*1 OCTOBER TERM, 2019 (Slip Opinion)
Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See
United States
v.
Detroit Timber & Lumber Co.,
Syllabus
SEILA LAW LLC v. CONSUMER FINANCIAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 19–7. Argued March 3, 2020—Decided June 29, 2020 In the wake of the 2008 financial crisis, Congress established the Con-
sumer Financial Protection Bureau (CFPB), an independent regula- tory agency tasked with ensuring that consumer debt products are safe and transparent. See Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), 124 Stat. 1376. Congress transferred the administration of 18 existing federal statutes to the CFPB, including the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the Truth in Lending Act; and Congress enacted a new prohibition on unfair and deceptive practices in the consumer-finance sector. 12 U. S. C. §5536(a)(1)(B). In doing so, Congress gave the CFPB extensive rulemaking, enforcement, and adjudicatory powers, including the au- thority to conduct investigations, issue subpoenas and civil investiga- tive demands, initiate administrative adjudications, prosecute civil ac- tions in federal court, and issue binding decisions in administrative proceedings. The CFPB may seek restitution, disgorgement, injunc- tive relief, and significant civil penalties for violations of the 19 federal statutes under its purview. So far, the agency has obtained over $11 billion in relief for more than 25 million consumers.
Unlike traditional independent agencies headed by multimember boards or commissions, the CFPB is led by a single Director, §5491(b)(1), who is appointed by the President with the advice and consent of the Senate, §5491(b)(2), for a five-year term, during which the President may remove the Director only for “inefficiency, neglect of duty, or malfeasance in office,” §§5491(c)(1), (3). The CFPB receives its funding outside the annual appropriations process from the Federal Reserve, which is itself funded outside the appropriations process through bank assessments.
Syllabus
In 2017, the CFPB issued a civil investigative demand to Seila Law
LLC, a California-based law firm that provides debt-related legal ser-
vices to clients. The civil investigative demand (essentially a sub-
poena) sought information and documents related to the firm’s busi-
ness practices. Seila Law asked the CFPB to set aside the demand on
the ground that the agency’s leadership by a single Director removable
only for cause violated the separation of powers. When the CFPB de-
clined, Seila Law refused to comply with the demand, and the CFPB
filed a petition to enforce the demand in District Court. Seila Law
renewed its claim that the CFPB’s structure violated the separation of
powers, but the District Court disagreed and ordered Seila Law to com-
ply with the demand. The Ninth Circuit affirmed, concluding that
Seila Law’s challenge was foreclosed by
Humphrey’s Executor
v.
United
States
,
T HE C HIEF J USTICE delivered the opinion of the Court with respect to Parts I, II, and III, concluding:
1. Appointed amicus raises three threshold arguments for why this Court may not or should not reach the merits of petitioner’s constitu- tional challenge, but they are unavailing. Pp. 8–11.
2. The CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers. Pp. 11–30.
(a) Article II vests the entire “executive Power” in the President
alone, but the Constitution presumes that lesser executive officers will
assist the President in discharging his duties. The President’s execu-
tive power generally includes the power to supervise—and, if neces-
sary, remove—those who exercise the President’s authority on his be-
half. The President’s removal power has long been confirmed by
history and precedent. It was recognized by the First Congress in
1789, confirmed by this Court in
Myers
v.
United States
,
Syllabus
inferior officer—the independent counsel—who had limited duties and no policymaking or administrative authority. Pp. 11–16.
(b) Neither Humphrey’s Executor nor Morrison resolves whether the CFPB Director’s insulation from removal is constitutional. The New Deal-era FTC upheld in Humphrey’s Executor bears little resem- blance to the CFPB. Unlike the multiple Commissioners of the FTC, who were balanced along partisan lines and served staggered terms to ensure the accumulation of institutional knowledge, the CFPB Direc- tor serves a five-year term that guarantees abrupt shifts in leadership and the loss of agency expertise. In addition, the Director cannot be dismissed as a mere legislative or judicial aid. Rather, the Director possesses significant administrative and enforcement authority, in- cluding the power to seek daunting monetary penalties against private parties in federal court—a quintessentially executive power not con- sidered in Humphrey’s Executor .
The logic of Morrison also does not apply. The independent counsel approved in Morrison was an inferior officer who lacked policymaking or administrative authority and exercised narrow authority to initiate criminal investigations and prosecutions of Governmental actors iden- tified by others. By contrast, the CFPB Director is a principal officer whose duties are far from limited. The Director promulgates binding rules fleshing out 19 consumer-protection statutes that cover every- thing from credit cards and car payments to mortgages and student loans. And the Director brings the coercive power of the state to bear on millions of private citizens and businesses, imposing potentially bil- lion-dollar penalties through administrative adjudications and civil ac- tions.
The question here is therefore whether to extend the
Humphrey’s
Executor
and
Morrison
exceptions to a “new situation.”
Free Enterprise
Fund,
(c) The Court declines to extend these precedents to an independ- ent agency led by a single Director and vested with significant execu- tive power. Pp. 18–30.
(1) The CFPB’s structure has no foothold in history or tradition. Congress has provided removal protection to principal officers who alone wield power in only four isolated instances: the Comptroller of the Currency (for a one-year period during the Civil War); the Office of Special Counsel; the Administrator of the Social Security Administra- tion; and the Director of the Federal Housing Finance Agency. Aside from the one-year blip for the Comptroller of the Currency, these ex- amples are modern and contested; and they do not involve regulatory or enforcement authority comparable to that exercised by the CFPB. Pp. 18–21.
Syllabus
(2) The CFPB’s single-Director configuration is also incompati-
ble with the structure of the Constitution, which—with the sole excep-
tion of the Presidency—scrupulously avoids concentrating power in the
hands of any single individual. The Framers’ 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 may
wield significant authority, but that authority remains subject to the
ongoing supervision and control of the elected President. The CFPB’s
single-Director structure contravenes this carefully calibrated system
by vesting significant governmental power in the hands of a single in-
dividual who is neither elected by the people nor meaningfully con-
trolled (through the threat of removal) by someone who is. The Direc-
tor may
unilaterally
, without meaningful supervision, issue final
regulations, oversee adjudications, set enforcement priorities, initiate
prosecutions, and determine what penalties to impose on private par-
ties. And the Director may do so without even having to rely on Con-
gress for appropriations. While the CFPB’s independent, single-Direc-
tor structure is sufficient to render the agency unconstitutional, the
Director’s five-year term and receipt of funds outside the appropria-
tions process heighten the concern that the agency will “slip from the
Executive’s control, and thus from that of the people.”
Free Enterprise
Fund
,
(3) Amicus raises three principal arguments in the agency’s de- fense. First, amicus challenges the textual basis for the President’s removal power and highlights statements from individual Framers ex- pressing divergent views on the subject. This Court’s precedents, how- ever, make clear that the President’s removal power derives from the “executive Power” vested exclusively in the President by Article II. And this Court has already discounted the founding-era statements cited by amicus in light of their context. Second, amicus claims that Humphrey’s Executor and Morrison establish a general rule that Con- gress may freely constrain the President’s removal power, with only two limited exceptions not applicable here. But text, first principles, the First Congress’s decision in 1789, Myers , and Free Enterprise Fund all establish that the President’s removal power is the rule, not the exception. Finally, amicus submits that this Court can cure any con- stitutional defect in the CFPB’s structure by interpreting the language “inefficiency, neglect of duty, or malfeasance in office,” 12 U. S. C. §5491(c)(3), to reserve substantial discretion to the President. But Humphrey’s Executor implicitly rejected this position, and the CFPB’s defenders have not advanced any workable standard derived from the statutory text. Nor have they explained how a lenient removal stand- ard can be squared with the Dodd-Frank Act as a whole, which makes
Syllabus
plain that the CFPB is an “independent bureau.” §5491(a).
The dissent advances several additional arguments in the agency’s defense, but they have already been expressly considered and rejected by the Court in Free Enterprise Fund. Pp. 25–30.
T HE C HIEF J USTICE , joined by J USTICE A LITO and J USTICE K AV - ANAUGH , concluded in Part IV that the Director’s removal protection is severable from the other provisions of the Dodd-Frank Act that estab- lish the CFPB and define its authority. Pp. 30–37.
R OBERTS , C. J., delivered the opinion of the Court with respect to Parts I, II, and III, in which T HOMAS , A LITO , G ORSUCH , and K AVANAUGH , JJ., joined, and an opinion with respect to Part IV, in which A LITO and K AV - ANAUGH , JJ., joined. T HOMAS , J., filed an opinion concurring in part and dissenting in part, in which G ORSUCH , J., joined. K , J., filed an opin- ion concurring in the judgment with respect to severability and dissent- ing in part, in which G INSBURG , B REYER , and S OTOMAYOR , JJ., joined.
Opinion of the Court
Opinion of R OBERTS , C. J. NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES
_________________ No. 19–7 _________________ SEILA LAW LLC, PETITIONER CONSUMER
FINANCIAL PROTECTION BUREAU
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 29, 2020]
C HIEF J USTICE R OBERTS delivered the opinion of the Court with respect to Parts I, II, and III.
In the wake of the 2008 financial crisis, Congress estab- lished the Consumer Financial Protection Bureau (CFPB), an independent regulatory agency tasked with ensuring that consumer debt products are safe and transparent. In organizing the CFPB, Congress deviated from the structure of nearly every other independent administrative agency in our history. Instead of placing the agency under the lead- ership of a board with multiple members, Congress pro- vided that the CFPB would be led by a single Director, who serves for a longer term than the President and cannot be removed by the President except for inefficiency, neglect, or malfeasance. The CFPB Director has no boss, peers, or vot- ers to report to. Yet the Director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U. S. economy. The question before us is whether this arrangement violates the Constitution’s sepa- ration of powers.
Under our Constitution, the “executive Power”—all of it—is “vested in a President,” who must “take Care that the
Opinion of the Court
Opinion of R OBERTS , C. J.
Laws be faithfully executed.” Art. II, §1, cl. 1;
id.
, §3. Be-
cause no single person could fulfill that responsibility alone,
the Framers expected that the President would rely on sub-
ordinate officers for assistance. Ten years ago, in
Free En-
terprise Fund
v.
Public Company Accounting Oversight Bd.
,
The President’s power to remove—and thus supervise—
those who wield executive power on his behalf follows from
the text of Article II, was settled by the First Congress, and
was confirmed in the landmark decision
Myers
v.
United
States
,
We are now asked to extend these precedents to a new configuration: an independent agency that wields signifi- cant executive power and is run by a single individual who cannot be removed by the President unless certain statu- tory criteria are met. We decline to take that step. While we need not and do not revisit our prior decisions allowing certain limitations on the President’s removal power, there are compelling reasons not to extend those precedents to the novel context of an independent agency led by a single Director. Such an agency lacks a foundation in historical
Opinion of the Court
practice and clashes with constitutional structure by con- centrating power in a unilateral actor insulated from Pres- idential control.
We therefore hold that the structure of the CFPB violates the separation of powers. We go on to hold that the CFPB Director’s removal protection is severable from the other statutory provisions bearing on the CFPB’s authority. The agency may therefore continue to operate, but its Director, in light of our decision, must be removable by the President at will.
I A In the summer of 2007, then-Professor Elizabeth Warren called for the creation of a new, independent federal agency focused on regulating consumer financial products. War- ren, Unsafe at Any Rate, Democracy (Summer 2007). Pro- fessor Warren believed the financial products marketed to ordinary American households—credit cards, student loans, mortgages, and the like—had grown increasingly un- safe due to a “regulatory jumble” that paid too much atten- tion to banks and too little to consumers. Ibid. To remedy the lack of “coherent, consumer-oriented” financial regula- tion, she proposed “concentrat[ing] the review of financial products in a single location”—an independent agency mod- eled after the multimember Consumer Product Safety Com- mission. Ibid.
That proposal soon met its moment. Within months of Professor Warren’s writing, the subprime mortgage market collapsed, precipitating 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. In the aftermath, the Obama administration embraced Professor Warren’s recommendation. Through the Treasury Department, the administration encouraged Congress to establish an agency with a mandate to ensure
Opinion of the Court
that “consumer protection regulations” in the financial sec- tor “are written fairly and enforced vigorously.” Dept. of Treasury, Financial Regulatory Reform: A New Foundation 55 (2009). Like Professor Warren, the administration envi- sioned a traditional independent agency, run by a multi- member board with a “diverse set of viewpoints and experi- ences.” Id. , at 58.
In 2010, Congress acted on these proposals and created the Consumer Financial Protection Bureau (CFPB) as an independent financial regulator within the Federal Reserve System. Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), 124 Stat. 1376. Congress tasked the CFPB with “implement[ing]” and “enforc[ing]” a large body of financial consumer protection laws to “en- sur[e] that all consumers have access to markets for con- sumer financial products and services and that markets for consumer financial products and services are fair, transpar- ent, and competitive.” 12 U. S. C. §5511(a). Congress transferred the administration of 18 existing federal stat- utes to the CFPB, including the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the Truth in Lending Act. See §§5512(a), 5481(12), (14). In addition, Congress enacted a new prohibition on “any unfair, decep- tive, or abusive act or practice” by certain participants in the consumer-finance sector. §5536(a)(1)(B). Congress au- thorized the CFPB to implement that broad standard (and the 18 pre-existing statutes placed under the agency’s pur- view) through binding regulations. §§5531(a)–(b), 5581(a)(1)(A), (b).
Congress also vested the CFPB with potent enforcement powers. The agency has the authority to conduct investiga- tions, issue subpoenas and civil investigative demands, in- itiate administrative adjudications, and prosecute civil ac- tions in federal court. §§5562, 5564(a), (f ). To remedy violations of federal consumer financial law, the CFPB may seek restitution, disgorgement, and injunctive relief, as
Opinion of the Court
well as civil penalties of up to $1,000,000 (inflation ad- justed) for each day that a violation occurs. §§5565(a), (c)(2); 12 CFR §1083.1(a), Table (2019). Since its inception, the CFPB has obtained over $11 billion in relief for over 25 million consumers, including a $1 billion penalty against a single bank in 2018. See CFPB, Financial Report of the Consumer Financial Protection Bureau, Fiscal Year 2015, p. 3; CFPB, Bureau of Consumer Financial Protection An- nounces Settlement With Wells Fargo for Auto-Loan Ad- ministration and Mortgage Practices (Apr. 20, 2018).
The CFPB’s rulemaking and enforcement powers are cou- pled with extensive adjudicatory authority. The agency may conduct administrative proceedings to “ensure or en- force compliance with” the statutes and regulations it ad- ministers. 12 U. S. C. §5563(a). When the CFPB acts as an adjudicator, it has “jurisdiction to grant any appropriate le- gal or equitable relief.” §5565(a)(1). The “hearing officer” who presides over the proceedings may issue subpoenas, or- der depositions, and resolve any motions filed by the par- ties. 12 CFR §1081.104(b). At the close of the proceedings, the hearing officer issues a “recommended decision,” and the CFPB Director considers that recommendation and “is- sue[s] a final decision and order.” §§1081.400(d), 1081.402(b); see also §1081.405.
Congress’s design for the CFPB differed from the pro- posals of Professor Warren and the Obama administration in one critical respect. Rather than create a traditional in- dependent agency headed by a multimember board or com- mission, Congress elected to place the CFPB under the leadership of a single Director. 12 U. S. C. §5491(b)(1). The CFPB Director is appointed by the President with the ad- vice and consent of the Senate. §5491(b)(2). The Director serves for a term of five years, during which the President may remove the Director from office only for “inefficiency, neglect of duty, or malfeasance in office.” §§5491(c)(1), (3).
Unlike most other agencies, the CFPB does not rely on
Opinion of the Court
the annual appropriations process for funding. Instead, the CFPB receives funding directly from the Federal Reserve, which is itself funded outside the appropriations process through bank assessments. Each year, the CFPB requests an amount that the Director deems “reasonably necessary to carry out” the agency’s duties, and the Federal Reserve grants that request so long as it does not exceed 12% of the total operating expenses of the Federal Reserve (inflation adjusted). §§5497(a)(1), (2)(A)(iii), 2(B). In recent years, the CFPB’s annual budget has exceeded half a billion dol- lars. See CFPB, Fiscal Year 2019: Ann. Performance Plan and Rep., p. 7.
B
Seila Law LLC is a California-based law firm that pro- vides debt-related legal services to clients. In 2017, the CFPB issued a civil investigative demand to Seila Law to determine whether the firm had “engag[ed] in unlawful acts or practices in the advertising, marketing, or sale of debt relief services.” 2017 WL 6536586, *1 (CD Cal., Aug. 25, 2017). See also 12 U. S. C. §5562(c)(1) (authorizing the agency to issue such demands to persons who “may have any information[ ] relevant to a violation” of one of the laws enforced by the CFPB). The demand (essentially a sub- poena) directed Seila Law to produce information and doc- uments related to its business practices.
Seila Law asked the CFPB to set aside the demand, ob- jecting that the agency’s leadership by a single Director re- movable only for cause violated the separation of powers. The CFPB declined to address that claim and directed Seila Law to comply with the demand.
When Seila Law refused, the CFPB filed a petition to en- force the demand in the District Court. See §5562(e)(1) (cre- ating cause of action for that purpose). In response, Seila Law renewed its defense that the demand was invalid and must be set aside because the CFPB’s structure violated the
Opinion of the Court
Constitution. The District Court disagreed and ordered Seila Law to comply with the demand (with one modifica- tion not relevant here).
The Court of Appeals affirmed.
We granted certiorari to address the constitutionality of the CFPB’s structure. 589 U. S. ___ (2019). We also re- quested argument on an additional question: whether, if the CFPB’s structure violates the separation of powers, the CFPB Director’s removal protection can be severed from the rest of the Dodd-Frank Act.
Opinion of the Court
Because the Government agrees with petitioner on the merits of the constitutional question, we appointed Paul Clement to defend the judgment below as amicus curiae . He has ably discharged his responsibilities.
II
We first consider three threshold arguments raised by the appointed amicus for why we may not or should not reach the merits. Each is unavailing.
First, amicus argues that the demand issued to petitioner is not “traceable” to the alleged constitutional defect be- cause two of the three Directors who have in turn played a role in enforcing the demand were (or now consider them- selves to be) removable by the President at will. Brief for Court-Appointed Amicus Curiae 21–24. Amicus highlights the Government’s argument below that the demand, origi- nally issued by former Director Richard Cordray, had been ratified by an acting CFPB Director who, according to the Office of Legal Counsel (OLC), was removable by the Pres- ident at will. See Brief for Appellee in No. 17–56324 (CA9), pp. 1, 10, 13–19 (citing Designating an Acting Director of the Bureau of Consumer Financial Protection, 41 Op. OLC ___, ___ (Nov. 25, 2017)). Amicus further observes that cur- rent CFPB Director Kathleen Kraninger, now responsible for enforcing the demand, agrees with the Solicitor Gen- eral’s position in this case that her for-cause removal pro- tection is unconstitutional. See Brief for Respondent on Pet. for Cert. 20; Letter from K. Kraninger, CFPB Director, to M. McConnell, Majority Leader, U. S. Senate, p. 2 (Sept. 17, 2019); Letter from K. Kraninger, CFPB Director, to N. Pelosi, Speaker, U. S. House of Representatives, p. 2 (Sept. 17, 2019). [1] In amicus ’ view, these developments reveal that the demand would have been issued—and would continue ——————
[1] Director Kraninger did not indicate whether she would disregard her statutory removal protection if the President attempted to remove her without cause.
Opinion of the Court
to be enforced—even in the absence of the CFPB Director’s removal protection, making the asserted separation of pow- ers dispute “artificial.” Brief for Court-Appointed Amicus Curiae 22.
Even if that were true, it would not deprive us of jurisdic-
tion.
Amicus
’ traceability argument appears to challenge
petitioner’s Article III standing. See
Lujan
v.
Defenders of
Wildlife
, 504 U. S. 555, 560 (1992) (explaining that the
plaintiff ’s injury must be “fairly traceable to the challenged
action of the defendant” (internal quotation marks and al-
terations omitted)). But
amicus
’ argument does not cast
any doubt on the jurisdiction of the District Court because
petitioner is
the defendant
and did not invoke the Court’s
jurisdiction. See
Bond
v.
United States
,
It is true that “standing must be met by persons seeking appellate review, just as it must be met by persons appear- ing in courts of first instance.” Hollingsworth v. Perry , 570 U. S. 693, 705 (2013) (internal quotation marks omitted). But petitioner’s appellate standing is beyond dispute. Peti- tioner is compelled to comply with the civil investigative de- mand and to provide documents it would prefer to withhold, a concrete injury. That injury is traceable to the decision below and would be fully redressed if we were to reverse the judgment of the Court of Appeals and remand with instruc- tions to deny the Government’s petition to enforce the demand.
Without engaging with these principles, amicus contends that a litigant wishing to challenge an executive act on the basis of the President’s removal power must show that the challenged act would not have been taken if the responsible official had been subject to the President’s control. See Brief for Court-Appointed Amicus Curiae 21–24. Our prec-
Opinion of the Court
edents say otherwise. We have held that a litigant chal- lenging governmental action as void on the basis of the sep- aration of powers is not required to prove that the Govern- ment’s course of conduct would have been different in a “counterfactual world” in which the Government had acted with constitutional authority. Free Enterprise Fund , 561 U. S., at 512, n. 12. In the specific context of the President’s removal power, we have found it sufficient that the chal- lenger “sustain[s] injury” from an executive act that alleg- edly exceeds the official’s authority. Bowsher v. Synar , 478 U. S. 714, 721 (1986).
Second,
amicus
contends that the proper context for as-
sessing the constitutionality of an officer’s removal re-
striction is a contested removal. See Brief for Court-Ap-
pointed
Amicus Curiae
24–27. While that is certainly one
way to review a removal restriction, it is not the only way.
Our precedents have long permitted private parties ag-
grieved by an official’s exercise of executive power to chal-
lenge the official’s authority to wield that power while insu-
lated from removal by the President. See
Bowsher
, 478
U. S., at 721 (lawsuit filed by aggrieved third party in the
absence of contested removal);
Free Enterprise Fund
, 561
U. S., at 487 (same);
Morrison
,
Lastly, amicus contends that we should dismiss the case because the parties agree on the merits of the constitutional question and the case therefore lacks “adverseness.” Tr. of
Opinion of the Court
Oral Arg. 42–43, 45–46. That contention, however, is fore-
closed by
United States
v.
Windsor
, 570 U. S. 744 (2013).
There, we explained that a lower court order that presents
real-world consequences for the Government and its adver-
sary suffices to support Article III jurisdiction—even if “the
Executive may welcome” an adverse order that “is accom-
panied by the constitutional ruling it wants.”
Id.
, at 758.
Here, petitioner and the Government disagree about
whether petitioner must comply with the civil investigative
demand. The lower courts sided with the Government, and
the Government has not volunteered to relinquish that vic-
tory and withdraw the demand. To the contrary, while the
Government agrees that the agency is unconstitutionally
structured, it believes it may nevertheless enforce the de-
mand on remand. See
infra
, at 30. Accordingly, our “deci-
sion will have real meaning” for the parties.
INS
v.
Chadha
,
We therefore turn to the merits of petitioner’s constitu- tional challenge.
III
We hold that the CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance vi- olates the separation of powers.
A
Article II provides that “[t]he executive Power shall be vested in a President,” who must “take Care that the Laws be faithfully executed.” Art. II, §1, cl. 1; id. , §3. The entire “executive Power” belongs to the President alone. But be- cause it would be “impossib[le]” for “one man” to “perform
Opinion of the Court
all the great business of the State,” the Constitution as- sumes that lesser executive officers will “assist the supreme Magistrate in discharging the duties of his trust.” 30 Writ- ings of George Washington 334 (J. Fitzpatrick ed. 1939).
These lesser officers must remain accountable to the President, whose authority they wield. As Madison ex- plained, “[I]f any power whatsoever is in its nature Execu- tive, it is the power of appointing, overseeing, and control- ling those who execute the laws.” 1 Annals of Cong. 463 (1789). That power, in turn, generally includes the ability to remove executive officials, for it is “only the authority that can remove” such officials that they “must fear and, in the performance of [their] functions, obey.” Bowsher , 478 U. S., at 726 (internal quotation marks omitted).
The President’s removal power has long been confirmed
by history and precedent. It “was discussed extensively in
Congress when the first executive departments were cre-
ated” in 1789.
Free Enterprise Fund
,
The Court recognized the President’s prerogative to re- move executive officials in Myers v. United States , 272 U. S. 52. Chief Justice Taft, writing for the Court, conducted an exhaustive examination of the First Congress’s determina-
Opinion of the Court
tion in 1789, the views of the Framers and their contempo- raries, historical practice, and our precedents up until that point. He concluded that Article II “grants to the President” the “general administrative control of those executing the laws, including the power of appointment and removal of executive officers.” Id. , at 163–164 (emphasis added). Just as the President’s “selection of administrative officers is es- sential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible.” Id. , at 117. “[T]o hold otherwise,” the Court reasoned, “would make it impossible for the President . . . to take care that the laws be faithfully executed.” Id. , at 164.
We recently reiterated the President’s general removal
power in
Free Enterprise Fund
. “Since 1789,” we recapped,
“the Constitution has been understood to empower the
President to keep these officers accountable—by removing
them from office, if necessary.”
Free Enterprise Fund
left in place two exceptions to the
President’s unrestricted removal power. First, in
Humph-
rey’s Executor
, decided less than a decade after
Myers
, the
Court upheld a statute that protected the Commissioners of
the FTC from removal except for “inefficiency, neglect of
duty, or malfeasance in office.”
Opinion of the Court
U. S., at 631.
Because the Court limited its holding “to officers of the kind here under consideration,” id., at 632, the contours of the Humphrey’s Executor exception depend upon the char- acteristics of the agency before the Court. Rightly or wrongly, the Court viewed the FTC (as it existed in 1935) as exercising “no part of the executive power.” Id., at 628. Instead, it was “an administrative body” that performed “specified duties as a legislative or as a judicial aid.” Ibid. It acted “as a legislative agency” in “making investigations and reports” to Congress and “as an agency of the judiciary” in making recommendations to courts as a master in chan- cery. Ibid. “To the extent that [the FTC] exercise[d] any executive function [,] as distinguished from executive power in the constitutional sense,” it did so only in the discharge of its “quasi-legislative or quasi-judicial powers.” Ibid. (em- phasis added).
The Court identified several organizational features that helped explain its characterization of the FTC as non-exec- utive. Composed of five members—no more than three from the same political party—the Board was designed to be “non-partisan” and to “act with entire impartiality.” Id. , at 624; see id. , at 619–620. The FTC’s duties were “neither political nor executive,” but instead called for “the trained judgment of a body of experts” “informed by experience.” Id. , at 624 (internal quotation marks omitted). And the Commissioners’ staggered, seven-year terms enabled the ——————
[2] The Court’s conclusion that the FTC did not exercise executive power
has not withstood the test of time. As we observed in
Morrison
v.
Olson
,
Opinion of the Court
agency to accumulate technical expertise and avoid a “com- plete change” in leadership “at any one time.” Ibid .
In short,
Humphrey’s Executor
permitted Congress to
give for-cause removal protections to a multimember body
of experts, balanced along partisan lines, that performed
legislative and judicial functions and was said not to exer-
cise any executive power. Consistent with that understand-
ing, the Court later applied “[t]he philosophy of
Humphrey’s
Executor
” to uphold for-cause removal protections for the
members of the War Claims Commission—a three-member
“adjudicatory body” tasked with resolving claims for com-
pensation arising from World War II.
Wiener
v.
United
States
,
While recognizing an exception for multimember bodies with “quasi-judicial” or “quasi-legislative” functions, Humphrey’s Executor reaffirmed the core holding of Myers that the President has “unrestrictable power . . . to remove purely executive officers.” 295 U. S., at 632. The Court acknowledged that between purely executive officers on the one hand, and officers that closely resembled the FTC Com- missioners on the other, there existed “a field of doubt” that the Court left “for future consideration.” Ibid.
We have recognized a second exception for
inferior
offic-
ers in two cases,
United States
v.
Perkins
and
Morrison
v.
Olson
.
[3]
In
Perkins
, we upheld tenure protections for a na-
val cadet-engineer.
[3] Article II distinguishes between two kinds of officers—principal offic-
ers (who must be appointed by the President with the advice and consent
of the Senate) and inferior officers (whose appointment Congress may
vest in the President, courts, or heads of Departments). §2, cl. 2. While
“[o]ur cases have not set forth an exclusive criterion for distinguishing
between principal and inferior officers,” we have in the past examined
factors such as the nature, scope, and duration of an officer’s duties.
Ed-
mond
v.
United States
,
Opinion of the Court
an independent counsel appointed to investigate and pros- ecute particular alleged crimes by high-ranking Govern- ment officials. 487 U. S., at 662–663, 696–697. Backing away from the reliance in Humphrey’s Executor on the con- cepts of “quasi-legislative” and “quasi-judicial” power, we viewed the ultimate question as whether a removal re- striction is of “such a nature that [it] impede[s] the Presi- dent’s ability to perform his constitutional duty.” 487 U. S., at 691. Although the independent counsel was a single per- son and performed “law enforcement functions that typi- cally have been undertaken by officials within the Execu- tive Branch,” we concluded that the removal protections did not unduly interfere with the functioning of the Executive Branch because “the independent counsel [was] an inferior officer under the Appointments Clause, with limited juris- diction and tenure and lacking policymaking or significant administrative authority.” Ibid.
These two exceptions—one for multimember expert agen-
cies that do not wield substantial executive power, and one
for inferior officers with limited duties and no policymaking
or administrative authority—“represent what up to now
have been the outermost constitutional limits of permissi-
ble congressional restrictions on the President’s removal
power.”
PHH
,
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 ex- perts” and cannot be considered “non-partisan” in the same sense as a group of officials drawn from both sides of the aisle. 295 U. S., at 624. Moreover, while the staggered *22 17
Opinion of the Court
terms of the FTC Commissioners prevented complete turn- overs in agency leadership and guaranteed that there would always be some Commissioners who had accrued sig- nificant expertise, the CFPB’s single-Director structure and five-year term guarantee abrupt shifts in agency leadership and with it the loss of accumulated expertise.
In addition, the CFPB Director is hardly a mere legisla- tive or judicial aid. Instead of making reports and recom- mendations to Congress, as the 1935 FTC did, the Director possesses the authority to promulgate binding rules flesh- ing 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 unilat- erally issue final decisions awarding legal and equitable re- lief 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 execu- tive power not considered in Humphrey’s Executor .
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 coun- sel, who lacked policymaking or administrative authority, ——————
[4] The dissent would have us ignore the reasoning of Humphrey’s Exec- utor and instead apply the decision only as part of a reimagined Humph- rey’s -through- Morrison framework. See post , at 18, n. 7, 19–22 (K , 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 criti- cizes us for suggesting that the 1935 FTC may have had lesser responsi- bilities than the present FTC. See post , at 27, 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 de- cision, not any latent powers that the agency may have had not alluded to by the Court.
18
Opinion of the Court
the Director has the sole responsibility to administer 19 separate consumer-protection statutes that cover every- thing 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 in- ward 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 penal- ties through administrative adjudications and civil actions.
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 prece- dents to the “new situation” before us, namely an independ- ent agency led by a single Director and vested with signifi- cant executive power. Free Enterprise Fund , 561 U. S., at 483. We decline to do so. Such an agency has no basis in history and no place in our constitutional structure.
“Perhaps the most telling indication of [a] severe consti- tutional problem” with an executive entity “is [a] lack of his- torical precedent” to support it. Id., at 505 (internal quota- tion marks omitted). An agency with a structure like that of the CFPB is almost wholly unprecedented.
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 *24 19
Opinion of the Court
power alone rather than as members of a board or commis- sion. Ibid. “[T]hese few scattered examples”—four to be exact—shed little light. NLRB v. Noel Canning , 573 U. S. 513, 538 (2014).
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 dis-
missed as an aberration. It was “adopted without discus-
sion” 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 sin- gle 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 Presi- dent Reagan. See Memorandum Opinion for the General Counsel, Civil Service Commission, 2 Op. OLC 120, 122 (1978); Public Papers of the Presidents, Ronald Reagan, Vol. II, Oct. 26, 1988, pp. 1391–1392 (1991). [7] In any event, ——————
[5] The dissent suggests that the Comptroller still enjoyed some degree of insulation after his removal protection was repealed because the Pres- ident faced a new requirement to “communicate[ ]” his “reasons” for ter- minating the Comptroller to the Senate. Post, at 15 (quoting Act of June 3, 1864, ch. 106, §1, 13 Stat. 100). But the President could still remove the Comptroller for any reason so long as the President was, in the dis- sent’s phrase, “in a firing mood.” Post , at 15.
[6] The OSC should not be confused with the independent counsel in Morrison or the special counsel recently appointed to investigate allega- tions related to the 2016 Presidential election. Despite sharing similar titles, those individuals have no relationship to the OSC.
[7] An Act similar to the one vetoed by President Reagan was eventually
Opinion of the Court
the OSC exercises only limited jurisdiction to enforce cer- tain rules governing Federal Government employers and employees. See 5 U. S. C. §1212. It does not bind private parties at all or wield regulatory authority comparable to the CFPB.
Third, the CFPB’s defenders note that the Social Security Administration (SSA) has been run by a single Administra- tor since 1994. That example, too, is comparatively recent and controversial. President Clinton questioned the consti- tutionality 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 Fi-
nance Agency (FHFA), created in 2008 to assume responsi-
bility for Fannie Mae and Freddie Mac. That agency is es-
sentially a companion of the CFPB, established in response
to the same financial crisis. See Housing and Economic Re-
covery Act of 2008, 122 Stat. 2654. It regulates primarily
Government-sponsored enterprises, not purely private ac-
tors. And its single-Director structure is a source of ongoing
controversy. Indeed, it was recently held unconstitutional
by the Fifth Circuit, sitting en banc. See
Collins
v.
Mnuchin
,
With the exception of the one-year blip for the Comptrol- ler of the Currency, these isolated examples are modern and contested. And they do not involve regulatory or enforce- ment authority remotely comparable to that exercised by ——————
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). *26 21
Opinion of the Court
the CFPB. The CFPB’s single-Director structure is an in- novation with no foothold in history or tradition. [8]
In addition to being a historical anomaly, the CFPB’s sin- gle-Director configuration is incompatible with our consti- tutional structure. Aside from the sole exception of the Presidency, that structure scrupulously avoids concentrat- ing power in the hands of any single individual.
“The Framers recognized that, in the long term, struc-
tural protections against abuse of power were critical to
preserving liberty.”
Bowsher
,
They did not stop there. Most prominently, the Framers bifurcated the federal legislative power into two Chambers: the House of Representatives and the Senate, each com- posed of multiple Members and Senators. Art. I, §§2, 3.
The Executive Branch is a stark departure from all this ——————
[8] The dissent categorizes the CFPB as one of many “financial regula- tors” that have historically enjoyed some insulation from the President. See post , at 11–16. But even assuming financial institutions like the Second Bank and the Federal Reserve can claim a special historical sta- tus, the CFPB is in an entirely different league. It acts as a mini legis- lature, 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 4–5. And, of course, it is the only agency of its kind run by a single Director.
Opinion of the Court
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 “jar- rings of parties” would “promote deliberation and circum- spection” 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 au- thority 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.” Id. , at 476. Instead, they gave the Executive the “[d]ecision, activity, secrecy, and dispatch” that “characterise the proceedings of one man.” Id. , at 472.
To justify and check
that
authority—unique in our con-
stitutional structure—the Framers made the President the
most democratic and politically accountable official in Gov-
ernment. Only the President (along with the Vice Presi-
dent) 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 ac-
tions of the Executive Branch.”
Free Enterprise Fund
, 561
U. S., at 496–497 (quoting
Clinton
v.
Jones
,
Opinion of the Court
712–713 (1997) (B REYER , J., concurring in judgment)).
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 exec- utive 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 govern- mental power in the hands of a single individual accounta- ble 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 rep- resenting the interests of the people). Yet the Director may unilaterally , without meaningful supervision, issue final regulations, oversee adjudications, set enforcement priori- ties, initiate prosecutions, and determine what penalties to impose on private parties. With no colleagues to persuade, and no boss or electorate looking over her shoulder, the Di- rector may dictate and enforce policy for a vital segment of the economy affecting millions of Americans.
The CFPB Director’s insulation from removal by an ac- countable President is enough to render the agency’s struc- ture 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 di- rect method of presidential control—removal at will—the agency’s unique structure also forecloses certain indirect
Opinion of the Court
methods of Presidential control.
Because the CFPB is headed by a single Director with a five-year term, some Presidents may not have any oppor- tunity to shape its leadership and thereby influence its ac- tivities. A President elected in 2020 would likely not ap- point 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 plat- form 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 author- ity 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 Presiden- tial 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 sub- mitted a proposed budget to Congress for approval. See Budget and Accounting Act, 1921, ch. 18, §201, 42 Stat. 20. Presidents frequently use these budgetary tools “to influ- ence the policies of independent agencies.” PHH , 881 F. 3d, at 147 (Henderson, J., dissenting) (citing Pasachoff, The President’s Budget as a Source of Agency Policy Control, 125 Yale L. J. 2182, 2191, 2203–2204 (2016)). But no simi- lar opportunity exists for the President to influence the CFPB Director. Instead, the Director receives over $500 million per year to fund the agency’s chosen priorities. And the Director receives that money from the Federal Reserve, which is itself funded outside of the annual appropriations process. This financial freedom makes it even more likely *30 25
Opinion of the Court
that the agency will “slip from the Executive’s control, and thus from that of the people.” Free Enterprise Fund , 561 U. S., at 499. [9]
Amicus raises three principal arguments in the agency’s defense. At the outset, amicus questions the textual basis for the removal power and highlights statements from Mad- ison, Hamilton, and Chief Justice Marshall expressing “het- erodox” views on the subject. Brief for Court-Appointed Amicus Curiae 4–5, 28–29. But those concerns are mis- placed. It is true that “there is no ‘removal clause’ in the Constitution,” id. , at 1, but neither is there a “separation of powers clause” or a “federalism clause.” These foundational doctrines are instead evident from the Constitution’s vest- ing of certain powers in certain bodies. As we have ex- plained many times before, the President’s removal power stems from Article II’s vesting of the “executive Power” in the President. Free Enterprise Fund , 561 U. S., at 483 (quoting Art. II, §1, cl. 1). As for the opinions of Madison, Hamilton, and Chief Justice Marshall, we have already con- sidered the statements cited by amicus and discounted them in light of their context (Madison), the fact they reflect initial impressions later abandoned by the speaker (Hamil- ton), or their subsequent rejection as ill-considered dicta ——————
[9] 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 Coun- cil (FSOC). See Brief for Court-Appointed Amicus Curiae 40; post , at 33, n. 13, 36. But the FSOC’s veto power is statutorily reserved for extreme situations, when two-thirds of the Council concludes that a CFPB regu- lation 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.” 12 U. S. C. §§5513(a), (c)(3). That narrow escape hatch has no impact on the CFPB’s enforcement or adjudicatory authority and has never been used in the ten years since the agency’s creation. It certainly does not render the CFPB’s independent, single-Director structure constitutional.
Opinion of the Court
(Chief Justice Marshall). See
Free Enterprise Fund
, 561
U. S., at 500, n. 6 (Madison);
Myers
,
[10] 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 10 (quoting The Federalist No. 39, p. 253 (J.
Cooke ed. 1961)). But whatever Madison may have meant by that state-
ment, he later led the charge in contending, on the floor of the First Con-
gress, 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
id.
, at 462–464, 495–496. Like the dissent in
Free Enter-
prise Fund
, the dissent goes on to “attribute[ ] to Madison a belief that
. . . the Comptroller[ ] could be made independent of the President. But
Madison’s actual proposal, consistent with his view of the Constitution,
was that the Comptroller hold office for a term of ‘years, unless sooner
removed by the President’; he would thus be ‘dependent upon the Presi-
dent, because he can be removed by him,’ and also ‘dependent upon the
Senate, because they must consent to his [reappointment] for every term
of years.’ ”
Free Enterprise Fund
v.
Public Company Accounting Over-
sight Bd.
,
Opinion of the Court
Free Enterprise Fund ) . Outside those two situations, ami- cus argues, Congress is generally free to constrain the Pres- ident’s removal power. See also post , at 16–22 (K , J., concurring in judgment with respect to severability and dis- senting in part) (hereinafter dissent) (expressing similar view).
But text, first principles, the First Congress’s decision in 1789, Myers , and Free Enterprise Fund all establish that the President’s removal power is the rule, not the exception. While we do not revisit Humphrey’s Executor or any other precedent today, we decline to elevate it into a freestanding invitation for Congress to impose additional restrictions on the President’s removal authority. [11] Finally, amicus contends that if we identify a constitu- tional problem with the CFPB’s structure, we should avoid ——————
[11] 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 4. 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 advis-
ers.”
Post
, at 17. But that carveout makes no logical or constitutional
sense. In the dissent’s view, for-cause removal restrictions are permissi-
ble because they guarantee the President “meaningful control” over his
subordinates.
Post
, at 28 (internal quotation marks and alterations
omitted); see also
post
, at 8, 20, 26, 36
.
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 13.
But the same Article that establishes the President’s foreign relations
and war duties expressly entrusts him to take care that the laws be faith-
fully 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
,
Opinion of the Court
it by broadly construing the statutory grounds for removing the CFPB Director from office. See Brief for Court-Ap- pointed 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.” 12 U. S. C. §5491(c)(3). In amicus ’ view, that language could be interpreted to reserve substantial discretion to the President. Brief for Court-Appointed Amicus Curiae 51.
We are not persuaded. For one, Humphrey’s Executor im- plicitly rejected an interpretation that would leave the President free to remove an officer based on disagreements about agency policy. See 295 U. S., at 619, 625–626. In addition, while both amicus and the House of Representa- tives invite us to adopt whatever construction would cure the constitutional problem, they have not advanced any workable standard derived from the statutory language. Amicus suggests that the proper standard might permit re- movals based on general policy disagreements, but not spe- cific ones; the House suggests that the permissible bases for removal might vary depending on the context and the Pres- idential power involved. See Tr. of Oral Arg. 58–60, 76–77. They do not attempt to root either of those standards in the statutory text. Further, although nearly identical language governs the removal of some two-dozen multimember inde- pendent agencies, amicus suggests that the standard should vary from agency to agency, morphing as necessary to avoid constitutional doubt. Tr. of Oral Arg. 55–56. We decline to embrace such an uncertain and elastic approach to the text.
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.” 12 U. S. C. §5491(a); see also 44 U. S. C. §3502(5) (listing the CFPB as an “independent reg- ulatory agency”). Neither amicus nor the House explains how the CFPB would be “independent” if its head were re- quired to implement the President’s policies upon pain of
Opinion of the Court
removal. See Black’s Law Dictionary 838 (9th ed. 2009) (de- fining “independent” as “[n]ot subject to the control or influ- ence of another”). The Constitution might of course compel the agency to be dependent on the President notwithstand- ing Congress’s contrary intent, but that result cannot fairly be inferred from the statute Congress enacted.
Constitutional avoidance is not a license to rewrite Con- gress’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 mean- ingful 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 iso- lated statements from individual Framers, downplays the decision of 1789, minimizes Myers , brainstorms methods of Presidential control short of removal, touts the need for cre- ative congressional responses to technological and economic change, and celebrates a pragmatic, flexible approach to American governance. See post , at 1–25, 32–33, 38.
If these arguments sound familiar, it’s because they are.
They were raised by the dissent in
Free Enterprise Fund
.
Compare
post
, at 1–25, 32–33, 38, with
Free Enterprise
Fund
,
Opinion of the Court
today, as always, the urge to meet new technological and societal problems with novel governmental structures must be tempered by constitutional restraints that are not known—and were not chosen—for their efficiency or flexi- bility. Id., at 499.
As we explained in Free Enterprise Fund , “One can have a government that functions without being ruled by func- tionaries, and a government that benefits from expertise without being ruled by experts.” Ibid. While “[n]o one doubts Congress’s power to create a vast and varied federal bureaucracy,” the expansion of that bureaucracy into new territories the Framers could scarcely have imagined only sharpens our duty to ensure that the Executive Branch is overseen by a President accountable to the people. Ibid.
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 par- ties to brief and argue whether the Director’s removal pro- tection 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 Con- gress’s unconstitutional attempt to insulate the agency’s Director from removal by the President. There is a live con- troversy between the parties on that question, and resolv- ing it is a necessary step in determining petitioner’s entitle- ment to its requested relief.
As the defendant in this action, petitioner seeks a straightforward remedy. It asks us to deny the Govern- ment’s petition to enforce the civil investigative demand and dismiss the case. The Government counters that the demand, though initially issued by a Director unconstitu- tionally insulated from removal, can still be enforced on re- mand because it has since been ratified by an Acting Direc- tor accountable to the President. The parties dispute *36 31
Opinion of the Court
Opinion of R OBERTS , C. J.
whether this alleged ratification in fact occurred and whether, if so, it is legally sufficient to cure the constitu- tional defect in the original demand. That debate turns on case-specific factual and legal questions not addressed be- low 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 Ap- peals, petitioner contended that, regardless of any ratifica- tion, the demand is unenforceable because the statutory provision insulating the CFPB Director from removal can- not be severed from the other statutory provisions that de- fine 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 re- mand would be pointless. With no agency left with statu- tory 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 en- force 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 re- moval 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] J USTICE T HOMAS believes that any ratification is irrelevant. In his
Opinion of the Court
Opinion of R OBERTS , C. J.
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
, 179
U. S. 472, 490 (1900) (quoting
Treasurer of Fayette Cty.
v.
People’s & Drovers’ Bank
,
“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 re-
mainder intact.”
Free Enterprise Fund
, 561 U. S., at 508
(internal quotation marks omitted). Even in the absence of
a severability clause, the “traditional” rule is that “the un-
constitutional provision must be severed unless the statute
created in its absence is legislation that Congress would not
have enacted.”
Alaska Airlines, Inc.
v.
Brock
,
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 ——————
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 con- stitutional injury requiring immediate dismissal. See post , at 17–19 (opinion concurring in part and dissenting in part). But whether and when the temporary involvement of an unconstitutionally insulated of- ficer 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.
Opinion of the Court
Opinion of R OBERTS , C. J.
constitutional violation would disappear. We must there- fore 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 unconstitu- tional removal provisions severable even in the absence of an express severability clause because the surviving provi- sions 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.” 561 U. S., at 509 (internal quotation marks omitted).
So too here. The provisions of the Dodd-Frank Act bear- ing on the CFPB’s structure and duties remain fully opera- tive without the offending tenure restriction. Those provi- sions 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. Un- like 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 un- constitutional” because it has told us: “the remainder of this Act” should “not be affected.” 12 U. S. C. §5302.
Petitioner urges us to disregard this plain language for three reasons. None is persuasive. First, petitioner dis- misses the clause as non-probative “boilerplate” because it applies “to the entire, 848-page Dodd-Frank Act” and “ap- pears almost 600 pages before the removal provision at is- sue.” 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 boiler- plate is boilerplate for a reason—because it offers tried-and- true language to ensure a precise and predictable result.
Opinion of the Court
Opinion of R OBERTS , C. J.
That is the case here. The language unmistakably refer- ences “ any provision of this Act.” 12 U. S. C. §5302 (empha- sis added). And it appears in a logical and prominent place, immediately following the Act’s title and definitions sec- tions, reinforcing the conclusion that it applies to the en- tirety of the Act. Congress was not required to laboriously insert duplicative severability clauses, provision by provi- sion, to accomplish its stated objective.
Second, petitioner points to an additional severability
clause in the Act that applies only to one of the Act’s subti-
tles. See 15 U. S. C. §8232. In petitioner’s view, that clause
would be superfluous if Congress meant the general sever-
ability clause to apply across the Act. But “our preference
for avoiding surplusage constructions is not absolute.”
Lamie
v.
United States Trustee
,
Finally, petitioner argues more broadly that Congress would not have wanted to give the President unbridled con- trol 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 peti- tioner 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
Opinion of the Court
Opinion of R OBERTS , C. J.
executive control.
These observations certainly confirm that Congress pre- ferred 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 responsi- ble for them. See id. , at 46. But, as the Solicitor General and House of Representatives explain, that shift would trig- ger a major regulatory disruption and would leave appre- ciable damage to Congress’s work in the consumer-finance arena. See Reply Brief for Respondent 21–22; Tr. of Oral Arg. 67–68. One of the agencies whose regulatory authority was transferred to the CFPB no longer exists. See 12 U. S. C. §§5412–5413 (Office of Thrift Supervision). The others do not have the staff or appropriations to absorb the CFPB’s 1,500-employee, 500-million-dollar operations. And none has the authority to administer the Dodd-Frank Act’s new prohibition on unfair and deceptive practices in the consumer-finance sector. Given these consequences, it is far from evident that Congress would have preferred no CFPB to a CFPB led by a Director removable at will by the President.
J USTICE T HOMAS would have us junk our settled severa- bility doctrine and start afresh, even though no party has asked us to do so. See post , at 15–16, 21–24 (opinion con- curring in part and dissenting in part). Among other things, he objects that it is sheer “speculation” that Con- gress would prefer that its consumer protection laws be en- forced by a Director accountable to the President rather than not at all. Post , at 23–24. We think it clear that Con- gress would prefer that we use a scalpel rather than a bull- dozer in curing the constitutional defect we identify today.
Opinion of the Court
Opinion of R OBERTS , C. J.
And such an approach by this Court can come as no surprise to Congress, which was on notice of constitutional objec- tions to single-Director agencies by multiple past Presi- dents from both political parties, supra , at 19–20, and en- acted Dodd-Frank against the background of our established severability doctrine.
As in every severability case, there may be means of rem-
edying 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 re-
sponses 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 sever- able 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 to- day. In our constitutional system, the executive power be- longs 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 up- held limits on the President’s removal authority in certain contexts, we decline to do so when it comes to principal of- ficers who, acting alone, wield significant executive power.
Opinion of the Court
Opinion of R OBERTS , C. J.
The Constitution requires that such officials remain depend- ent 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. *43 Opinion of T HOMAS SUPREME COURT OF THE UNITED STATES
_________________ No. 19–7 _________________ SEILA LAW LLC, PETITIONER CONSUMER
FINANCIAL PROTECTION BUREAU
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 29, 2020]
J USTICE T HOMAS , with whom J USTICE G ORSUCH 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 16 (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 overrule that decision. See ante , at 2, 13–17. But with today’s decision, the Court has repudiated almost every aspect of Humphrey’s Executor . In a future case, I would repudiate what is left of this errone- ous precedent.
Opinion of T HOMAS
A
“The Constitution does not vest the Federal Government with an undifferentiated ‘governmental power.’ ” Depart- ment of Transportation v. Association of American Rail- roads , 575 U. S. 43, 67 (2015) (T HOMAS , J., concurring in judgment). It sets out three branches and vests a different form of power in each—legislative, executive, and judicial. See Art. I, §1; Art. II, §1, cl. 1; Art. III, §1.
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 Consti-
tution and the clear vesting of executive power in the Pres-
ident, 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 of-
ficers who are insulated from the President by removal re-
strictions, “reduc[ing] the Chief Magistrate to [the role of]
cajoler-in-chief.”
Free Enterprise Fund
,
Opinion of T HOMAS States. They instead look to the President to guide the as- sistants or deputies subject to his superintendence.” Id. , at 497–498 (alterations, internal quotation marks and citation omitted). Because independent agencies wield substantial power with no accountability to either the President or the people, they “pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.” PHH Corp. v. CFPB , 881 F. 3d 75, 165 (CADC 2018) (Kavanaugh, J., dissenting).
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 Gov- ernment’s design. Perez v. Mortgage Bankers Assn. , 575 U. S. 92, 115–116 (2015) (T HOMAS , J., concurring in judg- ment) (internal quotation marks omitted). Our tolerance of independent agencies in Humphrey’s Executor is an unfor- tunate example of the Court’s failure to apply the Constitu- tion as written. That decision has paved the way for an ever-expanding encroachment on the power of the Execu- tive, contrary to our constitutional design.
B
The lead up to
Humphrey’s Executor
begins with this
Court’s decision in
Myers
,
The Court anchored its analysis in evidence from the *46 Opinion of T HOMAS founding era. It acknowledged that the “subject [of re- moval] was not discussed in the Constitutional Conven- tion,” id. , at 109–110, but it reviewed in detail the First Congress’ vigorous debate about the removal of executive officers in what is known as the Decision of 1789, id. , at 111–135. [1] In the course of analyzing the Decision of 1789, the Court explained that Article II vests “the execu- tive power of the Government . . . in one person”—the President—and that the executive power includes the au- thority to “select those who [are] to act for him under his direction in the execution of the laws.” Id. , at 116–117. Re- iterating the position of James Madison and other Members of the First Congress, the Court noted that allowing limits on the President’s removal authority would grant Congress “the means of thwarting the Executive in the exercise of his great powers and in the bearing of his great responsibility, by fastening upon him, as subordinate executive officers, men who by their inefficient service under him, by their lack of loyalty to the service, or by their different views of policy might make his taking care that the laws be faith- fully executed most difficult or impossible.” Id. , at 131. Af- ter “devot[ing] much space to [the] discussion and decision of the question of the Presidential power of removal in the First Congress” as well as its understanding of the execu- tive power, id. , at 136, the Court concluded that “the power to remove officers appointed by the President and the Sen- ate vested in the President alone,” id. , at 114. It repeatedly described this removal power as “unrestricted.” Id. , at 115, 134, 150, 172, 176.
The Court noted that the First Congress’ understanding of the removal question was quickly “accepted as a final de- cision of the question by all branches of the Government.” ——————
[1] For a comprehensive review of the Decision of 1789, see Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006). *47 5
Opinion of T HOMAS Id. , at 136. The decision was “affirmed by this Court in un- mistakable terms.” Id. , at 148, 152–153 (discussing Ex parte Hennen , 13 Pet. 230, 259 (1839); Parsons v. United States , 167 U. S. 324, 330 (1897)). Presidents had “uni- form[ly]” adopted the First Congress’ view “whenever an is- sue ha[d] clearly been raised.” Myers , 272 U. S., at 169. And “Congress, in a number of acts, followed and enforced the legislative decision of 1789 for seventy-four years.” Id. , at 145. While disputes with President Andrew Johnson over Reconstruction led Congress to “enact legislation to curtail the then acknowledged powers of the President,” id. , at 165, the Myers Court declined to give these politically charged acts any weight, id., at 175–176.
After exhaustively analyzing the historical evidence, the Court had “no hesitation in holding that [the First Con- gress’] conclusion [was] correct.” Id. , at 176 . Accordingly, the Court held that “the provision of the law [at issue], by which the unrestricted power of removal of first class post- masters is denied to the President, [was] in violation of the Constitution, and invalid.” Ibid.
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 ap- pointed 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 , 83 Geo. Wash. L. Rev. 1836, 1841 (2015); Winerman, The FTC at Ninety: History Through Headlines, 72 Antitrust L. J. 871, 878–879 (2005); Yoo, Calabresi, & Nee, The Unitary Executive During the Third Half-Century, 1889–1945, 80 Notre Dame L. Rev. 1, 64 (2004). He reportedly “vowed not to approve any Commis- sion action that did not have as its goal to help business
Opinion of T HOMAS help itself,” “threaten[ed] criminal prosecution against other commissioners who publicly dissented,” and “called his fellow commissioners men drunk with their own great- ness” when they voted to initiate an investigation. Crane, supra , at 1841 (internal quotation marks omitted).
Less than two years into Humphrey’s term, newly inau-
gurated President Franklin D. Roosevelt wrote Humphrey
a letter, asking for his resignation. The President ex-
plained that, in his view, “the aims and purposes of the Ad-
ministration 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 re-
cover 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, 38 Stat. 717, prohibited
the President from removing FTC Commissioners except
for “inefficiency, neglect of duty, or malfeasance in office,”
and (2) if so, whether that restriction was constitutional.
The Court answered both of these questions in favor of *49 Opinion of T HOMAS Humphrey’s estate. It first held that the FTC Act “limit[ed] the executive power of removal to the causes enumerated” therein—inefficiency, neglect of duty, or malfeasance in of- fice. Id. , at 626. In the Court’s view, this construction of the Act was clear from “the face of the statute” and “the character of the commission,” id. , at 624, which the Court described as a “body of experts” that operates “independent of executive authority . . . and free to exercise its judgment without the leave or hindrance of any other official,” id. , at 625–626.
Then, notwithstanding the text of Article II of the Consti-
tution 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 acknowl-
edged that the “recently decided”
Myers
decision had “fully
review[ed] the general subject of the power of executive re-
moval” and “examine[d] at length the historical, legislative
and judicial data bearing upon the question.”
Humphrey’s
Executor
,
[2] 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
,
8
Opinion of T HOMAS ling.”
Id.
, at 627. In the Court’s view, unlike the postmas-
ter in
Myers
, FTC commissioners did not qualify as “purely
executive officers.”
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 Con- stitution in the President.” Id. , at 628. Rather, in the Court’s view, by “filling in and administering the details embodied by [the FTC Act’s] general standard[,] the com- mission act[ed] in part quasi-legislatively and in part quasi- judicially.” Ibid. The Court stated that the FTC acted “as a legislative agency” by “making investigations and reports thereon for the information of Congress” and acted “as an agency of the judiciary” when performing its role “as a mas- ter in chancery under rules prescribed by the court.” Ibid. “Such a body,” the Court explained, “cannot in any proper sense be characterized as an arm or an eye of the executive.” Ibid.
After distinguishing “purely executive officers” from offic- ers exercising “quasi-legislative or quasi-judicial powers,” ibid. , the Court held that “[w]hether the power of the Pres- ident to remove an officer shall prevail over the authority of Congress to condition the power by . . . precluding a re- moval except for cause, will depend upon the character of the office,” id. , at 631. “[P]urely executive officers” are sub- ject to the President’s “unrestrictable power . . . to remove.” Id. , at 632 . But with regard to “quasi-legislative” and “quasi-judicial” officers, the Court concluded that “no re- moval [could] be made . . . except for one or more of the causes named.” Ibid.
Humphrey’s Executor laid the foundation for a fundamen- tal departure from our constitutional structure with noth- ing more than handwaving and obfuscating phrases such as
Opinion of T HOMAS “quasi-legislative” and “quasi-judicial.” Unlike the thor-
ough 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
, 487
U. S. 654, 726 (1988) (Scalia, J., dissenting). The excep-
tional weakness of the reasoning could be a product of the
circumstances under which the case was decided—in the
midst of a bitter standoff between the Court and President
Roosevelt
[3]
—or it could be just another example of this
Court departing from the strictures of the Constitution for
a “more pragmatic, flexible approach” to our government’s
design.
Perez
,
Humphrey’s Executor relies on one key premise: the no- tion 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. Working from that premise, the Court distinguished the “illimitable” power of removal recognized in Myers , Humphrey’s Executor , 295 ——————
[3] A number of historical sources indicate that President Roosevelt saw
Humphrey’s Executor
v.
United States
,
Opinion of T HOMAS U. S., at 627–628, and upheld the FTC Act’s removal re- striction, while simultaneously acknowledging that the Constitution vests the President with the entirety of the ex- ecutive power, id. , at 628.
The problem is that the Court’s premise was entirely
wrong. The Constitution does not permit the creation of of-
ficers exercising “quasi-legislative” and “quasi-judicial pow-
ers” in “quasi-legislative” and “quasi-judicial agencies.”
Id.,
at 628–629
.
No such powers or agencies exist. Congress
lacks the authority to delegate its legislative power,
Whit-
man
v.
American Trucking Assns.
,
Inc.
,
That is exactly what happened in Humphrey’s Executor . The Court upheld the FTC Act’s removal restriction by us- ing the “quasi” label to support its claim that the FTC “ex- ercise[d] no part of the executive power vested by the Con- stitution in the President.” Humphrey’s Executor , supra , at 628. But “it is hard to dispute that the powers of the FTC
Opinion of T HOMAS at the time of Humphrey’s Executor would at the present time be considered ‘executive,’ at least to some degree.” Morrison , supra , at 690, n. 28; see ante , at 14, n. 2; see post , at 18, n. 7 (K , J., concurring in judgment with respect to severability and dissenting in part) .
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. 487 U. S., at 689. Then, in Free Enterprise Fund , we returned to the principles set out in the “land- mark case of Myers .” 561 U. S., at 492. And today, the Court rightfully limits Humphrey’s Executor to “multimem- ber expert agencies that do not wield substantial executive power.” Ante , at 16. After these decisions, the foundation for Humphrey’s Executor is not just shaky. It is nonexist- ent.
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. In doing so, the Court set
aside the reasoning of
Humphrey’s Executor
. It recognized
that
Humphrey’s Executor
“rel[ied] on the terms ‘quasi-
legislative’ and ‘quasi-judicial’ to distinguish the officials
involved in
Humphrey’s Executor
. . . from those in
Myers
.”
Opinion of T HOMAS , J.
would at the present time be considered ‘executive.’ ”
Mor-
rison
,
supra
, at 690, n. 28. The lone dissenter, Justice
Scalia, disagreed with much of the Court’s analysis but
noted that the Court had rightfully “swept”
Humphrey’s Ex-
ecutor
“into the dustbin of repudiated constitutional princi-
ples.”
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 Oversight Board violated the Constitution. In its analysis, the Court recognized that allowing officers to “execute the laws” beyond the President’s control “is contrary to Article II’s vesting of the executive power in the President .” 561 U. S., at 496 (emphasis added). The Court acknowledged that “the executive power include[s] a power to oversee executive officers through removal.” Id. , at 492. And it explained that, without the power of removal, the President cannot “be held fully accountable” for the exercise of the executive power, “ ‘greatly diminish[ing] the intended and necessary responsibility of the chief magistrate himself.’ ” Id. , at 514 (quoting The Federalist No. 70, p. 478 (J. Cooke ed. 1961) (A. Hamilton)). Accountability, the Court repeatedly em- phasized, plays a central role in our constitutional struc- ture. See, e.g. , Free Enterprise Fund , 561 U. S. , at 498 (“[E]xecutive power without the Executive’s oversight . . . subverts the President’s ability to ensure that the laws are faithfully executed—as well as the public’s ability to pass judgment on his efforts”); id. , at 513 (“The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so”). Humphrey’s Executor is at odds with every single one of these principles:
Opinion of T HOMAS It ignores Article II’s Vesting Clause, sidesteps the Presi- dent’s removal power, and encourages the exercise of exec- utive power by unaccountable officers. The reasoning of the two decisions simply cannot be reconciled.
Finally, today’s decision builds upon Morrison and Free Enterprise Fund , further eroding the foundation of Humph- rey’s Executor . The Court correctly notes that “[t]he entire ‘executive Power’ belongs to the President alone.” Ante , at 11. The President therefore must have “power to remove— and thus supervise—those who wield executive power on his behalf.” Ante , at 2. As a result, the Court concludes that Humphrey’s Executor must be limited to “multimem- ber expert agencies that do not wield substantial executive power .” Ante, at 16 (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 14, 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 ——————
[4] 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 18, n. 7. And, in 39 pages, it cannot explain how any aspect
of
Humphrey’s Executor
(other than its holding) survived
Morrison
v.
Ol-
son
,
Opinion of T HOMAS 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 agencies creates a serious, ongo- ing threat to our Government’s design. Leaving these un- constitutional agencies in place does not enhance this Court’s legitimacy; it subverts political accountability and threatens individual liberty. We have a “responsibility to ‘examin[e] without fear, and revis[e] without reluctance,’ any ‘hasty and crude decisions’ rather than leaving ‘the character of [the] law impaired, and the beauty and har- mony of the [American constitutional] system destroyed by the perpetuity of error.’ ” Gamble v. United States , 587 U. S. ___, ___ (2019) (T HOMAS , J., concurring) (slip op., at 7) (quoting 1 J. Kent, Commentaries on American Law 444 (1826); some alterations in original). We simply cannot compromise when it comes to our Government’s structure. Today, the Court does enough to resolve this case, but in the future, we should reconsider Humphrey’s Executor in toto . And I hope that we will have the will to do so.
II
While I think that the Court correctly resolves the merits of the constitutional question, I do not agree with its deci- sion to sever the removal restriction in 12 U. S. C. §5491(c)(3). See ante , at 30–36; post , at 37. To resolve this case, I would simply deny the Consumer Financial Protec- tion Bureau (CFPB) petition to enforce the civil investiga- tive demand.
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
Opinion of T HOMAS individual cases” or controversies that are properly before
the court.
Murphy
v.
National Collegiate Athletic Assn.
, 584
U. S. ___, ___–___ (2018) (T HOMAS , J., concurring) (slip op.,
at 2–3); see also
Plaut
v.
Spendthrift Farm
,
Inc.
, 514 U. S.
211, 219 (1995) (“ ‘[A] “judicial Power” is one to render dis-
positive judgments’ ”); Baude, The Judgment Power, 96
Geo. L. J. 1807, 1815–1816 (2008). “[T]he power exercised
is that of ascertaining and declaring the law applicable to
the controversy.”
Massachusetts
v.
Mellon
,
Consistent with this understanding, “[e]arly American
courts did not have a severability doctrine.”
Id.
, at ___ (slip
op., at 2) (citing Walsh, Partial Unconstitutionality, 85
N. Y. U. L. Rev. 738, 769 (2010)). If a statute was unconsti-
tutional, the court would just decline to enforce the statute
in the case before it.
Our modern severability precedents create tension with
this historic practice. Instead of declining to enforce an un-
constitutional 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
,
Opinion of T HOMAS law.” Mitchell, supra , at 1017. The Federal Judiciary does not have the power to excise, erase, alter, or otherwise strike down a statute. Murphy , supra , at ___ (T HOMAS , J., concurring) (slip op., at 4); Mitchell, supra , at 936. And the Court’s reference to severability as a “remedy” is inaccu- rate. Traditional remedies—like injunctions, declarations, or damages—“ ‘operate with respect to specific parties,’ not ‘on legal rules in the abstract.’ ” Murphy , supra , at ___ (T HOMAS , J., concurring) (slip op., at 3) (quoting Harrison, Severability, Remedies, and Constitutional Adjudication, 83 Geo. Wash. L. Rev. 56, 85 (2014)).
Because the power of judicial review does not allow courts
to revise statutes, Mitchell,
supra
, at 983, the Court’s sev-
erability doctrine must be rooted in statutory interpreta-
tion. But, even viewing severability as an interpretive
question, I remain skeptical of our doctrine. As I have pre-
viously 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
,
B
Consistent with the traditional understanding of the ju- dicial 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 *59 17
Opinion of T HOMAS in the future; it simply asks us to “reverse the court of ap- peals’ 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 9–10. Pre- sented with an enforcement request from an unconstitu- tionally 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, because the CFPB raised a ratification argument before the Court of Appeals, we can (and should) reach the question of severability. See ante , at 30–31. 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 Di- rector Mick Mulvaney, and now Director Kathleen Kran- inger. The CFPB’s first Director, Director Cordray, issued a civil investigative demand to Seila and initiated the en- forcement action. The CFPB has conceded that these ac- tions were unconstitutional. But, in the Ninth Circuit, the CFPB argued that the investigative demand was ratified by Acting Director Mulvaney, who it claimed was not insulated by the removal provision. Brief for Appellee in No. 17– 56324, pp. 13–19. In the CFPB’s view, the President could ——————
[5] The dissent provides no analysis of severability, simply stating “ if the agency’s removal provision is unconstitutional, it should be severed.” Post, at 37.
18
Opinion of T HOMAS remove Acting Director Mulvaney at will because the “re- moval provision by its terms applies only to ‘the Director,’ not to an Acting Director,” and the Federal Vacancy Reform Act “does not limit the President’s ability to designate a dif- ferent person as Acting Director.” Id. , at 14. Based on this ratification theory, the CFPB asked the Ninth Circuit to af- firm the District Court’s order granting the CFPB’s petition to enforce its investigative demand.
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 pre- sented 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 30–31.
The resolution of the CFPB’s Acting-Director ratification theory, however, has no bearing on the outcome of the dis- pute before us and therefore provides no basis for address- ing severability. If the Acting Director did not ratify the investigative demand, then there is obviously no need to ad- dress severability. And even if he did, the Court still does not need to address severability because the alleged ratifi- cation does not cure the constitutional injury—enforcement of an investigative demand by an unconstitutionally insu- lated Director. Seila “challenge[d] the validity of both the civil investigative demand and the ensuing enforcement ac- tion .” Reply Brief for Petitioner 5 (emphasis added). Acting Director Mulvaney may (or may not) have properly ratified ——————
[6] The Court-appointed amicus suggests that the CFPB’s current Direc- tor, Director Kraninger, ratified the enforcement proceeding by main- taining 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 de- mand, stating that she “remains statutorily insulated from removal, re- gardless whether she believes the law is invalid.” Reply Brief for Re- spondent 7.
Opinion of T HOMAS 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 suc- cessor, Director Kraninger. Id. , at 7. Thus, even if the CFPB’s ratification theory is valid, Seila still has an injury: It has been (and continues to be) subjected to enforcement of an investigative demand by Director Kraninger, who “re- mains statutorily insulated from removal.” Reply Brief for Respondent 7; see also Free Enterprise Fund , 561 U. S., at 513; ante , at 10. Thus, we should decline to enforce the civil investigative demand against Seila. See supra, at 14–15.
Ultimately, I cannot see how the resolution of the sever- ability 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 to the severability clause in the Dodd-Frank Act. See ante , at 33. That clause states: “If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circum- stance is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provisions of such to any person or circumstance shall not be affected thereby.” §5302. The plurality states that “[i]f the Director were removable at will by the President, the constitutional violation would disappear.” Ante , at 32– 33. Then, relying on language in the severability clause, it concludes that the removal provision, §5491(c)(3), should be severed.
The plurality suggests that its analysis is a matter of simply enforcing the “plain language” of the severability
Opinion of T HOMAS clause. See ante , at 33. But I am not sure it is that simple. For one, the plurality does not actually analyze the statu- tory language. [7] Second, the analysis the plurality does pro- vide 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 32. A text-based interpretation does not allow a free-rang- ing inquiry into what “ ‘Congress, faced with the limitations imposed by the Constitution, would have preferred’ ” had it known of a constitutional issue. Ante , at 33 (quoting Free Enterprise Fund , supra , at 509). Nor does it consider whether Congress would have wanted to avoid “a major reg- ulatory disruption.” Ante , at 35. Statutory interpretation focuses on the text.
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 ——————
[7] The severability clause refers to three alternative scenarios: (1) a “provision of [the] Act . . . is held to be unconstitutional”; (2) “an amend- ment made by [the] Act . . . is held unconstitutional”; and (3) “the appli- cation of [a] provision or amendment [of the Act] to any person or circum- stance is held to be unconstitutional.” 12 U. S. C. §5302. The plurality assumes, with no analysis, that this case falls in the first scenario, call- ing for a provision to be severed from the Dodd-Frank Act. See ante , at 33. But, as discussed below, there is no single “provision” of the Act that has led to the constitutional injury in this case. See infra , at 20–21. It is the attempted enforcement of a civil investigative demand under §5562(e)(1) by an unconstitutionally insulated Director that causes the constitutional injury in this case. There is at least a nonfrivolous argu- ment that this case implicates the third scenario contemplated by the severability clause— i.e., “the application of [a] provision” in a certain “circumstance.” §5302. If that were so, the text of the severability clause would not require any “provision” to be severed; the unconstitutional ap- plication of §5562(e)(1) simply would not affect other provisions of the Dodd-Frank Act. Such a reading would be consistent with the traditional limits on the judicial power. See supra , at 14–15.
Opinion of T HOMAS 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 (stating that the
convergence of “a number of statutory provisions” produce
a constitutional violation);
Booker
, 543 U. S., at 316–317
(opinion of T HOMAS , J.) (explaining that “the concerted ac-
tion of [18 U. S. C.] §3553(b)(1)
and
the operative Guide-
lines
and
the relevant Rule of Criminal Procedure resulted
in unconstitutional judicial factfinding”); Lea, Situation
Severability, 103 Va. L. Rev. 735, 778–780 (2017) (discuss-
ing statutory convergences). That is precisely the situation
we have in this case. As in
Free Enterprise Fund
, the pro-
vision requiring “good-cause removal is only one of [the]
statutory provisions that, working together, produce a con-
stitutional violation.”
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 ___–___ (T HOMAS , J., concurring) (slip op., at 4–6). An analysis of the Court’s decisions in Booker and Free Enter- prise Fund illustrates the Court’s approach to determining which provision to sever when confronting an injury caused by an unconstitutional convergence of multiple statutory provisions.
In Booker , a Rule of Criminal Procedure, a subset of pro- visions in the Sentencing Guidelines, and a statutory pro- vision operated together to require unconstitutional judicial
Opinion of T HOMAS 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 , 543 U. S., at 246 (internal quotation marks omitted). The Court “recognize[d] that sometimes severability questions . . . can arise [in the context of] a leg- islatively unforeseen constitutional problem.” Id. , at 247. But it nonetheless felt qualified to craft a remedy that would “move sentencing in Congress’ preferred direction.” Id. , at 264. Surprisingly, that “move” did not involve en- forcing the constitutional aspects of Congress’ sentencing scheme. The Court stated that “we cannot assume that Congress, if faced with the statute’s invalidity in key appli- cations, would have preferred to apply the statute in as many other instances as possible.” Id. , at 248. [8] Despite the fact that there were a plethora of cases in which mandatory Sentencing Guidelines would have posed no constitutional problem, the Court decided to “sever and excise . . . the pro- vision that requires sentencing courts to impose a sentence within the applicable Guidelines range,” along with another provision which was not even at issue in the case. Id. , at 259. In essence, the Court crafted a new sentencing scheme, transforming the Sentencing Guidelines into an entirely discretionary system based on its estimation that Congress would have wanted that result.
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 ——————
[8] This statement in Booker is irreconcilable with the plurality’s asser- tion here that “Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect.” Ante, at 35. Thus, it appears that the plurality either sub silentio “junk[s] our settled severa- bility doctrine,” ibid. , or invokes, without explanation, different assump- tions for different cases.
Opinion of T HOMAS “number of statutory provisions . . . , working together, pro-
duce[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 consti- tutional injury. It merely states that “[i]f the Director were removable at will by the President, the constitutional viola- tion would disappear.” Ante , at 32–33. 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 pro- visions 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 14–15. The Court is thus left to choose based on nothing more than speculation as to what the Legislature would
Opinion of T HOMAS have preferred. And the result of its choice can have a dra- matic effect on the governing statutory scheme. See Booker , supra , at 259 (converting the entirety of the Sentencing Guidelines from a mandatory to a discretionary system). This is not a simple matter of following the “plain language” of a statute. Ante , at 33. It is incumbent on us to take a close look at our precedents to make sure that we are not exceeding the scope of the judicial power.
* * *
Given my concerns about our modern severability doc- trine 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 investiga- tive demand.
K AGAN , J., dissenting Opinion of K AGAN SUPREME COURT OF THE UNITED STATES
_________________ No. 19–7 _________________ SEILA LAW LLC, PETITIONER CONSUMER
FINANCIAL PROTECTION BUREAU
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 29, 2020]
J USTICE K , with whom J USTICE G INSBURG , J USTICE B REYER , and J USTICE S OTOMAYOR 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 al- lowed 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 in- structs the President that he may not discharge their direc- tors 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 have sur- vived its encounter with this Court—and so would the in- tended independence of the Consumer Financial Protection Bureau (CFPB).
Our Constitution and history demand that result. The text of the Constitution allows these common for-cause re- moval limits. Nothing in it speaks of removal. And it
K AGAN , J., dissenting
Opinion of K grants Congress authority to organize all the institutions of
American governance, provided only that those arrange-
ments allow the President to perform his own constitution-
ally 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.
Mary-
land
,
The Court today fails to respect its proper role. It recog- nizes 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 ——————
[1] In the academic literature, compare, e.g., Kagan, Presidential Admin- istration, 114 Harv. L. Rev. 2245, 2331–2346 (2001) (generally favoring presidential control over agencies), with, e.g., Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 704, 713–715 (2007) (generally favoring administrative independ- ence).
K AGAN , J., dissenting
Opinion of K 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 unre-
stricted presidential removal power.
Ante,
at 13. 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 be-
cause 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 Pres-
ident has at least as much control over an individual as over
a commission—and possibly more. That means the consti-
tutional 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. “Com-
pared to Congress and the President, the Judiciary pos-
sesses an inferior understanding of the realities of admin-
istration” and the way “political power[ ] operates.”
Free
Enterprise Fund
v.
Public Company Accounting Oversight
Bd.
,
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 re- pudiates 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 es- tablished the CFPB to address financial practices that had brought on a devastating recession, and could do so again.
K AGAN , J., dissenting Opinion of K Today’s decision wipes out a feature of that agency its cre- ators thought fundamental to its mission—a measure of in- dependence 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 13, 16. Rather, they bestow discre- tion on the legislature to structure administrative institu- tions 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 in- dependence 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 Constitu- tion’s first three articles, the majority recounts, “split the atom of sovereignty” among Congress, the President, and the courts. Ante, at 21 (internal quotation marks omitted). And by that mechanism, the Framers provided a “simple” fix “to governmental power and its perils.” Ibid.
There is nothing wrong with that as a beginning (except the adjective “simple”). It is of course true that the Framers
K AGAN , J., dissenting Opinion of K lodged three different kinds of power in three different en- tities. 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 per- son[ ] or body” or where “the power of judging [is] not sepa- rated from the legislative and executive powers.” The Fed- eralist 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 (1765). So as James Madison stated, the creation of distinct branches “did not mean that these departments ought to have no partial agency in, or no controul over the acts of each other.” The Federalist No. 47 , at 325 (emphasis de- leted). [2] To the contrary, Madison explained, the drafters of the Constitution—like those of then-existing state constitu- tions—opted against keeping the branches of government “absolutely separate and distinct.” Id., at 327. Or as Jus- tice Story reiterated a half-century later: “[W]hen we speak of a separation of the three great departments of govern- ment,” it is “not meant to affirm, that they must be kept wholly and entirely separate.” 2 J. Story, Commentaries on the Constitution of the United States §524, p. 8 (1833). In- stead, the branches have—as they must for the whole ar- rangement to work—“common link[s] of connexion [and] de- pendence.” Ibid.
——————
[2] The principle of separation of powers, Madison continued, main- tained only that “where the whole power of one department is exercised by the same hands which possess the whole power of another depart- ment, the fundamental principles of a free constitution[ ] are subverted.” The Federalist No. 47, at 325–326.
6
K AGAN , J., dissenting Opinion of K One way the Constitution reflects that vision is by giving Congress broad authority to establish and organize the Ex- ecutive Branch. Article II presumes the existence of “Of- ficer[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 offic- ers—in what departments, with what responsibilities—the Executive Branch requires. See ante, at 11 (“The entire ‘ex- ecutive Power’ belongs to the President alone”). Instead, Article I’s Necessary and Proper Clause puts those deci- sions 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 pow- ers 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 con- sent). 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] 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 Of- ficer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” §2, cl. 1. For those in the major- ity’s camp, that Clause presents a puzzle: If the President must always have the direct supervisory control they posit, including by threat of re- moval, why would he ever need a constitutional warrant to demand agency heads’ opinions? The Clause becomes at least redundant—
K AGAN , J., dissenting
Opinion of K The majority relies for its contrary vision on Article II’s
Vesting Clause, see
ante,
at 11–12, 25, but the provision
can’t carry all that weight. Or as Chief Justice Rehnquist
wrote of a similar claim in
Morrison
v.
Olson
,
though really, inexplicable—under the majority’s idea of executive power.
K AGAN , J., dissenting Opinion of K “general rule.”
Nor can the Take Care Clause come to the majority’s res- cue. That Clause cannot properly serve as a “placeholder for broad judicial judgments” about presidential control. Goldsmith & Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1867 (2016); but see ante, at 11–12, 27– 28, n. 11 (using it that way). To begin with, the provision— “he shall take Care that the Laws be faithfully executed”— speaks of duty, not power. Art. II, §3. New scholarship sug- gests the language came from English and colonial oaths taken by, and placing fiduciary obligations on, all manner and rank of executive officers. See Kent, Leib, & Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev. 2111, 2121–2178 (2019). To be sure, the imposition of a duty may imply a grant of power sufficient to carry it out. But again, the majority’s view of that power ill com- ports with founding-era practice, in which removal limits were common. See, e.g., Corwin, Tenure of Office and the Removal Power Under the Constitution, 27 Colum. L. Rev. 353, 385 (1927) (noting that New York’s Constitution of 1777 had nearly the same clause, though the State’s execu- tive had “very little voice” in removals). And yet more im- portant, the text of the Take Care Clause requires only enough authority to make sure “the laws [are] faithfully ex- ecuted”—meaning with fidelity to the law itself, not to every presidential policy preference. As this Court has held, a President can ensure “ ‘faithful execution’ of the laws”— thereby satisfying his “take care” obligation—with a re- moval provision like the one here. Morrison , 487 U. S., at 692. A for-cause standard gives him “ample authority to assure that [an official] is competently performing [his] statutory responsibilities in a manner that comports with the [relevant legislation’s] provisions.” Ibid.
Finally, recall the Constitution’s telltale silence: No- where does the text say anything about the President’s power to remove subordinate officials at will. The majority *75 9
K AGAN , J., dissenting Opinion of K professes unconcern. After all, it says, “neither is there a ‘separation of powers clause’ or a ‘federalism clause.’ ” Ante, at 25. But those concepts are carved into the Constitution’s text—the former in its first three articles separating pow- ers, the latter in its enumeration of federal powers and its reservation of all else to the States. And anyway, at-will removal is hardly such a “foundational doctrine[ ],” ibid. : You won’t find it on a civics class syllabus. That’s because removal is a tool —one means among many, even if some- times an important one, for a President to control executive officials. See generally Free Enterprise Fund, 561 U. S., at 524 (B REYER , J., dissenting). To find that authority hidden in the Constitution as a “general rule” is to discover what is nowhere there.
B
History no better serves the majority’s cause. As Madi-
son wrote, “a regular course of practice” can “liquidate &
settle the meaning of ” disputed or indeterminate constitu-
tional provisions. Letter to Spencer Roane (Sept. 2, 1819),
in 8 Writings of James Madison 450 (G. Hunt ed. 1908); see
NLRB
v.
Noel Canning
,
Begin with evidence from the Constitution’s ratification. And note that this moment is indeed the beginning: Dele- gates to the Constitutional Convention never discussed *76 10
K AGAN , J., dissenting Opinion of K whether or to what extent the President would have power to remove executive officials. As a result, the Framers ad- vocating 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 neces- sary 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 presi- dent 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.
The second chapter is the Decision of 1789, when Con- gress addressed the removal power while considering the bill creating the Department of Foreign Affairs. Speaking through Chief Justice Taft—a judicial presidentialist if ever there was one—this Court in Myers v. United States , 272 U. S. 52 (1926), read that debate as expressing Congress’s judgment that the Constitution gave the President illimit- able power to remove executive officials. The majority rests ——————
[4] The majority dismisses Federalist Nos. 77 and 39 as “reflect[ing] ini- tial impressions later abandoned.” Ante, at 26, and n. 10. But even Ham- ilton’s and Madison’s later impressions are less helpful to the majority than it suggests. Assuming Hamilton gave up on the Senate’s direct par- ticipation 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 12–13. In any event, such changing minds and inconstant opin- ions don’t usually prove the existence of constitutional rules.
K AGAN , J., dissenting Opinion of K its own historical claim on that analysis (though somehow also finding room for its two exceptions). See ante, at 12– 13. But Taft’s historical research has held up even worse than Myers ’ holding (which was mostly reversed, see infra , at 17–18). As Dean Manning has concluded after reviewing decades’ worth of scholarship on the issue, “the implications of the debate, properly understood, [are] highly ambiguous and prone to overreading.” Manning, 124 Harv. L. Rev., at 1965, n. 135; see id., at 2030–2031.
The best view is that the First Congress was “deeply di- vided” 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, 91 Cornell L. Rev. 1021, 1072 (2006). The congressional debates re- vealed three main positions. See Corwin, 27 Colum. L. Rev., at 361. Some shared Hamilton’s Federalist No. 77 view: The Constitution required Senate consent for re- moval. At the opposite extreme, others claimed that the Constitution gave absolute removal power to the President. And a third faction maintained that the Constitution placed Congress in the driver’s seat: The legislature could regu- late, if it so chose, the President’s authority to remove. In the end, Congress passed a bill saying nothing about re- moval, leaving the President free to fire the Secretary of Foreign Affairs at will. But the only one of the three views definitively rejected was Hamilton’s theory of necessary Senate consent. As even strong proponents of executive power have shown, Congress never “endorse[d] the view that [it] lacked authority to modify” the President’s removal authority when it wished to. Prakash, supra, at 1073; see Manning, supra, at 1965, n. 135, 2030–2031. The summer of 1789 thus ended without resolution of the critical ques- tion: Was the removal power “beyond the reach of congres- sional regulation?” Prakash, supra, at 1072.
At the same time, the First Congress gave officials han- *78 K AGAN , J., dissenting Opinion of K dling financial affairs—as compared to diplomatic and mil- itary ones—some independence from the President. The ti- tle and first section of the statutes creating the Depart- ments of Foreign Affairs and War designated them “executive departments.” Act of July 27, 1789, ch. 4, 1 Stat. 28; Act of Aug. 7, 1789, ch. 7, 1 Stat. 49. The law creating the Treasury Department conspicuously avoided doing so. See Act of Sept. 2, 1789, ch. 12, 1 Stat. 65. That difference in nomenclature signaled others of substance. Congress left the organization of the Departments of Foreign Affairs and War skeletal, enabling the President to decide how he wanted to staff them. See Casper, An Essay in Separation of Powers, 30 Wm. & Mary L. Rev. 211, 239–241 (1989). By contrast, Congress listed each of the offices within the Treasury Department, along with their functions. See ibid. Of the three initial Secretaries, only the Treasury’s had an obligation to report to Congress when requested. See §2, 1 Stat. 65–66. And perhaps most notable, Congress soon deemed the Comptroller of the Treasury’s settlements of public accounts “final and conclusive.” Act of Mar. 3, 1795, ch. 48, §4, 1 Stat. 441–442. That decision, preventing pres- idential overrides, marked the Comptroller as exercising in- dependent judgment. [5] True enough, no statute shielded the ——————
[5] As President Jefferson explained: “[W]ith the settlement of the ac- counts 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, stat- ing that “the President has no right to interpose in the settling of ac- counts” 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). *79 13
K AGAN , J., dissenting Opinion of K Comptroller from discharge. But even James Madison, who at this point opposed most removal limits, told Congress that “there may be strong reasons why an officer of this kind should not hold his office at the pleasure” of the Secre- tary or President. 1 Annals of Cong. 612. At the least, as Professor Prakash writes, “Madison maintained that Con- gress had the [constitutional] authority to modify [the Comptroller’s] tenure.” Prakash, supra , at 1071.
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 constitu- tional duties in foreign relations and war. The former chiefly carried out statutory duties, fulfilling functions Con- gress had assigned to their offices. In addressing the new Nation’s finances, Congress had begun to use its powers un- der the Necessary and Proper Clause to design effective ad- ministrative institutions. And that included taking steps to insulate certain officers from political influence.
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 high- lights here—times when Congress decided that effective governance depended on shielding technical or expertise- based functions relating to the financial system from polit- ical pressure (or the moneyed interests that might lie be- hind it). Enacted under the Necessary and Proper Clause,
K AGAN , J., dissenting Opinion of K those measures—creating some of the Nation’s most endur- ing institutions—themselves helped settle the extent of Congress’s power. “[A] regular course of practice,” to use Madison’s phrase, has “liquidate[d]” constitutional mean- ing about the permissibility of independent agencies. See supra, at 9.
Take first Congress’s decision in 1816 to create the Sec- ond Bank of the United States—“the first truly independent agency in the republic’s history.” Lessig & Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 30 (1994). Of the twenty-five directors who led the Bank, the President could appoint and remove only five. See Act of Apr. 10, 1816, §8, 3 Stat. 269. Yet the Bank had a greater impact on the Nation than any but a few institutions, regu- lating the Nation’s money supply in ways anticipating what the Federal Reserve does today. Of course, the Bank was controversial—in large part because of its freedom from presidential control. Andrew Jackson chafed at the Bank’s independence and eventually fired his Treasury Secretary for keeping public moneys there (a dismissal that itself pro- voked a political storm). No matter. Innovations in govern- ance always have opponents; administrative independence predictably (though by no means invariably) provokes pres- idential ire. The point is that by the early 19th century, Congress established a body wielding enormous financial power mostly outside the President’s dominion.
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 Con- gress to establish an office called the Comptroller of the Currency. The statute he signed made the Comptroller re- movable 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, 12 Stat. 665. A year later, Congress amended *81 15
K AGAN , J., dissenting Opinion of K the statute to permit removal by the President alone, but only upon “reasons to be communicated by him to the Sen- ate.” Act of June 3, 1864, §1, 13 Stat. 100. The majority dismisses the original version of the statute as an “aberra- tion.” Ante, at 19. But in the wake of the independence given first to the Comptroller of the Treasury and then to the national Bank, it’s hard to conceive of this newest Comptroller position as so great a departure. And even the second iteration of the statute preserved a constraint on the removal power, requiring a President in a firing mood to explain himself to Congress—a demand likely to make him sleep on the subject. In both versions of the law, Congress responded to new financial challenges with new regulatory institutions, alert to the perils in this area of political inter- ference.
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 ——————
[6] 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, 14 Stat. 430. Anxious to prevent President Andrew
Johnson from interfering with reconstruction policies—including
through his command of the military—Congress barred presidential re-
moval of any Senate-confirmed officials without the Senate’s consent.
The law thus severed the President’s removal authority over even offi-
cials like the Secretaries of War and State. The statute became the basis
for the Nation’s first presidential impeachment, but was repealed in
1887. See Act of Mar. 3, 1887, ch. 353, 24 Stat. 500. In one sense, the
two-decade-long existence of the Tenure of Office Act reveals the 19th-
century political system’s comfort with expansive restrictions on presi-
dential removal. But the ultimate repudiation of the law, and the broad
historical consensus that it went too far, just as strongly shows the limits
that system later accepted on legislative power—that Congress may not
impose removal restrictions preventing the President from carrying out
his own constitutionally assigned functions in areas like war or foreign
affairs. See
Morrison
v.
Olson
,
K AGAN , J., dissenting Opinion of K Commerce Commission. Under that legislation, the Presi- dent could remove the five Commissioners only “for ineffi- ciency, neglect of duty, or malfeasance in office”—the same standard Congress applied to the CFPB Director. Act of Feb. 4, 1887, §11, 24 Stat. 383. More—many more—for- cause removal provisions followed. In 1913, Congress gave the Governors of the Federal Reserve Board for-cause pro- tection to ensure the agency would resist political pressure and promote economic stability. See Act of Dec. 23, 1913, ch. 6, 38 Stat. 251. The next year, Congress provided simi- lar protection to the FTC in the interest of ensuring “a con- tinuous policy” “free from the effect” of “changing [White House] incumbency.” 51 Cong. Rec. 10376 (1914). The Fed- eral Deposit Insurance Corporation (FDIC), the Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission. In the financial realm, “independent agencies have remained the bedrock of the institutional framework governing U. S. markets.” Gadinis, From Inde- pendence to Politics in Financial Regulation, 101 Cal. L. Rev. 327, 331 (2013). By one count, across all subject matter areas, 48 agencies have heads (and below them hun- dreds more inferior officials) removable only for cause. See Free Enterprise Fund , 561 U. S., at 541 (B REYER , J., dis- senting). So year by year by year, the broad sweep of his- tory has spoken to the constitutional question before us: In- dependent agencies are everywhere.
C
What is more, the Court’s precedents before today have accepted the role of independent agencies in our govern- mental 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
K AGAN , J., dissenting Opinion of K 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 diplo- matic advisers.) But within that broad limit, this Court held, Congress could protect from at-will removal the offi- cials it deemed to need some independence from political pressures. Nowhere do those precedents suggest what the majority announces today: that the President has an “unre- stricted removal power” subject to two bounded exceptions. Ante , at 2.
The majority grounds its new approach in
Myers
, ignor-
ing 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 13 (quoting
Myers,
K AGAN , J., dissenting
Opinion of K marks omitted)).
Bowsher
made clear that
Myers
had noth-
ing to say about Congress’s power to enact a provision
merely “limit[ing] the President’s powers of removal”
through a for-cause provision.
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 ——————
[7] The majority is quite right that today we view
all
the activities of
administrative agencies as exercises of “the ‘executive Power.’ ”
Arling-
ton
v.
FCC
,
K AGAN , J., dissenting
Opinion of K
Wiener
v.
United States
, 357 U. S. 349 (1958), reaffirmed
Humphrey’s
. The question in
Wiener
was whether the Pres-
ident could dismiss without cause members of the War
Claims Commission, an entity charged with compensating
injuries arising from World War II. Disdaining
Myers
and
relying on
Humphrey’s
, the Court said he could not. The
Court described as “short-lived”
Myers
’ view that the Presi-
dent had “inherent constitutional power to remove officials,
no matter what the relation of the executive to the dis-
charge of their duties.” 357 U. S.
,
at 352.
[8]
Here, the Com-
missioners were not close agents of the President, who
needed to be responsive to his preferences. Rather, they
exercised adjudicatory responsibilities over legal claims.
Congress, the Court found, had wanted the Commissioners
to do so “free from [political] control or coercive influence.”
Id.,
at 355 (quoting
Humphrey’s
, 295 U. S., at 629). And
that choice, as
Humphrey’s
had held, was within Congress’s
power. The Constitution enabled Congress to take down
“the Damocles’ sword of removal” hanging over the Com-
missioners’ heads.
Another three decades on, Morrison both extended Humphrey’s domain and clarified the standard for address- ing removal issues. The Morrison Court, over a one-Justice dissent, upheld for-cause protections afforded to an inde- pendent 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 ——————
[8] 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.”
20
K AGAN , J., dissenting Opinion of K Humphrey’s and Wiener . But that difference did not resolve the issue. An official’s functions, Morrison held, were rele- vant to but not dispositive of a removal limit’s constitution- ality. 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.” 487 U. S., at 691. Only if it did so would it fall outside Congress’s power. And the protection for the independent counsel, the Court found, did not. Even though the counsel’s functions were “purely executive,” the President’s “need to control the ex- ercise of [her] discretion” was not “so central to the func- tioning of the Executive Branch as to require” unrestricted removal authority. Id., at 690–691. True enough, the Court acknowledged, that the for-cause standard prevented the President from firing the counsel for discretionary decisions or judgment calls. But it preserved “ample authority” in the President “to assure that the counsel is competently per- forming” her “responsibilities in a manner that comports with” all legal requirements. Id., at 692. That meant the President could meet his own constitutional obligation “to ensure ‘the faithful execution’ of the laws.” Ibid. ; see supra, at 8.
——————
[9] Pretending this analysis is mine rather than Morrison ’s, the majority registers its disagreement. See ante, at 27–28, 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.” Ibid. If the provision leaves the President with constitutionally sufficient control over some subordinates (like the independent counsel), the ma- jority asks, why not over even his close military or diplomatic advisers? See ibid. But the Constitution itself supplies the answer. If the only presidential duty at issue is the one to ensure faithful execution of the laws, a for-cause provision does not stand in the way: As Morrison recog- nized, it preserves authority in the President to ensure (just as the Take Care Clause requires) that an official is abiding by law. See 487 U. S., at 692. But now suppose an additional constitutional duty is impli- cated—relating, say, to the conduct of foreign affairs or war. To carry out those duties, the President needs advisers who will (beyond comply- ing with law) help him devise and implement policy. And that means he
K AGAN , J., dissenting
Opinion of K The majority’s description of
Morrison
, see
ante,
at 15–
16, is not true to the decision. (Mostly, it seems, the major-
ity just wishes the case would go away. See
ante,
at 17,
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.” 487 U. S
.,
at 687. It
again rejected the notion of an “all-inclusive” removal
power.
Ibid.
It yet further confined
Myers
’ reach, making
clear that Congress could restrict the President’s removal
of officials carrying out even the most traditional executive
functions. And the decision, with care, set out the govern-
ing rule—again, that removal restrictions are permissible
so long as they do not impede the President’s performance
of his own constitutionally assigned duties. Second, as all
that suggests,
Morrison
is not limited to inferior officers. In
the eight pages addressing the removal issue, the Court
constantly spoke of “officers” and “officials” in general. 487
U. S., at 685–693. By contrast, the Court there used the
word “inferior” in just one sentence (which of course the ma-
jority quotes), when applying its general standard to the
case’s facts.
Id.,
at 691. Indeed, Justice Scalia’s dissent
emphasized that the counsel’s inferior-office status played
no role in the Court’s decision. See
id.,
at 724 (“The Court
could have resolved the removal power issue in this case by
simply relying” on that status, but did not). As Justice
Scalia noted, the Court in
United States
v.
Perkins
, 116
U. S. 483, 484–485 (1886), had a century earlier allowed
Congress to restrict the President’s removal power over in-
ferior officers. See
Morrison
,
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 ——————
needs the capacity to fire such advisers for disagreeing with his policy calls.
K AGAN , J., dissenting
Opinion of K 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 gen- eral permissibility of for-cause provisions giving some inde- pendence to agencies. Contrary to the majority’s view, those laws do not represent a suspicious departure from il- limitable presidential control over administration. For al- most a century, this Court has made clear that Congress has broad discretion to enact for-cause protections in pur- suit of good governance.
D
The deferential approach this Court has taken gives Con- *89 K AGAN , J., dissenting Opinion of K , J.
gress 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 en- gagement, some people say, can disrupt bureaucratic stag- nation, counter industry capture, and make agencies more responsive to public interests. See, well, Kagan, Presiden- tial Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001). At other times, the arguments favor greater inde- pendence from presidential involvement. Insulation from political pressure helps ensure impartial adjudications. It places technical issues in the hands of those most capable of addressing them. It promotes continuity, and prevents short-term electoral interests from distorting policy. (Con- sider, for example, how the Federal Reserve’s independence stops a President trying to win a second term from manip- ulating interest rates.) Of course, the right balance be- tween presidential control and independence is often uncer- tain, contested, and value-laden. No mathematical formula governs institutional design; trade-offs are endemic to the enterprise. But that is precisely why the issue is one for the political branches to debate—and then debate again as times change. And it’s why courts should stay (mostly) out of the way. Rather than impose rigid rules like the major- ity’s, they should let Congress and the President figure out what blend of independence and political control will best enable an agency to perform its intended functions. 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 *90 K AGAN , J., dissenting Opinion of K , J.
appointments practices, procedural rules, internal organi-
zation, 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’ per-
ennial focus on removal standards is a bit of a puzzle. Re-
moval is only the most obvious, not necessarily the most po-
tent, means of control. See generally
Free Enterprise Fund
,
Our Constitution, as shown earlier, entrusts such deci- sions to more accountable and knowledgeable actors. See supra, at 4–9. 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 in- dependent 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 , 4 Wheat., at 415. That would have been, he continued, “an unwise attempt to pro- vide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly.” Ibid. And if the Con- stitution, for those reasons, does not lay out immutable rules, then neither should judges. This Court has usually respected that injunction. It has declined to second-guess the work of the political branches in creating independent *91 K AGAN , J., dissenting Opinion of K , J.
agencies like the CFPB. In reversing course today—in spurning a “pragmatic, flexible approach to American gov- ernance” in favor of a dogmatic, inflexible one, ante, at 29— the majority makes a serious error.
II
As the majority explains, the CFPB emerged out of disas- ter. The collapse of the subprime mortgage market “precip- itat[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 3. 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 12 U. S. C. §5581. And it would administer a new prohibition on “unfair, deceptive, or abusive act[s] or practice[s]” in the consumer-finance sector. §5536(a)(1)(B).
No one had a doubt that the new agency should be inde- pendent. As explained already, Congress has historically given—with this Court’s permission—a measure of inde- pendence to financial regulators like the Federal Reserve Board and the FTC. See supra, at 11–16. 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 of- fice.” §5491(c)(3). That standard would allow the President to discharge the Director for a failure to “faithfully exe- cute[ ]” the law, as well as for basic incompetence. U. S. Const., Art. II, §3; see supra, at 8, 20. But it would not per- mit removal for policy differences.
The question here, which by now you’re well equipped to *92 K AGAN , J., dissenting Opinion of K , J.
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 in- dependent agencies. See ante, at 2, 13–16. 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 separa- tion of powers. See supra, at 18–22. There is nothing dif- ferent 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 admin- istration.
First, the CFPB’s powers are nothing unusual in the uni- verse 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 1; 12 U. S. C. §§5512, 5562–5565. But then again, so too can (among others) the FTC and SEC, two agencies whose regulatory missions par- allel the CFPB’s. See 15 U. S. C. §§45, 53, 57a, 57b–3, 78u, 78v, 78w. Just for a comparison, the CFPB now has 19 en- forcement actions pending, while the SEC brought 862 such actions last year alone. See Brief for Petitioner 7; SEC, Div. of Enforcement 2019 Ann. Rep. 14. And although the ma- jority bemoans that the CFPB can “bring the coercive power of the state to bear on millions of private citizens,” ante, at 18, that scary-sounding description applies to most inde- pendent agencies. Forget that the more relevant factoid for those many citizens might be that the CFPB has recovered *93 K AGAN , J., dissenting Opinion of K , J.
over $11 billion for banking consumers. See ante, at 5. The key point here is that the CFPB got the mass of its regula- tory authority from other independent agencies that had brought the same “coercive power to bear.” See 12 U. S. C. §5581 (transferring power from, among others, the Federal Reserve, FTC, and FDIC). Congress, to be sure, gave the CFPB new authority over “unfair, deceptive, or abusive act[s] or practice[s]” in transactions involving a “consumer financial product or service.” §§5517(a)(1), 5536(a)(1). But again, the FTC has power to go after “unfair or deceptive acts or practices in or affecting commerce”—a portfolio spanning a far wider swath of the economy. 15 U. S. C. §45(a)(1). [10] And if influence on economic life is the measure, consider the Federal Reserve, whose every act has global consequence. The CFPB, gauged by that comparison, is a piker.
Second, the removal protection given the CFPB’s Director ——————
[10] The majority suggests that the FTC was a different animal when this
Court upheld its independent status in
Humphrey’s
. See
ante,
at 17. But
then, as now, the FTC’s organic statute broadly “empowered and di-
rected” the agency “to prevent persons” or businesses “from using unfair
methods of competition in commerce.” Act of Sept. 26, 1914, §5, 38 Stat.
719. To fulfill that mandate, the agency could and did run investigations,
bring administrative charges, and conduct adjudications. See
ibid.
;
§6(a),
id.
, at 721; FTC Ann. Rep. (1935) (describing the FTC’s extensive
enforcement activities in the year before
Humphrey’s
). And if any person
refused to comply with an order, the agency could seek its enforcement
in federal court under a highly deferential standard. See §5, 38 Stat.
720;
FTC
v.
Pacific States Paper Trade Assn.
, 273 U. S. 52, 63 (1927).
Still more, the FTC has always had statutory rulemaking authority, even
though (like several other agencies) it relied on adjudications until the
1960s. See §6(g), 38 Stat. 722;
National Petroleum Refiners Assn.
v.
FTC
,
*94
K AGAN , J., dissenting
Opinion of K , J.
is standard fare. The removal power rests with the Presi-
dent alone; Congress has no role to play, as it did in the laws
struck down in
Myers
and
Bowsher
. See
supra,
at 17–18.
The statute provides only one layer of protection, unlike the
law in
Free Enterprise Fund
. See
supra,
at 21–22. And the
clincher, which you have heard before: The for-cause stand-
ard used for the CFPB is identical to the one the Court up-
held in
Humphrey’s
. Both enable the President to fire an
agency head for “inefficiency, neglect of duty, or malfea-
sance in office.” See 12 U. S. C. §5491(c)(3); 15 U. S. C. §41;
supra,
at 18. A removal provision of that kind applied to a
financial agency head, this Court has held, does not “unduly
trammel[ ] on executive authority,” even though it prevents
the President from dismissing the official for a discretion-
ary policy judgment.
Morrison
, 487 U. S., at 691. Once
again: The removal power has not been “completely
stripped from the President,” providing him with no means
to “ensure the ‘faithful execution’ of the laws.”
Id.,
at 692;
see
supra,
at 20. Rather, this Court has explained, the for-
cause standard gives the President “ample authority to as-
sure that [the official] is competently performing his or her
statutory responsibilities in a manner that comports with”
all legal obligations.
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: *95 K AGAN , J., dissenting Opinion of K , J.
The CFPB Director is singular, not plural. “Instead of plac- ing the agency under the leadership of a board with multi- ple members,” the majority protests, “Congress provided that the CFPB would be led by a single Director.” Ante, at 1. [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) nei- ther 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 unprece- dented.” Ante, at 2, 18. Finally, the CFPB’s organizational form violates the “constitutional structure” because it vests power in a “single individual” who is “insulated from Presi- dential control.” Ante, at 2–3, 23.
I’m tempted at this point just to say: No. All I’ve ex- plained about constitutional text, history, and precedent in- validates the majority’s thesis. But I’ll set out here some more targeted points, taking step by step the majority’s rea- soning.
First, as I’m afraid you’ve heard before, the majority’s “exceptions” (like its general rule) are made up. See supra, ——————
[11] 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 24–25. But so too do other financial regulators, including the Federal Reserve Board and the FDIC. See 12 U. S. C. §§243, 1815(d), 1820(e). And budgetary independence comes mostly at the expense of Congress’s control over the agency, not the President’s. (Because that is so, it actually works to the President’s advantage.) Second, the majority complains that the Director’s five-year term may prevent a President from “shap[ing the agency’s] leadership” through appointments. Ante , at 24. But again that is true, to one degree or another, of quite a few longstanding independent agencies, including the Federal Reserve, the FTC, the Merit Systems Protection Board, and the Postal Service Board of Governors. See, e.g. , §§241, 242; 15 U. S. C. §41; 5 U. S. C. §§1201, 1202; 39 U. S. C. §202. (If you think the last is unimportant, just ask the current President whether he agrees.)
*96
K AGAN , J., dissenting
Opinion of K , J.
at 16–22. 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 pro-
tection.
[12] The majority, seeking some other way to distinguish Morrison , as- serts that the independent counsel’s “duties” were more “limited” than the CFPB Director’s. Ante , at 17–18. 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 , 487 U. S., at 691–692. And in any event, as I’ve shown, Morrison did much more than approve a specific removal provi- sion; it created a standard to govern all removal cases that is at complete odds with the majority’s reasoning. See supra, at 19–21.
*97 K AGAN , J., dissenting Opinion of K , J.
explained why the earliest of those agencies—the Civil- War-era Comptroller—is not the blip the majority de- scribes. See supra, at 14–15. 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 18–21. 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 benefi- ciaries; 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-mil- lion-person federal workforce. All different from the CFPB, no doubt; but the majority can’t think those matters be- neath 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 re- moval power. If signing statements and veto threats made independent agencies unconstitutional, quite a few wouldn’t pass muster. Maybe that’s what the majority re- ally wants (I wouldn’t know)—but it can’t pretend the dis- putes surrounding these agencies had anything to do with whether their heads are singular or plural.
Still more important, novelty is not the test of constitu- tionality when it comes to structuring agencies. See Mis- tretta v. United States , 488 U. S. 361, 385 (1989) (“[M]ere anomaly or innovation” does not violate the separation of powers). Congress regulates in that sphere under the Nec- essary and Proper Clause, not (as the majority seems to think) a Rinse and Repeat Clause. See supra, at 6. The Framers understood that new times would often require *98 K AGAN , J., dissenting Opinion of K , J. Opinion of K AGAN , J.
new measures, and exigencies often demand innovation.
See
McCulloch
,
And Congress’s choice to put a single director, rather than a multimember commission, at the CFPB’s head vio- lates 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 23, 25 (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 su- pervise.
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., central- ized review of rulemaking or litigating positions), budget- ary processes, personal outreach, and more. See Free En- terprise Fund , 561 U. S., at 524 (B REYER , J., dissenting); *99 K AGAN , J., dissenting Opinion of K , J.
supra, at 23–24. [13] The effectiveness of each of those control mechanisms, when present, can then depend on a multi- tude of agency-specific practices, norms, rules, and or- ganizational features. In that complex stew, the difference between a singular and plural agency head will often make not a whit of difference. Or to make the point more con- crete, a multimember commission may be harder to control than an individual director for a host of reasons unrelated to its plural character. That may be so when the two are subject to the same removal standard, or even when the in- dividual director has greater formal job protection. Indeed, the very category of multimember commissions breaks apart under inspection, spoiling the majority’s essential di- chotomy. See generally Brief for Rachel E. Barkow et al. as Amici Curiae . Some of those commissions have chairs ap- pointed by the President; others do not. Some of those chairs are quite powerful; others are not. Partisan balance requirements, term length, voting rules, and more—all vary widely, in ways that make a significant difference to the ease of presidential control. Why, then, would anyone ——————
[13] To use one important example, Congress provided for executive over- sight 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. 12 U. S. C. §5513(a). The FSOC is chaired by the Treasury Secretary, and most of its members are under the direct supervision of the President. See §5321. So the majority is wrong in saying that the CFPB’s Director can “ unilaterally ” issue final regulations. Ante , at 23 (emphasis in original). Indeed, the President has more control over rulemaking at the CFPB than at any similar independent agency. And the majority is similarly wrong to think that because the FSOC has not yet issued a formal veto, its review authority makes no practical difference. See ante, at 25, n. 9. Regulatory review, whether by the Office of Management and Budget or the FSOC, usually relies more on the threat of vetoes than on their exe- cution. OMB casts a long shadow over rulemaking in the Executive Branch, but rarely uses its veto pen. See Sunstein, The Office of Infor- mation and Regulatory Affairs: Myths and Realities, 126 Harv. L. Rev. 1838, 1846–1847, n. 37 (2013).
*100 K AGAN , J., dissenting Opinion of K , J. distinguish along a simple commission/single-director axis when deciding whether the Constitution requires at-will re- moval?
But if the demand is for generalization, then the major- ity’s distinction cuts the opposite way: More powerful con- trol 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 25. 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 bu- reaucracies. A multimember structure reduces accounta- bility 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 con- cluded, is “a buffer against Presidential control” (especially when combined, as it often is, with partisan-balance re- quirements). 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 Fed- eral Reserve as it did because it is “easier to protect a board from political control than to protect a single appointed of- ficial.” R. Cushman, The Independent Regulatory Commis- sions 153 (1941). [14] It is hard to know why Congress did not ——————
[14] I could go on. A recent study prepared for the Administrative Con- ference of the United States noted that “[g]overnance by multiple mem- bers 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 independ- ence” is what “most likely explains why the Congress in the past has opted to head independent regulatory bodies with multimember commis- sions 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. *101 K AGAN , J., dissenting Opinion of K , J. Opinion of K AGAN , J.
take the same tack when creating the CFPB. But its choice brought the agency only closer to the President—more ex- posed to his view, more subject to his sway. In short, the majority gets the matter backward: Where presidential con- trol 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 21–23. The majority says a single head is the greater threat be- cause he may wield power “ unilaterally ” and “[w]ith no col- leagues to persuade.” Ante, at 23 (emphasis in original). So the CFPB falls victim to what the majority sees as a consti- tutional anti-power-concentration principle (with an excep- tion 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 “extrapo-
lat[e]” from the “general constitutional language” of Article
II’s Vesting Clause an unrestricted removal power con-
straining Congress’s ability to legislate under the Neces-
sary and Proper Clause.
Morrison
,
Frazier). *102 K AGAN , J., dissenting Opinion of K , J. by the Necessary and Proper Clause” to compose the gov- ernment. Manning, Foreword: The Means of Constitutional Power, 128 Harv. L. Rev. 1, 78 (2014). In deciding for itself what is “proper,” the Court goes beyond its own proper bounds.
And in doing so, the majority again reveals its lack of in- terest in how agencies work. First, the premise of the ma- jority’s argument—that the CFPB head is a mini-dictator, not subject to meaningful presidential control, see ante , at 23—is wrong. As this Court has seen in the past, independ- ent 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 , 487 U. S., at 692; see supra , at 20. He can discharge them for failing to perform their duties competently or in accordance with law, and so ensure that the laws are “faithfully exe- cuted.” U. S. Const., Art. II, §3; see supra, at 8, 20. And he can use the many other tools attached to the Office of the Presidency—including in the CFPB’s case, rulemaking re- view—to exert influence over discretionary policy calls. See supra , at 33, and n. 13. Second, the majority has nothing but intuition to back up its essentially functionalist claim that the CFPB would be less capable of exercising power if it had more than one Director (even supposing that were a suitable issue for a court to address). Ante , at 21, 23. Maybe the CFPB would be. Or maybe not. Although a mul- timember format tends to frustrate the President’s control over an agency, see supra , at 34–35, it may not lessen the agency’s own ability to act with decision and dispatch. (Consider, for a recent example, the Federal Reserve Board.) That effect presumably would depend on the agency’s internal organization, voting rules, and similar matters. At the least: If the Court is going to invalidate statutes based on empirical assertions like this one, it should offer some empirical support. It should not pretend that its assessment that the CFPB wields more power more *103 K AGAN , J., dissenting Opinion of K , J.
dangerously than the SEC comes from someplace in the Constitution. But today the majority fails to accord even that minimal respect to Congress.
III
Recall again how this dispute got started. In the midst of the Great Recession, Congress and the President came to- gether to create an agency with an important mission. It would protect consumers from the reckless financial prac- tices 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 in- dependence. So the two political branches, acting together, gave the CFPB Director the same job protection that innu- merable 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 admin- istration, 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. And now consider how the dispute ends—with five une- lected judges rejecting the result of that democratic process. The outcome today will not shut down the CFPB: A differ- ent majority of this Court, including all those who join this opinion, believes that if the agency’s removal provision is unconstitutional, it should be severed. But the majority on constitutionality jettisons a measure Congress and the President viewed as integral to the way the agency should operate. The majority does so even though the Constitution grants to Congress, acting with the President’s approval, the authority to create and shape administrative bodies. And even though those branches, as compared to courts, have far greater understanding of political control mecha- nisms and agency design.
Nothing in the Constitution requires that outcome; to the contrary. “While the Constitution diffuses power the better *104 K AGAN , J., dissenting Opinion of K , J.
to secure liberty, it also contemplates that practice will in-
tegrate the dispersed powers into a workable government.”
Youngstown Sheet & Tube Co.
v.
Sawyer
,
Our history has stayed true to the Framers’ vision. Con- gress has accepted their invitation to experiment with ad- ministrative 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 agen- cies, no two exactly alike but all with a measure of insula- tion from the President’s removal power. The Federal Re- serve Board; the FTC; the SEC; maybe some you’ve never heard of. As to each, Congress thought that formal job pro- tection for policymaking would produce regulatory out- comes 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 *105 K AGAN , J., dissenting Opinion of K , J.
the CFPB into a multimember agency.” Ante , at 36. But there was no need to send Congress back to the drawing board. The Constitution does not distinguish between sin- gle-director and multimember independent agencies. It in- structs Congress, not this Court, to decide on agency design. Because this Court ignores that sensible—indeed, that ob- vious—division of tasks, I respectfully dissent.