applies only to one of the Act's subtitles. See
Finally, petitioner argues more broadly that Congress would not have wanted to give the President unbridled control over the CFPB's vast authority. Petitioner highlights the references to the CFPB's independence in the statutory text and legislative history, as well as in Professor Warren's and the Obama administration's original proposals. See Brief for Petitioner 43-44 (collecting examples). And petitioner submits that Congress might not have exempted the CFPB from congressional oversight via the appropriations process if it had known that the CFPB would come under executive control.
These observations certainly confirm that Congress preferred an independent CFPB to a dependent one; but they shed little light on the critical question whether Congress would have preferred a dependent CFPB to
no agency at all.
That is the only question we have the authority to decide, and the answer seems clear. Petitioner assumes that, if we eliminate the CFPB, regulatory and enforcement authority over the statutes it administers would simply revert back to the handful of independent agencies previously responsible for them. See
Justice THOMAS would have us junk our settled severability doctrine and start afresh, even though no party has asked us to do so. See
post
, at 2219 - 2220 (opinion concurring in part and dissenting in part). Among other things, he objects that it is sheer "speculation" that Congress would prefer that its consumer protection laws be enforced by a Director accountable to the President rather than not at all.
Post
, at 2223 - 2224. We think it clear that Congress would prefer that we use a scalpel rather than a bulldozer in
As in every severability case, there may be means of remedying the defect in the CFPB's structure that the Court lacks the authority to provide. Our severability analysis does not foreclose Congress from pursuing alternative responses to the problem-for example, converting the CFPB into a multimember agency. The Court's only instrument, however, is a blunt one. We have "the negative power to disregard an unconstitutional enactment,"
Massachusetts v. Mellon
,
Because we find the Director's removal protection severable from the other provisions of Dodd-Frank that establish the CFPB, we remand for the Court of Appeals to consider whether the civil investigative demand was validly ratified.
* * *
A decade ago, we declined to extend Congress's authority to limit the President's removal power to a new situation, never before confronted by the Court. We do the same today. In our constitutional system, the executive power belongs to the President, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead. While we have previously upheld limits on the President's removal authority in certain contexts, we decline to do so when it comes to principal officers who, acting alone, wield significant executive power. The Constitution requires that such officials remain dependent on the President, who in turn is accountable to the people.
The judgment of the United States Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice THOMAS, with whom Justice GORSUCH joins, concurring in part and dissenting in part.
The Court's decision today takes a restrained approach on the merits by limiting
Humphrey's Executor
v.
United States
,
Because the Court takes a step in the right direction by limiting Humphrey's Executor to "multimember expert agencies that do not wield substantial executive power ," ante , at 2219 (emphasis added), I join Parts I, II, and III of its opinion. I respectfully dissent from the Court's severability analysis, however, because I do not believe that we should address severability in this case.
I
The decision in
Humphrey's Executor
poses a direct threat to our constitutional structure and, as a result, the liberty of the American people. The Court concludes that it is not strictly necessary for us to
A
"The Constitution does not vest the Federal Government with an undifferentiated 'governmental power.' "
Department of Transportation v. Association of American Railroads
,
Article II of the Constitution vests "[t]he executive Power" in the "President of the United States of America," § 1, cl. 1, and directs that he shall "take Care that the Laws be faithfully executed," § 3. Of course, the President cannot fulfill his role of executing the laws without assistance. See
Myers v. United States
,
Despite the defined structural limitations of the Constitution and the clear vesting of executive power in the President, Congress has increasingly shifted executive power to a
de facto
fourth branch of Government-independent agencies. These agencies wield considerable executive power without Presidential oversight. They are led by officers who are insulated from the President by removal restrictions, "reduc[ing] the Chief Magistrate to [the role of] cajoler-in-chief."
Free Enterprise Fund
,
Unfortunately, this Court "ha[s] not always been vigilant about protecting the structure of our Constitution," at times endorsing a "more pragmatic, flexible approach" to our Government's design.
Perez v. Mortgage Bankers Assn.
,
1
The lead up to
Humphrey's Executor
begins with this Court's decision in
Myers
,
The Court anchored its analysis in evidence from the founding era. It acknowledged that the "subject [of removal] was not discussed in the Constitutional Convention,"
The Court noted that the First Congress' understanding of the removal question was quickly "accepted as a final decision of the question by all branches of the Government."
id="p2214" href="#p2214" data-label="2214" data-citation-index="1" class="page-label">*2214
After exhaustively analyzing the historical evidence, the Court had "no hesitation in holding that [the First Congress'] conclusion [was] correct."
2
Nine years after
Myers
, the Court decided
Humphrey's Executor
. That case arose from the attempted removal of Commissioner William Humphrey from the Federal Trade Commission (FTC). In 1931, President Herbert Hoover appointed Humphrey to serve a 7-year term as one of the FTC's five Commissioners. By all accounts, Humphrey proved to be a controversial figure. See Crane, Debunking
Humphrey's Executor
,
Less than two years into Humphrey's term, newly inaugurated President Franklin D. Roosevelt wrote Humphrey a letter, asking for his resignation. The President explained that, in his view, "the aims and purposes of the Administration with respect to the work of the Commission [could] be carried out most effectively with personnel of [his] own selection."
Humphrey's Executor
,
Four months later, Humphrey died. The executor of his estate brought suit in the Court of Claims, seeking to recover Humphrey's salary from the date of his removal until the date of his death. The Court of Claims certified two questions to this Court: (1) whether § 1 of the Federal Trade Commission Act of 1914, ch. 311,
The Court answered both of these questions in favor of Humphrey's estate. It first held that the FTC Act "limit[ed] the executive power of removal to the causes enumerated" therein-inefficiency, neglect
Then, notwithstanding the text of Article II of the Constitution and the decision in
Myers
, the Court held that the Act's restriction on the President's authority to remove Commissioners was constitutional. The Court acknowledged that the "recently decided"
Myers
decision had "fully review[ed] the general subject of the power of executive removal" and "examine[d] at length the historical, legislative and judicial data bearing upon the question."
Humphrey's Executor
,
The Court grounded its analysis in its assertion that the FTC "occupies no place in the executive department and ... exercises no part of the executive power vested by the Constitution in the President."
After distinguishing "purely executive officers" from officers exercising "quasi-legislative or quasi-judicial powers,"
3
Humphrey's Executor
laid the foundation for a fundamental departure from our constitutional structure with nothing more than handwaving and obfuscating phrases such as "quasi-legislative" and "quasi-judicial." Unlike the thorough analysis in
Myers
, the Court's thinly reasoned decision is completely "devoid of textual or historical precedent for the novel principle it set forth."
Morrison v. Olson
,
Humphrey's Executor
relies on one key premise: the notion that there is a category of "quasi-legislative" and "quasi-judicial" power that is not exercised by Congress or the Judiciary, but that is also not part of "the executive power vested by the Constitution in the President."
Humphrey's Executor
,
supra
, at 628,
The problem is that the Court's premise was entirely wrong. The Constitution does not permit the creation of officers exercising "quasi-legislative" and "quasi-judicial powers" in "quasi-legislative" and "quasi-judicial agencies."
That is exactly what happened in
Humphrey's Executor
. The Court upheld the FTC Act's removal restriction by using the "quasi" label to support its claim that the FTC "exercise[d] no part of the executive power vested by the Constitution in the President."
Humphrey's Executor
,
supra
, at 628,
C
Today's decision constitutes the latest in a series of cases that have significantly undermined
Humphrey's Executor
. First, in
Morrison
, the Court repudiated the reasoning of the decision.
This Court's repudiation of
Humphrey's Executor
began with its decision in
Morrison
. There, the Court upheld a statute insulating an independent counsel from removal by the Attorney General absent a showing of "good cause."
Morrison
,
supra
, at 659-660,
The reasoning of the Court's decision in
Free Enterprise Fund
created further tension (if not outright conflict) with
Humphrey's
Executor
. In
Free Enterprise Fund
, the Court concluded that a dual layer of for-cause removal restrictions for members of the Public Company Accounting
Finally, today's decision builds upon Morrison and Free Enterprise Fund , further eroding the foundation of Humphrey's Executor . The Court correctly notes that "[t]he entire 'executive Power' belongs to the President alone." Ante , at 2197. The President therefore must have "power to remove-and thus supervise-those who wield executive power on his behalf." Ante , at 2191 - 2192. As a result, the Court concludes that Humphrey's Executor must be limited to "multimember expert agencies that do not wield substantial executive power ." Ante, at 2219 - 2220 (emphasis added). And, at the same time, it recognizes (as the Court did in Morrison ) that "[t]he Court's conclusion that the FTC did not exercise executive power has not withstood the test of time." Ante , at 2198 n.2. In other words, Humphrey's Executor does not even satisfy its own exception.
In light of these decisions, it is not clear what is left of Humphrey's Executor 's rationale. 4 But if any remnant of that decision is still standing, it certainly is not enough to justify the numerous, unaccountable independent agencies that currently exercise vast executive power outside the bounds of our constitutional structure.
* * *
Continued reliance on
Humphrey's Executor
to justify the existence of independent
II
While I think that the Court correctly resolves the merits of the constitutional question, I do not agree with its decision to sever the removal restriction in
A
Article III of the Constitution vests "[t]he judicial Power of the United States" in the "supreme Court" and the lower federal courts established by Congress. § 1. "[T]he judicial power is, fundamentally, the power to render judgments in individual cases" or controversies that are properly before the court.
Murphy
v.
National Collegiate Athletic Assn.
, 584 U. S. ----, --- - ----,
Consistent with this understanding, "[e]arly American courts did not have a severability doctrine."
Our modern severability precedents create tension with this historic practice. Instead of declining to enforce an unconstitutional statute in an individual case, this Court has stated that courts must "seve[r] and excis[e]" portions of a statute to "remedy" the constitutional problem.
United States v. Booker
,
Because the power of judicial review does not allow courts to revise statutes, Mitchell,
supra
, at 983, the Court's severability doctrine must be rooted in statutory interpretation. But, even viewing severability as an interpretive question, I remain skeptical of our doctrine. As I have previously explained, "the severability doctrine often requires courts to weigh in on statutory provisions that no party has standing to challenge, bringing courts dangerously close to issuing advisory opinions."
Murphy
, 584 U. S., at ----,
B
Consistent with the traditional understanding of the judicial power, I would deny CFPB's petition to enforce the civil investigative demand that it issued to Seila. See § 5562(e)(1). Seila "challenge[d] the validity of both the civil investigative demand and the ensuing enforcement action." Reply Brief for Petitioner 5. Seila has not countersued or sought affirmative relief preventing the CFPB from acting in the future; it simply asks us to "reverse the court of appeals' judgment." Brief for Petitioner 35. I would do just that. As the Court recognizes, the enforcement of a civil investigative demand by an official with unconstitutional removal protection injures Seila. See ante , at 2195 - 2196. Presented with an enforcement request from an unconstitutionally insulated Director, I would simply deny the CFPB's petition for an order of enforcement. This approach would resolve the dispute before us without addressing the issue of severability.
The Court, however, does more. In the plurality's view, 5 because the CFPB raised a ratification argument before the Court of Appeals, we can (and should) reach the question of severability. See ante , at 2207 - 2208. But as explained more fully below, resolving this question is wholly unnecessary. Regardless of whether the CFPB's ratification theory is valid, the Court of Appeals on remand must reach the same outcome: The CFPB's civil investigative demand cannot be enforced against Seila.
The ratification argument presented by the CFPB is quite simple. Since its creation in 2010, the CFPB has had three Directors-first Director Richard Cordray, then Acting Director Mick Mulvaney, and
The CFPB does not ask this Court to address ratification on the merits, but it does rely on its unresolved ratification theory to assert that the Court should reach severability. In doing so, the CFPB relies on the same theory that it presented to the Ninth Circuit. Thus, the only live ratification claim is the theory that Acting Director Mulvaney ratified the civil investigative demand. See ante , at 2207 - 2208. 6
The resolution of the CFPB's Acting-Director ratification theory, however, has no bearing on the outcome of the dispute before us and therefore provides no basis for addressing severability. If the Acting Director did not ratify the investigative demand, then there is obviously no need to address severability. And even if he did, the Court still does not need to address severability because the alleged ratification does not cure the constitutional injury-enforcement of an investigative demand by an unconstitutionally insulated Director. Seila "challenge[d] the validity of both the civil investigative demand
and the ensuing enforcement action
." Reply Brief for Petitioner 5 (emphasis added). Acting Director Mulvaney may (or may not) have properly ratified the issuance of the investigative demand and the initiation of the enforcement proceedings. But he certainly could not ratify the continuance of the enforcement action by his successor, Director Kraninger.
Ultimately, I cannot see how the resolution of the severability question affects the dispute before us. And even if severability could affect this case in some hypothetical scenario, I would not reach out to resolve the issue given my growing discomfort with our current severability precedents.
C
Confident that it can address the question of severability, the plurality moves on to conduct its analysis. It starts by pointing
The plurality suggests that its analysis is a matter of simply enforcing the "plain language" of the severability clause. See
ante
, at 2209. But I am not sure it is that simple. For one, the plurality does not actually analyze the statutory language.
7
Second, the analysis the plurality does provide looks nothing like traditional statutory interpretation. Generally, when we interpret a statute, we do not hold that the text sets out a "presum[ption]" that can be rebutted by looking to atextual evidence of legislative intent.
Ante
, at 2208 - 2209. A text-based interpretation does not allow a free-ranging inquiry into what " 'Congress, faced with the limitations imposed by the Constitution, would have preferred' " had it known of a constitutional issue.
Ante
, at 2209 (quoting
Free Enterprise Fund
,
supra
, at 509,
Even treating the question as a matter of pure statutory interpretation and assuming that the plurality points to the correct language, the text of the severability clause cannot, in isolation, justify severance of the removal provision. In some instances, a constitutional injury arises as a result of two or more statutory provisions operating together. See,
e.g.
,
Free Enterprise Fund
,
supra
, at 509,
Without text to guide us, the severability inquiry moves away from statutory interpretation and falls back on this Court's questionable precedents. See
Murphy
, 584 U. S., at --- - ----,
In
Booker
, a Rule of Criminal Procedure, a subset of provisions in the Sentencing Guidelines, and a statutory provision operated together to require unconstitutional judicial factfinding. To determine which aspect of the sentencing scheme to sever, the Court sought to divine "what Congress would have intended in light of the Court's constitutional holding."
Booker
,
The Court in
Free Enterprise Fund
declined to explicitly engage in
Booker
's free-wheeling inquiry into Congress' hypothetical preferences, but it did not replace that inquiry with a clear standard. In that case, the Court held that a "number of statutory provisions ..., working together, produce[d] a constitutional violation" similar to the violation at issue here.
Free Enterprise Fund
,
Today's plurality opinion provides no further guidance. In fact, the plurality does not even recognize that it has made a choice between the provisions that cause the constitutional injury. It merely states that "[i]f the Director were removable at will by the President, the constitutional violation would disappear." Ante , at 2209. Fair enough. But if the Director lacked executive authority under the statute to seek enforcement of a civil investigative demand, § 5562(e)(1), the constitutional violation in this case would also disappear. The plurality thus chooses which of the provisions to sever.
In short, when multiple provisions of law combine to cause a constitutional injury, the Court's current approach allows the Court to decide which provision to sever. The text of a severability clause does not guide that choice. Nor does the practice of early American courts. See
supra
, at 2218 - 2219. The Court is thus left to choose based on nothing more than speculation as to what the Legislature would have preferred. And the result of its choice can have a dramatic effect on the governing statutory scheme. See
Booker
,
supra
, at 259,
* * *
Given my concerns about our modern severability doctrine and the fact that severability makes no difference to the dispute before us, I would resolve this case by simply denying the CFPB's petition to enforce the civil investigative demand.
Justice KAGAN, with whom Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR join, concurring in the judgment with respect to severability and dissenting in part.
Throughout the Nation's history, this Court has left most decisions about how to structure the Executive Branch to Congress and the President, acting through legislation they both agree to. In particular, the Court has commonly allowed those two branches to create zones of administrative independence by limiting the President's power to remove agency heads. The Federal Reserve Board. The Federal Trade Commission (FTC). The National Labor Relations Board. Statute after statute establishing such entities instructs the President that he may not discharge their directors except for cause-most often phrased as inefficiency, neglect of duty, or malfeasance in office. Those statutes, whose language the Court has repeatedly approved, provide the model for the removal restriction before us today. If precedent were any guide, that provision would
Our Constitution and history demand that result. The text of the Constitution allows these common for-cause removal limits. Nothing in it speaks of removal. And it grants Congress authority to organize all the institutions of American governance, provided only that those arrangements allow the President to perform his own constitutionally assigned duties. Still more, the Framers' choice to give the political branches wide discretion over administrative offices has played out through American history in ways that have settled the constitutional meaning. From the first, Congress debated and enacted measures to create spheres of administration-especially of financial affairs-detached from direct presidential control. As the years passed, and governance became ever more complicated, Congress continued to adopt and adapt such measures-confident it had latitude to do so under a Constitution meant to "endure for ages to come."
McCulloch v. Maryland
,
The Court today fails to respect its proper role. It recognizes that this Court has approved limits on the President's removal power over heads of agencies much like the CFPB. Agencies possessing similar powers, agencies charged with similar missions, agencies created for similar reasons. The majority's explanation is that the heads of those agencies fall within an "exception"-one for multimember bodies and another for inferior officers-to a "general rule" of unrestricted presidential removal power.
Ante,
at 2197 - 2198. And the majority says the CFPB Director does not. That account, though, is wrong in every respect. The majority's general rule does not exist. Its exceptions, likewise, are made up for the occasion-gerrymandered so the CFPB falls outside them. And the distinction doing most of the majority's work-between multimember bodies and single directors-does not respond to the constitutional values at stake. If a removal provision violates the separation of powers, it is because the measure so deprives the President of control over an official as to impede his own constitutional functions. But with or without a for-cause removal provision, the President has at least as much control over an individual as over a commission-and possibly more. That means the constitutional concern is, if anything, ameliorated when the agency has a single head. Unwittingly, the majority shows why courts should stay their hand in these matters. "Compared to Congress and the President, the Judiciary possesses an inferior understanding of the realities of administration" and the way "political
In second-guessing the political branches, the majority second-guesses as well the wisdom of the Framers and the judgment of history. It writes in rules to the Constitution that the drafters knew well enough not to put there. It repudiates the lessons of American experience, from the 18th century to the present day. And it commits the Nation to a static version of governance, incapable of responding to new conditions and challenges. Congress and the President established the CFPB to address financial practices that had brought on a devastating recession, and could do so again. Today's decision wipes out a feature of that agency its creators thought fundamental to its mission-a measure of independence from political pressure. I respectfully dissent.
I
The text of the Constitution, the history of the country, the precedents of this Court, and the need for sound and adaptable governance-all stand against the majority's opinion. They point not to the majority's "general rule" of "unrestricted removal power" with two grudgingly applied "exceptions." Ante, at 2197 - 2198, 2199 - 2200. Rather, they bestow discretion on the legislature to structure administrative institutions as the times demand, so long as the President retains the ability to carry out his constitutional duties. And most relevant here, they give Congress wide leeway to limit the President's removal power in the interest of enhancing independence from politics in regulatory bodies like the CFPB.
A
What does the Constitution say about the separation of powers-and particularly about the President's removal authority? (Spoiler alert: about the latter, nothing at all.)
The majority offers the civics class version of separation of powers-call it the Schoolhouse Rock definition of the phrase. See Schoolhouse Rock! Three Ring Government (Mar. 13, 1979), http://www.youtube.com/watch?v=pKSGyiT-o3o ("Ring one, Executive. Two is Legislative, that's Congress. Ring three, Judiciary"). The Constitution's first three articles, the majority recounts, "split the atom of sovereignty" among Congress, the President, and the courts.
Ante,
at 2202 - 2203 (internal quotation marks omitted). And by that mechanism, the Framers provided a "simple" fix "to governmental power and its perils."
There is nothing wrong with that as a beginning (except the adjective "simple"). It is of course true that the Framers lodged three different kinds of power in three different entities. And that they did so for a crucial purpose-because, as James Madison wrote, "there can be no liberty where the legislative and executive powers are united in the same person[ ] or body" or where "the power of judging [is] not separated from the legislative and executive powers." The Federalist No. 47, p. 325 (J. Cooke ed. 1961) (quoting Baron de Montesquieu).
The problem lies in treating the beginning as an ending too-in failing to recognize that the separation of powers is, by design, neither rigid nor complete. Blackstone, whose work influenced the Framers on this subject as on others, observed that "every branch" of government "supports and is supported, regulates and is regulated, by the rest." 1 W. Blackstone, Commentaries on the Laws of England 151
One way the Constitution reflects that vision is by giving Congress broad authority to establish and organize the Executive Branch. Article II presumes the existence of "Officer[s]" in "executive Departments." § 2, cl. 1. But it does not, as you might think from reading the majority opinion, give the President authority to decide what kinds of officers-in what departments, with what responsibilities-the Executive Branch requires. See ante, at 2197 ("The entire 'executive Power' belongs to the President alone"). Instead, Article I's Necessary and Proper Clause puts those decisions in the legislature's hands. Congress has the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution" not just its own enumerated powers but also "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." § 8, cl. 18. Similarly, the Appointments Clause reflects Congress's central role in structuring the Executive Branch. Yes, the President can appoint principal officers, but only as the legislature "shall ... establish[ ] by Law" (and of course subject to the Senate's advice and consent). Art. II, § 2, cl. 2. And Congress has plenary power to decide not only what inferior officers will exist but also who (the President or a head of department) will appoint them. So as Madison told the first Congress, the legislature gets to "create[ ] the office, define[ ] the powers, [and] limit[ ] its duration." 1 Annals of Cong. 582 (1789). The President, as to the construction of his own branch of government, can only try to work his will through the legislative process. 3
The majority relies for its contrary vision on Article II's Vesting Clause, see
ante,
at 2197, 2204 - 2205, but the provision can't carry all that weight. Or as Chief Justice Rehnquist wrote of a similar claim in
Nor can the Take Care Clause come to the majority's rescue. That Clause cannot properly serve as a "placeholder for broad judicial judgments" about presidential control. Goldsmith & Manning, The Protean Take Care Clause,
Finally, recall the Constitution's telltale silence: Nowhere does the text say anything about the President's power to remove subordinate officials at will. The majority professes unconcern. After all, it
B
History no better serves the majority's cause. As Madison wrote, "a regular course of practice" can "liquidate & settle the meaning of " disputed or indeterminate constitutional provisions. Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908); see
NLRB v. Noel Canning
,
1
Begin with evidence from the Constitution's ratification. And note that this moment is indeed the beginning: Delegates to the Constitutional Convention never discussed whether or to what extent the President would have power to remove executive officials. As a result, the Framers advocating ratification had no single view of the matter. In Federalist No. 77, Hamilton presumed that under the new Constitution "[t]he consent of [the Senate] would be necessary to displace as well as to appoint" officers of the United States. Id., at 515. He thought that scheme would promote "steady administration": "Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained" from substituting "a person more agreeable to him." Ibid. By contrast, Madison thought the Constitution allowed Congress to decide how any executive official could be removed. He explained in Federalist No. 39: "The tenure of the ministerial offices generally will be a subject of legal regulation, conformably to the reason of the case, and the example of the State Constitutions." Id., at 253. Neither view, of course, at all supports the majority's story. 4
The second chapter is the Decision of 1789, when Congress addressed the removal
The best view is that the First Congress was "deeply divided" on the President's removal power, and "never squarely addressed" the central issue here.
Id.,
at 1965, n. 135; Prakash, New Light on the Decision of 1789,
At the same time, the First Congress gave officials handling financial affairs-as compared to diplomatic and military ones-some independence from the President. The title and first section of the statutes creating the Departments of Foreign Affairs and War designated them "executive departments." Act of July 27, 1789, ch. 4,
Contrary to the majority's view, then, the founding era closed without any agreement that Congress lacked the power to curb the President's removal authority. And as it kept that question open, Congress took the first steps-which would launch a tradition-of distinguishing financial regulators from diplomatic and military officers. The latter mainly helped the President carry out his own constitutional duties in foreign relations and war. The former chiefly carried out statutory duties, fulfilling functions Congress had assigned to their offices. In addressing the new Nation's finances, Congress had begun to use its powers under the Necessary and Proper Clause to design effective administrative institutions. And that included taking steps to insulate certain officers from political influence.
2
As the decades and centuries passed, those efforts picked up steam. Confronting new economic, technological, and social conditions, Congress-and often the President-saw new needs for pockets of independence within the federal bureaucracy. And that was especially so, again, when it came to financial regulation. I mention just a few highlights here-times when Congress decided that effective governance depended on shielding technical or expertise-based functions relating to the financial system from political pressure (or the moneyed interests that might lie behind it). Enacted under the Necessary and Proper Clause, those measures-creating some of the Nation's most enduring institutions-themselves helped settle the extent of Congress's power. "[A] regular course of practice," to use Madison's phrase, has "liquidate[d]" constitutional meaning about the permissibility of independent agencies. See supra, at 2228 - 2229.
Take first Congress's decision in 1816 to create the Second Bank of the United States-"the first truly independent agency in the republic's history." Lessig & Sunstein, The President and the Administration,
The Civil War brought yet further encroachments on presidential control over financial regulators. In response to wartime economic pressures, President Lincoln (not known for his modest view of executive power) asked Congress to establish an office called the Comptroller of the Currency. The statute he signed made the Comptroller removable only with the Senate's consent-a version of the old Hamiltonian idea, though this time required not by the Constitution itself but by Congress. See Act of Feb. 25, 1863, ch. 58,
And then, nearly a century and a half ago, the floodgates opened. In 1887, the growing power of the railroads over the American economy led Congress to create the Interstate Commerce Commission. Under that legislation, the President could remove the five Commissioners only "for inefficiency, neglect of duty, or malfeasance in office"-the same standard Congress applied to the CFPB Director. Act of Feb. 4, 1887, § 11,
C
What is more, the Court's precedents before today have accepted the role of independent agencies in our governmental system. To be sure, the line of our decisions has not run altogether straight. But we have repeatedly upheld provisions that prevent the President from firing regulatory officials except for such matters as neglect or malfeasance. In those decisions, we sounded a caution, insisting that Congress could not impede through removal restrictions the President's performance of his own constitutional duties. (So, to take the clearest example, Congress could not curb the President's power to remove his close military or diplomatic advisers.) But within that broad limit, this Court held, Congress could protect from at-will removal the officials it deemed to need some independence from political pressures. Nowhere do those precedents suggest what the majority announces today: that the President has an "unrestricted removal power" subject to two bounded exceptions. Ante , at 2188 - 2189.
The majority grounds its new approach in
Myers
, ignoring the way this Court has cabined that decision.
Myers
, the majority tells us, found an unrestrained removal power "essential to the [President's] execution of the laws."
Ante,
at 2197 - 2198 (quoting
Myers,
And
Humphrey's
found constitutional a statute identical to the one here, providing that the President could remove FTC Commissioners for "inefficiency, neglect of duty, or malfeasance in office."
About two decades later, an again-unanimous Court in
Wiener v. United States
,
Another three decades on,
Morrison
both extended
Humphrey's
domain and clarified the standard for addressing removal issues. The
Morrison
Court, over a one-Justice dissent, upheld for-cause protections afforded to an independent counsel with power to investigate and prosecute crimes committed by high-ranking officials. The Court well understood that those law enforcement functions differed from the rulemaking and adjudicatory duties highlighted in
Humphrey's
and
Wiener
. But that difference did not resolve the issue. An official's functions,
Morrison
held, were relevant to but not dispositive of a removal limit's constitutionality. The key question in all the cases,
Morrison
saw, was whether such a restriction would "impede the President's ability to perform his constitutional duty."
The majority's description of
Morrison
, see
ante,
at 2198 - 2199, is not true to the decision. (Mostly, it seems, the majority just wishes the case would go away. See
ante,
at 2200, n. 4.) First,
Morrison
is no "exception" to a broader rule from
Myers
.
Morrison
echoed all of
Humphrey's
criticism of the by-then infamous
Myers
"dicta."
Even
Free Enterprise Fund
, in which the Court recently held a removal provision invalid, operated within the framework of this precedent-and in so doing, left in place a removal provision just like the one here. In that case, the Court considered a "highly unusual" scheme of double for-cause protection.
So caselaw joins text and history in establishing the general permissibility of for-cause provisions giving some independence to agencies. Contrary to the majority's view, those laws do not represent a suspicious departure from illimitable presidential control over administration. For almost a century, this Court has made clear that Congress has broad discretion to enact for-cause protections in pursuit of good governance.
D
The deferential approach this Court has taken gives Congress the flexibility it needs to craft administrative agencies. Diverse problems of government demand diverse solutions. They call for varied measures and mixtures of democratic accountability and technical expertise, energy and efficiency. Sometimes, the arguments push toward tight presidential control of agencies. The President's engagement, some people say, can disrupt bureaucratic stagnation, counter industry capture, and make agencies more responsive to public interests. See, well, Kagan,
Judicial intrusion into this field usually reveals only how little courts know about governance. Even everything I just said is an over-simplification. It suggests that agencies can easily be arranged on a spectrum, from the most to the least presidentially controlled. But that is not so. A given agency's independence (or lack of it) depends on a wealth of features, relating not just to removal standards, but also to appointments practices, procedural rules, internal organization, oversight regimes, historical traditions, cultural norms, and (inevitably) personal relationships. It is hard to pinpoint how those factors work individually, much less in concert, to influence the distance between an agency and a President. In that light, even the judicial opinions' perennial focus on removal standards is a bit of a puzzle. Removal is only the most obvious, not necessarily the most potent, means of control. See generally
Free Enterprise Fund
,
Our Constitution, as shown earlier, entrusts such decisions to more accountable and knowledgeable actors. See
supra,
at 2226 - 2229. The document-with great good sense-sets out almost no rules about the administrative sphere. As Chief Justice Marshall wrote when he upheld the first independent financial agency: "To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument."
McCulloch
,
II
As the majority explains, the CFPB emerged out of disaster. The collapse of the subprime mortgage market "precipitat[ed] a financial crisis that wiped out over $10 trillion in American household wealth and cost millions of Americans their jobs, their retirements, and their homes."
Ante,
at 2192. In that moment of economic ruin, the President proposed and Congress enacted legislation to address the causes of the collapse and prevent a recurrence. An important part of that statute created an agency to protect consumers from exploitative financial practices. The agency would take over enforcement of almost 20 existing federal laws. See
No one had a doubt that the new agency should be independent. As explained already, Congress has historically given-with this Court's permission-a measure of independence to financial regulators like the Federal Reserve Board and the FTC. See supra, at 2197 - 2200. And agencies of that kind had administered most of the legislation whose enforcement the new statute transferred to the CFPB. The law thus included an ordinary for-cause provision-once again, that the President could fire the CFPB's Director only for "inefficiency, neglect of duty, or malfeasance in office." § 5491(c)(3). That standard would allow the President to discharge the Director for a failure to "faithfully execute[ ]" the law, as well as for basic incompetence. U. S. Const., Art. II, § 3 ; see supra, at 2195, 2202. But it would not permit removal for policy differences.
The question here, which by now you're well equipped to answer, is whether including that for-cause standard in the statute creating the CFPB violates the Constitution.
A
Applying our longstanding precedent, the answer is clear: It does not. This Court, as the majority acknowledges, has sustained the constitutionality of the FTC and similar independent agencies. See ante, at 2191 - 2192, 2231 - 2233. The for-cause protections for the heads of those agencies, the Court has found, do not impede the President's ability to perform his own constitutional duties, and so do not breach the separation of powers. See supra, at 2200 - 2203. There is nothing different here. The CFPB wields the same kind of power as the FTC and similar agencies. And all of their heads receive the same kind of removal protection. No less than those other entities-by now part of the fabric of government-the CFPB is thus a permissible exercise of Congress's power under the Necessary and Proper Clause to structure administration.
First, the CFPB's powers are nothing unusual in the universe of independent agencies. The CFPB, as the majority notes, can issue regulations, conduct its own adjudications, and bring civil enforcement actions in court-all backed by the threat of penalties. See
ante,
at 2191;
Second, the removal protection given the CFPB's Director is standard fare. The removal power rests with the President alone; Congress has no role to play, as it did in the laws struck down in
Myers
and
Bowsher
. See
supra,
at 2233 - 2234. The statute provides only one layer of protection, unlike the law in
Free Enterprise Fund
. See
supra,
at 2236. And the clincher, which you have heard before: The for-cause standard used for the CFPB is identical to the one the Court upheld in
Humphrey's
. Both enable the President to fire an agency head for "inefficiency, neglect of duty, or malfeasance in office." See
The analysis is as simple as simple can be. The CFPB Director exercises the same powers, and receives the same removal protections, as the heads of other, constitutionally permissible independent agencies. How could it be that this opinion is a dissent?
B
The majority focuses on one (it says sufficient) reason: The CFPB Director is singular, not plural. "Instead of placing the agency under the leadership of a board with multiple members," the majority protests, "Congress provided that the CFPB would be led by a single Director." Ante, at 2191. 11 And a solo CFPB Director does not fit within either of the majority's supposed exceptions. He is not an inferior officer, so (the majority says) Morrison does not apply; and he is not a multimember board, so (the majority says) neither does Humphrey's . Further, the majority argues, "[a]n agency with a [unitary] structure like that of the CFPB" is "novel"-or, if not quite that, "almost wholly unprecedented." Ante, at 2188 - 2189, 2200 - 2201. Finally, the CFPB's organizational form violates the "constitutional structure" because it vests power in a "single individual" who is "insulated from Presidential control." Ante, at 2188 - 2189, 2203 - 2204.
I'm tempted at this point just to say: No. All I've explained about constitutional text, history, and precedent invalidates the majority's thesis. But I'll set out here some more targeted points, taking step by step the majority's reasoning.
First, as I'm afraid you've heard before, the majority's "exceptions" (like its general rule) are made up. See
supra,
at 2232 - 2236. To begin with, our precedents reject the very idea of such exceptions. "The analysis contained in our removal cases,"
Morrison
stated, shuns any attempt "to define rigid categories" of officials who may (or may not) have job protection.
By contrast, the CFPB's single-director structure has a fair bit of precedent behind it. The Comptroller of the Currency. The Office of the Special Counsel (OSC). The Social Security Administration (SSA). The Federal Housing Finance Agency (FHFA). Maybe four prior agencies is in the eye of the beholder, but it's hardly nothing. I've already explained why the earliest of those agencies-the Civil-War-era Comptroller-is not the blip the majority describes. See supra, at 2231 - 2232. The office is one in a long line, starting with the founding-era Comptroller of the Treasury (also one person), of financial regulators designed to do their jobs with some independence. As for the other three, the majority objects: too powerless and too contested. See ante, at 2200 - 2203. I think not. On power, the SSA runs the Nation's largest government program-among other things, deciding all claims brought by its 64 million beneficiaries; the FHFA plays a crucial role in overseeing the mortgage market, on which millions of Americans annually rely; and the OSC prosecutes misconduct in the two-million-person federal workforce. All different from the CFPB, no doubt; but the majority can't think those matters beneath a President's notice. (Consider: Would the President lose more votes from a malfunctioning SSA or CFPB?) And controversial? Well, yes, they are. Almost all independent agencies are controversial, no matter how many directors they have. Or at least controversial among Presidents and their lawyers. That's because whatever might be said in their favor, those agencies divest the President of some removal power. If signing statements and veto threats made independent agencies unconstitutional, quite a few wouldn't pass muster. Maybe that's what the majority really wants (I wouldn't know)-but it can't pretend the disputes surrounding these agencies had anything to do with whether their heads are singular or plural.
Still more important, novelty is not the test of constitutionality when it comes to structuring agencies. See
Mistretta v. United States
,
And Congress's choice to put a single director, rather than a multimember commission, at the CFPB's head violates no principle of separation of powers. The purported constitutional problem here is that an official has "slip[ped] from the Executive's control" and "supervision"-that he has become unaccountable to the President. Ante, at 2203, 2205 (internal quotation marks omitted). So to make sense on the majority's own terms, the distinction between singular and plural agency heads must rest on a theory about why the former more easily "slip" from the President's grasp. But the majority has nothing to offer. In fact, the opposite is more likely to be true: To the extent that such matters are measurable, individuals are easier than groups to supervise.
To begin with, trying to generalize about these matters is something of a fool's errand. Presidential control, as noted earlier, can operate through many means-removal to be sure, but also appointments, oversight devices (
e.g.,
centralized review of rulemaking or litigating positions), budgetary processes, personal outreach, and more. See
Free Enterprise Fund
,
But if the demand is for generalization, then the majority's distinction cuts the opposite way: More powerful control mechanisms are needed (if anything) for commissions. Holding everything else equal, those are the agencies more likely to "slip from the Executive's control." Ante, at 2204. Just consider your everyday experience: It's easier to get one person to do what you want than a gaggle. So too, you know exactly whom to blame when an individual-but not when a group-does a job badly. The same is true in bureaucracies. A multimember structure reduces accountability to the President because it's harder for him to oversee, to influence-or to remove, if necessary-a group of five or more commissioners than a single director. Indeed, that is why Congress so often resorts to hydra-headed agencies. "[M]ultiple membership," an influential Senate Report concluded, is "a buffer against Presidential control" (especially when combined, as it often is, with partisan-balance requirements). Senate Committee on Governmental Affairs, Study on Federal Regulation, S. Doc. No. 95-91, vol. 5, p. 75 (1977). So, for example, Congress constructed the Federal Reserve as it did because it is "easier to protect a board from political control than to protect a single appointed official." R. Cushman, The Independent Regulatory Commissions 153 (1941). 14 It is hard to know why Congress did not take the same tack when creating the CFPB. But its choice brought the agency only closer to the President-more exposed to his view, more subject to his sway. In short, the majority gets the matter backward: Where presidential control is the object, better to have one than many.
Because it has no answer on that score, the majority slides to a different question: Assuming presidential control of any independent agency is vanishingly slim, is a single-head or a multi-head agency more capable of exercising power, and so of endangering liberty? See ante, at 2202 - 2204. The majority says a single head is the greater threat because he may wield power " unilaterally " and "[w]ith no colleagues to persuade." Ante, at 2203 - 2204 (emphasis in original). So the CFPB falls victim to what the majority sees as a constitutional anti-power-concentration principle (with an exception for the President).
If you've never heard of a statute being struck down on that ground, you're not alone. It is bad enough to "extrapolat[e]" from the "general constitutional language" of Article II's Vesting Clause an unrestricted removal power constraining Congress's ability to legislate under the Necessary and Proper Clause.
Morrison
,
And in doing so, the majority again reveals its lack of interest in how agencies work. First, the premise of the majority's argument-that the CFPB head is a mini-dictator, not subject to meaningful presidential control, see
ante
, at 2203 - 2204-is wrong. As this Court has seen in the past, independent agencies are not fully independent. A for-cause removal provision, as noted earlier, leaves "ample" control over agency heads in the hands of the President.
Morrison
,
III
Recall again how this dispute got started. In the midst of the Great Recession, Congress and the President came together to create an agency with an important mission. It would protect consumers from the reckless financial practices that had caused the then-ongoing economic collapse. Not only Congress but also the President thought that the new agency, to fulfill its mandate, needed a measure of independence. So the two political branches, acting together, gave the CFPB Director the same job protection that innumerable other agency heads possess. All in all, those branches must have thought, they had done a good day's work. Relying on their experience and knowledge of administration, they had built an agency in the way best suited to carry out its functions. They had protected the public from financial chicanery and crisis. They had governed.
Nothing in the Constitution requires that outcome; to the contrary. "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government."
Youngstown Sheet & Tube Co. v. Sawyer
,
Our history has stayed true to the Framers' vision. Congress has accepted their invitation to experiment with administrative forms-nowhere more so than in the field of financial regulation. And this Court has mostly allowed it to do so. The result is a broad array of independent agencies, no two exactly alike but all with a measure of insulation from the President's removal power. The Federal Reserve Board; the FTC; the SEC; maybe some you've never heard of. As to each, Congress thought that formal job protection for policymaking would produce regulatory outcomes in greater accord with the long-term public interest. Congress may have been right; or it may have been wrong; or maybe it was some of both. No matter-the branches accountable to the people have decided how the people should be governed.
The CFPB should have joined the ranks. Maybe it will still do so, even under today's opinion: The majority tells Congress that it may "pursu[e] alternative responses" to the identified constitutional defect-"for example, converting the CFPB into a multimember agency." Ante , at 2211. But there was no need to send Congress back to the drawing board. The Constitution does not distinguish between single-director and multimember independent agencies. It instructs Congress, not this Court, to decide on agency design. Because this Court ignores that sensible-indeed, that obvious-division of tasks, I respectfully dissent.
Notes
The dissent would have us ignore the reasoning of Humphrey's Executor and instead apply the decision only as part of a reimagined Humphrey's -through- Morrison framework. See post , at 2234 n.7, 2234 - 2236 (KAGAN, J., concurring in judgment with respect to severability and dissenting in part) (hereinafter dissent). But we take the decision on its own terms, not through gloss added by a later Court in dicta. The dissent also criticizes us for suggesting that the 1935 FTC may have had lesser responsibilities than the present FTC. See post , at 2239 n.10. Perhaps the FTC possessed broader rulemaking, enforcement, and adjudicatory powers than the Humphrey's Court appreciated. Perhaps not. Either way, what matters is the set of powers the Court considered as the basis for its decision, not any latent powers that the agency may have had not alluded to by the Court.
The dissent suggests that the Comptroller still enjoyed some degree of insulation after his removal protection was repealed because the President faced a new requirement to "communicate[ ]" his "reasons" for terminating the Comptroller to the Senate.
Post,
at 2232 (quoting Act of June 3, 1864, ch. 106, § 1,
The OSC should not be confused with the independent counsel in Morrison or the special counsel recently appointed to investigate allegations related to the 2016 Presidential election. Despite sharing similar titles, those individuals have no relationship to the OSC.
An Act similar to the one vetoed by President Reagan was eventually signed by President George H. W. Bush after extensive negotiations and compromises with Congress. See Public Papers of the Presidents, George H. W. Bush, Vol. I, Apr. 10, 1989, p. 391 (1990).
The dissent categorizes the CFPB as one of many "financial regulators" that have historically enjoyed some insulation from the President. See post , at 2230 - 2233. But even assuming financial institutions like the Second Bank and the Federal Reserve can claim a special historical status, the CFPB is in an entirely different league. It acts as a mini legislature, prosecutor, and court, responsible for creating substantive rules for a wide swath of industries, prosecuting violations, and levying knee-buckling penalties against private citizens. See supra, at 2192 - 2193. And, of course, it is the only agency of its kind run by a single Director.
Amicus
and the dissent try to diminish the CFPB's insulation from Presidential control by observing that the CFPB's final rules can be set aside by a super majority of the Financial Stability and Oversight Council (FSOC). See Brief for Court-Appointed
Amicus Curiae
40;
post
, at 2242 n.13, 2244. But the FSOC's veto power is statutorily reserved for extreme situations, when two-thirds of the Council concludes that a CFPB regulation would "put the safety and soundness of the United States banking system or the stability of the financial system of the United States at risk."
The dissent likewise points to Madison's statement in The Federalist No. 39 that the "tenure" of "ministerial offices generally will be a subject of legal regulation."
Post
, at 2229 - 22230 (quoting The Federalist No. 39, p. 253 (J. Cooke ed. 1961)). But whatever Madison may have meant by that statement, he later led the charge in contending, on the floor of the First Congress, that "inasmuch as the power of removal is of an Executive nature ... it is beyond the reach of the Legislative body." 1 Annals of Cong. 464 (1789); see also
Building on
amicus
' proposal, the dissent would endorse whatever "the times demand, so long as the President retains the ability to carry out his constitutional functions."
Post
, at 2226. But that amorphous test provides no real limiting principle. The "clearest" (and only) "example" the dissent can muster for what may be prohibited is a for-cause removal restriction placed on the President's "close military or diplomatic advisers."
Post
, at 2233. But that carveout makes no logical or constitutional sense. In the dissent's view, for-cause removal restrictions are permissible because they guarantee the President "meaningful control" over his subordinates.
Post
, at 2239 - 2240 (internal quotation marks and alterations omitted); see also
post
, at 2228, 2235, 2238 - 2239, 2244. If that is the theory, then what is the harm in giving the President the same "meaningful control" over his close advisers? The dissent claims to see a constitutional distinction between the President's "own constitutional duties in foreign relations and war" and his duty to execute laws passed by Congress.
Post
, at 2231. But the same Article that establishes the President's foreign relations and war duties expressly entrusts him to take care that the laws be faithfully executed. And, from the perspective of the governed, it is far from clear that the President's core and traditional powers present greater cause for concern than peripheral and modern ones. If anything, "[t]he growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life,
heightens
the concern that it may slip from the Executive's control, and thus from that of the people."
Free Enterprise Fund
,
Justice THOMAS believes that any ratification is irrelevant. In his view, even if the issuance of the demand and initiation of this suit have been validly ratified, Director Kraninger's activities in litigating the case-after inheriting it from an Acting Director, but before becoming removable at will herself in light of our decision-present a distinct constitutional injury requiring immediate dismissal. See post , at 2233 - 2235 (opinion concurring in part and dissenting in part). But whether and when the temporary involvement of an unconstitutionally insulated officer in an otherwise valid prosecution requires dismissal falls outside the questions presented, has not been fully briefed, and is best resolved by the lower courts in the first instance.
For a comprehensive review of the Decision of 1789, see Prakash, New Light on the Decision of 1789,
The explicit and repeated recognition of the President's "illimitable power" in
Humphrey's Executor
highlights the dissent's error in claiming that
Humphrey's Executor
"abandoned [the] view" set out in
Myers v. United States
,
A number of historical sources indicate that President Roosevelt saw
Humphrey's Executor
v.
United States
,
The dissent, while vigorously defending the holding of
Humphrey's Executor
, can muster no defense for the reasoning of the decision. The dissent does not defend the notion of "quasi" powers or "quasi" agencies, recognizing that the power exercised by the FTC was executive power. See
post
, at 2234 n.7. And, in 39 pages, it cannot explain how any aspect of
Humphrey's Executor
(other than its holding) survived
Morrison v. Olson
,
The dissent provides no analysis of severability, simply stating " if the agency's removal provision is unconstitutional, it should be severed." Post, at 2245.
The Court-appointed amicus suggests that the CFPB's current Director, Director Kraninger, ratified the enforcement proceeding by maintaining the suit after she stated her belief that the removal provision is unconstitutional. But the CFPB expressly disclaimed the notion that Director Kraninger had the power to ratify the civil investigative demand, stating that she "remains statutorily insulated from removal, regardless whether she believes the law is invalid." Reply Brief for Respondent 7.
The severability clause refers to three alternative scenarios: (1) a "provision of [the] Act ... is held to be unconstitutional"; (2) "an amendment made by [the] Act ... is held unconstitutional"; and (3) "the application of [a] provision or amendment [of the Act] to any person or circumstance is held to be unconstitutional."
This statement in Booker is irreconcilable with the plurality's assertion here that "Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect." Ante, at 2210 - 2211. Thus, it appears that the plurality either sub silentio "junk[s] our settled severability doctrine," ibid. , or invokes, without explanation, different assumptions for different cases.
In the academic literature, compare,
e.g.,
Kagan, Presidential Administration,
The principle of separation of powers, Madison continued, maintained only that "where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution[ ] are subverted." The Federalist No. 47, at 325-326.
Article II's Opinions Clause also demonstrates the possibility of limits on the President's control over the Executive Branch. Under that Clause, the President "may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices." § 2, cl. 1. For those in the majority's camp, that Clause presents a puzzle: If the President must always have the direct supervisory control they posit, including by threat of removal, why would he ever need a constitutional warrant to demand agency heads' opinions? The Clause becomes at least redundant-though really, inexplicable-under the majority's idea of executive power.
The majority dismisses Federalist Nos. 77 and 39 as "reflect[ing] initial impressions later abandoned." Ante, at 2205, and n.10. But even Hamilton's and Madison's later impressions are less helpful to the majority than it suggests. Assuming Hamilton gave up on the Senate's direct participation in removal (the evidence is sketchy but plausible), there is no evidence to show he accepted the majority's view. And while Madison opposed the first Congress's enactment of removal limits (as the majority highlights), he also maintained that the legislature had constitutional power to protect the Comptroller of the Treasury from at-will firing. See infra , at 2230 - 2231, 2231. In any event, such changing minds and inconstant opinions don't usually prove the existence of constitutional rules.
As President Jefferson explained: "[W]ith the settlement of the accounts at the Treasury I have no right to interfere in the least," because the Comptroller of the Treasury "is the sole & supreme judge for all claims of money against the US. and would no more receive a direction from me" than would "one of the judges of the supreme court." Letter from T. Jefferson to B. Latrobe (June 2, 1808), in Thomas Jefferson and the National Capital 429, 431 (S. Padover ed. 1946). A couple of decades later, Attorney General William Wirt reached the same conclusion, stating that "the President has no right to interpose in the settling of accounts" because Congress had "separated" the Comptroller from the President's authority. 1 Op. Atty. Gen. 636, 637 (1824); 1 Op. Atty. Gen. 678, 680 (1824). And indeed, Wirt believed that Congress could restrict the President's authority to remove such officials, at least so long as it "express[ed] that intention clearly." 1 Op. Atty. Gen. 212, 213 (1818).
The Comptroller legislation of the Civil War provided a key precedent for what
does
appear a historical "aberration"-the Tenure of Office Act of 1867. See ch. 154,
The majority is quite right that today we view
all
the activities of administrative agencies as exercises of "the 'executive Power.' "
Arlington v. FCC
,
Expressing veiled contempt as only he could, Justice Frankfurter wrote for the Court that Chief Justice Taft's opinion had "laboriously traversed" American history and that it had failed to "restrict itself to the immediate issue before it."
Pretending this analysis is mine rather than
Morrison
's, the majority registers its disagreement. See
ante,
at 2240, n. 11. In its view, a test asking whether a for-cause provision impedes the President's ability to carry out his constitutional functions has "no real limiting principle."
The majority suggests that the FTC was a different animal when this Court upheld its independent status in
Humphrey's
. See
ante,
at 2200. But then, as now, the FTC's organic statute broadly "empowered and directed" the agency "to prevent persons" or businesses "from using unfair methods of competition in commerce." Act of Sept. 26, 1914, § 5,
The majority briefly mentions, but understandably does not rely on, two other features of Congress's scheme. First, the majority notes that the CFPB receives its funding outside the normal appropriations process. See
ante
, at 2204 - 2205. But so too do other financial regulators, including the Federal Reserve Board and the FDIC. See
The majority, seeking some other way to distinguish
Morrison
, asserts that the independent counsel's "duties" were more "limited" than the CFPB Director's.
Ante
, at 2200 - 2201. That's true in a sense: All (all?) the special counsel had to do was decide whether the President and his top advisers had broken the law. But I doubt (and I suspect Presidents would too) whether the need to control those duties was any less "central to the functioning of the Executive Branch" than the need to control the CFPB's.
Morrison
,
To use one important example, Congress provided for executive oversight of all the CFPB's rulemaking. The Financial Stability Oversight Council can veto by a two-thirds vote any CFPB regulation it deems a threat to the "safety and soundness" of the financial system.
I could go on. A recent study prepared for the Administrative Conference of the United States noted that "[g]overnance by multiple members limits the President's influence." J. Selin & D. Lewis, Sourcebook of United States Executive Agencies 89 (2d ed. 2018). And the General Accounting Office has recognized that the desire for "greater independence" is what "most likely explains why the Congress in the past has opted to head independent regulatory bodies with multimember commissions rather than single administrators." Hearing before the Senate Subcommittee on the Consumer of the Committee on Commerce, Science, and Transportation, 100th Cong., 1st Sess., 135 (1987) (Statement of F. Frazier).