SEILA LAW LCC v. CFPB and the Persistent Myths of Presidentialism

Peter Shane Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz College of Law. Member, ACS Board of Directors and ACS Board of Academic Advisors.

Peter M. Shane[1]

Seila Law LLC v. Consumer Financial Protection Bureau[2] represents the high-water mark so far in the Roberts Court’s campaign to vindicate a theory of presidential power based more on myth than on constitutional text, structure, or history. The 5‒4 majority misreads the Constitution as concentrating vast administrative control irrevocably in a single individual in what would certainly amount to a counterintuitive eighteenth-century strategy for protecting liberty. A future Court can and should adopt Justice Elena Kagan’s devastating dissent—a move that can be accomplished by limiting Seila Law to its facts.

At issue in Seila Law was the structural constitutionality of the Consumer Finance Protection Bureau (CFPB). Under the Dodd-Frank Act, Congress designed the CFPB to be led by a single director—appointed by the president for a five-year term with the advice and consent of the Senate—who could then be removed only for “inefficiency, neglect of duty, or malfeasance in office.”[3] Such protection from at-will presidential removability is routine among the dozens of independent agencies, although this particular agency’s independence is reinforced by other statutory features—most importantly, a funding mechanism that does not depend on direct appropriations from Congress.[4] Yet the majority focused solely on the constitutionality of according tenure-protected status to a principal officer in a single-headed agency, rather than a multi-member commission.[5]

I. The Rise of Unitary Executive Theory

In an opinion by Chief Justice John Roberts, the majority found tenure protection unconstitutional for a “principal officer[] who, acting alone, wield[s] significant executive power.”[6] The majority thus vindicates a fundamental tenet of what has come to be known as “unitary executive theory”: “‘[A]s a general matter,’ the Constitution gives the President ‘the authority to remove those who assist him in carrying out his duties.”[7] Such removal power is entailed in a presidential authority to “supervise those who wield executive power on [the President’s] behalf.”[8] In deference to precedent, the majority acknowledges two exceptions to this putative power—exceptions that sit uneasily with the principles underlying the majority’s reasoning. The exceptions are the principal officers of multi-headed independent agencies “that do not wield substantial executive power”[9] and inferior executive branch officers with limited duties.

Stated in such breadth, unitary executive theory has been a mainstay of chiefly conservative constitutional theorizing since the 1980s. Looking back to the Reagan administration, it should be not surprising that, for conservatives in 1981, a theory of unlimited presidential control of the bureaucracy would be appealing. Although the Watergate scandal and President Gerald Ford’s subsequent pardon of Richard Nixon had laid the groundwork for a Democratic presidential victory in 1976, the White House remained the likeliest point of leverage to move the country in a more right-wing direction. Watergate and the Ford pardon would fade from political salience. Richard Nixon’s electoral strategy of 1968 had not lost its promise. The election of 1980 produced a victory for Ronald Reagan, the dominant right-wing politician of his age.

In returning the presidency to GOP control, Reagan’s win over Jimmy Carter seemed to vindicate the title of a much-discussed 1969 volume, The Emerging Republican Majority.[10] In that influential work, political strategist Kevin Phillips had provided a rigorous basis for optimism (among Republicans, at least) regarding near-term Republican dominance of presidential politics. By way of contrast, even though the 1980 election had returned the Senate to GOP control for the first time since 1955, the House of Representatives remained in Democratic hands with no obvious prospect for an imminent Republican takeover. Senate filibuster rules, combined with Democratic control of the House, would mean that any conservative shifts in policy direction initiated by Congress could come only with Democratic support, which would hardly be reliable. As a result, anything truly revolutionary that Republican presidents might be able to accomplish in terms of reversing the country’s moderate-to-liberal national politics would have to be accomplished within the domain of presidential authority.

This is not to say that either the government lawyers or legal scholars arguing for unitary executive theory in the 1980s were the first to promote some version of such an idea or that they were self-consciously arguing in a partisan way. But between 1981 and 1993, the Reagan and then the Bush Justice Department became the crucible for honing a supposedly originalist case for the theory,[11] which had theretofore previously found little support in Supreme Court jurisprudence, with the notable exception of Chief Justice (and former President) William Howard Taft’s dicta in Myers v. United States.[12]

Among the early modern champions of unitary executive theory are two current Supreme Court justices, Chief Justice Roberts and Justice Samuel Alito, whose views continue to reflect the presidentialist ideology of the Reagan administration. From 1981 through early 1982, Chief Justice Roberts worked as a special assistant to President Reagan’s first attorney general, William French Smith. From 1982 to 1986, the future chief justice served as associate White House counsel.[13] Justice Alito, for his part, spent the first Reagan administration as an assistant to Solicitor General Rex Lee, the lawyer in President Reagan’s Justice Department with primary responsibility for shaping the administration’s constitutional arguments to the U.S. Supreme Court. From 1985 to 1987, Justice Alito served as a deputy assistant attorney general in the Office of Legal Counsel under Assistant Attorney General Charles J. Cooper, also a devotee of unitary executive theory.[14]

Although the Clinton administration did not trumpet its recent predecessors’ philosophical commitment to the theory, President Clinton was arguably just as aggressive in the actual use of presidential power and perhaps even more so in claiming presidential “ownership” of the bureaucracy.[15] In contrast, the George W. Bush administration championed unitary executive theory aggressively, especially in a series of presidential signing statements complaining about supposed congressional incursions into presidential prerogative.[16] Such was the political environment that shaped two additional Supreme Court justices. Before his appointment to the U.S. Court of Appeals for the Tenth Circuit, now-Justice Neil M. Gorsuch was principal deputy associate attorney general in President Bush’s Department of Justice.[17] Justice Brett Kavanaugh, prior to his D.C. Circuit appointment, served as an associate White House counsel under Alberto Gonzales and, from 2003 to 2006, as assistant to the president and White House staff secretary.[18] While on the D.C. Circuit, then-Judge Kavanaugh appeared actively to campaign for unitary executive theory, finding occasions to espouse the doctrine in cases for which such theorizing was technically unnecessary.[19] Joined by Justice Clarence Thomas, it is fair to say that the Seila Law majority is the most executive-indulgent coalition of justices to have served on the Supreme Court since World War II.

II. The Seila Majority’s Incoherent Argument for Unitary Executive Theory

Both the details and the merits of the majority’s reasoning in Seila Law deserve careful scrutiny, but its theoretical incoherence and misreading of history can be easily spotted by attending to a few key points. The majority properly recognizes that the Framers’ core strategy for protecting liberty was the diffusion of power: “To prevent the ‘gradual concentration’ of power in the same hands, they enabled ‘[a]mbition . . . to counteract ambition’ at every turn.”[20] As recounted by the majority, the particular target of founding vigilance was Congress, because “[t]he Framers viewed the legislative power as a special threat to individual liberty.”[21]

By way of contrast, the founding generation’s fear of concentrated power supposedly vaporized with regard to the presidency: “The Executive Branch is a stark departure from all this division. . . . By contrast [with Congress], the Framers thought it necessary to secure the authority of the Executive so that he could carry out his unique responsibilities.”[22] The majority recognizes, of course, that the Framers must have had in mind some institutional scheme for checking possible executive abuses, and here is where the majority slips unmistakably into myth:

To justify and check that authority—unique in our constitutional structure—the Framers made the President the most democratic and politically accountable official in Government. Only the President (along with the Vice President) is elected by the entire Nation.[23]

In other words, Americans’ protection against concentrated legislative power was bicameralism, but Americans’ protection against concentrated executive power was democracy.

The Framers would have been mystified by this account of their strategy. Presidential selection was manifestly to be accomplished through a process only tenuously connected to electoral accountability. Presidents, that is, were to be elected by groups of putatively elite electors chosen within each state. These electors were themselves to be chosen not directly by voters, but rather through whatever methods the people’s elected representatives in state legislatures might design. By way of contrast, it was the House of Representatives, to be selected through a franchise in each state as broad as the franchise for that state’s more numerous legislative chamber, which was the most democratic of the new federal institutions. Senators, chosen by elected state legislators, would have some democratic accountability, but accountability mediated through indirect selection. Presidential accountability to the people would be unique in its double insulation from the people. Presidents would be chosen neither by the people, nor by the people’s chosen representatives, but by electors themselves selected by the people’s representatives. Seila Law thus turns the Founders’ actual accommodations for democracy upside down. The idea that presidential power might draw legitimacy from democratic accountability to the public is a theory that emerged after, not before the ratification of the Constitution.[24]

What makes the majority’s account of the presidency not just inaccurate, but incoherent is its explicit notion that concentrated executive power is yet more liberty- protective because Congress has so greatly enhanced the authorities of the executive branch since 1789:

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.[25]

According to the majority, the Constitution envisions a uniquely powerful executive to protect liberty against the “special threat” posed by a liberty-endangering legislature. But now that the liberty-endangering legislature has paradoxically vested unprecedented statutory authority in the executive, its transfer of power to the executive makes it yet more important for courts to make sure that presidential control of such power is undiluted. This quite literally makes no sense. The idea that we need undiluted presidential power to resist Congress’s self-abnegating trend towards increasing executive authority is self-contradictory.[26] As the libertarian legal scholar Ilya Somin has argued, today’s vastly more sprawling federal administration points in the opposite direction: “In many cases, it might be more in the spirit of the Founding Fathers to divide this overgrown authority than to give it all to the President. After all, the Founders repeatedly warned against excessive concentration of power in the hands of any one person.”[27]

III. Justice Kagan’s Dissent: Dissecting the Unitary Executive Myth

The majority’s argument for unitary executive theory rests on four legs. One is what the justices take to be the implication of Article II’s Vesting Clause that the president must have comprehensive power to remove subordinates because the president singly shoulders the responsibility to take care that the laws be faithfully executed.[28] The second is the supposed ratification of this interpretation by the First Congress, which made what is known to separation-of-powers aficionados as the “Decision of 1789.” This was a decision to word the organic act for a new Department of Foreign Affairs so as to acknowledge a removal power in the president that would not depend on congressional acquiescence.[29] The third comprises Chief Justice Taft’s dicta—largely based also on the Decision of 1789—in Myers v. United States.[30] Myers was a 6‒3 opinion over the dissents of Justices James Clark McReynolds, Louis Brandeis, and Oliver Wendell Holmes, holding it unconstitutional to require Senate consent to the president’s removal of a first-class postmaster. The fourth was the relative novelty of the CFPB’s structure; only a few other examples exist of single-headed independent agencies or administrative offices: “‘Perhaps the most telling indication of [a] severe constitutional problem’ with an executive entity ‘is [a] lack of historical precedent’ to support it.”[31]

Justice Kagan’s dissent dissects each of these points. Her prose is laden with signs of actual impatience with the majority,[32] perhaps because the weakness of the arguments had already been so thoroughly laid out. Beginning with the text, Justice Kagan’s starting point is the straightforward observation that the Constitution simply says nothing explicit whatsoever about presidential removal authority. The idea that the vesting of “executive power” and the Take Care Clause would have implied such a power to eighteenth century readers is belied by numerous sources, including other provisions of the Constitution. Clauses that enable the legislative branch to participate in executive functions belie the idea that presidents have “all” the executive power. Article I’s Necessary and Proper Clause leaves to Congress, not the president, responsibility for designing the executive branch. The majority’s reading of the Vesting Clause makes the Opinions Clause an enigma:

For those in the majority's camp, that Clause presents a puzzle: If the President must always have the direct supervisory control they posit, including by threat of removal, why would he ever need a constitutional warrant to demand agency heads’ opinions? The Clause becomes at least redundant—though really, inexplicable—under the majority’s idea of executive power.[33]

Moreover, 1789 readers of Article II would have been unlikely to associate “executive power” with unlimited removability because Parliament often restricted the king’s removal power,[34] and roughly contemporaneous state constitutions mixed executive power vesting clauses with limits on the removal powers of governors.[35] Justice Kagan cites scholarship pointing to the likelihood that the Take Care Clause was more likely intended as a font of obligation, not power.[36]

Nor does the history confirm the majority’s supposedly originalist view. Both Alexander Hamilton and James Madison wrote in the Federalist that Congress would control the tenure of civil officers.[37] The Decision of 1789, properly investigated, reveals absolutely no consensus regarding an unlimited presidential power to remove executive officials.[38] The only view of the matter “definitively rejected” was Hamilton’s representation—later cited with apparent approval by Joseph Story[39]—that Senate consent would be necessary to effect removal. Justice Kagan cites Professor Saikrishna Prakash, himself a strong proponent of presidential removal authority, for the proposition that “Congress never ‘endorse[d] the view that [it] lacked authority to modify’ the President’s removal authority when it wished to.”[40] As for the dicta in Myers relying on the Decision of 1789, Justice Kagan was dismissive: “Taft's historical research has held up even worse than Myers’ holding (which was mostly reversed).”[41]

Perhaps exhausted by her own demolition of the majority, Justice Kagan actually omits another telling example from the First Congress that amicus had raised in its brief. One agency well illustrating Congress’s intent to insulate financial administration from complete presidential control was the Sinking Fund Commission, “proposed by Alexander Hamilton, passed by the First Congress, and signed into law by President George Washington.”[42] In the Sinking Fund Act of Aug. 12, 1790, “Congress authorized open market purchases of debt, in the form of U.S. securities, ‘under the direction of the President of the Senate, the Chief Justice, the Secretary of State, the Secretary of the Treasury, and the Attorney General.’”[43] As one amicus brief pointed out, two of the five Commission members—the president of the Senate (that is, the vice president) and the chief justice—were not removable by the president at all. Prior to ratification of the Twelfth Amendment in 1804, “there was no guarantee that the Vice President would even be of the same party as the President or of the three cabinet members serving ex officio.”[44] The Act required presidential agreement to such purchases of U.S. debt as the Commission might approve, but gave the president no power to initiate the purchase of debt except at the Commission’s initiative.[45] It is impossible to reconcile the structure and function of the Sinking Fund Commission with the theory that the First Congress thought the president entitled to complete control, via the removal power, over all executive branch administration.

With regard to the majority’s anti-novelty stance, Justice Kagan objects both on law and facts. She views the breadth of the Necessary and Proper Clause as both intentional and a source of the Constitution’s durability:

Still more important, novelty is not the test of constitutionality when it comes to structuring agencies. See Mistretta 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 Necessary and Proper Clause, not (as the majority seems to think) a Rinse and Repeat Clause. The Framers understood that new times would often require new measures, and exigencies often demand innovation. In line with that belief, the history of the administrative sphere—its rules, its practices, its institutions—is replete with experiment and change.[46]

Justice Kagan reviews a handful of examples of single-headed independent administrative offices to demonstrate that precedents for the CFPB exist.[47] In the prior Supreme Court opinions favoring the constitutionality of agency independence, she finds nothing that turns on the number of agency heads. As a result, she regards the entire history of independent agencies as relevant institutional precedent in support of the CFPB.[48]

The cases that support most critically Congress’s authority to create independent agencies are Humphrey’s Executor v. United States[49] and Morrison v. Olson.[50] Although the Seila Law majority declines to “revisit” those decisions,[51] its account of their reasoning and how they are most cogently synthesized differs dramatically from Justice Kagan’s more faithful account.

The majority takes Myers as having established as law the thesis of Chief Justice Taft’s extensive dicta, namely, 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.’”[52] The Court’s unanimous decision less than a decade later to uphold the independence of the Federal Trade Commission (FTC) is thus cast as an “exception” to the rule in Myers. The supposed exception, in this account, depended upon specific features of the FTC.[53] Structurally, it was composed of five members and designed to be “non-partisan” and to “act with entire impartiality.” The FTC’s duties were “neither political nor executive,” but instead called for “the trained judgment of a body of experts” “informed by experience.” In separation-of-powers terms, the Humphrey’s Executor Court viewed the FTC, however dubiously, as a quasi-legislative and quasi-judicial agency, which “occupies no place in the executive department.”[54] In contrast to the postmaster, whose office was the subject of Myers, a member of the FTC was not a “purely executive officer.”[55] Rather, “[t]o the extent that it exercises any executive function, as distinguished from executive power in the constitutional sense, [the FTC] does so in the discharge and effectuation of its quasi-legislative or quasi-judicial powers, or as an agency of the legislative or judicial departments of the government.”[56]

The 1935 labeling of the FTC, however, cannot explain Morrison v. Olson, which upheld the independent counsel provisions of the Ethics in Government Act. Although historical inquiry shows criminal prosecution to have been as much a judicial as an executive power in the late eighteenth century,[57] the Supreme Court has long treated it is a core executive function. For the majority, Morrison is best explained as another exception to the rule of Myers. Alexa Morrison may not have headed a multi-member agency, and she may have been “purely executive” in the sense of Myers. But she was also “an inferior officer with limited duties and no policymaking or administrative authority.”[58] Her independence is thus again cast as but a limited exception to Myers.

As Justice Kagan points out, however, the majority’s cabining of both Humphrey’s Executor and Morrison takes the reasoning of neither case seriously. A puzzling feature of the Humphrey’s Executor opinion is, indeed, the suggestion that the FTC was not part of the “executive department.” The Court’s reasoning is entirely comprehensible, however, if one differentiates, as that Court did, between authority vested in the president by Article II, i.e., “executive power in the constitutional sense,” from those “executive function(s)” entailed in discharging powers delegated to an agency entirely by statute.[59] The Court’s conclusion was that the president was entitled to comprehensive removal authority over only officials exercising the former category of powers, not the latter. The sensible implication is that Congress, not having been constitutionally required to create regulatory agencies, was likewise not required to leave their direction in the hands of presidentially controlled administrators. It is not clear why the 1935 Court deemed Postmaster Myers to be “purely executive.”[60] But the decision to carve out space for Myers, rather than overrule it, might have been an act of respect to the recently deceased Chief Justice Taft. Or the Court might simply have agreed that, limited to its facts, the Myers prohibition on involving the Senate in presidential removal decisions was the proper resolution to that somewhat different question.

Morrison, a 7‒1 decision, explicitly jettisoned the labeling of functions as a way of determining the reach of the president’s removal powers:

At the other end of the spectrum from Myers, the characterization of the agencies in Humphrey's Executor . . . as “quasi-legislative” or “quasi-judicial” in large part reflected our judgment that it was not essential to the President’s proper execution of his Article II powers that these agencies be headed up by individuals who were removable at will. We do not mean to suggest that an analysis of the functions served by the officials at issue is irrelevant. But the real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light.[61]

In other words, the question entailed in the president’s removal power would not be whether the functions of the official in question did or did not resemble functions that could be performed by the other branches of government. The question, as Humphrey’s Executor also implied, was whether that official was helping the president to implement “executive power in the constitutional sense,” or rather performing “executive function(s)” entailed in discharging powers delegated to an agency entirely by statute.[62] Seen in this light, which Justice Kagan does, Humphrey’s Executor and Morrison do not exemplify limited exceptions to the rule of Myers; it is Myers that stands as the exceptional case.

The essence of the majority’s response to Justice Kagan’s analysis is that the Court had heard similar arguments and rejected them a decade before when the Court decided Free Enterprise Fund v. Public Company Accounting Oversight Board.[63] The majority in that 5‒4 case comprised three members of the Seila Law majority, Chief Justice Roberts and Justices Thomas and Alito. They were joined by Justices Scalia and Kennedy. The five held it impermissible to protect from at-will removability those inferior officers who were themselves appointed by heads of agencies whom the president could not remove at-will. Following what it took to be the logic of unitary executive theory, the majority held that “dual for-cause limitations on . . . removal . . . contravene the Constitution’s separation of powers.”[64]

There is, of course, nothing surprising in the current conservative bloc’s adherence to the Free Enterprise Fund view. What is discomfiting in an opinion that purports to rest on original understanding is the unwillingness to engage with a decade of scholarship published since Free Enterprise Fund demonstrating beyond peradventure that the Court’s earlier historical accounts were woefully incomplete. It is one thing, in principle, to restrict Congress’s discretion in the design of government based on a plausible historical consensus as to constitutional meaning. It is another to intensify a restriction on legislative power embodied in one century-old case based on a fabricated founding consensus that legal historians have demonstrated did not exist.

What accounts for the persistence of unitary executive theory is not its veracity as an historical account, but its success as myth. The legal historian Jonathan Gienapp has written brilliantly about the constitutional myth of “enumerationism,” the idea that the Constitution limited national power to the enumeration found in Article I, Section 8 plus any appropriate means necessary to carry those powers into execution. What makes enumerationism a myth is that it utterly elides the leap made from recognizing that “national powers are enumerated in the Constitution” to “the separate, optional conclusion that the powers of the national government are distinctly limited to and by that enumeration.”[65] “This latter commitment,” he writes, “moves well beyond the initial observation, venturing toward a distinctive depiction of the Constitution itself—one in which it is imagined as an exclusive written text whose language is the sole creator of its content.”[66] In the mythic view, the history of actual interpretation disappears.

What Gienapp says of “enumeration” is equally true of the separation of powers and certainly of unitary executive theory. The theory “smuggles a robust image of the Constitution into the mind through depiction of its putative, matter-of-fact features”—namely, the vesting of powers into three branches of government—“without leaving a trail of the distance traveled in between” noticing those features and confusing them with a complete description of the Constitution as a whole.[67] Here is Justice Kagan’s version of much the same insight:

The majority offers the civics class version of separation of powers—call it the Schoolhouse Rock definition of the phrase. The Constitution’s first three articles, the majority recounts, “split the atom of sovereignty” among Congress, the President, and the courts. And by that mechanism, the Framers provided a “simple” fix “to governmental power and its perils.”

There is nothing wrong with that as a beginning (except the adjective “simple”). . . . 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.[68]

Just as Justice Kagan goes on to bemoan the majority’s cavalier treatment of evidence contradicting its historical view, Gienapp points to the work of legal historians that contradicts enumerationism. But enumerationists make little concession to the evidence:

No matter the power of this evidence, ardent defenders of enumerationism—constitutional originalists most of all—are not likely to awaken from their dogmatic slumber. They are more liable to dismiss such findings through recitation of their familiar incantations of the unique character and virtues of public meaning. Perhaps several Founders rejected enumerationism, yet—orthodox originalists are sure to say—the Constitution that was ratified did not.[69]

If we substitute “unitary executive theory” for “enumerationism” in Gienapp’s paragraph, it is remarkable how perfectly he has captured the jurisprudence of the Seila Law majority.

IV.  Seila’s Effect and Legacy

The consequences of Seila Law for the CFPB may prove to be minimal. Over the frustrated objection of Justice Thomas, the Seila Law majority, just like the Free Enterprise Fund majority, simply severs from the statute in question what the Court takes to be the constitutionally offensive administrative tenure protection.[70] The Seila Law firm is no more likely to escape the CFPB’s civil investigative demand than the Free Enterprise Fund was able to evade the Public Company Accounting Oversight Board’s investigation of its auditing procedures. For that reason, it may seem puzzling why the suit was brought at all.[71]

Yet the holding of Seila Law and the theory it embodies remain triply dangerous. First, the Seila Law version of separation of powers may well yet be deployed to destabilize other longstanding features of the regulatory state—features that have enabled the federal government to accomplish much good for the American people. Another likely target is the very breadth of authority delegated by Congress to administrative agencies—a form of delegation supposedly at odds with a vision of the Constitution that has divided the federal government into three separate branches exercising distinct and well-defined powers.[72] Some scholars have already poked notable holes in the originalist claim that the Court’s near-universal deference to Congress’s delegation authority is somehow at odds with the original meaning of Article I.[73] But as Gienapp suggests, the power of evidence may not move “ardent defenders” of the myth “from their dogmatic slumber.”

The second worry is that the majority’s logic only raises the stakes of presidential elections yet higher when the nation is already experiencing a dangerous moment of polarization. Elections are supposed to matter, of course, but it can hardly advance the cause of domestic tranquility if nearly half of all voting adults perceive the loss of their preferred candidate as the overthrow of their every policy preference. Yet that is the view of democracy that the Seila Law majority enables. By insisting on a president’s constitutional entitlement to bend all of administrative government to his or her whim, the majority is enabling a form of government that can too easily become—if it has not already—more authoritarian than democratic.[74]

The third danger is closely related to the second. As I have argued elsewhere and at length, unitary executive theory feeds a psychology of constitutional entitlement within the executive branch that is perilous for democratic norms and the rule of law. Entrenching a constitutional entitlement to fire at will any principal officer who carries out any of the executive branch’s legal responsibilities will all but inevitably nurture a president’s excessive belief in his or her entitlement to unilateral action: “[T]he ideological prism of presidentialism bends the light of the law so that nothing is seen other than the prerogatives of the sitting chief executive.”[75]

***

In a world in which better reason prevails, Justice Kagan’s view of the Constitution will move from dissent to majority status. Seila Law might be overruled or limited to its unusual facts—a single-headed agency not dependent on annual appropriations from Congress and the director of which serves longer than a presidential term. The Court should approach the question without any conviction—just as I have none—as to whether single- or multi-headed agencies serve the nation better. It should merely ratify that the choice of agency structure poses a decision for Congress, not for the Court. Justice Kagan puts the point simply. Each time Congress has created an independent agency:

Congress thought that formal job protection for policymaking would produce regulatory outcomes in greater accord with the long-term public interest. Congress may have been right; or it may have been wrong; or maybe it was some of both. No matter—the branches accountable to the people have decided how the people should be governed.[76]

That the Seila Law majority regards such decisions as threats to liberty says more about contemporary ideology and the persistence of constitutional myth than it does about the pluralist and experimental outlook of the Founding generation.

[1] Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, The Ohio State University. I co-authored with Professor Gillian Metzger an amicus brief on behalf of ourselves and Professors Harold H. Bruff, Jessica Bulman-Pozen, Jerry L. Mashaw, Anne Joseph O’Connell, Peter L. Strauss, and Paul R. Verkuil. Brief of Harold H. Bruff et al. as Amicus Curiae Supporting Court-Appointed Amicus Curiae, Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020) (No. 19‒7). I am deeply grateful to all my co-signatories, but especially to Professor Metzger, for the insights shared during production of that brief.

[2] Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020).

[3] 12 U.S.C. § 5491.

[4] 12 U.S.C. § 5497.

[5] Seila Law, LLC, the petitioner, had been the target of a CFPB investigation to determine whether the firm had “engag[ed] in unlawful acts or practices in the advertising, marketing, or sale of debt relief services.” Seila Law LLC, 140 S. Ct. at 2194. It raised the asserted unconstitutionality of the CFPB in response to a civil investigative demand that the firm produce information and documents relevant to the investigation. Although there was no obvious link between the CFPB’s decision to issue the demand and the tenure-protected status of the Director, the Court adhered to the view that “a litigant challenging governmental action as void on the basis of the separation of powers is not required to prove that the Government’s course of conduct would have been different in a ‘counterfactual world’ in which the Government had acted with constitutional authority.” Id. at 2196. This view of standing thus aligns the case with standing decisions in the affirmative action area where the Court has found allegations of injury sufficient despite a litigant’s failure to show a specific link between affirmative action and a government decision actually rendered, Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) (“[I]n the context of a challenge to a set-aside program, the ‘injury in fact’ is the inability to compete on an equal footing in the bidding process, not the loss of a contract.”), and in arguable contrast with decisions requiring that “a threatened injury must be certainly impending” to support standing. Clapper v. Amnesty Int'l USA, 568 U.S. 398, 133 S. Ct. 1138, 1141 (2013).

[6] Seila Law LLC, 140 S. Ct. at 2211.

[7] Id. at 2191 (quoting Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 413‒514 (2010)).

[8] Id.

[9] Id. at 2199‒2200. The implications of this qualification for the constitutionality of other independent agencies are unclear. At one point, the majority suggests that the Court’s 1935 characterization of the FTC as exercising “no part of the executive power” was wrong, even in 1935. Id. at 2198 n. 2 (“The Court's conclusion that the FTC did not exercise executive power has not withstood the test of time.”). This might suggest that were an agency like the FTC to be assessed today by the Seila Law majority, that agency would be found unconstitutional without regard to its multimember status. On the other hand, in defending the Court’s severance of the Director’s tenure protection from the Dodd-Frank Act, the majority also says that Congress, if dissatisfied, could re-create the CFPB as a multimember independent agency. Id. at 2211 (“Our severability analysis does not foreclose Congress from . . . converting the CFPB into a multimember agency.”) It would seem odd to invite Congress to redesign the CFPB as an entity the Court would now deem unconstitutional.

[10] Kevin P. Phillips, The Emerging Republican Majority (1969).

[11] Ganesh Sitaraman, The Political Economy of the Removal Power, Harv. L. Rev. (forthcoming 2020) (manuscript on file with the author); Amanda Hollis-Brusky, Helping Ideas Have Consequences: Political and Intellectual Investment in the Unitary Executive Theory, 1981‒2000, 89 Denv. U. L. Rev. 197 (2011); Jeremy D. Bailey, The Idea of Presidential Representation: An Intellectual and Political History 173‒176 (2019).

[12] Myers v. United States, 272 U.S. 252 (1926).

[13] Current Members, Supreme Court of the United States, (last visited Sept. 8, 2020), (providing a biography of Chief Justice Roberts).

[14] Id. (providing a biography of Justice Alito).

[15] Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001).

[16] Neil J. Kinkopf & Peter M. Shane, Signed Under Protest: A Database of Presidential Signing Statements, 2001‒2009 (Ohio St. P. L. Working Paper No. 118, 2009).

[17] Current Members, supra note 12 (providing a biography of Justice Gorsuch).

[18] Id. (providing a biography of Justice Kavanaugh).

[19] Peter M. Shane, Brett Kavanaugh and the Executive-Indulgent Court, 44 Admin. & Reg. L. News 5 (2018).

[20] Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2202 (2020).

[21] Id. at 2203.

[22] Id.

[23] Id.

[24] Bailey, supra note 10, at 43.

[25] Seila Law LLC, 140 S. Ct. at 2207.

[26] The majority’s putatively originalist argument is thus different from a pragmatic modern theory that all administrative agencies should be accountable to the president lest they become wholly unaccountable to the people. The premise of that argument is not that America needs a strong president to stand up to a usurpatious Congress, but rather that a self-abnegating Congress has passed too much power to agencies that, so empowered, threaten to lose all political accountability unless subject to presidential discipline. That theory is not logically inconsistent, but rests on highly contestable assumptions about the democracy-enhancing nature of presidential intervention in agency policy making. Peter M. Shane, Madison’s Nightmare: Executive Power and the Threat to American Democracy 160‒163 (2009). It also ignores the complex political dynamics that shape agency decision making, in which the removability of the agency head is likely to play a fairly small role. Seila Law LLC, 140 S. Ct. at 2237 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part) (“A given agency's independence (or lack of it) depends on a wealth of features, relating not just to removal standards, but also to appointments practices, procedural rules, internal organization, oversight regimes, historical traditions, cultural norms, and (inevitably) personal relationships. It is hard to pinpoint how those factors work individually, much less in concert, to influence the distance between an agency and a President.”); see also Jerry L. Mashaw, Of Angels, Pins, and For-Cause Removal: A Requiem for the Passive Virtues, U. Chicago L. Rev. Online (Aug. 27, 2020).

[27] Ilya Somin, Rethinking the Unitary Executive, Reason: Volokh Conspiracy (May 3, 2018).

[28] Seila Law LLC, 140 S. Ct. at 2197.

[29] Id.

[30] Id. at 2197‒2198.

[31] Id. at 2201.

[32] E.g., id. at 2240 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part) (“I'm tempted at this point just to say: No. All I've explained about constitutional text, history, and precedent invalidates the majority’s thesis. But I'll set out here some more targeted points, taking step by step the majority’s reasoning. First, as I’m afraid you've heard before, the majority's ‘exceptions’ (like its general rule) are made up.”)

[33] Id. at 2227.

[34] Id. at 2228.

[35] Id. (citing Peter M. Shane, The Originalist Myth of the Unitary Executive, 19 U. Pa. J. Const. L. 323, 334–344 (2016)).

[36] Id. citing Andrew Kent, Ethan Leib & Jed Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev. 2111, 2121–2178 (2019).

[37] Federalist No. 39 (James Madison) (“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.”); Federalist No. 77 (Alexander Hamilton) (“It has been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint.”).

[38] John Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1965 (2011).

[39] Joseph L. Story, 3 Commentaries on the Constitution of the United States §§ 1531‒1538 (1833).

[40] Seila Law LLC, 140 S. Ct. at 2230 (2020) (Kagan, J., concurring in the judgment with respect to severability and dissenting in part) (citing Saikrishna Bangalore Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021, 1073 (2006)).

[41] Id.

[42] Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies, Notre Dame L. Rev. (forthcoming) (manuscript at 3).

[43] Id. (quoting the Sinking Fund Act of Aug. 12, 1790, ch. 47, 1 Stat. 186, 186).

[44] Brief of Harold H. Bruff et al. as Amicus Curiae Supporting Court-Appointed Amicus Curiae at 16, Seila Law LLC, 140 S. Ct. 2183 (2020) (No. 19‒7).

[45] Chabot, supra note 41, at 4.

[46] Seila Law LLC, 140 S. Ct. at 2241 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part).

[47] Id. (“Maybe four prior agencies is in the eye of the beholder, but it’s hardly nothing.”)

[48] Id. at 2233.

[49] Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935).

[50] Morrison v. Olson, 487 U.S. 654 (1988).

[51] Seila Law LLC, 140 S. Ct. at 2192.

[52] Id. at 2197–98.

[53] Id. at 2198‒99.

[54] Humphrey's Ex'r, 295 U.S. at 628.

[55] Id. at 632.

[56] Id. at 628.

[57] Peter M. Shane, Prosecutors at the Periphery, 94 Chi.-Kent L. Rev. 241 (2019).

[58] Seila Law LLC, 140 S. Ct. at 2200.

[59] Humphrey's Ex'r, 295 U.S. at 628.

[60] Intriguingly, the U.S. Postal Service is now directed by an independent Board of Governors, which is responsible for appointing the Postmaster General, whom the Board may also remove. 39 U.S.C. § 202.

[61] Morrison v. Olson, 487 U.S 654, 690–91 (1988).

[62] Humphrey's Ex'r, 295 U.S. at 628.

[63] Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010).

[64] Id. at 492. Among the puzzles of Free Enterprise Fund is whether the remedy actually strengthened the presidency. Because the power to remove PCAOB members would still belong to the independent Securities and Exchange Commission, a President seeking the removal of a PCAOB member without good cause would be better off only if the SEC were willing to implement the president’s wish that it exercise its newly granted at-will dismissal power. Id. at 509 (“Concluding that the removal restrictions are invalid leaves the Board removable by the Commission at will . . ..”) Of course, if the President’s communication of such a wish would suffice to induce the SEC’s compliance, it is difficult to see in what respect the president is threatened by the existence of independent agencies in the first place.

[65] Jonathan Gienapp, The Myth of the Constitutional Given: Enumeration and National Power at the Founding, 69 Am. U. L. Rev. 183, 184 (2020).

[66] Id.

[67] Id. at 184.

[68] Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2226 (2020) (Kagan, J., concurring in the judgment with respect to severability and dissenting in part).

[69] Gienapp, supra note 64, at 186.

[70] Seila Law LLC, 140 S. Ct. at 2209.

[71] Sitaraman, supra note 10, at 3.

[72] Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Gorsuch, J., dissenting).

[73] Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. (forthcoming 2021).

[74] Matthew J. Steilen, Presidential Whim, 46 Ohio N.U. L. Rev. 485 (2020).

[75] Shane, supra note 25, at 82.

[76] Seila Law LLC, 140 S. Ct. at 2245 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part).