A Modest Win for the Constitution

Is the president the nation’s chief executive? That was the question that lay at the heart of Seila Law LLC. v. Consumer Financial Protection Bureau (CFPB), the decision issued by the Supreme Court yesterday. In concluding that the director of the CFPB must serve at the president’s pleasure, the Court seemingly answered that, yes, the Constitution makes the president the chief executive. But by retaining several erroneous precedents, the Court actually concluded that the president is chief executive . . . except when the Court has previously opined otherwise.

The issue in the case concerned the structure of the Consumer Financial Protection Bureau, an agency charged with both creating and enforcing federal laws related to financial products such as mortgages and credit cards. In creating the agency, Congress aimed to make it truly independent, free of presidential and congressional oversight. The president could remove its director only for inefficiency, neglect of duty, or malfeasance, a notoriously high standard that would preclude removal for such things as misguided prosecutorial policies. Moreover, by granting a permanent appropriation to the CFPB, Congress ensured that future legislators could not exert the leverage it has when it holds an agency’s purse strings. Imagine if police departments had guaranteed budgets and one can better see the drawbacks of inadequate legislative oversight.

The opinion was the product of Chief Justice John Roberts’s reverence for precedent. Roberts, writing for the Court, discussed why the removal restriction was unconstitutional. He properly concluded that the Constitution grants the president “all the executive power” and that this power includes authority to fire executive officers at will. He also denied that Congress had carte blanche to strip away the removal power. So far, so good.

But there were two pesky Supreme Court opinions that could have been read to sanction this congressional restriction on removal authority. The more recent case, Morrison v. Olson, is perhaps the worst separation-of-powers decision of the modern era. In Morrison, the Court concluded that Congress can, by creating independent counsels, impinge upon executive power as long as it does not prevent the president from carrying out his constitutional tasks. It did so despite the fact that the independent counsel at issue in the case had, in fact, hindered the president’s execution of his constitutional duties. No one who has studied the issue can escape the sense that independent prosecutors usurp governmental power that has always been executive.