PHH Corporation v. CFPB , 881 F.3d 75 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 24, 2017 Decided January 31, 2018
No. 15-1177
PHH CORPORATION, ET AL.,
PETITIONERS
v.
CONSUMER FINANCIAL PROTECTION BUREAU,
RESPONDENT
On Petition for Rehearing En Banc
Theodore B. Olson argued the cause for petitioners. With
him on the briefs were Helgi C. Walker, Lucas C. Townsend,
Mitchel H. Kider, David M. Souders, Thomas M. Hefferon, and
William M. Jay.
Andrew J. Pincus, Stephen C.N. Lilley, Matthew A.
Waring, Kate Comerford Todd, and Steven P. Lehotsky were
on the brief for amicus curiae The Chamber of Commerce of
the United States of America in support of petitioners.
David K. Willingham, Michael D. Roth, Jeffrey M.
Hammer, and Kelly L. Perigoe were on the brief for amici
curiae RD Legal Funding, LLC, et al. in support of petitioners.
2
Joseph R. Palmore and Bryan J. Leitch were on the brief
for amici curiae American Bankers Association, et al. in
support of petitioners and vacatur.
David T. Case and Phillip L. Schulman were on the brief
for amicus curiae The National Association of Realtors7 in
support of petitioners and reversal of the June 4, 2015 order of
the Director of the Consumer Financial Protection Bureau.
Jay N. Varon and Jennifer M. Keas were on the brief for
amici curiae American Land Title Association, et al. in support
of petitioners.
Joshua D. Hawley, Attorney General, Office of the
Attorney General for the State of Missouri, and D. John Sauer,
State Solicitor, were on the brief for amici curiae the States of
Missouri, et al. in support of petitioners.
Kirk D. Jensen, Joseph M. Kolar, and Alexander S.
Leonhardt were on the brief for amicus curiae The Consumer
Mortgage Coalition in support of petitioner.
Marc J. Gottridge, Allison M. Wuertz, Ilya Shapiro, and
Thaya Brook Knight were on the brief for amicus curiae The
Cato Institute in support of petitioners.
Brian Melendez was on the brief for amicus curiae ACA
International in support of petitioners.
C. Boyden Gray, Adam R.F. Gustafson, James R. Conde,
Gregory Jacob, Sam Kazman, and Hans Bader were on the
brief for amici curiae State National Bank of Big Spring, et al.
in support of petitioners.
3
Hashim M. Mooppan, Attorney, U.S. Department of
Justice, argued the cause as amicus curiae United States of
America. On the brief were Douglas N. Letter, Mark B. Stern,
Daniel Tenny, and Tara S. Morrissey, Attorneys. Ian H.
Gershengorn, Attorney, entered an appearance.
Lawrence DeMille-Wagman, Senior Litigation Counsel,
Consumer Financial Protection Bureau, argued the cause for
respondent. With him on the brief was John R. Coleman,
Deputy General Counsel.
George Jepsen, Attorney General, Office of the Attorney
General for the State of Connecticut, and John Langmaid,
Assistant Attorney General, were on the brief for The States of
Connecticut, et al. in support of respondent.
Thomas C. Goldstein, Eric Citron, Tejinder Singh, and
Deepak Gupta were on the brief for amici curiae Americans For
Financial Reform, et al. in support of respondent.
Elizabeth B. Wydra, Brianne J. Gorod, and Simon Lazarus
were on the brief for amici curiae Current and Former Members
of Congress in support of respondent.
Scott L. Nelson and Allison M. Zieve were on the brief for
amici curiae Public Citizen, Inc., et al. in support of respondent.
Julie Nepveu was on the brief for amici curiae AARP and
AARP Foundation in support of respondent.
Deepak Gupta was on the brief for amici curiae Financial
Regulation Scholars in support of respondent.
4
Katharine M. Mapes, Jessica R. Bell, and Jeffrey M. Bayne
were on the brief for amici curiae Separation of Powers Scholars
in support of Consumer Financial Protection Bureau.
Before: GARLAND *, Chief Judge, HENDERSON, ROGERS,
TATEL, BROWN ∗∗, GRIFFITH, KAVANAUGH, SRINIVASAN,
MILLETT, PILLARD, WILKINS, and KATSAS *, Circuit Judges and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
Concurring opinion filed by Circuit Judge TATEL, with
whom Circuit Judges MILLETT and PILLARD join.
Concurring opinion filed by Circuit Judge WILKINS, with
whom Circuit Judge ROGERS joins.
Opinion concurring in the judgment filed by Circuit Judge
GRIFFITH.
Dissenting opinion filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Circuit Judge KAVANAUGH,
with whom Senior Circuit Judge RANDOLPH joins.
Dissenting opinion filed by Senior Circuit Judge
RANDOLPH.
*
Chief Judge Garland and Circuit Judge Katsas did not participate in
this matter.
∗∗
Circuit Judge Brown was a member of the en banc court but retired
before issuance of this opinion.
5
PILLARD, Circuit Judge:
We granted en banc review to consider whether the federal
statute providing the Director of the Consumer Financial
Protection Bureau (CFPB) with a five-year term in office,
subject to removal by the President only for “inefficiency,
neglect of duty, or malfeasance in office,” 12 U.S.C.
§ 5491(c)(3), is consistent with Article II of the Constitution,
which vests executive power “in a President of the United
States of America” charged to “take Care that the Laws be
faithfully executed,” U.S. Const. art. II, § 1, cl. 1; id. § 3.
Congress established the independent CFPB to curb fraud and
promote transparency in consumer loans, home mortgages,
personal credit cards, and retail banking. See 12 U.S.C. §
5481(12). The Supreme Court eighty years ago sustained the
constitutionality of the independent Federal Trade
Commission, a consumer-protection financial regulator with
powers analogous to those of the CFPB. Humphrey’s Executor
v. United States, 295 U.S. 602 (1935). In doing so, the Court
approved the very means of independence Congress used here:
protection of agency leadership from at-will removal by the
President. The Court has since reaffirmed and built on that
precedent, and Congress has embraced and relied on it in
designing independent agencies. We follow that precedent
here to hold that the parallel provision of the Dodd-Frank Wall
Street Reform and Consumer Protection Act shielding the
Director of the CFPB from removal without cause is consistent
with Article II.
Introduction
The 2008 financial crisis destabilized the economy and left
millions of Americans economically devastated. Congress
studied the causes of the recession to craft solutions; it
determined that the financial services industry had pushed
6
consumers into unsustainable forms of debt and that federal
regulators had failed to prevent mounting risks to the economy,
in part because those regulators were overly responsive to the
industry they purported to police. Congress saw a need for an
agency to help restore public confidence in markets: a
regulator attentive to individuals and families. So it established
the Consumer Financial Protection Bureau.
Congress’s solution was not so much to write new
consumer protection laws, but to collect under one roof existing
statutes and regulations and to give them a chance to work.
Congress determined that, to prevent problems that had
handicapped past regulators, the new agency needed a degree
of independence. Congress gave the CFPB a single Director
protected against removal by the President without cause. That
design choice is challenged here as an unconstitutional
impediment to the President’s power.
To analyze the constitutionality of the CFPB’s
independence, we ask two questions:
First, is the means of independence permissible? The
Supreme Court has long recognized that, as deployed to shield
certain agencies, a degree of independence is fully consonant
with the Constitution. The means of independence that
Congress chose here is wholly ordinary: The Director may be
fired only for “inefficiency, neglect of duty, or malfeasance in
office,” 12 U.S.C. § 5491(c)(3)—the very same language the
Supreme Court approved for the Federal Trade Commission
(FTC) back in 1935. Humphrey’s Executor, 295 U.S. at 619,
629-32; see 15 U.S.C. § 41. The CFPB’s for-cause removal
requirement thus leaves the President no less removal authority
than the provision sustained in Humphrey’s Executor; neither
PHH nor dissenters disagree. The mild constraint on removal
of the CFPB Director contrasts with the cumbersome or
7
encroaching removal restrictions that the Supreme Court has
invalidated as depriving the President of his Article II authority
or otherwise upsetting the separation of powers. In Free
Enterprise Fund v. Public Company Accounting Oversight
Board, 561 U.S. 477 (2010), the Court left in place ordinary
for-cause protection at the Securities and Exchange
Commission (SEC)—the same protection that shields the FTC,
the CFPB, and other independent agencies—even as it
invalidated an unusually restrictive second layer of for-cause
protection of the SEC’s Public Company Accounting
Oversight Board (PCAOB) as an interference with Article II.
In its only other decisions invalidating removal restrictions, the
Supreme Court disapproved of means of independence not at
issue here, specifically, Congress’s assigning removal power to
itself by requiring the advice and consent of the Senate in
Myers v. United States, 272 U.S. 52 (1926), and a joint
resolution of Congress in Bowsher v. Synar, 478 U.S. 714(1986). The Supreme Court has never struck down a statute
conferring the standard for-cause protection at issue here.
Second, does “the nature of the function that Congress
vested in” the agency call for that means of independence?
Wiener v. United States, 357 U.S. 349, 353 (1958); see also
Morrison v. Olson, 487 U.S. 654, 687, 691 n.30 (1988). The
CFPB is a financial regulator that applies a set of preexisting
statutes to financial services marketed “primarily for personal,
family, or household purposes.” 12 U.S.C. § 5481(5)(A); see
also id. §§ 5481(4), (6), (15). Congress has historically given
a modicum of independence to financial regulators like the
Federal Reserve, the FTC, and the Office of the Comptroller of
the Currency. That independence shields the nation’s economy
from manipulation or self-dealing by political incumbents and
enables such agencies to pursue the general public interest in
the nation’s longer-term economic stability and success, even
where doing so might require action that is politically
8
unpopular in the short term. In Humphrey’s Executor, the
Supreme Court unanimously sustained the requirement of
cause to remove members of the FTC, a consumer protection
agency with a broad mandate to prevent unfair methods of
competition in commerce. The FTC, “charged with the
enforcement of no policy except the policy of the law,”
Humphrey’s Executor, 295 U.S. at 624, could be independent
consistent with the President’s duty to take care that the law be
faithfully executed. The CFPB’s focus on the transparency and
fairness of financial products geared toward individuals and
families falls squarely within the types of functions granted
independence in precedent and history. Neither PHH nor our
dissenting colleagues have suggested otherwise.
The ultimate purpose of our constitutional inquiry is to
determine whether the means of independence, as deployed at
the agency in question, impedes the President’s ability under
Article II of the Constitution to “take Care that the Laws be
faithfully executed.” U.S. Const. art. II, § 3. It is beyond
question that “there are some ‘purely executive’ officials who
must be removable by the President at will if he is to be able to
accomplish his constitutional role.” Morrison, 487 U.S. at 690.
Nobody would suggest that Congress could make the Secretary
of Defense or Secretary of State, for example, removable only
for cause. At the same time, the Court has consistently
affirmed the constitutionality of statutes “conferring good-
cause tenure on the principal officers of certain independent
agencies.” Free Enterprise Fund, 561 U.S. at 493.
The Supreme Court has distinguished those removal
restrictions that are compatible with the President’s
constitutionally assigned role from those that run afoul of
Article II in the line of removal-power cases running from
Myers, 272 U.S. 52, through Humphrey’s Executor, 295 U.S.
602, Wiener, 357 U.S. 349, Bowsher, 478 U.S. 714, Morrison,
9
487 U.S. 654, and Free Enterprise Fund, 561 U.S. 477. The
Court has repeatedly held that “a ‘good cause’ removal
standard” does not impermissibly burden the President’s
Article II powers, where “a degree of independence from the
Executive . . . is necessary to the proper functioning of the
agency or official.” Morrison, 487 U.S. at 691 n.30, 686-96;
see Wiener, 357 U.S. at 356; Humphrey’s Executor, 295 U.S.
at 631. Armed with the power to terminate such an
“independent” official for cause, the President retains “ample
authority to assure” that the official “is competently performing
his or her statutory responsibilities.” Morrison, 487 U.S. at
692.
Petitioners in this case, PHH Corporation, PHH Mortgage
Corporation, PHH Home Loans, LLC, Atrium Insurance
Corporation, and Atrium Reinsurance Corporation
(collectively, PHH), would have us cabin the Court’s
acceptance of removal restrictions by casting Humphrey’s
Executor as a narrow exception to a general prohibition on any
removal restriction—an exception it views as permitting the
multi-member FTC but not the sole-headed CFPB. The
distinction is constitutionally required, PHH contends, because
“multi-member commissions contain their own internal checks
to avoid arbitrary decisionmaking.” Pet’rs’ Br. 23.
PHH’s challenge is not narrow. It claims that independent
agencies with a single leader are constitutionally defective
while purporting to spare multi-member ones. But the
constitutional distinction PHH proposes between the CFPB’s
leadership structure and that of multi-member independent
agencies is untenable. That distinction finds no footing in
precedent, historical practice, constitutional principle, or the
logic of presidential removal power. The relevance of “internal
checks” as a substitute for at-will removal by the President is
no part of the removal-power doctrine, which focuses on
10
executive control and accountability to the public, not the
competing virtues of various internal agency design choices.
Congress and the President have historically countenanced
sole-headed financial regulatory bodies. And the Supreme
Court has upheld Congress’s assignment of even unmistakably
executive responsibilities—criminal investigation and
prosecution—to a sole officer protected from removal at the
President’s will. Morrison, 487 U.S. at 686-96.
Wide margins separate the validity of an independent
CFPB from any unconstitutional effort to attenuate presidential
control over core executive functions. The threat PHH’s
challenge poses to the established validity of other independent
agencies, meanwhile, is very real. PHH seeks no mere course
correction; its theory, uncabined by any principled distinction
between this case and Supreme Court precedent sustaining
independent agencies, leads much further afield. Ultimately,
PHH makes no secret of its wholesale attack on independent
agencies—whether collectively or individually led—that, if
accepted, would broadly transform modern government.
Because we see no constitutional defect in Congress’s
choice to bestow on the CFPB Director protection against
removal except for “inefficiency, neglect of duty, or
malfeasance in office,” we sustain it.
Background
The 2008 financial crisis cost millions of Americans their
jobs, savings, and homes. The federal commission that
Congress and the President chartered to investigate the
recession found that, by 2011, “[a]bout four million families
have lost their homes to foreclosure and another four and a half
million have slipped into the foreclosure process or are
seriously behind on their mortgage payments.” Financial
Crisis Inquiry Commission, The Financial Crisis Inquiry
11
Report, at xv (2011). All told, “[n]early $11 trillion in
household wealth has vanished, with retirement accounts and
life savings swept away.” Id. In Congress’s view, the 2008
crash represented a failure of consumer protection. The
housing bubble “was precipitated by the proliferation of poorly
underwritten mortgages with abusive terms,” issued “with little
or no regard for a borrower’s understanding of the terms of, or
their ability to repay, the loans.” S. Rep. No. 111-176, at 11-
12 (2010). Federal bank regulators had given short shrift to
consumer protection as they focused (unsuccessfully) on the
“safety and soundness” of the financial system and, post-crisis,
on the survival of the biggest financial firms. Id. at 10.
Congress concluded that this “failure by the prudential
regulators to give sufficient consideration to consumer
protection . . . helped bring the financial system down.” Id. at
166.
Congress responded to the crisis by including in the Dodd-
Frank Wall Street Reform and Consumer Protection Act, Pub.
L. 111-203, 124 Stat. 1376 (July 21, 2010), a new regulator:
the Consumer Financial Protection Bureau. Congress gave the
new agency a focused mandate to improve transparency and
competitiveness in the market for consumer financial products,
consolidating authorities to protect household finance that had
been previously scattered among separate agencies in order to
end the “fragmentation of the current system” and “thereby
ensur[e] accountability.” S. Rep. No. 111-176, at 11.
The CFPB administers eighteen preexisting, familiar
consumer-protection laws previously overseen by the Federal
Reserve and six other federal agencies, virtually all of which
were also independent. These laws seek to curb fraud and
deceit and to promote transparency and best practices in
consumer loans, home mortgages, personal credit cards, and
retail banking. See 12 U.S.C. § 5481(12). The CFPB is
12
charged “to implement and, where applicable, enforce Federal
consumer financial law consistently for the purpose of ensuring
that all consumers have access to markets for consumer
financial products and services” that “are fair, transparent, and
competitive.” Id. § 5511(a). Additionally, the CFPB has
authority to prohibit any “unfair, deceptive, or abusive act or
practice under Federal law in connection with any transaction
with a consumer for a consumer financial product or service,
or the offering of a consumer financial product or service.” Id.
§ 5531(a).
To lead this new agency, Congress provided for a single
Director to be appointed by the President and confirmed by the
Senate. Id. §§ 5491(b)(1)-(2). Congress designed an agency
with a single Director, rather than a multi-member body, to
imbue the agency with the requisite initiative and decisiveness
to do the job of monitoring and restraining abusive or
excessively risky practices in the fast-changing world of
consumer finance. See, e.g., S. Rep. No. 111-176, at 11. A
single Director would also help the new agency become
operational promptly, as it might have taken many years to
confirm a full quorum of a multi-member body. See 155 Cong.
Rec. 30,826-27 (Dec. 9, 2009) (statement of Rep. Waxman)
(noting that a single director “can take early leadership in
establishing the agency and getting it off the ground”).
The Director serves a five-year term, with the potential of
a holdover period pending confirmation of a successor. 1 12
1
Congressional inaction or delayed confirmation would not
necessarily extend the period of for-cause protection. Oral Arg. Tr.
48-49. Cf. Swan v. Clinton, 100 F.3d 973, 988 (D.C. Cir. 1996)
(“[E]ven if the [National Credit Union Administration] statute were
interpreted to grant removal protection to Board members during
their appointed terms[,] . . . this protection does not extend to
holdover members.”).
13
U.S.C. §§ 5491(c)(1)-(2). The President may remove the
Director “for inefficiency, neglect of duty, or malfeasance in
office,” i.e., for cause. Id. § 5491(c)(3). By providing the
Director with a fixed term and for-cause protection, Congress
sought to promote stability and confidence in the country’s
financial system.
Congress also determined “that the assurance of adequate
funding, independent of the Congressional appropriations
process, is absolutely essential to the independent operations of
any financial regulator.” S. Rep. No. 111-176, at 163.
Congress has provided similar independence to other financial
regulators, like the Federal Reserve, the Federal Deposit
Insurance Corporation, the Office of the Comptroller of the
Currency, the National Credit Union Administration, and the
Federal Housing Finance Agency, which all have complete,
uncapped budgetary autonomy. See infra Part I.C.2. Congress
authorized the CFPB to draw from a statutorily capped pool of
funds in the Federal Reserve System rather than to charge
industry fees or seek annual appropriations from Congress as
do some other regulators. The Federal Reserve is required to
transfer “the amount determined by the Director [of the CFPB]
to be reasonably necessary to carry out the authorities of the
Bureau,” up to twelve percent of the Federal Reserve’s total
operating expenses. 12 U.S.C. §§ 5497(a)(1)-(2). If the
Bureau requires funds beyond that capped allotment, it must
seek them through congressional appropriation. Id. § 5497(e).
The Real Estate Settlement Procedures Act of 1974
(RESPA) is one of the eighteen preexisting statutes the CFPB
now administers. See 12 U.S.C. §§ 2601-2617. RESPA aims
at, among other things, “the elimination of kickbacks or referral
fees that tend to increase unnecessarily the costs of certain [real
estate] settlement services.” Id. § 2601(b)(2). To that end,
RESPA’s Section 8(a) prohibits giving or accepting “any fee,
14
kickback, or thing of value pursuant to any agreement or
understanding” to refer business involving a “real estate
settlement service.” Id. § 2607(a). The term “thing of value”
is “broadly defined” and includes “the opportunity to
participate in a money-making program.” 12 C.F.R.
§ 1024.14(d). Another provision of RESPA, Section 8(c)(2),
states that “[n]othing in this section shall be construed as
prohibiting . . . the payment to any person of a bona fide salary
or compensation or other payment for goods or facilities
actually furnished or for services actually performed.” 12
U.S.C. § 2607(c).
In this case, the CFPB Director interpreted those
provisions of RESPA as applied to PHH’s mortgage insurance
and reinsurance transactions. Mortgage insurance protects
lenders in the event a borrower defaults on a mortgage loan.
Mortgage lenders often require riskier borrowers to purchase
such insurance as a condition of approving a loan. See
Director’s Decision at 3. In turn, insurers may obtain
reinsurance, transferring to the reinsurer some of their risk of
loss in exchange for a portion of the borrower’s monthly
insurance premiums. Borrowers do not ordinarily shop for
mortgage insurance, let alone reinsurance; rather, they are
referred to insurers of the lender’s choosing, to whom they then
pay monthly premiums. See id. During the period at issue, the
only mortgage reinsurers in the market were “captive”—that is,
they existed to reinsure loans originated by the mortgage
lenders that owned them. See id. at 13. In a captive reinsurance
arrangement, a mortgage lender refers borrowers to a mortgage
insurer, which then pays a kickback to the lender by using the
lender’s captive reinsurer.
On January 29, 2014, the CFPB filed a Notice of Charges
against PHH, a large mortgage lender, and its captive reinsurer,
Atrium. The CFPB alleged that “[t]he premiums ceded by
15
[mortgage insurers] to PHH through Atrium: (a) were not for
services actually furnished or performed, or (b) grossly
exceeded the value of any such services,” and that the
premiums were instead “made in consideration of PHH’s
continued referral of mortgage insurance business.” Notice of
Charges at 17-18.
The CFPB borrowed an administrative law judge (ALJ)
from the Securities and Exchange Commission (SEC) to
adjudicate the charges. The ALJ issued a Recommended
Decision concluding that PHH and Atrium violated RESPA
because they had not demonstrated that the reinsurance
premiums Atrium collected from insurers were reasonably
related to the value of its reinsurance services. The ALJ
recommended that the Director order disgorgement of about
$6.4 million. Director’s Decision at 9.
On review of the ALJ’s recommendation, the CFPB
Director read RESPA to support a broader finding of
misconduct and a substantially larger remedy. The Director
held that a payment is “bona fide” and thus permitted under
Section 8(c)(2) only if it is “solely for the service actually being
provided on its own merits,” and not “tied in any way to a
referral of business.” Director’s Decision at 17. Thus, even if
the reinsurance premiums had been reasonably related to the
value of the reinsurance services that Atrium provided, PHH
and Atrium could still be liable under the Director’s reading of
RESPA insofar as their tying arrangement funneled valuable
business to Atrium that it would not have garnered through
open competition. The Director also held that RESPA’s three-
year statute of limitations does not apply to the agency’s
administrative enforcement proceedings (only to “actions” in
court) and that RESPA violations accrue not at the moment a
loan closes with a tying arrangement in place, but each time
monthly premiums are paid out pursuant to such a loan
16
agreement. Id. at 11, 22. Those interpretations raised the
disgorgement amount to more than $109 million.
This court stayed the Director’s order pending review. In
October 2016, a three-judge panel vacated the Director’s
decision and remanded for further proceedings. 839 F.3d 1, 10
(D.C. Cir. 2016). A divided panel’s majority held that
providing for-cause protection to the sole director of an
independent agency violates the Constitution’s separation of
powers. Severing the for-cause provision from the rest of the
Dodd-Frank Act, the majority effectively turned the CFPB into
an instrumentality of the President with a Director removable
at will. See id. at 12-39.
The panel was unanimous, however, in overturning the
Director’s interpretation of RESPA. It held that Section 8
permits captive reinsurance arrangements so long as mortgage
insurers pay no more than reasonable market value for
reinsurance. See 839 F.3d at 41-44. And, even if the Director’s
contrary interpretation (that RESPA prohibits tying
arrangements) were permissible, the panel held, it was an
unlawfully retroactive reversal of the federal government’s
prior position. See id. at 44-49. Finally, according to the panel,
a three-year statute of limitations applies to both administrative
proceedings and civil actions enforcing RESPA. See id. at 50-
55.
Judge Henderson joined the panel’s opinion on the
statutory questions but dissented from its constitutional holding
on the ground that it was unnecessary in her view, and so
inappropriate under the doctrine of avoidance, to reach the
constitutional removal-power question. Id. at 56-60.
The en banc court vacated the panel decision in its entirety.
Following oral argument, the full court, including Judge
Henderson, unanimously concluded that we cannot avoid the
17
constitutional question. That is because the disposition of
PHH’s claims, reinstating the panel’s statutory holding, results
in a remand to the CFPB. Further action by the CFPB
necessitates a decision on the constitutionality of the Director’s
for-cause removal protection. We accordingly decide only that
constitutional question. The panel opinion, insofar as it related
to the interpretation of RESPA and its application to PHH and
Atrium in this case, is accordingly reinstated as the decision of
the three-judge panel on those questions.
We also decline to reach the separate question whether the
ALJ who initially considered this case was appointed
consistently with the Appointments Clause. Our order granting
review invited the parties to address the Appointments Clause
implications for this case only “[i]f the en banc court” in Lucia
v. SEC, 832 F.3d 277 (D.C. Cir. 2016), concluded that an SEC
ALJ is an inferior officer rather than an employee. We did not
so conclude. Instead, after argument in that case, the en banc
court denied the petition for review. Lucia v. SEC, 868 F.3d
1021 (D.C. Cir. 2017), cert. granted, __ S. Ct. __, 2018 WL
386565 (Jan. 12, 2018).
Today, we hold that federal law providing the Director of
the CFPB with a five-year term in office, subject to removal by
the President only for “inefficiency, neglect of duty, or
malfeasance in office,” is consistent with the President’s
constitutional authority.
Analysis
PHH challenges the removal protection of the Consumer
Financial Protection Bureau’s Director, arguing that it
unconstitutionally upsets the separation of powers. But the
CFPB’s structure respects the powers and limits of each branch
of government. Congress’s decision to establish an agency led
by a Director removable only for cause is a valid exercise of its
18
Article I legislative power. The for-cause removal restriction
fully comports with the President’s Article II executive
authority and duty to take care that the consumer financial
protection laws within the CFPB’s purview be faithfully
executed. The panel’s grant of PHH’s due process claim
illustrates how the exercise of legislative and executive powers
to establish and empower the CFPB are backstopped by the
Article III courts’ obligation to protect individual liberty when
government overreaches.
Our analysis focuses on whether Congress’s choice to
include a for-cause removal provision impedes the President’s
ability to fulfill his constitutional role. Two principal
considerations inform our conclusion that it does not. First, the
familiar for-cause protection at issue broadly allows the
President to remove the Director for “inefficiency, neglect of
duty, or malfeasance in office,” leaving the President ample
tools to ensure the faithful execution of the laws. Second, the
functions of the CFPB and its Director are not core executive
functions, such as those entrusted to a Secretary of State or
other Cabinet officer who we assume must directly answer to
the President’s will. Rather, the CFPB is one of a number of
federal financial regulators—including the Federal Trade
Commission, the Federal Reserve, the Federal Deposit
Insurance Corporation, and others—that have long been
permissibly afforded a degree of independence. The CFPB
matches what the Supreme Court’s removal-power cases have
consistently approved. Accepting PHH’s claim to the contrary
would put the historically established independence of
financial regulators and numerous other independent agencies
at risk.
None of the theories advanced by PHH supports its claim
that the CFPB is different in kind from the other independent
agencies and, in particular, traditional independent financial
19
regulators. The CFPB’s authority is not of such character that
removal protection of its Director necessarily interferes with
the President’s Article II duty or prerogative. The CFPB is
neither distinctive nor novel in any respect that calls its
constitutionality into question. Because none of PHH’s
challenges is grounded in constitutional precedent or principle,
we uphold the agency’s structure.
I. Precedent and History Establish the
Constitutionality of the CFPB
The Constitution makes no explicit provision for
presidential removal of duly appointed officers, but the
Supreme Court has long recognized that “the executive power
include[s] a power to oversee executive officers through
removal.” Free Enterprise Fund, 561 U.S. at 492. The Court
has found the removal power implied in aid of the executive
power, which the Constitution vests “in a President of the
United States of America” charged to “take Care that the Laws
be faithfully executed.” U.S. Const. art. II, § 1, cl. 1; id. § 3.
The Court’s decisions, from Myers to Free Enterprise Fund,
also acknowledge the legitimacy, in appropriate circumstances,
of an agency’s independence from the President’s removal of
its leadership without cause. And history teaches that financial
regulators are exemplars of appropriate and necessary
independence. Congress’s decision to afford removal
protection to the CFPB Director puts the agency squarely
within the bounds of that precedent and history, fully consonant
with the Constitution.
A. Precedent
The Court has consistently upheld ordinary for-cause
removal restrictions like the one at issue here, while
invalidating only provisions that either give Congress some
20
role in the removal decision or otherwise make it abnormally
difficult for the President to oversee an executive officer.
In the first modern removal-power decision, Myers v.
United States, the Court held that Congress could not condition
presidential removal of certain postmasters on the Senate’s
advice and consent, explaining that the President has “the
exclusive power of removing executive officers of the United
States whom he has appointed by and with the advice and
consent of the Senate.” 272 U.S. at 106. Without interpreting
the Take Care Clause as such, see Jack Goldsmith & John F.
Manning, The Protean Take Care Clause, 164 U. Penn. L. Rev.
1835, 1840-41 (2016), the Court in Myers appeared to assume
the Clause dictated illimitable removal power in the President.
PHH deploys that conception of illimitable removal power
against the CFPB.
But the Supreme Court since Myers has cabined that
decision’s apparent reach, recognizing the constitutionality of
some measure of independence for agencies with certain kinds
of functions. The Court in Morrison, Wiener, and Humphrey’s
Executor explicitly and repeatedly upheld for-cause removal
restrictions in a range of contexts where the Constitution
tolerates a degree of independence from presidential control.
The Court’s latest removal-power decision, Free Enterprise
Fund, applied the same analysis developed in those cases to
strike an especially onerous set of removal restraints. The
Court held that those double-layered restrictions, taken
together, interfered with the President’s oversight of faithful
execution of the securities laws, but it left in place the SEC
Commissioners’ ordinary for-cause protection—the same
protection at issue here.
The Court’s removal-power doctrine supports Congress’s
application of a modest removal restriction to the CFPB, a
21
financial regulator akin to the independent FTC in Humphrey’s
Executor and the independent SEC in Free Enterprise Fund,
with a sole head like the office of independent counsel in
Morrison.
It was only nine years after Myers, in Humphrey’s
Executor, that the Court unanimously upheld a provision of the
Federal Trade Commission Act protecting FTC
Commissioners from removal except for “inefficiency, neglect
of duty, or malfeasance in office.” 295 U.S. at 619, 632.
Humphrey’s Executor explained that Myers was limited; it
required only that the President be able to remove purely
executive officers without congressional involvement. Id. at
628. By contrast, where administrators of “quasi legislative or
quasi judicial agencies” are concerned, the Constitution does
not require that the President have “illimitable power” of
removal. Id. at 629. The Humphrey’s Executor Court drew
guidance from the founding era, when James Madison
(otherwise a strong proponent of the removal power) argued
that an official who “partakes strongly of the judicial character
. . . should not hold . . . office at the pleasure of the Executive
branch of the Government.” 5 The Writings of James Madison
413 (Hunt ed., 1904); see Humphrey’s Executor, 295 U.S. at
631. Because Congress may require quasi-legislative and
quasi-judicial administrators “to act in discharge of their duties
independently of executive control,” it may “forbid their
removal except for cause” during a fixed term in office. Id. at
629.
A generation later, an again-unanimous Court in Wiener v.
United States, 357 U.S. at 352-55, per Justice Frankfurter,
explicitly reaffirmed Humphrey’s Executor and held that
neither the rationale supporting the President’s removal power
nor the history of that power dating back to the First Congress
required that the President always enjoy unconstrained
22
authority to remove leadership of every kind of agency at his
will. Wiener concerned the War Claims Commission, which
had been set up to compensate certain personal injuries and
property losses at the hands of the enemy in World War II.
Both President Eisenhower (in Wiener) and President
Roosevelt (in Humphrey’s Executor) wanted the leaders of the
respective agencies “to be their men,” removable at will, but in
each case Congress had opted for and the Court sustained a
modicum of independence. Id. at 354.
In Wiener, Justice Frankfurter expressly took into account
the “thick chapter” of “political and judicial history” of
controversy over the President’s removal power that the Court
had canvassed at length in Myers. 357 U.S. at 351. The Wiener
Court rejected President Eisenhower’s broad, categorical
understanding of Myers as largely drawn from its dictum and—
in light of Humphrey’s Executor—appropriately “short-lived.”
Id. at 352. Commenting that “the versatility of circumstances
often mocks a natural desire for definitiveness,” id., Wiener
squarely denied that the President had a power of removal that
Congress could not limit under any circumstance, “no matter
the relation of the executive to the discharge of [the official’s]
duties and no matter what restrictions Congress may have
imposed regarding the nature of their tenure.” Id. Rather, with
attention to the sort of agency involved, Humphrey’s Executor
had “narrowly confined the scope of the Myers decision” to
purely executive officers, not members of quasi-judicial
bodies. Id.The Wiener Court identified “the most reliable factor” in
deciding whether a removal restriction comported with the
President’s constitutional authority to be “the nature of the
function that Congress vested” in the agency. Id. at 353; see
Humphrey’s Executor, 295 U.S. at 631 (“Whether the power of
the President to remove an officer shall prevail[,] . . . precluding
23
a removal except for cause will depend upon the character of
the office . . . .”). The Court distinguished core executive
agents who must be fully responsive to the President’s
preferences from those whose tasks call for a degree of
independence “from Executive interference.” Wiener, 357
U.S. at 353. What mattered in Wiener was the “intrinsic
judicial character of the task with which the [War Crimes]
Commission was charged”: Congress had directed the
Commission to “‘adjudicate according to law’ the classes of
claims defined in the statute” entirely on their merits, free of
personal or partisan pressures. Id. at 355. That directive
prevented the President from interfering at will with the
leadership of the Commission. The legislation establishing the
Commission made plain, even in the absence of an express for-
cause removal provision, that “Congress did not wish to have
hang over the Commission the Damocles’ sword of removal by
the President for no reason other than that he preferred to have
on that Commission men of his own choosing.” Id. at 356.
Though the Court in Humphrey’s Executor and Wiener
thus emphasized the “quasi-legislative” and “quasi-judicial”
character of the relevant offices, more recently the Court in
Morrison v. Olson downplayed those particular
characterizations of independent agencies while continuing to
narrowly read Myers as disapproving “an attempt by Congress
itself to gain a role in the removal of executive officials other
than its established powers of impeachment and conviction.”
487 U.S. at 686. Morrison posed more directly the question
whether a removal restriction “interfere[d] with the President’s
exercise of the ‘executive power’ and his constitutionally
appointed duty to ‘take care that the laws be faithfully
executed’ under Article II.” Id. at 690. According to Morrison,
the references in the earlier removal-power cases to the
“character” of the relevant offices could best be understood as
describing “the circumstances in which Congress might be
24
more inclined to find that a degree of independence from the
Executive, such as that afforded by a ‘good cause’ removal
standard, is necessary to the proper functioning of the agency
or official” in fulfilling its duties. Id. at 691 n.30. The Court
explained that its decision in Humphrey’s Executor to sustain
the independence that Congress thought appropriate for the
FTC, with its “‘quasi-legislative’ or ‘quasi-judicial’” character,
reflected the Court’s “judgment that it was not essential to the
President’s proper execution of his Article II powers that [the
FTC] be headed up by individuals who were removable at
will.” Morrison, 487 U.S. at 690-91.
Morrison viewed as constitutionally relevant Congress’s
determination that the role and character of a special
independent prosecutor called for some autonomy from the
President. Echoing Wiener, the Court in Morrison again
rejected as “dicta” the “implication” drawn from Myers that the
President’s removal power should in every circumstance be
understood as “all-inclusive.” Id. at 687. Instead, Morrison
read Humphrey’s Executor and its progeny to allow Congress
to provide limited removal protection for some administrative
bodies, whose leadership Congress “intended to perform their
duties ‘without executive leave and . . . free from executive
control.’” Id. n.25 (alteration in original) (quoting Humphrey’s
Executor, 295 U.S. at 628). The Morrison Court evaluated the
independent counsel’s for-cause protection accordingly.
The independent counsel concededly performed functions
that were traditionally “executive,” but Morrison pinpointed
“the real question” as “whether the removal restrictions are of
such a nature that they impede the President’s ability to
perform his constitutional duty.” Id. at 691. Analyzing “the
functions of the officials in question . . . in that light,” id., the
Court found the removal protection to be constitutional,
recognizing it as “essential, in the view of Congress, to
25
establish the necessary independence of the office.” Id. at 693.
To be sure, the office of independent counsel was potent: It
was empowered to prosecute high-ranking federal officials for
violations of federal criminal law. Nevertheless, its removal
protection did not unconstitutionally impinge on executive
power. The Court “simply [did] not see how the President’s
need to control the exercise of [the independent counsel’s]
discretion is so central to the functioning of the Executive
Branch as to require as a matter of constitutional law that the
counsel be terminable at will by the President.” Id. at 691-92.
The Court noted that the President retained “ample authority”
to review the independent counsel’s performance and that,
because the independent counsel was removable by the
Attorney General for good cause, the President’s removal
power had not been “completely stripped.” Id. at 692.
The Supreme Court has thus recognized that Congress
may value and deploy a degree of independence on the part of
certain executive officials. At least so long as Congress does
not disturb the constitutional balance by arrogating to itself a
role in removing the relevant executive officials, see Bowsher,
478 U.S. at 726; Myers, 272 U.S. at 161, the Constitution
admits of modest removal constraints where “the character of
the office” supports making it somewhat “free of executive or
political control,” Morrison, 487 U.S. at 687, 691 n.30. The
Court has sustained Congress’s determinations that removal
restrictions were appropriate to protect the independence of
heads of agencies devoted specifically to special prosecution in
Morrison, claims adjudication in Wiener, and market
competition and consumer protection in Humphrey’s Executor.
Without questioning that there are certain agencies that
Congress cannot make even modestly independent of the
President, the Court accepted the removal restriction in each of
those three cases as appropriate protection against the
“‘coercive influence’ of the [at-will] removal power” that
26
otherwise “would ‘threaten the independence of the [agency].’”
Morrison, 487 U.S. at 690, 688; see Wiener, 357 U.S. at 356;
Humphrey’s Executor, 295 U.S. at 629-30.
Invalidating a provision shifting removal power over the
Comptroller General from the President to Congress, the
Supreme Court in Bowsher v. Synar again insisted on a narrow
reading of Myers—at odds with the reading PHH advances
here. The Supreme Court treated Myers as holding only “that
congressional participation in the removal of executive officers
is unconstitutional.” 478 U.S. at 725. To have an executive
officer “answerable only to Congress would, in practical terms,
reserve in Congress control over the execution of the laws” in
violation of the constitutional separation of powers. Id. at 726.
Setting aside the removal scheme before it, the Court in
Bowsher made clear that Humphrey’s Executor and its progeny
“involved an issue not presented either in the Myers case or in
this case”—i.e., the constitutional validity of a statute leaving
the removal power under the President’s control, but
authorizing its exercise “only ‘for inefficiency, neglect of duty,
or malfeasance in office.’” Id. at 724-25 (quoting Humphrey’s
Executor, 295 U.S. at 628-29). Bowsher thus acknowledged
the constitutionality of for-cause limitation on the removal
power when the President retains the power to find cause. The
culprit violating the separation of powers in Bowsher was
Congress’s aggrandizement of its own control over executive
officers.
The Supreme Court’s most recent removal-power
decision, Free Enterprise Fund, invalidated a “highly unusual”
removal restriction because it interfered with the President’s
ability to “remove an officer . . . even if the President
determines that the officer is neglecting his duties or
discharging them improperly.” 561 U.S. at 484, 505. The
problem was not congressional encroachment, but damage to
27
the President’s ability to supervise executive officers: “‘Even
when a branch does not arrogate power to itself,’ . . . it must
not ‘impair another in the performance of its constitutional
duties.’” Id. at 500 (quoting Loving v. United States, 517 U.S.
748, 757 (1996)). “The President cannot ‘take Care that the
Laws be faithfully executed’ if he cannot oversee the
faithfulness of the officers who execute them.” 561 U.S. at
484. Free Enterprise Fund distinguishes ordinary for-cause
requirements from abnormally constraining restrictions that
impair the President’s constitutional oversight prerogative.
At issue in Free Enterprise Fund was an extreme variation
on the traditional good-cause removal standard: a provision of
the Sarbanes-Oxley Act that afforded members of the Public
Company Accounting Oversight Board, an agency within the
Securities and Exchange Commission, unusually strong
protection from removal. See 561 U.S. at 486. As in Morrison,
the Court focused its inquiry on whether the President retains
“power to oversee executive officers through removal.” Id. at
492. The challenged provisions shielded the PCAOB with
“two layers of for-cause [protection from] removal—including
at one level a sharply circumscribed definition of what
constitutes ‘good cause,’ and rigorous procedures that must be
followed prior to removal.” Id. at 505. It provided that
PCAOB members could be removed only by a formal order of
the SEC, and only “for good cause shown.” Id. at 486-87, 505.
But this was no garden-variety cause standard: It required a
pre-removal finding, “on the record” and “after notice and
opportunity for a hearing,” of a Board member’s willful
violation of the Sarbanes-Oxley Act itself, the PCAOB’s own
rules, or the securities laws, or willful abuse of Board member
authority, or a lack of “reasonable justification or excuse” for
failure to enforce compliance. Id. at 486; 15 U.S.C.
§ 7217(d)(3). On top of that, the SEC’s Commissioners—
tasked with removing such delinquent Board members—were
28
themselves protected from presidential removal except for
inefficiency, neglect of duty, or malfeasance in office. Free
Enterprise Fund, 561 U.S. at 487.
The scheme challenged in Free Enterprise Fund was
defective because the Court found that it “withdraws from the
President any decision on whether good cause exists” and thus
“impair[s]” the President’s “ability to execute the laws—by
holding his subordinates accountable for their conduct.” Id. at
495-96. The Court distinguished Humphrey’s Executor and
Morrison as involving “only one level of protected tenure
separat[ing] the President from an officer exercising executive
power.” Id. at 495. When Congress provides agency heads
with for-cause protection against removal by the President, the
Court held, it must define “cause” in such a way as to leave the
President leeway to sufficiently “oversee” these heads to
prevent misconduct. Id. at 492-93. The problem with the
PCAOB’s protection, then, was that the President did not retain
that oversight. Specifically, “multilevel” for-cause protection
rendered the President unable to “remove an officer . . . even if
the President determines that the officer is neglecting his duties
or discharging them improperly.” Id. at 484. The Court’s
solution to that problem was to retain one level of for-cause
protection and remove the other. Id. at 514. Thus, the Board
members who serve under the SEC Commissioners may be
removed by the Commissioners without cause, but the SEC
Commissioners’ for-cause protection remains in place.
The traditional for-cause protection enjoyed by the SEC
Commissioners—and the officials in Morrison, Wiener, and
Humphrey’s Executor—remains untouched by and
constitutionally valid under Free Enterprise Fund. When an
official is so protected, the President may not remove her or
him for personal or partisan reasons, or for no reason at all.
But, because such a cause requirement does not prevent
29
removal by reason of incompetence, neglect of duty, or
malfeasance, it may apply without impairing the President’s
ability to assure the faithful execution of the law. See
Morrison, 487 U.S. at 691-92; Free Enterprise Fund, 561 U.S.
at 495-96.
Free Enterprise Fund did not, contrary to PHH’s
suggestion, narrow Humphrey’s Executor or give Myers newly
expansive force. See Pet’rs’ Br. 21-22 & n.4. The Court’s
“modest” point was “not to take issue with for-cause
limitations in general,” but rather that the unprecedented
restriction on the President’s ability to remove a member of the
PCAOB hobbled his power to oversee executive officers. 561
U.S. at 501. As the Supreme Court had already made clear,
“the only issue actually decided in Myers was that ‘the
President had power to remove a postmaster of the first class,
without the advice and consent of the Senate as required by act
of Congress.’” Morrison, 487 U.S. at 687 n.24 (quoting
Humphrey’s Executor, 295 U.S. at 626); see Wiener, 357 U.S.
at 351-52. Free Enterprise Fund, for its part, cites Myers only
for general restatements of law, all of which are consistent with
Morrison, Wiener, and Humphrey’s Executor. The opinion
emphasizes, for example, that “[s]ince 1789, the Constitution
has been understood to empower the President to keep
[executive] officers accountable—by removing them from
office, if necessary,” and quotes Myers for the accepted
principle that “the President . . . must have some ‘power of
removing those for whom he can not continue to be
responsible.’” Free Enterprise Fund, 561 U.S. at 483, 493(quoting Myers, 272 U.S. at 117). At the same time, Free
Enterprise Fund recognizes the functional values of those for-
cause protections the Court has sustained as consistent with the
President’s Take Care duty: An FTC “‘independent in
character,’ [and] ‘free from political domination or control,’”
in Humphrey’s Executor; “the necessary independence of the
30
office” of the independent counsel in Morrison; and “the
rectitude” of officers administering a fund to compensate for
war losses in Wiener. Free Enterprise Fund, 561 U.S. at 502(quoting Humphrey’s Executor, 295 U.S. at 619; Morrison, 487
U.S. at 693; Wiener, 357 U.S. at 356).
Thus, the Court has upheld statutes that, like the
challenged provision of the Dodd-Frank Act, “confer[] good-
cause tenure on the principal officers of certain independent
agencies.” Free Enterprise Fund, 561 U.S. at 493. Decisions
from Humphrey’s Executor to Free Enterprise Fund have
approved standard for-cause removal restrictions where
Congress deems them necessary for the effectiveness of certain
types of agencies, provided that the President remains able to
remove the agency heads for acting inefficiently, without good
faith, or for neglecting their duties. The “real question” to ask,
in considering such a statute, “is whether the removal
restrictions are of such a nature that they impede the President’s
ability to perform his constitutional duty,” taking account of
the “functions of the officials in question.” Morrison, 487 U.S.
at 691. The question for us, then, is whether the requirement
that the President have cause before removing a Director of the
CFPB unconstitutionally interferes with the President’s Article
II powers.
B. History
“The subject [of the President’s removal authority] was
not discussed in the Constitutional Convention.” Myers, 272
U.S. at 109-10 (1926). But there was a diversity of opinion on
the subject at the founding, and early examples of
heterogeneity in agency design bear that out. Financial
regulation, in particular, has long been thought to be well
served by a degree of independence.
31
Congressional alertness to the distinctive danger of
political interference with financial affairs, dating to the
founding era, began the longstanding tradition of affording
some independence to the government’s financial functions.
See Amicus Br. of Separation of Powers Scholars 4-10.
Whereas the secretaries of the two other original departments
(War and Foreign Affairs) were broadly chartered to “perform
and execute such duties as shall from time to time be enjoined
on or intrusted to [them] by the President of the United States,”
Act of July 27, 1789, ch. 4, § 1, 1 Stat. 28, 29; Act of Aug. 7,
1789, ch. 7, § 1, 1 Stat. 49, 50, Congress specified the
responsibilities of the Treasury Secretary and other officers in
the Treasury Department in some detail, see Act of Sept. 2,
1789, ch. 12, §§ 2-6, 1 Stat. 65, 65-67. See Gerhard Casper, An
Essay in Separation of Powers: Some Early Versions and
Practices, 30 Wm. & Mary L. Rev. 211, 241 (1989) (noting
that, under the statutes of 1789 establishing the three “great
departments” of government, “[o]nly the departments of State
and War were completely ‘executive’ in nature”).
The Comptroller of the Treasury, notably, was charged
with “direct[ing] prosecutions for all delinquencies of officers
of the revenue; and for debts that are, or shall be due to the
United States,” id. at § 3, 1 Stat. at 66, and his decisions were
deemed “final and conclusive,” Act of Mar. 3, 1795, § 4, 1 Stat.
443, 443. He could be removed if found to “offend against any
of the prohibitions of this act.” 1 Stat. at 67. It is unclear
whether the Comptroller was also thought to be removable by
the President for other reasons, but James Madison, who was
generally opposed to removal protections, said he believed
“there may be strong reasons why an officer of this kind should
not hold his office at the pleasure of the Executive branch of
the Government.” 1 Annals of Cong. 612 (1789). The nature
of the Comptroller’s office and independence eventually
changed, but it is evident that the Comptroller was, from
32
inception, meant to exercise an unusual degree of independent
judgment. See Lawrence Lessig, Readings by Our Unitary
Executive, 15 Cardozo L. Rev. 175, 184 (1993) (explaining that
the President had “no directory control over the Comptroller
General” and that “the Framers and the early congresses treated
this independence as flowing from the nature of the
Comptroller’s duties”); Charles Tiefer, The Constitutionality of
Independent Officers as Checks on Abuses of Executive Power,
63 B.U. L. Rev. 59, 73-75 (1983) (explaining that the
Comptroller was “clearly . . . expected to exercise independent
judgment”).
At the dawn of the modern-day federal banking system,
Congress continued to afford some independence to financial
regulators as it set up the Office of the Comptroller of the
Currency. See Nat’l Bank Act of 1863, 12 Stat. 665, 665-66
(1863); Nat’l Bank Act of 1864, 13 Stat. 99 (1864). Since the
office’s inception, the Comptroller of the Currency has been
removable only if the President sends the Senate “reasons” for
removing him. 12 U.S.C. § 2. Whatever the type of reason it
requires, the statute without question constrains the
presidential removal power. The U.S. Code accordingly
classifies the Comptroller of the Currency as an “independent
regulatory agency” along with all the other removal-
constrained independent agencies. 44 U.S.C. § 3502(5); see
also 12 U.S.C. § 1(b)(1) (prohibiting the Treasury Secretary
from interfering with the Comptroller); 2 Op. O.L.C. 129(1978) (concluding that the Comptroller has independent
litigation authority).
The independence of financial regulators remains a
prominent pattern today. The Federal Reserve Board is led by
governors who can be removed only for cause during their
fourteen-year terms. 12 U.S.C. § 242. The reason is simple:
The Federal Reserve must “provide for the sound, effective,
33
and uninterrupted operation of the banking system,” and
Congress found that a degree of independence was needed to
“increase the ability of the banking system to promote
stability.” H.R. Rep. No. 74-742, at 1 (1935). By insulating
the Board from presidential control and political pressures,
Congress sought to ensure that the Federal Reserve would
“reflect, not the opinion of a majority of special interests, but
rather the well considered judgment of a body that takes into
consideration all phases of national economic life.” Id. at 6.
The Federal Trade Commission stands as another example
of an independent financial regulator in the modern era—one
expressly approved by the Supreme Court. When the FTC was
created, the Senate Committee Report described the need for
independence as ensuring “a continuous policy . . . free from
the effect of . . . changing incumbency” in the White House.
51 Cong. Rec. 10,376 (1914). Congress reasoned that, as the
country passed “through a depression,” a new consumer
protection agency with a degree of independence would “give
reassurance rather than create doubt.” Id.; see also id. (“The
powers [of the FTC] must be large, but the exercise of the
powers will not be against honest business, but will be
persuasive and correctional . . . .”). In Humphrey’s Executor,
the Supreme Court expressly approved of Congress’s choice to
insulate this new consumer protection agency via a for-cause
removal provision. 295 U.S. at 619, 632.
These examples typify other federal financial regulators,
such as the Commodity Futures Trading Commission, the
Federal Deposit Insurance Corporation, the Federal Housing
Finance Authority, the National Credit Union Administration,
and the Securities and Exchange Commission, which are
considered independent whether or not for-cause removal
protection is specified by statute. See Henry B. Hogue et al.,
Cong. Research Serv., R43391, Independence of Federal
34
Financial Regulators: Structure, Funding, and Other Issues 1,
15 (2017). This makes sense because Congress has
consistently deemed “[i]nsulation from political concerns” to
be “advantageous in cases where it is desirable for agencies to
make decisions that are unpopular in the short run but
beneficial in the long run,” such as, for example, “the Fed’s
monetary policy decisions.” Id. at 5 n.16. History and
tradition, as well as precedent, show that Congress may
appropriately give some limited independence to certain
financial regulators.
C. Application to the CFPB
The for-cause protection shielding the CFPB’s sole
Director is fully compatible with the President’s constitutional
authority.
Congress validly decided that the CFPB needed a measure
of independence and chose a constitutionally acceptable means
to protect it. First, the removal restriction here is wholly
ordinary—the verbatim protection approved by the Supreme
Court back in 1935 in Humphrey’s Executor and reaffirmed
ever since. The provision here neither adds layers of protection
nor arrogates to Congress any role in removing an errant
official. Second, the CFPB Director’s autonomy is consistent
with a longstanding tradition of independence for financial
regulators, and squarely supported by established precedent.
The CFPB’s budgetary independence, too, is traditional among
financial regulators, including in combination with typical
removal constraints. PHH’s constitutional challenge flies in
the face of the Supreme Court’s removal-power cases, and calls
into question the structure of a host of independent agencies
that make up the fabric of the administrative state.
35
There is nothing constitutionally suspect about the CFPB’s
leadership structure. Morrison and Humphrey’s Executor
stand in the way of any holding to the contrary. And there is
no reason to assume an agency headed by an individual will be
less responsive to presidential supervision than one headed by
a group. It is surely more difficult to fire and replace several
people than one. And, if anything, the Bureau’s consolidation
of regulatory authority that had been shared among many
separate independent agencies allows the President more
efficiently to oversee the faithful execution of consumer
protection laws. Decisional responsibility is clear now that
there is one, publicly identifiable face of the CFPB who stands
to account—to the President, the Congress, and the people—
for all its consumer protection actions. The fact that the
Director stands alone atop the agency means he cannot avoid
scrutiny through finger-pointing, buck-passing, or sheer
anonymity. What is more, in choosing a replacement, the
President is unhampered by partisan balance or ex-officio
requirements; the successor replaces the agency’s leadership
wholesale. Nothing about the CFPB stands out to give us pause
that it—distinct from other financial regulators or independent
agencies more generally—is constitutionally defective.
1. For-Cause Removal
Applying the Court’s precedents to this case, we begin by
observing that the CFPB Director is protected by the very same
standard, in the very same words—“inefficiency, neglect of
duty, or malfeasance in office”—as the Supreme Court
sustained in Humphrey’s Executor. Compare 15 U.S.C. § 41,
with 12 U.S.C. § 5491(c)(3). Again, the challenged statute
imposes no additional layer of particularly onerous protection,
per Free Enterprise Fund, nor indeed any other restriction on
removal. And Congress has not given itself authority to
participate in the President’s removal decision, which was fatal
36
to the removal mechanisms in Myers and Bowsher. The
CFPB’s for-cause protection is therefore unlike any removal
restriction that the Court has ever invalidated as impermissibly
restricting executive authority. In every case reviewing a
congressional decision to afford an agency ordinary for-cause
protection, the Court has sustained Congress’s decision,
reflecting the settled role that independent agencies have
historically played in our government’s structure. See
Morrison, 487 U.S. at 688; Wiener, 357 U.S. at 356;
Humphrey’s Executor, 295 U.S. at 629-30; see also Free
Enterprise Fund, 561 U.S. at 509 (leaving in place “a single
level of good-cause tenure” for SEC Commissioners); id. at
510 (suggesting that Congress might choose to make PCAOB
members removable directly by the President “for good
cause”).
In analyzing where Congress may deploy such for-cause
protection, the Supreme Court looks to “the character of the
office” and the “proper functioning of the agency or official.”
Morrison, 487 U.S. at 687, 691 n.30; see Wiener, 357 U.S. at
353 (emphasizing the “nature of the function” of the agency);
Humphrey’s Executor, 295 U.S. at 631 (pointing to the
“character of the office”). As seen through that lens, the
CFPB’s function is remarkably similar to that of the FTC, a
consumer protection agency that has operated for more than a
century with the identical for-cause protection, approved by a
unanimous Supreme Court. Compare 12 U.S.C. §§ 5511-12,
5532, 5534, 5562-64, with Federal Trade Commission Act of
1914, 15 U.S.C. §§ 45-46; see Free Enterprise Fund, 561 U.S.
477; Humphrey’s Executor, 295 U.S. 602.
Indeed, the independence of financial regulators—
chronicled above, see supra Part I.B—is so well established by
tradition and precedent that courts have assumed these
agencies’ heads have removal protection even in the absence
37
of clear statutory text so directing. See Free Enterprise Fund,
561 U.S. at 487 (treating SEC Commissioners as removable
only for cause). It has long been “generally accepted that the
President may remove a[n SEC] commissioner [only] for
inefficiency, neglect of duty, or malfeasance in office.” SEC v.
Bilzerian, 750 F. Supp. 14, 16 (D.D.C. 1990) (citing SEC v.
Blinder, Robinson & Co., Inc., 855 F.2d 677, 681 (10th Cir.
1988), and H. Rep. No. 2070, 86th Cong., 2d Sess. 14 (1960)).
And in Swan v. Clinton, for example, this court assumed that
board members of the National Credit Union Association have
removal protection because “people will likely have greater
confidence in financial institutions if they believe that the
regulation of these institutions is immune from political
influence.” 100 F.3d 973, 983 (D.C. Cir. 1996).
PHH’s attempt to single out the CFPB from other financial
regulators, including the FTC, is unpersuasive. PHH asserts
that, when the Court decided Humphrey’s Executor, the FTC
“had no substantive rulemaking powers” and “could not order
‘retrospective’ remedies.” Pet’rs’ Reply Br. 6. But the FTC at
that time did have broad powers to interpret and enforce the
law. See generally, e.g., Federal Trade Comm’n v. Western
Meat Co., 272 U.S. 554 (1926). Moreover, many independent
agencies (including the FTC) now exercise rulemaking and
remedial powers like those of the CFPB. See Nat’l Petroleum
Refiners Ass’n v. FTC, 482 F.2d 672, 698 (D.C. Cir. 1973)
(holding that the Federal Trade Commission Act conferred
substantive rulemaking powers); Magnuson-Moss Warranty-
Federal Trade Commission Improvement Act, Pub. L. No. 93-
637, § 205(a), 88 Stat. 2183, 2200-01 (1975) (codified as
amended at 15 U.S.C. § 45(m)(1)(A)) (authorizing FTC to
“commence a civil action to recover a civil penalty in a district
court of the United States”).
38
Apart from the panel of this court whose decision we
vacated, courts have uniformly understood Humphrey’s
Executor to support the constitutionality of for-cause removal
protection for the current FTC and certain other agencies with
rulemaking and enforcement powers. See Morrison, 487 U.S.
at 692 & n.31 (noting that the FTC and other independent
agencies “exercise civil enforcement powers”). Well before
the Supreme Court in Free Enterprise Fund assumed the
unchallenged constitutionality of SEC Commissioners’ for-
cause protection, for instance, the Tenth Circuit sustained it,
observing that Humphrey’s Executor “stands generally for the
proposition that Congress may, without violating Article II,
authorize an independent agency to bring civil law enforcement
actions where the President’s removal power was restricted.”
Blinder, Robinson, & Co., 855 F.2d at 682. And, in FEC v.
NRA Political Victory Fund, this court noted that Humphrey’s
Executor and Morrison confirmed the constitutionality of the
Federal Election Commission, which is “patterned on the
classic independent regulatory agency” and can both make
rules and order retrospective remedies. 6 F.3d 821, 826 (D.C.
Cir. 1993); see also 52 U.S.C. §§ 30107(a)(8), 30109 (setting
out the FEC’s enforcement power).
PHH asks us to cast aside the CFPB’s pedigree in Supreme
Court precedent upholding this very type of independence and
its lineage in historical practice regarding financial regulators.
PHH focuses instead on dicta in Myers that speak of executive
removal power as seemingly “illimitable.” Humphrey’s
Executor, 295 U.S. at 627-28. Within less than a decade,
however, the Supreme Court unanimously rejected that dicta in
Humphrey’s Executor, 295 U.S. at 628-29, and unanimously
did so again in Wiener, 357 U.S. at 351-52. In the ensuing
decades, while it has cited Myers’s unexceptional holding
prohibiting congressional involvement in removal of executive
officials, the Court has continued to disavow the broad dicta on
39
which PHH principally relies. See, e.g, Morrison, 487 U.S. at
686-87; see also Bowsher, 478 U.S. at 724-25; Free Enterprise
Fund, 561 U.S. at 483, 493, 502. Law and history put the
CFPB, led by a Director shielded from removal without cause,
on safe ground.
2. Budgetary Independence
Congress’s commitment to independence for financial
regulators is also reflected in the CFPB’s budgetary set-up.
PHH and some of its amici protest Congress’s choice to allow
the CFPB to claim funds from the Federal Reserve rather than
through the congressional appropriations process. See Pet’rs’
Br. 26-28; Amicus Br. of Chamber of Commerce 8-9. But
Congress can, consistent with the Appropriations Clause,
create governmental institutions reliant on fees, assessments,
or investments rather than the ordinary appropriations process.
See Am. Fed’n of Gov’t Emps., AFL-CIO, Local 1647 v. Fed.
Labor Relations Auth., 388 F.3d 405, 409 (3d Cir. 2004).
Using that authority, Congress has consistently exempted
financial regulators from appropriations: The Federal Reserve,
the Federal Deposit Insurance Corporation, the Office of the
Comptroller of the Currency, the National Credit Union
Administration, and the Federal Housing Finance Agency all
have complete, uncapped budgetary autonomy. See, e.g., 12
U.S.C. § 243 (Federal Reserve); see also Hogue, Independence
of Federal Financial Regulators, at 26-27.
The way the CFPB is funded fits within the tradition of
independent financial regulators. The Bureau draws a
statutorily capped amount from the Federal Reserve, which
formerly administered many of the consumer-protection laws
now largely under the CFPB’s purview. See Identification of
Enforceable Rules and Orders, 76 Fed. Reg. 43,569-01,
43,570-71 (July 21, 2011). That feature aims to help the CFPB
40
to avoid agency capture that Congress believed had beset the
agencies that previously administered the CFPB’s statutes, in
part because those agencies depended on industry fees. See
Rachel E. Barkow, Insulating Agencies: Avoiding Capture
Through Institutional Design, 89 Tex. L. Rev. 15, 44-45
(2010); Oren Bar-Gill & Elizabeth Warren, Making Credit
Safer, 157 U. Pa. L. Rev. 1, 93 (2008).
The CFPB’s independent funding source has no
constitutionally salient effect on the President’s power. The
Supreme Court has recently dismissed issues including “who
controls the agency’s budget requests and funding” as
“bureaucratic minutiae”—questions of institutional design
outside the ambit of the separation-of-powers inquiry. Free
Enterprise Fund, 561 U.S. at 499-500. The fact that “the
director need not ask the President for help negotiating
appropriations from Congress,” Pet’rs’ Br. 27, is neither
distinctive nor impermissible. Just as financial regulators
ordinarily are independent of the congressional appropriations
process, so, too, they typically are exempt from presidential
budgetary oversight. See, e.g., 12 U.S.C. § 250. That ensures
the measure of permissible independence instituted by for-
cause protection is not effectively eroded by virtue of
budgetary dependence on the President. The requirement that
the CFPB seek congressional approval for funding beyond the
statutory cap makes it more constrained in this regard than
other financial regulators.
PHH suggests that, even if budgetary independence and
for-cause removal protection are not separately
unconstitutional, their combination might be. See Pet’rs’ Br.
28 (citing Ass’n of Am. R.Rs. v. U.S. Dep’t of Transp., 721 F.3d
666, 673 (D.C. Cir. 2013), vacated on other grounds, 135 S.
Ct. 1225 (2015)). But that combination is not novel. See, e.g.,
12 U.S.C. § 243 (Federal Reserve’s budgetary independence);
41
id. § 242 (Federal Reserve’s for-cause removal protection); id.
§ 16 (Office of the Comptroller of the Currency’s budgetary
independence); id. § 2 (Office of the Comptroller of the
Currency’s removal protection). And, in any event, for two
unproblematic structural features to become problematic in
combination, they would have to affect the same constitutional
concern and amplify each other in a constitutionally relevant
way. Thus, as we have noted, “Free Enterprise Fund deemed
invalid a regime blending two limitations on the President’s
removal power.” Ass’n of Am. R.Rs., 721 F.3d at 673. No
similar amplification is present here. The CFPB’s budgetary
independence primarily affects Congress, which has the power
of the purse; it does not intensify any effect on the President of
the removal constraint.
The CFPB thus fits comfortably within precedent and
tradition supporting the independence of the financial
regulators that safeguard the economy. Whether it is
considered alone or in combination with the independent
funding provision, the requirement that the CFPB Director be
removed only for cause does not unconstitutionally constrain
the President.
3. Multi-Member vs. Single-Director
We are nevertheless urged that the constitutionality of for-
cause removal turns on a single feature of the agency’s design:
whether it is led by an individual or a group. But this line of
attack finds no home in constitutional law.
To begin with, that contention flies in the face of
Morrison, which, contrary to PHH’s suggestions, remains valid
and binding precedent. Morrison upheld the constitutionality
of for-cause removal protection for an individual agency head
who exercised substantial executive authority. The fact that the
independent counsel was a solo actor played no role in either
42
the Court’s decision for an eight-member majority or Justice
Scalia’s dissent; neither saw that fact as a ground of distinction
from the multi-member agencies sustained in Humphrey’s
Executor and Wiener. 2
PHH’s emphasis on the CFPB’s leadership by a Director
rather than a board defies historical practice as well. The
Comptroller of the Currency, for example—an independent
federal financial regulator with statutory removal protection
dating back 150 years—is also headed by a single director,
2
The independent counsel’s inferior-officer status is not ground for
distinguishing Morrison from this case. The Appointments Clause
separately identifies the permissible appointing mechanisms for principal
and inferior officers, U.S. Const. art. II, § 2, cl. 2, because of such officers’
differing routes of accountability to the President: Principal officers are
directly accountable, while inferior officers are indirectly accountable
through the principal officer to whom they report. While that distinction is
constitutionally relevant to the President’s appointments power, it is not
determinative of the removal-power question. That is because the removal
inquiry asks not whether an official exercises significant governmental
authority, but whether a measure of independence in the exercise of such
power interferes with the President’s constitutional duty and prerogative to
oversee the executive branch and take care that the laws are faithfully
executed. The degree of removal constraint effected by a single layer of
for-cause protection is the same whether that protection shields a principal
or inferior officer. In either case, the President—or a principal officer acting
as the President’s agent—may not fire the independent officer except for
cause. Indeed, the objective of the independent counsel statute was to
protect the counsel’s independence, not only from the President’s direct
interference, but also from interference by the President’s agent, the
Attorney General. The question whether a removal restriction
unconstitutionally constrains presidential power thus does not track whether
the shielded official is a principal or inferior officer. Even the mildest
degree of removal protection of certain subordinate officers—such as the
Secretary of the Navy or the Chief of Staff to the Secretary of State—could
pose a constitutional problem, whereas Supreme Court precedent treats
ordinary for-cause protection of some principal officers, such as members
of the Federal Trade Commission or the SEC, to be permissible.
43
insulated from removal. See 12 U.S.C. § 2. Other historical
examples of sole-headed independent agencies similarly
counter PHH’s claim. See supra Part I.B; H.R. Conf. Rep. No.
103-670, at 89-90 (1994) (explaining that sole administrator of
Social Security Administration would enhance “management
efficiency” and reduce “inappropriate influence”). Historical
practice of independent agencies, including the earliest
examples of independent financial regulators which operated
under single heads, suffices to place the CFPB on solid footing.
Fundamentally, Congress’s choice—whether an agency
should be led by an individual or a group—is not
constitutionally scripted and has not played any role in the
Court’s removal-power doctrine. As discussed above, the
cases focus on “whether the removal restrictions are of such a
nature that they impede the President’s ability to perform his
constitutional duty,” Morrison, 487 U.S. at 691, or, put
otherwise, whether the President’s “ability to execute the
laws—by holding his subordinates accountable for their
conduct—is impaired,” Free Enterprise Fund, 561 U.S. at 496.
Preserving lines of accountability within the executive branch
ensures that the public can “determine on whom the blame or
the punishment of a pernicious measure, or series of pernicious
measures ought really to fall.” The Federalist No. 70, at 476
(Alexander Hamilton) (J. Cooke ed. 1961). On this measure,
the constitutionality of the CFPB’s structure is unaffected by
the fact that it is led by a single Director.
As a practical matter, considering the impact on
presidential power, the line of accountability at the CFPB is at
least as clear to the observing public as at multi-headed
independent agencies, and the President’s control over the
CFPB Director is at least as direct. PHH has not identified any
reason to think that a single-director independent agency is any
less responsive than one led by multiple commissioners or
44
board members. If anything, the President’s for-cause removal
prerogative may allow more efficient control over a solo head
than a multi-member directorate. Consider the case of
Humphrey’s Executor. There, President Roosevelt attempted
to remove an FTC Commissioner based on policy
disagreements. Of course, the Supreme Court put a stop to the
President’s effort to sway the agency, upholding the
Commissioner’s removal protection. 295 U.S. at 625-26. But
had the Court not so held, perhaps that would not have been the
last of the personnel changes at the FTC. Removal of just one
Commissioner by the President might not have had any
substantial effect on the multi-member body’s direction, which
he so strongly disfavored. The President might have had to
remove multiple Commissioners in order to change the
agency’s course.
By contrast, the CFPB Director’s line of accountability to
the President is clear and direct. Before Congress established
the Bureau, multiple agencies—most of them independent—
had jurisdiction over consumer financial protection, and that
dispersion hampered executive ability to diagnose and respond
to problems. The creation of the CFPB, with the centralization
of previously scattered powers under common leadership,
enhanced public accountability and simplified the President’s
ability to communicate policy preferences and detect failings.
Now, if the President finds consumer protection enforcement
to be lacking or unlawful, he knows exactly where to turn. If
the offending conduct is rooted in the Director’s failure to carry
out the prescribed work of the agency, the President can
remove the Director for “inefficiency, neglect of duty, or
malfeasance in office.” 12 U.S.C. § 5491(c). The President
need only remove and replace a single officer in order to
transform the entire CFPB and the execution of the consumer
protection laws it enforces. Thus, just as the Framers
“consciously decid[ed] to vest Executive authority in one
45
person rather than several” so as to “focus, rather than to
spread” responsibility and thereby “facilitat[e] accountability”
to the people, Clinton v. Jones, 520 U.S. 681, 712 (1997)
(Breyer, J., concurring), Congress’s creation of an independent
agency led by a single Director would appear to facilitate the
agency’s accountability to the President.
Eschewing the relevant doctrinal inquiry—whether an
agency’s independence impermissibly interferes with
presidential power—PHH nonetheless seeks some other home
in the precedent for its argument that a single-headed
independent agency is unlawful. PHH places great stock in the
Court’s observation in Humphrey’s Executor that the FTC is
“called upon to exercise the trained judgment of a body of
experts.” Pet’rs’ Br. 22-23 (quoting Humphrey’s Executor,
295 U.S. at 624). It claims an absence of any such body here.
In reality, Congress created a multi-member body of experts to
check the CFPB Director: the Financial Stability Oversight
Council (FSOC). See 12 U.S.C. § 5321. The Council brings
together the nation’s leading financial regulators, including the
Secretary of the Treasury and the Chairman of the Federal
Reserve, to constrain risk in the financial system. Id. §
5321(b). The FSOC may stay or veto any CFPB regulation that
threatens the “safety and soundness” of the national economy.
Id. § 5513.
As a legal matter, the passing reference to a “body” of
experts in Humphrey’s Executor arose in the course of the
Court’s statutory holding, not its constitutional analysis.
Before reaching the constitutional question—whether FTC
Commissioners may be given for-cause protection consistently
with the separation of powers—the Court needed to discern
whether the statute in question actually required for-cause
removal. To do so, the Court asked whether the express
statutory term allowing removal “by the President for
46
inefficiency, neglect of duty, or malfeasance in office” carried
a negative implication barring the President from removing
Commissioners for other reasons or for no reason at all. 295
U.S. at 619. The Court reasoned that the FTC’s composition
as a “body of experts” “made clear” that “the intention of
Congress” was to limit removal to the enumerated causes. Id.
at 623-24. Independence from presidential control, Congress
believed, would facilitate the Commission’s access to apolitical
expertise and its exercise of neutral judgment. Even as to the
statutory question, the Court emphasized the Commissioners’
expertise more than their number: “The commission is to be
nonpartisan; and it must, from the very nature of its duties, act
with entire impartiality. It is charged with the enforcement of
no policy except the policy of the law.” Id. at 624. PHH further
suggests that the terms “quasi-legislative” and “quasi-judicial”
in Humphrey’s Executor implicitly emphasize collective
leadership, because legislatures and appellate courts have more
than one member. Oral Arg. Tr. at 40-42. But those terms refer
to the functions and powers of the agency, not its singular or
plural head. See Humphrey’s Executor, 295 U.S. at 629. The
fact that district judges sit alone, for example, makes them no
less judicial.
As an alternative theory why an agency’s leadership
structure might be constitutionally relevant to presidential
power, PHH points out that the CFPB Director’s five-year term
means that some future President might not get to appoint a
CFPB Director, whereas Presidents typically have an
opportunity to appoint at least some members of multi-member
commissions, or to select a member to act as chair. Pet’rs’ Br.
25. But the constitutionality of for-cause protection does not
turn on whether the term is five years or four. None of the
leaders of independent financial-regulatory agencies serves a
term that perfectly coincides with that of the President, and
many have longer terms than the CFPB Director. See Hogue,
47
Independence of Federal Financial Regulators, at 14 (“Five-
year terms are the most common . . . but some positions have
longer terms.”); Marshall J. Breger & Gary J. Edles,
Established by Practice: The Theory and Operation of
Independent Federal Agencies, 52 Admin. L. Rev. 1111, 1137
(2000) (describing terms as “typically extend[ing] beyond the
four-year presidential term”). As noted, the seven governors
of the Federal Reserve Board are appointed to serve staggered
fourteen-year terms unless removed for cause. See 12 U.S.C.
§ 242. Further examples abound. The members of the
Consumer Product Safety Commission, the FTC, and the Merit
Systems Protection Board have seven-year terms, 15 U.S.C.
§ 2053; 15 U.S.C. § 41; 5 U.S.C. § 1202, the Federal Deposit
Insurance Corporation’s five directors each has a six-year term,
12 U.S.C. § 1812, so, too, do the National Credit Union
Administration’s three members, 12 U.S.C. §§ 1752a(b), (c);
and the National Transportation Safety Board’s members serve
five-year terms, 49 U.S.C. § 1111. The Social Security
Commissioner appointed by President George W. Bush to a
six-year term served into the second term of President Barack
Obama.
Across independent agencies, there is also wide variation
as to the means of appointment and term of various
chairpersons. The members of the Federal Election
Commission, for instance, serve six-year terms, and the Chair,
rather than being presidentially appointed, rotates among the
members annually. 52 U.S.C. §§ 30106(a)(2), (5). The
International Trade Commission’s Chair, which changes
biannually, must alternate between political parties without
regard to who is in the White House. 19 U.S.C. § 1330. And
among agencies with chairs chosen by the President, not all
may be replaced by the President for any reason at any time.
The Chair of the Federal Reserve serves a fixed four-year term,
48
and the Federal Deposit Credit Insurance Corporation’s Chair
serves a five-year term. 12 U.S.C. § 242; id. § 1812(b)(1).
We are not aware of any court that has viewed the
existence, strength, or particular term of agency chairs or
members to be relevant to the constitutionality of an
independent agency. The Constitution has never been read to
guarantee that every President will be able to appoint all, or
even a majority of, the leaders of every independent agency, or
to name its chair. And what practical effect the terms of any
particular agency’s members or chair might have on a
President’s agenda remains context-dependent and unclear.
See Hogue, Independence of Federal Financial Regulators, at
8-9 & n.36 (explaining that the statutory or practical authority
of such chairs varies widely); Senate Committee on
Governmental Affairs, Study on Federal Regulation, S. Doc.
No. 95-91, vol.5, at 35 (1977) (“[T]he President would have
only a limited opportunity to affect the leadership of any given
commission; most of the time, hold-overs from a prior
administration could be expected to be part of the
membership.”). PHH assumes that this factor always cuts one
way. In reality, the diversity of circumstance helps illustrate
why PHH errs in treating commission structure as
constitutionally decisive.
Notably, when the President does get to replace the CFPB
Director, he is not restricted by ex-officio requirements to
appoint incumbent officeholders, or by a partisan-balance
mandate to select individuals who do not even belong to his
political party. See, e.g., 15 U.S.C. § 78d(a) (not more than
three of five SEC Commissioners shall be members of the same
political party); 12 U.S.C. § 1812(a)(2) (not more than three of
the five members of the FDIC’s Board of Directors may be
members of the same political party, and one must have State
bank supervisory experience); 12 U.S.C. § 242 (the Chairman
49
and two Vice Chairmen of the Federal Reserve are designated
from among its Board of Governors). At bottom, the ability to
remove a Director when cause to do so arises and to appoint a
replacement provides “ample authority to assure that the
[Director] is competently performing his or her statutory
responsibilities.” Morrison, 487 U.S. at 692. After all, the
terms “inefficiency, neglect of duty, or malfeasance in office”
are “very broad.” Bowsher, 478 U.S. at 729. Given these
realities, a single level of for-cause protection for heads of
certain appropriate agencies is constitutionally permissible
despite the possibility that some future President will lack a
regularly occurring vacancy to fill.
We find no reason in constitutional precedent, history, or
principle to invalidate the CFPB’s independence. The
Supreme Court has sustained for-cause protection for the heads
of certain administrative agencies—even if they perform a mix
of regulatory, investigative, prosecutorial, and adjudicatory
functions—as compatible with the President’s essential duty to
assure faithful execution of the law. The CFPB led by a single
Director is as consistent with the President’s constitutional
authority as it would be if it were led by a group. Like other
independent federal financial regulators designed to protect the
public interest in the integrity and stability of markets from
short-term political or special interests, the CFPB is without
constitutional defect.
II. Broader Theories of Unconstitutionality
PHH goes further than trying to problematize the CFPB’s
leadership structure with reference to the logic or language of
the Supreme Court’s removal-power cases; it offers several
broader theories of unconstitutionality. None of PHH’s novel
objections to the Director’s for-cause protection squares with
the Constitution or precedent. And PHH’s disputed factual
50
premises about the effects of agency design choices underscore
that, while such considerations may be useful fodder for policy-
making by Congress, they are not grounds for courts to reshape
the constitutional removal power.
First, breaking with traditional separation-of-powers
analysis and precedent, PHH and its amici assail the CFPB as
somehow too powerful. See Pet’rs’ Br. 24; Amicus Br. of
Chamber of Commerce 8-11. But nothing about the focus or
scope of the agency’s mandate renders it constitutionally
questionable; indeed, the Bureau’s powers have long been
housed in and enforced by agency officials protected from
removal without cause. That fact underscores our fundamental
point: The exercise of those powers by an independent official
does not interfere with the President’s constitutional role.
Second, the CFPB’s sole directorship is not historically
anomalous. And, in any event, congressional innovation in the
CFPB’s internal structure would not alone render the agency
constitutionally invalid.
Third, PHH’s notion that a multi-member structure would
safeguard liberty, writ large, because it would check or slow or
stop the CFPB from carrying out its duties is a non-sequitur
from the perspective of precedent, which focuses on
President’s authority and the separation of powers.
Finally, our decision to sustain the challenged for-cause
provision cannot reasonably be taken to invite Congress to
make all federal agencies (or various combinations thereof)
independent of the President. The President’s plenary
authority over his cabinet and most executive agencies is
obvious and remains untouched by our decision. It is PHH’s
unmoored theory of liberty that threatens to lead down a
dangerously slippery slope.
51
A. Scope of Agency Power
PHH argues that, because the CFPB Director wields “vast
authority” over the American economy, he cannot be protected
from the President. Pet’rs’ Br. 28. Both the factual and the
legal premises of that argument are unsupported.
To begin with the factual assertion, the CFPB’s power and
influence are not out of the ordinary for a financial regulator
or, indeed, any type of independent administrative agency. The
Bureau enforces anti-fraud rules in the consumer finance
context; it does not unilaterally exercise broad regulatory
power over the financial system. Its authority reaches only
entities providing “consumer financial product[s] or
service[s],” limited to those offered to individual consumers
“primarily for personal, family, or household purposes.” See
12 U.S.C. § 5491(a); id. §§ 5481(4), (5), (6), (15). It does not
address, for example, business-to-business or institutional debt
or investments. In that respect, it contrasts with the 1935-era
FTC—upheld by the Court in Humphrey’s Executor, 295 U.S.
at 620—that had authority, with limited exceptions, over
commerce generally.
That the CFPB is headed by a single Director does not
render the scope of its responsibilities anomalous or
problematic. Independence has long been associated with
financial regulators with wide latitude to oversee and steady
financial markets and the national economy. See supra Part
I.B. Independent financial regulators have been headed either
by one person, as with the Comptroller of the Treasury and the
Comptroller of the Currency, or by a group, as with the Federal
Reserve. The CFPB’s authority to ensure the fairness of
family- and household-facing financial products does not
somehow pose unprecedented dangers rendering every
historical analogue inapt.
52
As for PHH’s legal premise that the scope of the CFPB’s
regulatory authority is constitutionally relevant, Humphrey’s
Executor turned not on the breadth of the FTC’s jurisdiction or
on its social and economic impact, but on its character as a
financial and commercial regulator. The Supreme Court
described the FTC as “an administrative body created by
Congress to carry into effect legislative policies embodied in
the statute in accordance with the legislative standard therein
prescribed, and to perform other specified duties as a legislative
or as a judicial aid.” Humphrey’s Executor, 295 U.S. at 628.
PHH relies on Morrison’s description of the independent
counsel as having only “limited jurisdiction and tenure and
lacking policymaking or significant administrative authority.”
487 U.S. at 691. Those limitations were significant in
Morrison because the independent counsel’s criminal-law-
enforcement functions were quintessentially “executive” in
nature; the Court placed emphasis on features of the
independent counsel that would clearly distinguish her from,
for example, an independent Attorney General. See id. The
Court spelled out the independent counsel’s functions to make
plain that they were not “so central to the functioning of the
Executive Branch as to require as a matter of constitutional law
that the counsel be terminable at will by the President.” Id. at
691-92. But that is not to suggest that it is appropriate to tally
up the number of laws an agency is charged with administering
in order to determine whether it may be independent. Cf.
Pet’rs’ Reply Br. 2. Indeed, the independent counsel had all of
federal criminal law at her disposal. Rather, the Court has
analyzed the function of the office in question and where it
stood in relation to particular types of governmental power,
including those like criminal prosecution that are indisputably
and solely executive.
In sum, under the requisite functional analysis, the CFPB’s
authority is more cabined than either the FTC’s or the
53
independent counsel’s, and the agency is part of a longstanding
tradition, dating back to the founding of the Republic, of
financial regulators with a modicum of independence from
presidential will.
B. Novelty
PHH further argues that the CFPB’s structure is
constitutionally suspect because it is novel. We reject both
premises—that whatever novelty the CFPB may represent calls
into question its constitutionality, and that the CFPB is in any
relevant respect unprecedented.
Even if the CFPB were anomalous, PHH points to nothing
that makes novelty itself a source of unconstitutionality.
Novelty “is not necessarily fatal; there is a first time for
everything.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.
519, 549 (2012) (opinion of Roberts, C.J.); see also Mistretta
v. United States, 488 U.S. 361, 385 (1989) (addressing the
constitutionality of the Sentencing Commission and noting that
“[o]ur constitutional principles of separated powers are not
violated . . . by mere anomaly or innovation”). The
independent counsel, the Sentencing Commission, and the FTC
were each “novel” when initiated, but all are constitutional. In
the precedents PHH invokes, novelty alone was insufficient to
establish a constitutional defect.
For instance, in NLRB v. Noel Canning, the Supreme Court
interpreted the President’s express constitutional authorization
to “fill up all Vacancies that may happen during the Recess of
the Senate.” 134 S. Ct. 2550, 2556 (2014); see U.S. Const. art.
II, § 2, cl. 3. An historical practice of recess appointments
“since the beginning of the Republic” aided in “expounding
terms [and] phrases”—“Recess of the Senate” and “Vacancies
that may happen”—and the Court treated “practice as an
important interpretive factor.” 134 S. Ct. at 2560 (quoting
54
Letter from James Madison to Spencer Roane (Sept. 2, 1819),
in 8 The Writings of James Madison 450 (Hunt ed., 1908)). But
novelty did not create the constitutional question or define the
constitutional violation.
In Free Enterprise Fund, the Supreme Court quoted a
dissenter in this court stating that “lack of historical precedent”
for dual-layered protection may be “the most telling indication
of [a] severe constitutional problem.” 561 U.S. at 505 (quoting
Free Enterprise Fund v. Public Co. Accounting Oversight Bd.,
537 F.3d 667, 699 (D.C. Cir. 2008) (Kavanaugh, J.,
dissenting)). But it did so only after explaining how, under its
own precedent, the unusual set-up of the Public Company
Accounting Oversight Board directly impaired the President’s
“ability to execute the laws.” 561 U.S. at 500-01. Other
constitutional principles beyond novelty must establish why a
specific regime is problematic.
A constrained role for novelty in constitutional doctrine is
well justified. Our political representatives sometimes
confront new problems calling for tailored solutions. The 2008
financial crisis, which Congress partially attributed to a
colossal failure of consumer protection, was surely such a
situation. The Constitution was “intended to endure for ages to
come, and, consequently, to be adapted to the various crises of
human affairs.” McCulloch v. Maryland, 17 U.S. 316, 415
(1819). The judiciary patrols constitutional boundaries, but it
does not use the Constitution merely to enforce old ways. Even
if we agreed that the CFPB’s structure were novel, we would
not find it unconstitutional on that basis alone.
As for the descriptive premise of the novelty argument—
that the CFPB’s sole-director structure makes it historically
exceptional, Pet’rs’ Br. 23—we again must disagree. For
starters, there is no appreciable difference between the
55
historical pedigree of single-member and multi-member
independent agencies. The most notable early examples in
either category (and the only pre-Twentieth Century ones) are
sole-headed financial regulators: the Comptroller of the
Treasury, dating back to the late-Eighteenth Century; and the
Office of the Comptroller of the Currency, established in the
mid-Nineteenth. See Act of Sept. 2, 1789, ch. 12, § 3, 1 Stat.
at 66; Nat’l Bank Act of 1863, 12 Stat. at 665-66.
Other examples of single-headed independent agencies
include the Social Security Administration, which was placed
under a single director in 1994, see 42 U.S.C. § 902(a), and the
Office of Special Counsel established under a sole director in
1978, the same year as the Office of Independent Counsel
upheld in Morrison, see 5 U.S.C. § 1211; Civil Service Reform
Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (1978).
Congress established the sole-headed, for-cause-protected
Federal Housing Finance Agency in 2008, in response to
similar concerns as gave rise to the CFPB. See 12 U.S.C. §
4512. This longstanding tradition provides historical pedigree
to the CFPB, and refutes the contention that the CFPB’s single-
director structure is anything new. See supra Parts I.B., I.C.3.
PHH and its amici try to undermine these analogues by
asserting that Presidents have consistently objected to single-
headed independent agencies. See Amicus Br. of United States
17-19. As an initial matter, no contemporaneous objection was
voiced by the President or any dissenting faction within
Congress to placing the CFPB itself under a Director rather
than a board. PHH’s contention is further belied by history.
President Lincoln, for instance, signed without objection an act
rendering the Comptroller of the Currency removable only with
advice and consent of the Senate. Steven G. Calabresi &
Christopher S. Yoo, The Unitary Executive During the Second
Half-Century, 26 Harv. J.L. & Pub. Pol’y 667, 734 (2003);
56
George Wharton Pepper, Family Quarrels: The President, The
Senate, The House 111 (1931); see Nat’l Bank Act of 1863, 12
Stat. 665, 665-66 (1863). And President George H.W. Bush
approved that Congress had decided to “retain[] current law
which provides that the Special Counsel may only be removed
for inefficiency, neglect of duty, or malfeasance.” George
H.W. Bush, Remarks on Signing the Whistleblower Protection
Act of 1989 (Apr. 10, 1989), http://www.presidency.ucsb.edu/
ws/?pid=16899.
Evidence proffered to show presidential contestation is
recent, sparse, and nonspecific. See Amicus Br. of United
States 17-19. Executive objections to removal restrictions have
not made clear whether they opposed protecting a sole agency
head in particular, or for-cause protections more generally. See
Statement by President William J. Clinton Upon Signing H.R.
4277, 1994 U.S.C.C.A.N. 1624 (Aug. 15, 1994) (Clinton
administration objection to Social Security Administration
under a sole, independent administrator on the ground that “the
provision that the President can remove the single
Commissioner only for neglect of duty or malfeasance in office
raises a significant constitutional question”); Mem. Op. for the
Gen. Counsel, Civil Serv. Comm’n, 2 Op. O.L.C. 120, 120
(1978) (Carter administration objection to creation of Office of
Special Counsel because it exercised “functions [that] are
executive in character,” such as investigation and prosecution);
President Ronald Reagan, Mem. of Disapproval on a Bill
Concerning Whistleblower Protection, 2 Pub. Papers 1391,
1392 (Oct. 26, 1988) (Reagan administration objection to law
creating Office of Special Counsel because it “purports to
insulate the Office from presidential supervision and to limit
the power of the President to remove his subordinates from
office”). The scant and ambivalent record of executive-branch
contestation thus does not detract from the tradition of sole-
headed agencies as precedents for the CFPB.
57
We are also unpersuaded by efforts to distinguish away
agencies like the Social Security Administration and the Office
of Special Counsel on the ground that they lack authority to
bring law enforcement actions against private citizens. See
Amicus Br. of United States 17-18. Those agencies perform
important and far-reaching functions that are ordinarily
characterized as executive. The Social Security Administration
runs one of the largest programs in the federal government,
overseeing retirement, disability, and survivors’ benefits,
handling millions of claims and trillions of dollars. And the
Office of Special Counsel enforces workplace rules for federal
government employers and employees. Casting these agencies
as somehow less important than the CFPB does not show them
to be less “executive” in nature. The CFPB’s single Director
is not an historical anomaly.
C. Freestanding Liberty
Moving beyond precedent and practice, PHH and its amici
ask us to compare single-headed and group-led agencies’
relative contributions to “liberty.” The CFPB, headed by an
individual Director, is constitutionally invalid, they say,
because it diminishes the President’s firing authority without
substituting a different, ostensibly liberty-protecting
mechanism—collective leadership. See, e.g., Pet’rs’ Br. 2. If
a majority of an agency’s leadership group must agree before
the agency can take any action, the agency might be slower and
more prone to compromise or inaction. A sole-headed agency,
by contrast, might be nimble and resolute. Because multiple
heads might make the CFPB less likely to act against the
financial services industry it regulates, group leadership is,
according to PHH, constitutionally compelled.
There is no question that “structural protections against
abuse of power [a]re critical to preserving liberty.” Bowsher,
58
478 U.S. at 730; see also Free Enterprise Fund, 561 U.S. at
501 (quoting Bowsher, 478 U.S. at 730). Agencies’
accountability to the President and the people, bolstered by the
removal power, can ultimately protect liberty. But by arguing
that sole-headed and group-headed agencies differ in terms of
“liberty” without identifying any differential effect on
accountability, PHH proposes a ground for our decision that
lacks doctrinal footing and conflicts with Morrison’s approval
of a sole-headed independent agency. Morrison, Wiener, and
Humphrey’s Executor hold that unbridled removal power in the
President’s hands is not a universal requirement for
constitutional accountability; those cases thus underscore that
such unbridled power is not in all contexts necessary to serve
liberty or the myriad other constitutional values that undergird
the separation of powers. Broad observations about liberty-
enhancing effects are not themselves freestanding
constitutional limitations.
PHH’s brand of argument depends on a series of
unsupported leaps. First, it treats a broad purpose of the
separation of powers—safeguarding liberty—as if it were a
judicially manageable constitutional standard. But, as criteria
for judicial decision,
the purposes of the separation of powers are too general
and diverse to offer much concrete guidance. Among
other things, the separation of powers and the
accompanying checks and balances promote
efficiency, energy, stability, limited government,
control of factions, deliberation, the rule of law, and
accountability. . . . [I]n the absence of any specific
textual home or pattern of historical practice or judicial
precedent, one could reasonably move from these
broad and often-conflicting purposes to any number of
59
fair conclusions about . . . almost any freestanding
separation of powers question.
John F. Manning, Foreword: The Means of Constitutional
Power, 128 Harv. L. Rev. 1, 56-57 (2014). As sustained by the
Supreme Court, for-cause removal restrictions presumptively
respect all of the “general and diverse” goals of separation of
powers, see id. at 56, including liberty. Once the Supreme
Court is satisfied that a removal restriction leaves the President
adequate control of the executive branch’s functions, the Court
does not separately attempt to re-measure the provision’s
potential effect on liberty or any other separation-of-powers
objective.
Another of PHH’s leaps is its assumption that the CFPB’s
challenged characteristics diminish “liberty,” writ large. It
remains unexplained why we would assess the challenged
removal restriction with reference to the liberty of financial
services providers, and not more broadly to the liberty of the
individuals and families who are their customers. Congress
determined that, without the Dodd-Frank Act and the CFPB,
the activities the CFPB is now empowered to regulate
contributed to the 2008 economic crisis and Americans’
devastating losses of property and livelihood. Financial Crisis
Inquiry Commission, The Financial Crisis Inquiry Report, at
xv-xvii. Congress understood that markets’ contribution to
human liberty derives from freedom of contract, and that such
freedom depends on market participants’ access to accurate
information, and on clear and reliably enforced rules against
fraud and coercion. Congress designed the CFPB with those
realities in mind.
More fundamentally, PHH’s unmoored liberty analysis is
no part of the inquiry the Supreme Court’s cases require: As
Part I explains, the key question in the Court’s removal-power
60
cases is whether a challenged restriction either aggrandizes the
power of another branch or impermissibly interferes with the
duty and authority of the President to execute the laws. The
CFPB Director’s for-cause restriction does neither. That result
is liberty-protecting; it respects Congress’s chosen means to
cleanse consumer financial markets of deception and fraud, and
respects the President’s authority under the challenged law to
ensure that the CFPB Director performs his or her job
competently and in accordance with the law. The traditional
for-cause protection leaves the President “ample authority” to
supervise the agency. Morrison, 487 U.S. at 692.
If the CFPB Director runs afoul of statutory or
constitutional limits, it is the President’s prerogative to
consider whether any excesses amount to cause for removal,
the Financial Stability Oversight Council’s expert judgment
whether to step in to protect markets, and the courts’ role to
hem in violations of individual rights. The now-reinstated
panel holding that invalidated the disgorgement penalties
levied against PHH (a holding expressly approved by three
additional members of the en banc court, see Concurring Op.
(Tatel, J.)), illustrates how courts appropriately guard the
liberty of regulated parties when agencies overstep. The fact
that the CFPB is led by one Director, rather than several
commissioners, does not encroach on the President’s
constitutional power and duty to supervise the enforcement of
the law.
D. The Cabinet and the Slippery Slope
Finally, PHH mounts a slippery-slope argument against
the CFPB. Sustaining the CFPB’s structure as constitutionally
permissible, PHH argues, could threaten the President’s control
over the Cabinet. Pet’rs’ Reply Br. 7.
61
We disagree. “[T]here are undoubtedly executive
functions that, regardless of the enactments of Congress, must
be performed by officers subject to removal at will by the
President.” Bowsher, 478 U.S. at 762 (White, J., dissenting);
see Morrison, 487 U.S. at 690 (same). Should Congress ever
seek to provide the Cabinet with for-cause protection against
removal, at least two principled distinctions would differentiate
this case from a challenge to such a law.
First, the Supreme Court’s removal-power precedent,
which we follow here, makes the nature of the agency’s
function the central consideration in whether Congress may
grant it a measure of independence. The Court has held, time
and again, that while the Constitution broadly vests executive
power in the President, U.S. Const. art. II, § 1, cl. 1, that does
not require that the President have at-will authority to fire every
officer. Doctrine and history squarely place the CFPB Director
among those officials who may constitutionally have for-cause
protection. At the same time, there are executive officials
whom the President must be able to fire at will. See generally
Marbury v. Madison, 5 U.S. 137, 166 (1803) (“[W]here the
heads of departments are the political or confidential agents of
the executive, merely to execute the will of the President, or
rather to act in cases in which the executive possesses a
constitutional or legal discretion, nothing can be more perfectly
clear than that their acts are only politically examinable.”).
Those would surely include Cabinet members—prominently,
the Secretaries of Defense and State—who have open-ended
and sweeping portfolios to assist with the President’s core
constitutional responsibilities. See generally Myers, 272 U.S.
at 141 (suggesting that “ministerial” acts of Secretary of State
were “entirely to be distinguished from his duty as a
subordinate to the President in the discharge of the President’s
political duties which could not be controlled”). Executive
functions specifically identified in Article II would be a good
62
place to start in understanding the scope of that executive core:
It includes, at least, the President’s role as Commander in
Chief, and the foreign-affairs and pardon powers. U.S. Const.
art. II, § 2; see Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S.
189, 211 (2012) (“The President has broad authority in the field
of foreign affairs.”). Although this case does not require us to
catalogue every official on either side of the constitutional line,
we emphasize that certain governmental functions may not be
removal-restricted.
Second, Cabinet-level officers traditionally are close
presidential advisers and allies. Under the 25th Amendment,
Cabinet officials have the power (by majority vote and with the
Vice President’s assent) to remove the President temporarily
from office. See U.S. Const. amend. XXV, § 4; Freytag v.
Comm’r of Internal Revenue, 501 U.S. 868, 887 (1991)
(suggesting that the 25th Amendment, which refers to “the
principal officers of the executive departments,” refers to
“Cabinet-level entities”). We do not believe that the heads of
independent agencies are executive-agency principals eligible
under the 25th Amendment to vote on a President’s incapacity.
Cabinet officials are also, by statute, in the presidential line of
succession, see 3 U.S.C. § 19(d)(1), and their agencies are
specifically denoted as “Executive departments,” 5 U.S.C. §
101. There is thus little prospect that Congress could require
the President to tolerate a Cabinet that is not fully and directly
accountable to him.
Indeed, the slipperiest slope lies on the other side of the
mountain. PHH argues that, regardless of whether Humphrey’s
Executor itself turned on the FTC’s multi-member character,
we should reject any independent agency that does not
precisely mimic the agency structure that the Court approved
in that case. See Pet’rs’ Br. 22. PHH gleans from Free
Enterprise Fund the proposition that “when a court is asked ‘to
63
consider a new situation not yet encountered by the [Supreme]
Court,’ there must be special mitigating ‘circumstances’ to
justify ‘restrict[ing the President] in his ability to remove’ an
officer.” Pet’rs’ Br. 22 (quoting 561 U.S. at 483-84). The
Court held no such thing. And if we were to embrace an
analysis invalidating any independent agency that does not
mirror the 1935-era FTC, our decision would threaten many, if
not all, modern-day independent agencies, perhaps including
the FTC itself. See Pet’rs’ Reply Br. 6 (noting that the FTC did
not claim rulemaking authority until 1962).
PHH suggests that so-called “[h]istorical[]” multi-member
independent agencies are different in kind—and thus would be
safe even if the CFPB were invalidated—because “their own
internal checks” somehow substitute for a check by the
President. Pet’rs’ Br. 23. The argument is that multi-member
agency leadership could check or slow or stop agency action
even when the President could not, and that such a check, in
turn, protects liberty. PHH’s newly devised theory posits that
freestanding liberty is the goal, and that various agency design
features might be a means—alternative to illimitable
presidential control but nonetheless somehow mandated by
Article II—to ensure that liberty. That theory lacks grounding
in precedent or principle. See supra Part I.C.3. In Free
Enterprise Fund, for example, the fact that the PCAOB and the
SEC were both multi-member bodies did not salvage the
Board’s dual-layered removal limitation.
If PHH’s version of liberty were the test—elevating
regulated entities’ liberty over those of the rest of the public,
and requiring that such liberty be served by agencies designed
for maximum deliberation, gradualism, or inaction—it is
unclear how such a test could apply to invalidate only the
CFPB. That test would seem equally to disapprove other
features of many independent agencies. Consider, for example,
64
efficiency-promoting features like a strong chairperson, low
quorum requirement, small membership, shared professional
or partisan background, and electronic or negative-option
voting. Even a multi-member independent agency might have
features that offset that body’s theoretical gradualism and, in
practice, achieve the efficiency that PHH’s liberty analysis
condemns. Would such an agency be susceptible to challenge
under PHH’s theory as threatening to liberty?
By the same token, it is also unclear why a doctrine
embracing PHH’s brand of freestanding liberty analysis would
not constitutionally obligate Congress to affirmatively impose
additional internal checking mechanisms on all independent
agencies. Many familiar processes and structures—such as
partisan or sectoral balance, requirements of large and broadly
representative membership; high quorum, supermajority or
unanimity rules; or even mandatory in-person meetings and
votes—might foster deliberation and check action as much if
not more than mere multi-member leadership. Reading the
Constitution, as PHH does, to require courts to impose group
leadership at independent agencies would appear to throw open
many other institutional design features to judicial second-
guessing. For good reason, PHH’s freestanding liberty analysis
is not, and has never been, the law.
The reality that independent agencies have many and
varied design features underscores that there is no one,
constitutionally compelled template. Academic analyses to
which PHH and dissenters point for the proposition that a
multi-headed structure is the sine qua non of these agencies’
constitutional validity, see Dissenting Op. at 28-29
(Kavanaugh, J.), do not support their theory. Those materials
are more descriptive than prescriptive. And, contrary to the
dissenters’ suggestions, they do not treat multiple membership
as indispensable. Rather, scholars identify various indicia of
65
agency independence that demonstrate the rich diversity of
institutional design. See Kirti Datla & Richard L. Revesz,
Deconstructing Independent Agencies (and Executive
Agencies), 98 Cornell L. Rev. 769, 774 (2013) (“Congress
can—and does—create agencies with many different
combinations of indicia of independence . . . .”); Barkow,
Insulating Agencies, 89 Tex. L. Rev. at 16-18 (urging a
functionalist analysis beyond the “obsessive focus on removal
as the touchstone of independence”—and emphasizing the
“failure of banking agencies to guard against lending abuses”
as a reason for agency independence); Lisa Schultz Bressman
& Robert B. Thompson, The Future of Agency Independence,
63 Vand. L. Rev. 599, 607-10 (2010) (describing “[f]inancial
agencies . . . [as] among the most prominent independent
agencies” and independent agencies as having “some variety in
design,” with some generally “share[d]” attributes); Breger &
Edles, Established by Practice, 52 Admin L. Rev at 1113-14
(“[W]e review the structure and internal operations of
independent agencies, not[ing] several similarities and
differences among them . . . .”); id. at 1137-38 (describing
many “modern” independent agencies as adopting “the
commission form” but describing “the protection . . . against
removal ‘for cause’” as the “critical element of
independence”); The President’s Committee on Administrative
Management, Report of the Committee with Studies of
Administrative Management in the Federal Government 216
(1937) (theorizing that there are “[s]ome regulatory tasks” that,
per “popular belief,” “ought to be performed by a group,” while
others call for “regional representation”); id. (emphasizing the
importance of agency independence to ensure that certain
regulatory functions are “kept free from the pressures and
influences of political domination”); see also Free Enterprise
Fund, 561 U.S. at 547 (Breyer, J., dissenting) (describing
“[a]gency independence [a]s a function of several different
factors” and finding the “absence” of one—in the case of the
66
SEC, an express “for cause” provision—“not fatal to agency
independence”). Today’s independent agencies are diverse in
structure and function. They have various indicia of
independence, including differing combinations of
independent litigation and adjudication authority, budgetary
independence, autonomy from review by the Office of
Management and Budget, and the familiar removal restrictions.
See Datla & Revesz, Deconstructing Independent Agencies, 98
Cornell L. Rev. at 772.
The particular design choice that PHH here highlights—
whether to create a single-director or multi-member agency—
implicates policy determinations that we must leave to
Congress. There are countless structural options that might be
theorized as promoting more or less thorough deliberation
within agencies. Our own judgments of contested empirical
questions about institutional design are not grounds for
deeming such choices constitutionally compelled. After all,
“[t]he court should . . . not stray beyond the judicial province
to explore the procedural format or to impose upon the agency
its own notion of which procedures are ‘best’ or most likely to
further some vague, undefined public good”—including
“liberty,” however defined. Vermont Yankee Nuclear Power
Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 549 (1978).
Even accepting deliberative virtues of multi-member
bodies under certain conditions, other structural choices serve
other virtues of equal importance. We should not require
Congress always to privilege the putative liberty-enhancing
virtues of the multi-member form over other capabilities
Congress may choose, such as efficiency, steadiness, or
nuanced attention to market developments that also, in
different ways, may serve the liberty of the people. That is why
the Supreme Court has acknowledged congressional latitude to
fashion agencies in different ways, recognizing that the
67
“versatility of circumstances often mocks a natural desire for
definitiveness.” Wiener, 357 U.S. at 352.
Judicial review of agency design choices must focus on
ensuring that Congress has not “interfere[d] with the
President’s exercise of the ‘executive power’ and his
constitutionally appointed duty to ‘take care that the laws be
faithfully executed’ under Article II.” Morrison, 487 U.S. at
690, 691 n.30. Internal agency dynamics to which PHH points
have little to do with the President’s ultimate duty to ensure
that the laws are faithfully executed.
A constitutional analysis that condemns the CFPB’s for-
cause removal provision provides little assurance against—
indeed invites—the judicial abolition of all independent
agencies. PHH and dissenters do not dispel that concern. In
PHH’s view, the Supreme Court’s entire line of precedent
beginning with Humphrey’s Executor was wrongly decided.
See Pet’rs’ Br. 22 n.4 (preserving argument for overrule of
Morrison and Humphery’s Executor); see also Dissenting Op.
at 61 n.18 (Kavanaugh, J.) (noting PHH’s preservation of that
argument). PHH’s course calls into question the legitimacy of
every independent agency. We instead follow Supreme Court
precedent to sustain the challenged Act of Congress.
Conclusion
Applying binding Supreme Court precedent, we see no
constitutional defect in the statute preventing the President
from firing the CFPB Director without cause. We thus uphold
Congress’s choice.
The Supreme Court’s removal-power decisions have, for
more than eighty years, upheld ordinary for-cause protections
of the heads of independent agencies, including financial
regulators. That precedent leaves to the legislative process, not
68
the courts, the choice whether to subject the Bureau’s
leadership to at-will presidential removal. Congress’s decision
to provide the CFPB Director a degree of insulation reflects its
permissible judgment that civil regulation of consumer
financial protection should be kept one step removed from
political winds and presidential will. We have no warrant here
to invalidate such a time-tested course. No relevant
consideration gives us reason to doubt the constitutionality of
the independent CFPB’s single-member structure. Congress
made constitutionally permissible institutional design choices
for the CFPB with which courts should hesitate to interfere.
“While the Constitution diffuses power the better to secure
liberty, it also contemplates that practice will integrate the
dispersed powers into a workable government.” Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)
(Jackson, J., concurring).
The petition for review is granted in part and denied in
part, and the case is remanded to the agency for further
proceedings.
TATEL, Circuit Judge, with whom Circuit Judges MILLETT and
PILLARD join, concurring: Finding no way to avoid the
constitutional question, the en banc court reinstates the panel
opinion’s statutory holdings. Were this court to address the
statutory questions, which are fully briefed, I would have
resolved them differently. Specifically, I would have
concluded that (1) the Bureau reasonably interpreted RESPA
to impose liability on PHH, (2) the applicable statute of
limitations reaches back five years to cover PHH’s conduct,
and (3) the Bureau’s prospective injunction against PHH is
permissible, even if its retrospective disgorgement penalties are
not.
First, the Bureau’s interpretation of RESPA. Section 8(c)
states that “[n]othing in this section shall be construed as
prohibiting . . . the payment to any person of a bona fide salary
or compensation or other payment for goods or . . . services
actually performed.” 12 U.S.C. § 2607(c) (emphasis added).
The CFPB interpreted this provision to insulate from liability
just payments for referral services made “solely for the service
actually being provided on its own merits,” Director’s Decision
at 17—that is, that “bona fide” payments excludes payments
whose purpose is to serve as a quid pro quo for referrals.
PHH argues that Section 8(c) unambiguously permits
regulated entities to give or receive kickbacks in the form of
reinsurance arrangements as long as the kickbacks do not
exceed the reasonable market value for reinsurance services. In
other words, PHH insists that “bona fide” admits of only one
meaning—that a “payment is ‘bona fide’ if it bears a reasonable
relationship to the value of the services actually provided in
return.” Pet’rs’ Br. 43.
But Section 8(c)’s use of the phrase “bona fide” is not
unambiguous. Neither it nor any other provision of RESPA
defines the term, and looking to its “ordinary or natural
2
meaning”—as we must when the statute supplies no definition
of its own, FDIC v. Meyer, 510 U.S. 471, 476 (1994)—likewise
fails to resolve the ambiguity. To the contrary, dictionary
definitions reflect a range of meanings encompassed by the
term, including the very definition adopted by the Bureau. See
Webster’s New Collegiate Dictionary 125 (1973) (“Made in
good faith without fraud or deceit . . . , made with earnest intent
. . . , neither specious nor counterfeit.”); Black’s Law
Dictionary 223 (4th Ed. Rev’d 1968) (“In or with good faith;
honestly, openly, and sincerely; without deceit or fraud . . . real,
actual, genuine, and not feigned.”). The existence of these
varied definitions, “each making some sense under the statute,
itself indicates” the statute’s ambiguity. National Railroad
Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 418
(1992).
Moreover, the Bureau’s interpretation of “bona fide” is
perfectly reasonable, as the previous citations to both
Webster’s and Black’s demonstrate. Indeed, PHH does not
argue to the contrary, other than to claim that because RESPA
has some criminal applications—none relevant here—the rule
of lenity requires that any statutory ambiguity be resolved in
PHH’s favor. The Supreme Court, however, has done just the
opposite, deferring to an agency’s interpretation of a statute
even though the Court recognized that violations of the statute
could carry criminal penalties. Babbitt v. Sweet Home Chapter
of Communities for a Greater Oregon, 515 U.S. 687, 704 n.18
(1995) (noting that the Court has “never suggested that the rule
of lenity should provide the standard for reviewing facial
challenges to administrative regulations whenever the
governing statute authorizes criminal enforcement”). Though
there is some dispute about whether Chevron deference
remains appropriate for agency interpretations of statutes with
both civil and criminal applications, see Whitman v. United
States, 135 S. Ct. 352, 352–54 (2014) (Scalia, J., respecting the
3
denial of certiorari) (calling Babbitt into question (citing
Leocal v. Ashcroft, 543 U.S. 1, 11–12 n.8 (2004))), our court
continues to adhere to the view that it is, see Competitive
Enterprise Institute v. Department of Transportation, 863 F.3d
911, 915 n.4 (D.C. Cir. 2017) (“We apply the Chevron
framework to this facial challenge even though violating [the
statute] can bring criminal penalties.”). Even were Chevron
inapplicable, given my view that the agency’s interpretation
was correct as well as reasonable, PHH has failed to show that
the statute is sufficiently ambiguous as to merit application of
the rule of lenity. “[T]he rule of lenity only applies if, after
considering text, structure, history, and purpose, there remains
a grievous ambiguity or uncertainty in the statute, such that the
Court must simply guess as to what Congress intended.” United
States v. Castleman, 134 S. Ct. 1405, 1416 (2014) (quoting
Barber v. Thomas, 560 U.S. 474, 488 (2010)). Because RESPA
Section 8 is ambiguous, and because the Bureau’s
interpretation is reasonable, I would have held that PHH is
liable under the statute.
There remains the question of how far back the Bureau can
reach in seeking to impose liability on regulated entities.
Specifically, the question is whether administrative actions to
enforce RESPA’s ban on referral fees are subject to the specific
three year statute of limitations contained in RESPA, 12 U.S.C.
§ 2614, as PHH argues, or whether, as the Bureau contends,
they are subject only to the general five year statute of
limitations on any action or administrative proceeding for
“enforcement of any civil fine, penalty, or forfeiture” contained
in 28 U.S.C. § 2462. Given that RESPA provides that “[a]ny
action” to enforce the ban on referral fees initiated by the
Bureau must be brought within three years, 12 U.S.C. § 2614,
the question turns on whether the word “action” encompasses
both court and administrative actions.
4
RESPA’s plain text favors the Bureau’s view that the
provision limits the timing of only court actions, not
administrative actions like the one at issue here. The clause
expressly refers to actions that “may be brought in the United
States district court” and specifies that such actions are
generally subject to a one year statute of limitations, except that
“actions brought by the Bureau, the Secretary, the Attorney
General of any State, or the insurance commissioner of any
State may be brought within 3 years.” Id. Given that state
attorneys general and insurance commissioners have no
authority to bring administrative enforcement actions, even if
they may bring actions in court, it would be odd to conclude
that this provision circumscribes when the same actors can
bring administrative actions that they could never have brought
in the first place. Reinforcing this point, the RESPA provision
is entitled “Jurisdiction of courts; limitations.”
If the statute, read alone, was not clear enough, the Bureau
would still be entitled to a presumption that statutes of
limitations “are construed narrowly against the government”—
a principle “rooted in the traditional rule . . . [that] time does
not run against the King.” BP America Production Co. v.
Burton, 549 U.S. 84, 95–96 (2006). “A corollary of this rule is
that when the sovereign elects to subject itself to a statute of
limitations, the sovereign is given the benefit of the doubt if the
scope of the statute is ambiguous.” Id. at 96. Given this, the
court would have to presume that RESPA’s statute of
limitations does not cover administrative actions. The Supreme
Court addressed a remarkably similar issue in BP America, 549
U.S. 84, in which the Court unanimously held that a general
statute of limitations for Government contract actions applied
only to court actions, not to administrative proceedings
initiated by the Government.
5
The Bureau thus reasonably interpreted PHH’s actions as
running afoul of RESPA and correctly concluded that it could
impose liability on conduct falling within the five-year
limitations period. Based on this liability, the Bureau sought
two forms of relief: disgorgement for PHH’s past harms and an
injunction to prevent future ones. For substantially the reasons
given by the panel, I agree that the Bureau ran afoul of the due
process clause by failing to give PHH adequate notice in
advance of imposing penalties for past conduct. Importantly for
our purposes, however, the imposition of prospective relief is
unaffected by that fair notice issue. See, e.g., Landgraf v. USI
Film Products, 511 U.S. 244, 273 (1994) (“When the
intervening statute authorizes or affects the propriety of
prospective relief, application of the new provision is not
retroactive.”); Bowen v. Georgetown University Hospital, 488
U.S. 204, 221 (1988) (Scalia, J., concurring) (“Retroactivity [in
agency adjudications] is not only permissible but standard.”).
Though I disagree with the panel’s now-reinstated
statutory holdings, I completely agree with the en banc court
that the Bureau’s structure does not violate the constitutional
separation of powers. PHH is free to ask the Supreme Court to
revisit Humphrey’s Executor and Morrison, but that argument
has no truck in a circuit court of appeals. Attempts to
distinguish those cases—by rereading Humphrey’s as hinging
on the multi-member structure of the FTC, or by characterizing
the Independent Counsel in Morrison as an insignificant
inferior officer—are, at best, strained. Indeed, to uphold the
constitutionality of the Bureau’s structure we need scarcely go
further than Morrison itself, which approved a powerful
independent entity headed by a single official and along the
way expressly compared that office’s “prosecutorial powers”
to the “civil enforcement powers” long wielded by the FTC and
other independent agencies. Morrison v. Olson, 487 U.S. 654,
692 n.31 (1988).
6
Although it may (or may not) be wise, as a policy matter,
to structure an independent agency as a multimember body,
nothing in the Constitution’s separation of powers compels that
result. The Constitution no more “enacts” social science about
the benefits of group decision-making than it does “Mr. Herbert
Spencer’s Social Statics.” Lochner v. New York, 198 U.S. 45,
75 (1905) (Holmes, J. dissenting).
WILKINS, Circuit Judge, with whom ROGERS, Circuit
Judge, joins, concurring: I concur with the Court’s decision
in full. This petition involves a challenge to a final decision
in an adjudication by the Consumer Financial Protection
Bureau (“CFPB”). Petitioners are quite clear that they seek
review of the “Decision of the Director” and the “Final
Order” issued by the CFPB’s Director that, together,
constitute the Bureau’s final agency action in an adjudication.
Petition 1-3. The petitioners (and our dissenting colleagues)
seek to downplay this basic fact, even though it is the bedrock
for the exercise of our jurisdiction. They do so because
acknowledging that the Director has significant adjudicatory
responsibilities – indeed, the Director’s adjudicatory functions
are the only powers at issue in this case – seriously
undermines the separation-of-powers challenge before us. All
in all, those significant quasi-judicial duties, as well as the
Director’s quasi-legislative duties and obligations to
coordinate and consult with other expert agencies, provide
additional grounds for denial of the separation-of-powers
claim before us.
I.
Congress authorized the CFPB “to conduct hearings and
adjudication proceedings” to “ensure or enforce compliance
with” the provisions of the Dodd-Frank Act establishing the
authority of the CFPB and any rules issued thereunder, and
“any other Federal law that the Bureau is authorized to
enforce . . . .” 12 U.S.C. § 5563(a)(1)-(2). The Bureau must
do so in the “manner prescribed” under the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq. 12 U.S.C.
§ 5563(a). The CFPB can bring enforcement actions in either
a court or an administrative proceeding. “The court (or the
Bureau, as the case may be) in an action or adjudication
proceeding brought under Federal consumer financial law,
shall have jurisdiction to grant any appropriate legal or
equitable relief . . . .” Id. § 5565.
2
In 2012, the CFPB issued a final rule pursuant to 12
U.S.C. § 5563(e) to establish rules of practice for adjudication
proceedings. 12 C.F.R. § 1081.
The Director does not initiate investigations. Rather,
“[t]he Assistant Director of the Office of Enforcement and the
Deputy Assistant Directors of the Office of Enforcement have
the nondelegable authority to initiate investigations,” id.§ 1080.4, just as they have the authority to close CFPB
investigations, id. § 1080.11(c). If the investigation merits
enforcement within the agency, Bureau lawyers commence
the proceeding with the filing of a Notice of Charges, id.
§ 1081.200, as was done here, J.A. 41, and the matter
proceeds to a hearing.
The “hearing officer,” defined as “an administrative law
judge or any other person duly authorized to preside at a
hearing,” id. § 1081.103, is vested with wide adjudicatory
authority, including the power to issue subpoenas, order
depositions, hold settlement conferences, and “rule upon, as
justice may require, all procedural and other motions
appropriate in adjudication proceedings.” Id.
§ 1081.104(b)(2), (3), (7), (10). Most importantly, at the
close of the administrative proceedings, “[t]he recommended
decision shall be made and filed by the hearing officer who
presided over the hearings . . . .” Id. § 1081.400(d).
The Director of the Bureau acts as the chief adjudicatory
official. Whether or not the parties choose to appeal the
recommended decision, it goes to the CFPB Director, who
“shall . . . either issue a final decision and order adopting the
recommended decision, or order further briefing regarding
any portion of the recommended decision.” Id.
§ 1081.402(b). If the Director determines that it would
3
“significantly aid[]” the decisional process, the Director may
order oral argument. Id. § 1081.404(a). As the Director
considers the recommended decision, the Director “will, to
the extent necessary or desirable, exercise all powers which
he or she could have exercised if he or she had made the
recommended decision.” Id. § 1081.405(a). The Director’s
final decision must be served on the parties and published in
an order. Id. § 1081.405(e).
The Director rendered a final decision and order as the
chief adjudicatory official of the Bureau in this case. J.A. 1-
40. That adjudication is the basis of the petition for review,
Petition 1-3, and that adjudication provides the basis for our
subject matter jurisdiction. Pet’r’s Br. 4.
II.
The adjudicatory nature of the order under review is
material to the questions raised by the instant petition. We
have an extensive line of authority, from the time of the
Framers to the present, establishing that removal restrictions
of officers performing adjudicatory functions intrude far less
on the separation of powers than removal restrictions of
officers who perform purely executive functions.
From the time of the Constitution’s enactment, the
Framers recognized that adjudication poses a special
circumstance. Even James Madison, one of strongest and
most articulate proponents “for construing [Article II] to give
the President the sole power of removal in his responsibility
for the conduct of the executive branch,” Myers v. United
States, 272 U.S. 52, 117 (1926) (citation omitted),
acknowledged the “strong reasons why” an executive officer
who adjudicates disputes “between the United States and
particular citizens . . . should not hold his office at the
4
pleasure of the Executive branch of the Government.” 1
ANNALS OF CONG. 611-12 (1789) (Joseph Gales ed., 1834)
(statement of James Madison). Consistent with Madison’s
view, the Supreme Court has held that the evaluation of
removal restrictions for an officer “will depend upon the
character of the office.” Humphrey’s Executor v. United
States, 295 U.S. 602, 631 (1935). As a result, the scrutiny of
a removal restriction for an officer “with no duty at all related
to either the legislative or judicial power,” differs from that of
an officer who “perform[s] other specified duties as a
legislative or as a judicial aid,” as the latter “must be free
from executive control,” id. at 627-28. The Court continued:
We think it plain under the Constitution that
illimitable power of removal is not possessed
by the President in respect of officers of the
character of those just named. The authority of
Congress, in creating quasi legislative or quasi
judicial agencies, to require them to act in
discharge of their duties independently of
executive control cannot well be doubted; and
that authority includes, as an appropriate
incident, power to fix the period during which
they shall continue, and to forbid their removal
except for cause in the meantime. For it is
quite evident that one who holds his office
only during the pleasure of another cannot be
depended upon to maintain an attitude of
independence against the latter’s will.
Id. at 629.
Relying upon the “philosophy of Humphrey’s Executor,”
the Court later held that the power to remove “a member of an
adjudicatory body” at will and without cause is not “given to
5
the President directly by the Constitution.” Wiener v. United
States, 357 U.S. 349, 356 (1958).
To be sure, the adjudicatory nature of an officer’s duties
is not dispositive. The analysis is much more nuanced. The
modern view is “that the determination of whether the
Constitution allows Congress to impose a ‘good cause’-type
restriction on the President’s power to remove an official
cannot be made to turn on whether or not that official is
classified as ‘purely executive.’” Morrison v. Olson, 487 U.S.
654, 689 (1988). Thus, rather than “defin[ing] rigid
categories of those officials who may or may not be removed
at will by the President,” courts focus squarely on the
separation-of-powers principle at stake: “ensur[ing] that
Congress does not interfere with the President’s exercise of
the ‘executive power’ and his constitutionally appointed duty
to ‘take care that the laws be faithfully executed’ under
Article II.” Id. at 689-90 (footnote omitted).
Despite its rejection in Morrison of the simple
categorization of officers, the Supreme Court was clear that it
“d[id] not mean to suggest that an analysis of the functions
served by the officials at issue is irrelevant.” Id. at 691. As
Madison recognized, the faithful execution of the laws may
require that an officer has some independence from the
President. To provide for due process and to avoid the
appearance of impropriety, agency adjudications are
structured to be “insulated from political influence” and to
“contain many of the same safeguards as are available in the
judicial process.” Butz v. Economou, 438 U.S. 478, 513
(1978) (holding, among other things, that safeguards from
political influence entitled the Secretary of Agriculture’s
designee, who rendered final decisions in agency
adjudications, to absolute immunity). The Article II inquiry is
informed by the consistent recognition of the imperative to
6
safeguard the adjudicatory officer from undue political
pressure. Thus, even if not dispositive, the quasi-judicial
functions of the CFPB Director are still relevant to our
inquiry, and those functions seriously undermine petitioners’
separation-of-powers objection. See Free Enterprise Fund v.
Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 507 n.10
(2010) (noting that its holding, which struck down two layers
of good-cause removal restrictions for members of the Public
Company Accounting Oversight Board, did not necessarily
apply to administrative law judges who, “unlike members of
the Board, . . . perform adjudicative rather than enforcement
or policymaking functions”). 1
1
The substantive differences between the removal restrictions of
Board members and ALJs provided another important distinction in
Free Enterprise Fund. The tenure protection struck down in Free
Enterprise Fund was “unusually high.” 561 U.S. at 503. The only
violations of law that could lead to removal were violations of
“provision[s] of [the Sarbanes-Oxley] Act, the rules of the
[PCAOB], or the securities laws,” 15 U.S.C. § 7217(d)(3)(A), and
Board members could only be removed if those violations or abuses
were committed “willfully,” id. § 7217(d)(3)(A)-(B). The Court
noted that a Board member could not be removed even if, for
example, he cheated on his taxes, even though such an action could
greatly diminish the confidence that the member would faithfully
carry out his or her duties. Free Enterprise Fund, 561 U.S. at 503.
By contrast, the removal standard for ALJs is quite modest.
ALJs can be removed for “good cause,” 5 U.S.C. § 7521, which has
been interpreted to require that an ALJ “act at all times in a manner
that promotes public confidence in [] independence, integrity, and
impartiality . . . and . . . avoid[s] impropriety and the appearance of
impropriety,” a standard borrowed from the American Bar
Association’s Model Code of Judicial Conduct. Long v. Soc. Sec.
Admin., 635 F.3d 526, 533 (Fed. Cir. 2011). Accordingly, ALJs
have been disciplined or removed for a wide variety of job-related
7
In sum, the Supreme Court has consistently rendered its
“judgment that it was not essential to the President’s proper
execution of his Article II powers that [quasi-judicial and
quasi-legislative] agencies be headed up by individuals who
were removable at will.” Morrison, 487 U.S at 691. Indeed,
in his dissent in Morrison, Justice Scalia even acknowledged
that “removal restrictions have been generally regarded as
lawful” for independent agencies “which engage substantially
in what has been called the ‘quasi-legislative activity’ of
rulemaking” and “the ‘quasi-judicial’ function of
adjudication.” Id. at 724-25 (citations omitted, emphasis
added). Here, is there any doubt that the CFPB Director
substantially engages in both of these activities? Of course
not. In addition to the final adjudication authority described
above, Congress granted the Director rulemaking authority for
the Bureau. 12 U.S.C. § 5512(b). Thus, the Director (and the
Bureau) fit squarely within the zone “generally regarded as
lawful” by every Justice in Morrison and in the unbroken line
of authority from the Supreme Court described above and in
our Majority Opinion.
misconduct, such as improperly using the imprimatur of the agency
for personal business, Steverson v. Soc. Sec. Admin., 383 F. App’x
939 (Fed. Cir. 2010); lack of productivity in comparison to
colleagues, Shapiro v. Soc. Sec. Admin., 800 F.3d 1332, 1334-36
(Fed. Cir. 2015); failure to follow mandatory office procedures,
Brennan v. Dep’t of Health & Human Servs., 787 F.2d 1559, 1561
(Fed. Cir. 1986), as well as for misbehavior not directly connected
to official duties, such as domestic violence, Long, 635 F.3d 526.
And in contrast to the Court’s concern in Free Enterprise Fund
about the inability to remove a tax-cheating Board member, an ALJ
has been fired for “financial irresponsibility” in failing to repay
debts. See McEachern v. Macy, 341 F.2d 895 (4th Cir. 1965).
8
III.
Disagreeing with the weight of authority, the dissenters
take two major tacks, neither of which is sufficient to
overcome the Court’s precedent.
First, the dissenters attempt to recast this case as more
about the Director’s pure executive power of enforcement
rather than about the quasi-judicial power of adjudication.
Henderson Dissenting Op. 33; Kavanaugh Dissenting Op. 15-
17, 20-23 & n.2. But what we have before us is the Director’s
order of adjudication. Pet’r’s Br. 4 (Jurisdictional Statement).
This essential detail, along with the fact that the Director has
substantial adjudicative responsibilities, is minimized.
This recasting is significant, because Judge Henderson
contends that the Court’s precedents should be read to deem
removal protections for a principal officer in violation of the
separation of powers unless the officer’s “primary function is
adjudication,” Henderson Dissenting Op. 33 (emphasis in
original), and Judge Kavanaugh emphasizes over and again
that this case is “about executive power,” Kavanaugh
Dissenting Op. 1, because the CFPB Director has “substantial
executive authority.” Id. at 3; see also id. at 5, 7, 8, 18, 68, 73
(characterizing the Director’s “substantial executive power”
or “authority”).
This line of attack collapses under its own weight. The
vast majority of independent agencies have significant
enforcement and adjudicative responsibilities, and these
shared duties are expressly addressed by the APA. 5 U.S.C.
9
§ 554(d). If the dissenters were correct, then it would violate
the separation of powers for any such independent agency to
be headed by a principal officer with tenure protection. This
has never been the law. At the time of Humphrey’s Executor,
the Court was well aware that the Federal Trade Commission
(“FTC”) exercised both enforcement, 15 U.S.C. §§ 45(b), 46,
and adjudicative functions, Fed. Trade Comm’n v. Winsted
Hosiery Co., 258 U.S. 483, 490 (1922), but it nonetheless
upheld the removal protections of FTC Commissioners. 295
U.S. at 629. Similarly, in Free Enterprise Fund, the Court
was not troubled that Securities and Exchange Commission
(“SEC”) Commissioners enjoyed strong removal protection,
561 U.S. at 487, even though the Commission quite obviously
both enforces and adjudicates. As explained by the Court in
Morrison, the cramped view of the separation of powers
favored by the dissenters must be rejected:
The dissent says that the language of Article II
vesting the executive power of the United
States in the President requires that every
officer of the United States exercising any part
of that power must serve at the pleasure of the
President and be removable by him at will. . . .
This rigid demarcation—a demarcation
incapable of being altered by law in the
slightest degree, and applicable to tens of
thousands of holders of offices neither known
nor foreseen by the Framers—depends upon an
extrapolation from general constitutional
language which we think is more than the text
will bear. It is also contrary to our holding in
United States v. Perkins, [116 U.S. 483,]
decided more than a century ago.
Morrison, 487 U.S. at 690, n.29 (emphasis added).
10
In sum, the dissenters have warped the current meaning of
Myers. There is no rule requiring direct presidential
supervision of all officers, with the only potential exception
for “purely” judicial officers or officers having no
“substantial” executive power; rather, Humphrey’s Executor
“narrowly confined the scope of the Myers decision to include
only ‘all purely executive officers.’” Wiener, 357 U.S. at 352(quoting Humphrey’s Executor, 295 U.S. at 628). 2
In their other major line of attack, the dissenters seek to
overcome the precedent upholding tenure protection for
officers with significant quasi-judicial and quasi-legislative
responsibilities by distinguishing the CFPB, headed by a
single director, from independent agencies headed by multi-
member commissions. In this regard, a few other points bear
mention.
2
The dissenters seek to cast aspersions on Humphrey’s
Executor, painting it as an outlier in the Court’s separation-of-
powers jurisprudence. See Kavanaugh Dissenting Op. 61
n.18; Henderson Dissenting Op. 36-37. Perhaps all that need
be said in response is that the case binds us, as an inferior
court. U.S. Const. Art. III, § 1. Nonetheless, it is worth
noting that Humphrey’s Executor was a unanimous opinion
and that all four Justices from the Myers majority who
remained on the Court nine years later joined the opinion;
indeed, one of those members of the Myers majority, Justice
Sutherland, wrote the opinion. It thus seems inconceivable
that the Court in Humphrey’s Executor did not understand
what part of Myers was its holding rather than dictum.
11
As noted in the Majority Opinion, Congress mostly
reshuffled existing responsibilities from other entities to the
CFPB. Maj. Op. 11-12. I do not read the dissenting opinions
as suggesting that the Constitution prohibits Congress from
reassigning responsibilities from existing independent
agencies to a new independent agency. Instead, the dissenters
contend that the Constitution requires the new independent
agency to be headed by multiple members in order to receive
tenure protection; Congress cannot depart from that model.
However, just as “[o]ur constitutional principles of separated
powers are not violated . . . by mere anomaly or innovation,”
Mistretta v. United States, 488 U.S. 361, 385 (1989), I do not
believe that the concept of “two heads are better than one” has
been elevated to a constitutional requirement of agency
leadership. Single individuals have been entrusted with
important decision-making authority throughout our
government from the Founding, see Maj. Op. 42-43, so I am
not swayed by the dissenters’ suggestion that the possibility
of poor decisionmaking creates a constitutional defect.
For our separation-of-powers analysis, there are two
critical questions: How much, if at all, does the single-
director structure decrease the agency’s accountability to the
President in comparison to a multi-member agency? And is
the President’s control so diminished as to “interfere
impermissibly with his constitutional obligation to ensure
faithful execution of the laws”? Morrison, 487 U.S. at 693.
As the Majority Opinion points out, the assumption that the
single-director structure gives the President less control over
the agency is dubious at best. Maj. Op. 43-45. Furthermore,
we have a “duty . . . to construe [the CFPB] statute in order to
save it from constitutional infirmities” and to avoid
“overstat[ing] the matter” when describing the power and
independence of the Director. Morrison, 487 U.S. at 682. I
12
fear the dissenters have overstated the power of the Director
and understated the checks on that power.
I grant that having a single person in charge of the CFPB
is different than having a multi-member body, but we cannot
downplay the fact that Congress also required extensive
coordination, expert consultation, and oversight of the
Director. If much was given to the Director, then much was
also required:
1. The CFPB is required to “coordinate” with the SEC,
FTC, Commodity Futures Trading Commission
(“CFTC”), and other federal and state regulators “to
promote consistent regulatory treatment of consumer
financial and investment products and services.” 12
U.S.C. § 5495. There are numerous other
“coordination” requirements. See, e.g., id. § 5515(b)(2)
(requiring coordination with prudential regulators and
state bank regulatory authorities), § 5516(d)(2)
(requiring coordination with prudential regulators for
enforcement actions against banks).
2. The Director must establish a Consumer Advisory
Board, full of experts, to “advise and consult with the
Bureau” at least twice a year. 12 U.S.C. § 5494(a), (c).
3. The CFPB is required to “consult” with other federal
agencies prior to proposing new rules to ensure
“consistency with prudential, market, or systemic
objectives administered by such agencies.” 12 U.S.C.
§ 5512(b)(2)(B).
4. The CFPB is not only required to continue the
consultation during the comment process regarding the
category of proposed rules described above, but if any
13
agency objects to the proposed rule, the CFPB must
also “include in the adopting release a description of
the objection and the basis for the Bureau decision, if
any, regarding such objection.” 12 U.S.C.
§ 5512(b)(2)(C).
5. The CFPB must also consult with other federal
agencies prior to promulgating a rule prohibiting
unfair, abusive, or deceptive practices, again to ensure
“consistency.” 12 U.S.C. § 5531(e).
6. The CFPB is required to “conduct an assessment of
each significant rule or order” addressing “the
effectiveness of the rule or order in meeting the
purposes and objectives” of the statute and the goals of
the agency, using the “available evidence and any data
that the [CFPB] reasonably may collect.” 12 U.S.C.
§ 5512(d)(1).
7. Along with creating the CFPB, Congress created the
Financial Stability Oversight Council (“FSOC”), 12
U.S.C. § 5321, and gave it authority to stay or veto any
final CFPB rule by a two-thirds vote of its members if
the Council finds that the regulation “would put the
safety and soundness of the United States banking
system or the stability of the financial system of the
United States at risk.” Id. § 5513.
In sum, Congress guided (and limited) the discretion of the
Director of the CFPB in a very robust manner. Of course, the
CFPB is not the only independent agency with consultation
requirements, and the Dodd-Frank Act imposed new
consultation requirements upon a number of agencies. See
Jody Freeman & Jim Rossi, Agency Coordination in Shared
Regulatory Space, 125 HARV. L. REV. 1131, 1168 (2012);
14
Susan Block-Lieb, Accountability and the Bureau of
Consumer Financial Protection, 7 BROOK. J. CORP. FIN. &
COM. L. 25, 55-56 (2012). But “[t]he Dodd-Frank Act does
not subject any of the other federal financial regulators to
similar overarching coordination requirements . . . .” U.S.
GOV’T ACCOUNTABILITY OFFICE, GAO-12-151, DODD FRANK
ACT REGULATIONS: IMPLEMENTATION COULD BENEFIT FROM
ADDITIONAL ANALYSES AND COORDINATION 22 (2011). With
the amount of “coordination” and “consultation” required of
the CFPB by statute, there can be no doubt that the Director
operates with as much expert advice as any other independent
agency. Congress went even further, repeatedly requiring the
Director to seek “consistency” with other agencies, and in
some circumstances, requiring the Director to explain why he
or she failed to heed an objection of another agency.
Congress even required the Director to give a yearly after-
action report assessing the merits of every significant rule or
order.
But here’s the kicker: Congress created a new entity, the
above-described Financial Stability Oversight Council, with
veto power over any rule promulgated by the Director that the
Council believes will “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. Any
member of the Council can file a petition to stay or revoke a
rule, which can be granted with a two-thirds majority vote.
See id. Thus, if the Director’s decisionmaking goes awry on a
critical rulemaking, a multi-member body of experts can step
in. Significantly, a supermajority of persons on the Council
are designated by the President. 3
3
The Secretary of the Treasury, who serves at the pleasure of the
President, chairs the Council. 12 U.S.C. § 5321(b)(1)(A). In
15
The veto is powerful enough, but the filing of a petition
alone will trigger congressional oversight, since it “shall be
published in the Federal Register and transmitted
contemporaneously with filing to the Committee on Banking,
Housing, and Urban Affairs of the Senate and the Committee
on Financial Services of the House of Representatives.” 12
U.S.C. § 5513(b)(2). The choice Congress made to impose
additional statutory requirements on CFPB action makes the
CFPB Director more accountable to the President, not less. 4
addition, the chairpersons of five independent agencies serve on the
Council, each of whom the President has the opportunity to appoint
either at the outset or near the beginning of the administration. See
15 U.S.C. § 78d (SEC Chair); 12 U.S.C. § 1812(b)(1) (Chair of the
Federal Deposit Insurance Corporation); 7 U.S.C. § 2(a)(2)(B)
(Chair of the Commodity Futures Trading Commission); 12 U.S.C.
§ 1752a(b)(1) (Chair of the National Credit Union Association); 12
U.S.C. §§ 241, 242, 244 (Chair of the Federal Reserve Board of
Governors, whose four-year term expires just after the first year of
a new presidential administration taking office in a presidential
election year). Only four members of the FSOC have terms longer
than four years and are thus potentially not appointed by a one-term
President: the CFPB Director (five-year term), 12 U.S.C.
§ 5491(c)(1); the Director of the Federal Housing Finance
Association (five-year term), 12 U.S.C. § 4512(b)(2); the
Comptroller of the Currency (five-year term), 12 U.S.C. § 2; and
the “independent member” of the FSOC (six-year term), 12 U.S.C.
§§ 5321(b)(1)(J), (c)(1).
4
Judge Kavanaugh makes much of the fact that the CFPB
Director’s five-year term could result in a one-term President being
unable to remake the agency by naming a CFPB Director during his
or her tenure. Kavanaugh Dissenting Op. 53-54. However, the
same can be said of the Federal Reserve, where, absent the
circumstance of a Board Member’s early retirement, a President can
never appoint a majority of the Board. See 12 U.S.C. §§ 241, 242
16
These myriad coordination and consultation requirements
have further significance for the separation-of-powers
analysis: They give the President more potential ammunition
to remove the CFPB Director than for the average officer.
For-cause removal protections are meaningful as a bulwark
against undue political influence in agencies relied on for
their expertise and independent judgment. But the standard of
removal for “inefficiency, neglect of duty, or malfeasance in
office” does not afford officers who head independent
agencies with unlimited discretion or untrammeled power.
Here, the Director’s failure to abide by the stringent statutory
requirements of consultation or coordination would almost
certainly constitute “neglect of duty.” And the promulgation
of a rule contrary to consensus expert advice without
sufficient grounds or explanation would subject the Director
to risk of removal for inefficiency.
Although the Supreme Court has largely avoided the task
of spelling out precisely what conduct constitutes “cause” to
remove officers under Humphrey’s Executor, “inefficiency,
neglect of duty, or malfeasance in office” provides a workable
standard, and lower courts have long adjudicated the meaning
of those terms in similar contexts. Congress first used
“inefficiency, neglect of duty, or malfeasance in office” as a
removal standard for officers of the Interstate Commerce
Commission and the General Board of Appraisers in 1887 and
1890, respectively. See An Act to Regulate Commerce, ch.
104, § 11, 24 Stat. 379, 383 (1887); An Act to Simplify the
Laws in Relation to the Collection of the Revenues, ch. 407,
(establishing a seven-member Board with staggered, fourteen-year
terms, removable only for cause).
17
§ 12, 26 Stat. 131, 136 (1890). 5 The use of “efficiency” as a
standard for removal of federal employees arose historically
in the context of civil-service statutes around the same time
period – the late-nineteenth and early-twentieth centuries. See
Myers, 272 U.S. at 74-75 & nn. 30-32 (Brandeis, J.,
dissenting) (collecting statutes). The Lloyd-LaFollette Act of
1912, 5 U.S.C. § 7513 – like its predecessor, the Pendleton
Act of 1883 – sought to establish a civil service based on
merit and unshackled from patronage. The Lloyd-LaFollette
Act included language providing that employees in
competitive service could be removed “only for such cause as
will promote the efficiency of the service.” Id. § 7513(a).
As interpreted by courts and agencies for nearly a
century, “inefficiency” provides a broad standard allowing for
the removal of employees whose performance is found
lacking. What constitutes “inefficiency” has varied
depending on the context of the officer or employee’s
responsibilities and functions, but it is best described as
incompetence or deficient performance. See, e.g., Burnap v.
United States, 53 Ct. Cl. 605, 609 (Ct. Cl. 1918) (upholding
the removal of a landscape architect for inefficiency due to his
5
Because Congress did not specify a term of years for appraisers,
the Supreme Court concluded that inefficiency, neglect of duty and
malfeasance were not exclusive grounds for removal, because
otherwise, the office of appraiser would be a lifetime appointment.
Shurtleff v. United States, 189 U.S. 311, 316 (1903). The Court
“recognized and applied the strong presumption against the creation
of a life tenure in a public office under the federal government.”
De Castro v. Bd. of Comm’rs of San Juan, 322 U.S. 451, 462
(1944) (explaining Shurtleff); see also Humphrey’s Executor, 295
U.S. at 622-23 (finding the removal grounds exclusive for FTC
Commissioners, because the statute provided for a fixed term of
office, distinguishing Shurtleff).
18
failure to heed his supervisor’s instructions to cease working
for private clients), aff’d, 252 U.S. 512, 519-20 (1920)
(rejecting procedural and constitutional challenges, and
upholding the removal); Thomas v. Ward, 225 F.2d 953, 954
(D.C. Cir. 1955) (upholding a Navy personnel officer’s
removal for inefficiency when the officer was charged with
“lack of professional knowledge and supervisory ability; poor
personnel management and public relations and acts of
misconduct involving failure to carry out orders; disloyalty to
his superiors and untruthfulness in official relations with other
employees”); Seebach v. Cullen, 338 F.2d 663, 665 (9th Cir.
1964) (upholding the dismissal of an IRS Auditor for
“[i]nefficiency in handling tax cases as evidenced by technical
and procedural errors, substandard report writing, and lack of
proper audit techniques”); King v. Hampton, 412 F. Supp. 827(E.D. Va. 1976) (upholding the removal of a Navy electronics
engineer for inefficiency); Alpert v. United States, 161 Ct. Cl.
810 (Ct. Cl. 1963) (inefficiency removal sustained when an
employee of a VA Hospital was charged with
“Insubordination, Tardiness, Improper Conduct, and
Unsatisfactory Interpersonal Relationships”); DeBusk v.
United States, 132 Ct. Cl. 790 (Ct. Cl. 1955) (upholding
removal of VA loan examiner for failure to “promote the
efficiency of the service” based on charges of his disrespect of
supervisors and failure to follow instructions); Fleming v.
U.S. Postal Serv., 30 M.S.P.R. 302, 308 (M.S.P.B. 1986)
(upholding removal for “inefficiency” based on numerous
unscheduled absences from work); see also Arnett v.
Kennedy, 416 U.S. 134, 158-64 (1974) (upholding
“efficiency” standard against vagueness challenge); see
generally, 1 PETER BROIDA, A GUIDE TO MERIT SYSTEMS
PROTECTION BOARD LAW & PRACTICE 1669, 1713 (Dewey
Publ’ns Inc. 2012) (discussing cases upholding removal of
federal employees for inefficiency); 1 ISIDORE SILVER,
PUBLIC EMPLOYEE DISCHARGE & DISCIPLINE § 3.23 (John
19
Wiley & Sons Inc. 2d ed. 1995) (discussing the role of MSPB
in adjudicating disputes over removals for inefficiency);
OFFICE OF PERSONNEL MANAGEMENT, FEDERAL PERSONNEL
MANUAL 752-15 (1989) (on file in the D.C. Circuit Library)
(collecting cases upholding removal of federal employees for
inefficiency); ROBERT VAUGHN, PRINCIPLES OF CIVIL SERVICE
LAW §§ 1, 5 (Matthew Bender & Co. 1976) (discussing the
origins of civil service law and the “efficiency” standard).
In sum, this body of authority from the past century
demonstrates that the CFPB Director would be subject to
supervision and discipline for “inefficiency” if he or she
failed to comply with the various statutory mandates of
coordination and consultation. It also shows that
“inefficiency” is relatively broad and provides a judicially
manageable standard. I agree with the overall sentiment of
Judge Griffith that the broad removal authority gives the
President adequate ability to supervise the CFPB Director, 6
Griffith Concurring Op. 25, but I do not agree that
“inefficiency” is properly construed to allow removal for
mere policy disagreements. Such a capacious construction
would essentially remove the concept of “independence” from
“independent agencies.” After all, Congress established the
CFPB as “an independent bureau,” 12 U.S.C. § 5491(a), and
an agency subject to the President’s blanket control over its
policy choices is hardly “independent.” See, e.g., NEW
OXFORD AMERICAN DICTIONARY 857 (2d ed. 2005) (“free
from outside control; not depending on another’s authority”);
6
Of course, the above presumes that the President is forced to take
formal action against a poorly performing Director. Defending
against a personnel action brought by the President has grave
personal and professional consequences. Thus, a Director under
pressure may decide to step down to “spend more time with the
family,” preferring a soft landing to an ignominious expulsion.
20
BLACK’S LAW DICTIONARY 838 (9th ed. 2009) (“Not subject
to the control or influence of another”); WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 1148 (1993) (“not subject
to control by others: not subordinate”); THE AMERICAN
HERITAGE DICTIONARY 654 (2d College ed. 1985) (“1.
Politically autonomous; self-governing. 2. Free from the
influence, guidance, or control of another . . . .”); see also 5
THE CENTURY DICTIONARY AND CYCLOPEDIA 3055 (1911)
(“Not dependent; not requiring the support or not subject to
the control or controlling influence of others; not relying on
others for direction or guidance”); HENRY CAMPBELL BLACK,
A LAW DICTIONARY 616 (2d ed. 1910) (“Not dependent; not
subject to control, restriction, modification, or limitation from
a given outside source”); NOAH WEBSTER, A COMPENDIOUS
DICTIONARY OF THE ENGLISH LANGUAGE 156 (1806) (“not
subject to control, free . . . .”). Black’s Law Dictionary has
traced the term “independent agency” back to 1902 and
defines it as “a federal agency, commission, or board that is
not under the direction of the executive . . . .” BLACK’S LAW
DICTIONARY 71-72 (9th ed. 2009) (emphasis added).
Thus, even if the meaning of “inefficiency” could be
construed, in isolation, as broadly as Judge Griffith contends,
“[i]n expounding a statute, we must not be guided by a single
sentence or member of a sentence, but look to the provisions
of the whole law, and to its object and policy.” U.S. Nat. Bank
of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439,
455 (1993) (quoting United States v. Heirs of Boisdore, 49
U.S. (8 How.) 113, 122 (1849)). The removal standard must
be interpreted in light of the fact that Congress designated the
CFPB as “an independent bureau,” 12 U.S.C. § 5491(a), and
even if agency independence exists on a spectrum, Griffith
Concurring Op. 23-24, the spectrum has a limit. The essence
of an independent agency is that it “be independent of
executive authority, except in its selection, and free to
21
exercise its judgment without the leave or hindrance of [the
President],” Humphrey’s Executor, 295 U.S. at 625. Judge
Griffith’s broad reading of the removal power is inconsistent
with the common understanding of “independent” and “would
render part of the statute entirely superfluous, something we
are loath to do.” Cooper Indus., Inc. v. Aviall Servs., Inc., 543
U.S. 157, 166 (2004). See also Maj. Op. 30-34 (discussing
the historical independence of financial regulators). This is
why the interpretation of “inefficiency” for lower-level
federal workers is instructive, but not dispositive, because no
one imagines that federal employees are entitled to be
“independent” of their bosses in the way Congress clearly
intended the Director of the CFPB to remain “independent”
from the President.
Although the dissenters take great pains to distinguish the
single-director structure of the CFPB from the multi-member
structure of other agencies, they fail to show that this
structural difference so impairs presidential control that it
poses a constitutional problem. Or even that it provides the
President less control over the CFPB than over other
independent agencies. The upshot of the dissenters’ cramped
reading of the Supreme Court’s separation-of-powers
jurisprudence is that the President cannot exercise meaningful
control over the Executive branch without the ability to
remove all principal officers for any reason (or no reason at
all). That is not the import of the Supreme Court’s
separation-of-powers cases from Myers to Free Enterprise
Fund. Those cases establish constitutional boundaries which
the CFPB falls well within.
****
While the Constitution requires that the President be
permitted to hold principal and inferior officers to account, it
22
also accommodates – and may, at times, even require – a
degree of independence for those officers who perform quasi-
judicial and quasi-legislative functions. So here. And just as
the commissioners on a multi-member board must consult
with each other before acting, the CFPB Director is required
to consult with a plethora of colleagues and experts.
Furthermore, the unique combination of oversight provisions
in the Dodd-Frank Act gives the President greatly enhanced
control over the CFPB compared to other independent
agencies.
A proper balancing of these considerations against the
factors that arguably diminish the President’s control requires
that we uphold the present “good cause” tenure protections
applicable to the CFPB Director. In sum, “[I] do not think
that this limitation as it presently stands sufficiently deprives
the President of control over the [CFPB Director] to interfere
impermissibly with his constitutional obligation to ensure the
faithful execution of the laws,” Morrison, 487 U.S. at 693. I
therefore concur in the denial of the constitutional claim in the
petition.
GRIFFITH, Circuit Judge, concurring in the judgment:1
I agree that the challenged features of the CFPB do not violate
the Constitution, but for different reasons than the majority. My
colleagues debate whether the agency’s single-Director
structure impermissibly interferes with the President’s ability
to supervise the Executive Branch. But to make sense of that
inquiry, we must first answer a more fundamental question:
How difficult is it for the President to remove the Director? The
President may remove the CFPB Director for “inefficiency,
neglect of duty, or malfeasance in office.” After reviewing
these removal grounds, I conclude they provide only a minimal
restriction on the President’s removal power, even permitting
him to remove the Director for ineffective policy choices.
Therefore, I agree that the CFPB’s structure does not
impermissibly interfere with the President’s ability to perform
his constitutional duties.
I
Although most principal officers of Executive Branch
agencies serve at the pleasure of the President as at-will
employees, in Humphrey’s Executor v. United States, 295 U.S.
602 (1935), the Supreme Court held that Congress may protect
some principal officers by specifying the grounds upon which
the President may remove them from office. The Court
permitted Congress to establish these for-cause removal
protections for officers who carry out “quasi judicial” and
“quasi legislative” tasks, but not those who perform “purely
executive” functions. Id. at 629-32.
Some fifty years later in Morrison v. Olson, 487 U.S. 654(1988), the Supreme Court recast the inquiry established in
Humphrey’s Executor. The Court’s evaluation of the
1
Although I concur in the majority’s reinstatement of the
panel’s statutory holding, I concur only in the judgment regarding
the constitutional question.
2
“functions” performed by an officer did not “define rigid
categories” but only sought to “ensure that Congress does not
interfere with the President’s exercise of the ‘executive power’
and his constitutionally appointed duty to ‘take care that the
laws be faithfully executed’ under Article II.” Id. at 689-90(quoting U.S. Const. art. II, §§ 1, 3). According to the Morrison
Court, “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.” Id. at 691;
see also id. at 692 (asking whether a restriction “impermissibly
burdens” or “interfere[s] impermissibly” with the President’s
constitutional obligations). More recently, in Free Enterprise
Fund v. Public Company Accounting Oversight Board, 561
U.S. 477 (2010), the Supreme Court applied Morrison’s test to
strike down a particularly restrictive removal scheme, holding
that “multilevel protection from removal . . . . contravenes the
President’s ‘constitutional obligation to ensure the faithful
execution of the laws.’” Id. at 484 (quoting Morrison, 487 U.S.
at 693).2
In this case, my colleagues conduct the Morrison inquiry
by debating how the CFPB’s novel institutional design affects
the President’s supervision of the agency. They focus on the
agency’s single-Director structure and consider whether a
single agency head is more or less responsive to the President
than a multimember commission. And they debate whether,
2
I agree with Judge Kavanaugh’s statements in footnotes 7 and
18 of his dissent: Humphrey’s Executor and Morrison appear at odds
with the text and original understanding of Article II. The Framers
understood that the President’s constitutional obligations entitle him
to remove executive officers; the Supreme Court said as much in
Free Enterprise Fund. But until the Court addresses this tension, we
are bound to faithfully apply Humphrey’s Executor and Morrison to
the question before us.
3
because of the single Director’s five-year term, a one-term
President has sufficient supervisory power over the CFPB.
Although these difficult questions may matter in a future case,
we cannot understand their constitutional significance in this
case until we know the strength of the Director’s removal
protection.
For-cause removal protections are generally considered
the defining feature of independent agencies. See Free
Enterprise Fund, 561 U.S. at 483.3 But not all removal
protections are created equal. See id. at 502-03 (emphasizing
that the “unusually high” removal standard that protected the
Board members in that case “present[ed] an even more serious
threat to executive control”). Here, the President may remove
the CFPB Director for “inefficiency, neglect of duty, or
malfeasance in office.” 12 U.S.C. § 5491(c)(3). Until we know
what these causes for removal mean and how difficult they are
to satisfy, we cannot determine whether the CFPB’s novel
3
Legal commentators have traditionally agreed that for-cause
removal protection is an essential characteristic of independent
agencies. In recent years some scholars have argued that other
factors—various indicia of independence, political considerations,
and agency conventions—must also be considered when assessing
agency independence. See generally Rachel E. Barkow, Insulating
Agencies: Avoiding Capture Through Institutional Design, 89 Tex.
L. Rev. 15 (2010); Lisa Schultz Bressman & Robert B. Thompson,
The Future of Agency Independence, 63 Vand. L. Rev. 599 (2010);
Kirti Datla & Richard L. Revesz, Deconstructing Independent
Agencies (and Executive Agencies), 98 Cornell L. Rev. 769 (2013);
Aziz Z. Huq, Removal as a Political Question, 65 Stan. L. Rev. 1(2013); Adrian Vermeule, Conventions of Agency Independence, 113
Colum. L. Rev. 1163 (2013). Yet even these scholars generally
acknowledge that removal protections play an important role for
independent agencies. Although the presence of removal protections
may not be the last question when assessing agency independence, it
is generally the first.
4
structural features unconstitutionally impede the President in
his faithful execution of the laws. Indeed, the only reason we
are debating the constitutionality of the CFPB in the first place
is because the Director enjoys removal protection. That’s why
the three-judge panel’s initial remedy simply eliminated the
Director’s removal protection, thereby ameliorating the panel’s
constitutional concerns with the CFPB’s structure. But if it is
the Director’s removal protection that prompts our examination
of the CFPB’s constitutionality, we must necessarily ask: How
much does this removal protection actually constrain the
President? If the Director is only marginally more difficult to
remove than an at-will officer, then it is hard to imagine how
the single-Director structure of the CFPB could impermissibly
interfere with the President’s supervision of the Executive
Branch.4
4
For decades legal scholars have suggested that the
Humphrey’s Executor standard of “inefficiency, neglect of duty, or
malfeasance in office” provides a low barrier to presidential removal.
See, e.g., Lawrence Lessig & Cass R. Sunstein, The President and
the Administration, 94 Colum. L. Rev. 1, 110-12 (1994) (“Purely as
a textual matter . . . ‘inefficiency, neglect of duty, or malfeasance in
office’ seem best read to grant the President at least something in the
way of supervisory and removal power—allowing him, for example,
to discharge, as inefficient or neglectful of duty, those
commissioners who show lack of diligence, ignorance,
incompetence, or lack of commitment to their legal duties. The
statutory words might even allow discharge of commissioners who
have frequently or on important occasions acted in ways inconsistent
with the President’s wishes with respect to what is required by sound
policy.”); Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct.
Rev. 41, 86-87 (arguing that for-cause provisions like the standard
from Humphrey’s Executor can and should be interpreted broadly to
permit extensive presidential removal); Richard H. Pildes & Cass R.
Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 30
(1995) (noting that the removal standard from Humphrey’s Executor
may permit the President to remove officers for “inefficiency” if “he
5
Moreover, when addressing the constitutionality of
independent agencies, the Supreme Court has directed us to
focus on the President’s removal power instead of squinting at
“bureaucratic minutiae” such as the structural intricacies
debated by the parties here. Free Enterprise Fund, 561 U.S. at
499-500. In Free Enterprise Fund, the Court chided the dissent
for “dismiss[ing] the importance of removal as a tool of
supervision” and instead focusing on political and institutional
design features. Id. Rather than relying on those features, the
Court decided the case on the basis of the removal power,
noting that the power to appoint and remove is “perhaps the
key means” for the President to protect the constitutional
prerogatives of the Executive Branch. Id. at 501; see also
Morrison, 487 U.S. at 695-96 (noting that the Ethics in
Government Act gave the President “several means of
supervising or controlling” the independent counsel—“[m]ost
importantly . . . the power to remove the counsel for good
cause” (emphasis added) (internal quotation marks omitted));
cf. Bowsher v. Synar, 478 U.S. 714, 727 (1986) (observing that
the broad statutory removal provision allowing Congress to
remove the Comptroller General was the “critical factor” in
determining that Congress controlled the official).
finds [them] incompetent because of their consistently foolish policy
choices”); Lindsay Rogers, The Independent Regulatory
Commissions, 52 Pol. Sci. Q. 1, 7-8 (1937) (claiming that “[n]o
‘institutional consequences’ are to be expected from the Humphrey
case” because presidents will be able to remove officers with ease
under the Humphrey’s Executor standard); Paul R. Verkuil, The
Status of Independent Agencies After Bowsher v. Synar, 1986 Duke
L.J. 779, 797 n.100 (noting that the Humphrey’s Executor standard
“could be construed so as to encompass a general charge of
maladministration, in which event even if the terms of removal are
deemed to be exclusive they could still be satisfied by a removal by
the President on the ground of policy incompatibility”).
6
A faithful application of Morrison requires us to determine
the extent to which the CFPB’s removal standard actually
prevents the President from removing the Director. In addition,
this approach allows us to forgo, at least for now, the more
vexing constitutional questions about institutional design. Cf.
Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765,
787 (2000) (explaining that “statutes should be construed so as
to avoid difficult constitutional questions” (emphasis added));
John F. Manning, The Independent Counsel Statute: Reading
“Good Cause” in Light of Article II, 83 Minn. L. Rev. 1285,
1288 (1999) (arguing that, to avoid a “serious constitutional
question,” the “good cause” removal provision in the Ethics in
Government Act should be interpreted to allow removal for
insubordination).
II
The Dodd-Frank Wall Street Reform and Consumer
Protection Act provides that the President may remove the
CFPB Director for “inefficiency, neglect of duty, or
malfeasance in office.” Pub. L. No. 111-203, § 1011, 124 Stat.
1376, 1964 (2010) (codified at 12 U.S.C. § 5491(c)(3)). For
purposes of simplicity, I refer to this as the “INM standard.”
Congress first used the INM standard in the late nineteenth
century, see An Act To Regulate Commerce, ch. 104, § 11, 24
Stat. 379, 383 (1887), and it has since become a common for-
cause removal provision for independent agencies, see e.g., An
Act To Complete the Codification of Title 46, Pub. L. No. 109-
304, § 301(b)(3), 120 Stat. 1485, 1488 (2006); ICC
Termination Act of 1995, Pub. L. No. 104-88, § 701(a)(3), 109
Stat. 803, 933; Federal Mine Safety and Health Act of 1977,
Pub. L. No. 95-164, § 113, 91 Stat. 1290, 1313; Federal
Aviation Act of 1958, Pub. L. No. 85-726, § 201(a)(2), 72 Stat.
731, 741; Bituminous Coal Act of 1937, ch. 127, § 2(a), 50 Stat.
7
72, 73; An Act To Create the Federal Trade Commission, ch.
311, § 1, 38 Stat. 717, 718 (1914); see also Marshall J. Breger
& Gary J. Edles, Established by Practice: The Theory and
Operation of Independent Federal Agencies, 52 Admin. L.
Rev. 1111, 1144-45 (2000) (describing the INM standard as the
prototypical removal provision).
In spite of the repeated use of the INM standard throughout
the U.S. Code and its prominent role in Humphrey’s Executor,
the meaning of the standard’s three grounds for removal remain
largely unexamined. Congress has nowhere defined these
grounds and the Supreme Court has provided little guidance
about the conditions under which they permit removal. See
Lessig & Sunstein, supra note 4, at 110-12.
Some suggest that the Court in Humphrey’s Executor
established that the INM standard prohibits the President from
removing an agency officer for disagreements over policy. See,
e.g., Concurring Op. at 19-21 (Wilkins, J.) (arguing that “mere
policy disagreements” cannot satisfy the INM standard).5 After
all, the Court noted in Humphrey’s Executor that President
Roosevelt had mentioned to Humphrey their disagreement over
the “policies” and “administering of the Federal Trade
Commission.” 295 U.S. at 619 (internal quotation marks
omitted). However, Humphrey’s Executor established only that
the President’s removal power is not “illimitable” and that the
INM standard in the Federal Trade Commission Act is a
permissible limitation. Id. at 629. The Court nowhere
addressed the extent to which the INM standard insulated
Humphrey. When the Court determined that President
5
See also Abner S. Greene, Checks and Balances in an Era of
Presidential Lawmaking, 61 U. Chi. L. Rev. 123, 171 n.187 (1994)
(“It is fairly clear that the Humphrey’s Executor Court construed the
removal language to prevent removal for policy disagreement.”).
8
Roosevelt failed to comply with the INM standard, it was not
because he removed Humphrey for any specific policy the
Commissioner had pursued. Instead, the President failed to
comply with the INM standard because he expressly chose to
remove Humphrey for no cause at all. See id. at 612; Bowsher,
478 U.S. at 729 n.8 (noting that in Humphrey’s Executor “the
President did not assert that he had removed the Federal Trade
Commissioner in compliance with one of the enumerated
statutory causes for removal”).
Humphrey’s Executor came to the Supreme Court as a
certified question from the Court of Claims. The certificate
stipulated as an undisputed fact that the President never
removed Humphrey pursuant to the INM standard.6 And if this
admission were not enough, one need look no further than
President Roosevelt’s own words to see that he never purported
to remove Humphrey under the INM standard. In his first letter
to Humphrey, Roosevelt expressly disavowed any attempt to
remove the Commissioner for cause: “Without any reflection
at all upon you personally, or upon the service you have
rendered in your present capacity, I find it necessary to ask for
your resignation as a member of the Federal Trade
Commission.” Certificate from Court of Claims at 4,
Humphrey’s Executor v. United States, 295 U.S. 602 (1935)
(No. 667). After several more exchanges, the President wrote
Humphrey saying: “I still hope that you will be willing to let
me have your resignation. . . . I feel that, for your sake and for
mine, it would be much better if you could see this point of
view and let me have your resignation on any ground you may
6
Certificate from Court of Claims at 12, Humphrey’s Executor
v. United States, 295 U.S. 602 (1935) (No. 667) (“The decedent
[Humphrey] was not removed from his office as aforesaid on account
of any inefficiency, neglect of duty, or malfeasance in office.”). And
by filing its demurrer, the United States “admit[ted] the facts stated
in the petition to be true.” Id. at 15.
9
care to place it.” Id. at 6 (emphasis added). After Humphrey
continued to resist, Roosevelt had had enough and simply
asserted: “Effective as of this date you are hereby removed
from the office of Commissioner of the Federal Trade
Commission.” Id. at 8.7
Moreover, even if Humphrey’s Executor could be read to
address the extent to which the INM standard insulates an
officer, it would offer little guidance. We would first need to
assume that President Roosevelt’s general reference to the
“policies” and “administering” of the FTC functioned as a
ground for removal under one or more of the INM terms
(though it is unclear which). And even then, the Court’s ruling
tells us only that Roosevelt’s removal of Humphrey based on
their ideological differences does not satisfy any of the three
INM grounds. Abstract policy differences are not enough.8 But
7
See also 78 Cong. Rec. 1679 (1934) (statement of Sen. Simeon
Fess) (reviewing President Roosevelt’s letters to Humphrey and
noting that the President made no attempt to remove the
Commissioner under the INM standard); William E. Leuchtenburg,
The Supreme Court Reborn: The Constitutional Revolution in the
Age of Roosevelt 60-63 (1996) (recounting a Cabinet meeting in
which the President acknowledged that he erred by trying to pressure
Humphrey gently instead of removing him for cause under the INM
standard).
8
See Peter L. Strauss, The Place of Agencies in Government:
Separation of Powers and the Fourth Branch, 84 Colum. L. Rev.
573, 615 (1984) (observing that President Roosevelt “had given
Commissioner Humphrey no particular directive; he had asked no
advice that Humphrey then refused to give; he did not, perceiving
insubordination, direct [Humphrey] to leave” and therefore the Court
did not address “whether the President could give the FTC
Commissioners binding directives . . . or what might be the
consequences of any failure of theirs to honor them”). The Supreme
Court in Free Enterprise Fund likewise suggested in dicta that
Humphrey’s Executor precludes removal based on “simple
10
that does not mean an officer’s policy choices can never satisfy
the INM standard. Nor would such a categorical rule make
much sense. Certainly some policy disagreements may justify
removal under the INM standard. Judge Wilkins even
acknowledges as much. See Concurring Op. at 16 (Wilkins, J.)
(“[T]he promulgation of a rule contrary to consensus expert
advice without sufficient grounds or explanation would subject
the Director to risk of removal for inefficiency.”). All told,
nothing in the facts, constitutional holding, or logic of
Humphrey’s Executor protects an officer from removal if he
pursues a particular policy that the President determines to be
inefficient, neglectful, or malfeasant.
The Supreme Court’s most substantive discussion of the
INM terms came in Bowsher v. Synar. There, the Court
declared unconstitutional Congress’s delegation of executive
power to the Comptroller General, who was an official in the
Legislative Branch. 478 U.S. at 728-34. By joint resolution,
Congress could remove the Comptroller General for several
statutorily specified causes including the three INM grounds.
Id. at 728. In assessing Congress’s control over the Comptroller
General, the Court emphasized that the INM terms are “very
broad and, as interpreted by Congress, could sustain removal
of a Comptroller General for any number of actual or perceived
transgressions of the legislative will.” Id. at 729 (emphasis
added). In other words, the Court determined that the INM
removal grounds were so broad that Congress retained
significant power to supervise and direct the Comptroller
General. However, the Court did not proceed to explore the
disagreement” with a principal officer’s “policies and priorities.” 561
U.S. at 502. In light of the facts of Humphrey’s Executor, the Court’s
reference to “simple disagreement” over policy refers precisely to the
abstract, generalized policy differences Roosevelt arguably invoked
when removing Humphrey. See Humphrey’s Executor, 295 U.S. at
618-19.
11
meaning of the individual grounds for removal because that
was unnecessary to resolve the case. See id. at 730.
In sum, although Congress has provided little guidance on
the meaning of the INM standard, the Supreme Court in
Bowsher nevertheless recognized the general breadth of the
INM terms. Picking up where Bowsher left off, we must now
determine the meaning of the INM standard as we would any
other statutory text and interpret it according to the traditional
tools of construction.
III
I begin with the text of the INM standard: “The President
may remove the Director for inefficiency, neglect of duty, or
malfeasance in office.” 12 U.S.C. § 5491(c)(3). Because
Congress has not defined these terms, we give them their
ordinary meaning. See Taniguchi v. Kan Pac. Saipan, Ltd., 566
U.S. 560, 566 (2012). To discern a term’s ordinary meaning,
the Court generally begins with dictionaries. See, e.g., Sandifer
v. U.S. Steel Corp., 134 S. Ct. 870, 876-77 (2014); Schindler
Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S. 401, 407-08
(2011); MCI Telecomm’ns Corp. v. Am. Tel. & Tel. Co., 512
U.S. 218, 225-28 (1994). Based on the following analysis, I
conclude that the ordinary meaning of the INM terms—
particularly given the breadth of the “inefficiency” ground—
allow the President enough supervisory authority to satisfy
Morrison.
A
Generally, the ordinary meaning of a statutory term is
fixed at the time the statute was adopted. See, e.g., Perrin v.
United States, 444 U.S. 37, 42 (1979) (“[W]ords will be
interpreted as taking their ordinary, contemporary, common
12
meaning.”); Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 78 (2012). Were we to strictly
follow that approach here, we would seek to determine the
ordinary meaning of each INM term in 2010 when the Dodd-
Frank Act established the CFPB.
But there is good reason to think that 2010 is not the
correct time period to fix the ordinary meaning of the INM
terms. The INM standard was first used by Congress in the
Interstate Commerce Act in 1887 and has since been readopted
in dozens of statutes spanning over a century. See supra Part II.
“[W]hen Congress uses the same language in two statutes
having similar purposes . . . it is appropriate to presume that
Congress intended that text to have the same meaning in both
statutes.” Smith v. City of Jackson, 544 U.S. 228, 233 (2005).9
Since the INM standard was introduced in the Interstate
Commerce Act, and approved by the Supreme Court in
Humphrey’s Executor, Congress has deliberately and
repeatedly borrowed its precise language. See Steven G.
9
See also Lawson v. FMR LLC, 134 S. Ct. 1158, 1176 (2014)
(“[P]arallel text and purposes counsel in favor of interpreting . . .
provisions consistently.”); Northcross v. Bd. of Educ. of Memphis
City Sch., 412 U.S. 427, 428 (1973) (per curiam) (stating that when
two provisions of different statutes share similar language, that is a
“strong indication” they are to be interpreted consistently);
Morissette v. United States, 342 U.S. 246, 263 (1952) (explaining
that “where Congress borrows terms of art” it also borrows their
meaning); see also William N. Eskridge Jr., Interpreting Law: A
Primer on How To Read Statutes and the Constitution 123 (2016)
(explaining that when “similar or identical terminology is not a
coincidence, because the legislature has borrowed it from a previous
law,” interpreters should consider maintaining “[c]onsistency across
the U.S. Code”); Scalia & Garner, supra, at 323 (“[W]hen a statute
uses the very same terminology as an earlier statute . . . it is
reasonable to believe that the terminology bears a consistent
meaning.”).
13
Calabresi & Christopher S. Yoo, The Unitary Executive:
Presidential Power from Washington to Bush 287 (2008)
(noting “Congress’s interest in imposing removal restrictions
revived after Humphrey’s Executor”). Because Congress has
regularly adopted the same INM text for the same general
purpose—securing for agency officers at least a modicum of
independence from the President—it is appropriate to attribute
a uniform meaning to the INM standard that is consistent with
the meaning it bore when it was first adopted. For these
reasons, I rely on sources from the late-nineteenth and early
twentieth centuries to determine the meaning of the standard.
B
The INM standard provides three separate grounds for
removal. Although the standard may seem to be a unitary,
general “for cause” provision, the Supreme Court has clarified
that these three grounds carry discrete meanings. In
Humphrey’s Executor the Court explained that the INM
standard prevented the President from removing any officer
except for “one or more of the causes named in the applicable
statute.” 295 U.S. at 632. Moreover, Congress has enacted
other statutes that include only two of the three INM removal
grounds, indicating that each term bears a distinct meaning. For
instance, weeks after the Court decided Humphrey’s Executor,
Congress added a removal provision to the National Labor
Relations Act, but it narrowed the INM standard by eliminating
“inefficiency.” See ch. 372, § 3, 49 Stat. 449, 451
(1935) (codified at 29 U.S.C. § 153).
Turning then to each basis for removal, “malfeasance” was
defined as “the doing of that which ought not to be done;
wrongful conduct, especially official misconduct; violation of
a public trust or obligation; specifically, the doing of an act
which is positively unlawful or wrongful, in contradistinction
14
to misfeasance.” 6 The Century Dictionary and Cyclopedia
3593 (Benjamin E. Smith ed., 1911).10 “Neglect of duty” meant
“failure to do something that one is bound to do,” a definition
broadly echoed by courts and dictionaries alike. See A Law
Dictionary 404-05, 810 (Henry Campbell Black ed., 2d ed.
1910).11
However, I concentrate on “inefficiency” because it is the
broadest of the three INM removal grounds and best illustrates
the minimal extent to which the INM standard restricts the
President’s ability to supervise the Executive Branch.
10
Contemporary definitions of malfeasance are generally
comparable. See, e.g., Malfeasance, Black’s Law Dictionary (10th
ed. 2014) (“A wrongful, unlawful, or dishonest act; esp., wrongdoing
or misconduct by a public official.”); see also Daugherty v. Ellis, 97
S.E.2d 33, 42-43 (W. Va. 1956) (collecting definitions of
“malfeasance”). Courts have likewise interpreted malfeasance to
mean corrupt conduct that is wholly wrongful, if not positively
unlawful. See, e.g., State ex rel. Neal v. State Civil Serv. Comm’n, 72
N.E.2d 69, 71 (Ohio 1947) (“Nonfeasance is the omission of an act
which a person ought to do; misfeasance is the improper doing of an
act which a person might lawfully do; and malfeasance is the doing
of an act which a person ought not to do at all.”) (quoting Bell v.
Josselyn, 69 Mass. (3 Gray) 309, 311 (1855))). Courts have often
interpreted “malfeasance in office” to require a wrongful act that was
done in an official capacity. See, e.g., Arellano v. Lopez, 467 P.2d
715, 717-18 (N.M. 1970).
11
See also Cavender v. Cavender, 114 U.S. 464, 472-74 (1885)
(finding “neglect of duty” when a trustee failed to perform his duty
to invest the trust funds he had received); Holmes v. Osborn, 115
P.2d 775, 783 (Ariz. 1941) (defining “neglect of duty” as equivalent
to “nonfeasance,” which means the “substantial failure to perform
duty” (quoting State v. Barnett, 69 P.2d 77, 87 (Okla. Crim. App.
1936))).
15
Dictionaries consistently defined the word “inefficiency”
to mean ineffective or failing to produce some desired result.
For example, one prominent turn-of-the-century dictionary
defined “efficient” as “[a]cting or able to act with due effect;
adequate in performance; bringing to bear the requisite
knowledge, skill, and industry; capable; competent.” 3 The
Century Dictionary and Cyclopedia, supra, at 1849. The same
dictionary also defined “inefficient” to mean “[n]ot efficient;
not producing or not capable of producing the desired effect;
incapable; incompetent; inadequate.” 5 id. at 3072. Other
dictionaries from the time period reiterated these definitions.
See, e.g., 3 A New English Dictionary on Historical Principles
52 (Henry Bradley ed., 1897) (defining “efficient” as
“productive of effects; effective; adequately operative. Of
persons: Adequately skilled”); 5 id. at 240 (James A.H. Murray
ed., 1901) (defining “inefficient” as “[n]ot efficient; failing to
produce, or incapable of producing, the desired effect;
ineffective. Of a person: Not effecting or accomplishing
something; deficient in the ability or industry required for what
one has to do; not fully capable”).12 These dictionaries indicate
12
See also 2 Universal Dictionary of the English Language
1817 (Robert Hunter & Charles Morris eds., 1897) (“Efficient”
defined as “[c]ausing or producing effects or results; acting as the
cause of effects; effective,” and as “[h]aving acquired a competent
knowledge of or acquaintance with any art, practice, or duty;
competent; capable”); id. at 2660 (“Inefficient” defined as “wanting
the power to produce the desired or proper effect; inefficacious;
powerless,” and as “[i]ncapable; wanting in ability or capacity;
incompetent,” and as “[i]ncapable of or indisposed to effective
action”); A Dictionary of the English Language 306 (James
Stormonth ed., 1885) (“Efficient” defined as “producing effects;
able; competent” and “effectual; effective; capable, efficacious”); id.
at 491 (“Inefficient” defined as “not possessing the power or qualities
desired; not efficacious; not active” and as “want of power or
qualities to produce the effects desired; inactivity”); Webster’s
16
that an individual acts inefficiently when he fails to produce
some desired effect or is otherwise ineffective in performing or
accomplishing some task.
This broad understanding of “inefficiency” is supported by
other contemporaneous sources, such as the debates in
Congress both before and after Humphrey’s Executor.
Legislative history is a permissible tool of statutory
interpretation when used “for the purpose of establishing
linguistic usage” or “showing that a particular word or phrase
is capable of bearing a particular meaning.” Scalia & Garner,
supra, at 388. The debates in Congress during the early
twentieth century display how the “inefficiency” ground for
removal was understood by “intelligent and informed people of
the time.” Antonin Scalia, Common-Law Courts in a Civil-Law
System: The Role of United States Federal Courts in
Interpreting the Constitution and Laws, in A Matter of
Interpretation 3, 38 (Amy Gutmann ed., 1997).
When discussing congressional control of the Comptroller
General, who was protected by the INM terms, Members of
International Dictionary of the English Language 472 (Noah Porter
ed., 1898) (“Efficient” defined as “[c]ausing effects; producing
results; that makes the effect to be what it is; actively operative; not
inactive, slack, or incapable; characterized by energetic and useful
activity”); id. at 756 (“Inefficient” defined as “not producing the
effect intended or desired; inefficacious” and as “[i]ncapable of, or
indisposed to, effective action; habitually slack or remiss; effecting
little or nothing; as, inefficient workmen; an inefficient
administrator”); Dictionary of the English Language 465 (Joseph E.
Worcester ed., 1878) (“Efficient” defined as “[a]ctually producing or
helping to produce effects; that produces directly a certain effect;
causing effects; effective; efficacious; effectual; competent; able;
active; operative”); id. at 747 (“Inefficient” defined as “[n]ot
efficient; having little energy; inactive; ineffectual; inefficacious”).
17
Congress assumed the Comptroller could be removed for
“inefficiency” if he failed to produce Congress’s desired
effects. One Congressman maintained that if the Comptroller
“was inefficient and was not carrying on the duties of his office
as he should and as the Congress expected, [then Congress]
could remove him” under the INM standard. 61 Cong. Rec.
1081 (1921) (statement of Rep. Joseph Byrns) (emphases
added); see also Bowsher, 478 U.S. at 728 (inferring from this
quotation that “inefficiency” constitutes a broad ground for
removal). And another Member reiterated that when the
Comptroller General “fails to do that work [of Congress] in a
strong and efficient way, in a way the Congress would have the
law executed, Congress has its remedy, and it can reach out and
say that if the man is not doing his duty, if he is inefficient . . .
he can be removed.” 61 Cong. Rec. at 1080 (statement of Rep.
James Good) (emphases added). Thus, even though the
Comptroller General was protected by the INM terms, the
breadth of the “inefficiency” ground permitted Congress to
remove him for failing to perform his duties in the manner
Congress wanted.
Three years after Humphrey’s Executor, Congress again
considered the meaning of “inefficiency” when debating
whether to include INM protections for officials of the Civil
Aeronautics Authority. One Senator participating in the debate,
fearing that the “inefficiency” cause did not provide sufficient
independence for agency officials, even lamented: “If we
provide that the President may remove a man for inefficiency,
to my mind we give him unlimited power of removal. Under
such authority he could have removed Mr. Humphrey, had he
assigned that as a reason. . . . I do not see anything to be gained
by discussing the legal question if we are to leave the word
‘inefficiency’ in the provision.” 83 Cong. Rec. 6865 (1938)
(statement of Sen. William Borah). While this sentiment
somewhat overstates the breadth of the “inefficiency” ground,
18
it reflects a broader truth exemplified in the Congressional
Record: well-informed people in the early twentieth century
understood the word “inefficiency” in a manner consistent with
its dictionary definition.
And for those who find it relevant, turning to the
contemporary meaning of “inefficiency” would not change
much in this analysis. The word has maintained a fairly stable
meaning throughout the life of the INM standard. If anything,
the contemporary definition of “inefficiency” has gradually
become more expansive than it was at the time of Humphrey’s
Executor. While older definitions of inefficiency largely
discuss ineffectiveness, modern definitions have increasingly
adopted an additional definition of “wasteful.” See, e.g.,
Efficiency, Oxford English Dictionary (2d ed. 1989) (outlining
the etymological evolution of “efficiency”). And this broad
understanding of “inefficiency” is further supported by
contemporary usage. See, e.g., Budget Hearing—Consumer
Financial Protection Bureau Before the Subcomm. on
Oversight & Investigations of the H. Comm. on Fin. Servs.,
112th Cong. 8 (2012) (statement of Rep. Barney Frank,
Ranking Member, H. Comm. on Fin. Servs.) (discussing the
INM standard and stating that “this notion that the Director
cannot be removed is fanciful. . . . No one doubts that if a
change in Administration comes, and the new President
disagrees with the existing Director, he or she can be removed.
And proving that you were not inefficient, the burden of proof
being on you, would be overwhelming” (emphases added)).13
13
One commentator has suggested that the contemporary
understanding of official “inefficiency” is limited to instances of
“pecuniary or temporal waste.” Kent H. Barnett, Avoiding
Independent Agency Armageddon, 87 Notre Dame L. Rev. 1349,
1386 (2012) (citing The New Oxford American Dictionary 867
(2001)). This assertion is unconvincing for at least two reasons. First,
the very dictionary on which the commentator relies also defines
19
While ordinary usage reveals that an officer is
“inefficient” when he fails to produce or accomplish some end,
one might wonder who or what sets the end that the officer must
efficiently pursue. In context, it is clear that the end cannot be
set by the officer himself. After all, it is a removal ground that
we are interpreting. Congress establishes the broad purposes of
an independent agency, see, e.g., 12 U.S.C. § 5511 (outlining
the purpose, objectives, and functions of the CFPB), and the
President assesses whether the officer has produced the
“desired effect.” Put differently, an officer is inefficient when
he fails to produce or accomplish the agency’s ends, as
understood or dictated by the President operating within the
parameters set by Congress.
All told, the President retains significant authority under
the INM standard to remove the CFPB Director. The breadth
of the standard—particularly the inefficiency ground—
“inefficient” to include the failure to “achiev[e] maximum
productivity” and the failure “to make the best use of time or
resources.” The New Oxford American Dictionary, supra, at 867
(emphases added). These definitions would seemingly allow a
finding of “inefficiency” any time the President determined an
officer used resources imperfectly, for instance by pursuing an
unwise policy. Second, a host of other contemporary dictionaries
provide definitions of “inefficiency” that are entirely consistent with
the turn-of-the-century usage presented here. See, e.g., Merriam-
Webster’s Collegiate Dictionary (11th ed. 2014) (defining
“inefficient” as: “not producing the effect intended or desired . . .
wasteful of time or energy . . . incapable, incompetent”); Bryan A.
Garner, Garner’s Modern American Usage 293, 462 (2009)
(similar); Inefficient, The American Heritage Dictionary of the
English Language (2017) (similar).
20
preserves in the President sufficient supervisory power to
perform his constitutional duties.14
14
Judge Wilkins argues that my interpretation of “inefficiency”
is overly broad because it permits removal for some policy
disagreements. However, he does not address the dictionaries and
other contemporaneous sources that support my analysis, nor the
Supreme Court’s construal of the INM terms in Bowsher. Instead,
Judge Wilkins relies on a line of cases pertaining to the termination
of federal employees under the civil-service statutes, which permit
termination of government employees “for such cause as will
promote the efficiency of the service.” See Concurring Op. at 16-19
(Wilkins, J.) (citing 5 U.S.C. § 7513). I am skeptical that this line of
cases can explain the meaning of “inefficiency” in the INM standard.
Establishing that a removal will “promote the efficiency of the
service” calls for different considerations than establishing that an
officer himself has acted inefficiently. Moreover, every single case
Judge Wilkins cites upholds the removal of an employee, so none
demonstrate what official conduct—including policy choices—
would fail to meet the inefficiency standard. And more
fundamentally, if these civil-service cases controlled our
interpretation of the INM standard, they would actually increase the
President’s control of independent agencies. This court has held that
the “efficiency of the service” standard permits removal for
insubordination and for abstract policy differences. If this standard
were applied to INM-protected officers, it’s unclear how agencies
could retain any independence from presidential control. See, e.g.,
Meehan v. Macy, 392 F.2d 822, 836 (D.C. Cir. 1968) (“There can be
no doubt that an employee may be discharged for failure to obey
valid instructions, or that a discharge for insubordination will
promote the efficiency of the service.”), reh’g on other grounds, 425
F.2d 469 (D.C. Cir. 1968), aff’d en banc, 425 F.2d 472 (D.C. Cir.
1969); Leonard v. Douglas, 321 F.2d 749, 750-53 (D.C. Cir. 1963)
(upholding the removal of a Justice Department attorney whose
“professional competence [wa]s not questioned” but whose superior
found him to be generally “unsuitab[le]” for a “policy-determining
position”).
21
C
The INM standard provides a broad basis for removing the
CFPB Director, but what steps must the President take to effect
such a removal? It appears well-settled that an officer with
removal protection is entitled to notice and some form of a
hearing before removal. See Shurtleff v. United States, 189 U.S.
311, 313-14 (1903) (concluding that where removal is sought
pursuant to statute for “inefficiency, neglect of duty, or
malfeasance in office . . . the officer is entitled to notice and a
hearing”); Reagan v. United States, 182 U.S. 419, 425 (1901)
(stating that where causes of removal are specified by the
Constitution or statute, “notice and hearing are essential”).15
Although the Supreme Court has not defined the precise
contours of this process, there is little reason to think it would
impose an onerous burden on the President. See Breger &
Edles, supra, at 1147-50. Afterwards, removal would be
permissible if the President determined that the CFPB Director
had been ineffective or incapable of “producing the desired
15
The Supreme Court’s due-process cases from the 1970s and
1980s also suggest that an officer covered by the INM standard
would be constitutionally entitled to some procedural protections
before removal. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 538-39 (1985) (ruling that persons classified as civil
servants under state law who could be terminated only for cause
possessed a property right in their job security); Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 576-77 (1972); see also Robert E.
Cushman, The Independent Regulatory Commissions 466 (1972).
Most agency statutes do not prescribe specific procedures for
removal hearings. Breger & Edles, supra, at 1147-51. But if removal
protections secure a type of property interest for officers, see, e.g.,
Roth, 408 U.S. at 576-77, then the removal procedures would need
to satisfy an officer’s procedural due-process rights, see Mathews v.
Eldridge, 424 U.S. 319, 332-35 (1976). This would generally require
something less than a formal hearing under the Administrative
Procedure Act. See Breger & Edles, supra, at 1147-50.
22
effect.” Because removing an officer for “inefficiency” is a
removal for cause, the President should identify what the
Director did that was inefficient. In other words, the President
should identify the action taken by the Director that constitutes
the cause for which he is being removed. Then the President
must simply offer a reasoned, non-pretextual explanation of
how those actions were inefficient.16
In practical effect, my approach yields a result somewhat
similar to Judge Kavanaugh’s proposed remedy. He would
sever the for-cause provision from the CFPB’s authorizing
statute, making the Director removable at will. See Dissenting
Op. at 7, 68-73 (Kavanaugh, J.). My interpretation of the INM
standard would not disturb Congress’s design of the CFPB, but
it would allow the President to remove the Director based on
policy decisions that amounted to inefficiency. In addition, my
analysis of the INM standard would likely have broader
implications. For example, the definition of “inefficiency”
presented here would presumably apply to other independent
agencies protected by the INM standard. See supra Part III.A.
And while I conclude here that the INM standard is a
permissible restriction on the President’s ability to remove the
CFPB Director, other removal standards—particularly those
lacking the “inefficiency” ground—may not be defensible
under Humphrey’s Executor and Morrison.
16
A future case challenging a President’s decision to actually
remove an officer may require courts to articulate the appropriate
standard for judicial review, though that question is beyond the scope
of this case. See generally Dalton v. Specter, 511 U.S. 462, 474-77
(1994); Mountain States Legal Found. v. Bush, 306 F.3d 1132, 1135-
36 (D.C. Cir. 2002); Breger & Edles, supra, at 1151; cf. John F.
Dillon, Commentaries on the Law of Municipal Corporations § 484,
at 815 (1911) (“[T]he power of the courts to review the acts of the
removing power is necessarily limited.” (emphasis omitted)).
23
IV
Judge Wilkins argues this interpretation of the INM
standard defeats the purpose of the provision. See Concurring
Op. at 19-21 (Wilkins, J.). After all, the Court in Humphrey’s
Executor examined the legislative history of the Federal Trade
Commission Act and concluded that the “congressional intent”
underlying the Act was to create an “independent” body of
experts. 295 U.S. at 625. How can agency directors be
independent if the President can remove them so easily for
“inefficiency”?
As a preliminary matter, the Court’s discussion of FTC
“independence” in Humphrey’s Executor was part of its
statutory holding, not its constitutional analysis. See Maj. Op.
at 45-46. In its statutory analysis, the Court merely attempted
to discern if the INM standard was intended to limit the
President’s removal power. The Court determined that it did,
staking its conclusion on the text of the statute: “The words of
the act are definite and unambiguous.” 295 U.S. at 623. The
Court then proceeded to address the legislative history, but it
expressly disavowed any reliance on that discussion, see id. at
623-25, and concluded that the INM standard was designed to
reduce the President’s otherwise “illimitable” removal power.
But as described above, the Court never addressed just how
much the INM standard limits that power. See supra Part II.
More fundamentally, a straightforward textual analysis of
“inefficiency” does not remove the “concept of ‘independence’
from ‘independent agencies,’” Concurring Op. at 19 (Wilkins,
J.), because agency independence is not a binary but rather a
matter of degree. This principle is at the heart of Morrison,
which does not forbid all interference with the President’s
executive power but only forbids too much interference. See
487 U.S. at 692. Insisting that each INM term be interpreted to
24
maximize director independence thwarts Congress’s specific
choice of means to protect the Director. “[N]o legislation
pursues its purposes at all costs. . . . [I]t frustrates rather than
effectuates legislative intent simplistically to assume that
whatever furthers the statute’s primary objective must be the
law.” Rodriguez v. United States, 480 U.S. 522, 525-26 (1987)
(per curiam). With the INM standard, Congress chose to
provide three discrete grounds for removal, at least one of
which is very broad. In other words, Congress specified the
amount of removal protection the CFPB Director would
receive, and that amount is minimal. Elsewhere Congress has
elected to provide greater protection. For example, only weeks
after Humphrey’s Executor Congress chose not to include
“inefficiency” as a ground for removal in the National Labor
Relations Act. See ch. 372, § 3, 49 Stat. 449, 451
(1935) (codified at 29 U.S.C. § 153) (permitting removal
“upon notice and hearing, for neglect of duty or malfeasance in
office, but for no other cause”).
Since Humphrey’s Executor, Congress has created a wide
range of removal protections, some stronger than others. See
Free Enterprise Fund, 561 U.S. at 549-56 (Breyer, J.,
dissenting) (listing numerous agency removal protections,
many of which provide different statutory grounds for
removal). “[L]aw is like a vector. It has length as well as
direction. We must find both, or we know nothing of value. To
find length we must take account of objectives, of means
chosen, and of stopping places identified.” Frank H.
Easterbrook, The Role of Original Intent in Statutory
Construction, 11 Harv. J.L. & Pub. Pol’y 59, 63 (1988). Here,
Congress specified that the INM standard would move certain
agencies in the direction of greater independence from the
President, compared to those officers subject to at-will
removal. But Congress also specified just how far that principle
of independence would reach, and it is not for us to second-
25
guess that choice. “The removal restrictions set forth in the
statute mean what they say.” Free Enterprise Fund, 561 U.S.
at 502.
* * *
The challenged features of the CFPB do not violate Article
II because they do not prevent the President from performing
his constitutional duty to supervise the Executive Branch. That
is so because the INM standard creates only a minimal barrier
to the President removing the CFPB Director. Of course, if
Congress desires, it may pass a more restrictive removal
provision, as it has with other agencies. At that point, my
colleagues’ thorough evaluation of the CFPB’s bureaucratic
structure may be necessary. But as it stands today, such an
evaluation is neither required nor consistent with the mandate
from Morrison.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
Effective 1789, we Americans “set up government by consent
of the governed.” W. Va. State Bd. of Educ. v. Barnette, 319
U.S. 624, 641 (1943). Under the United States Constitution,
all of the federal government’s power derives from the people.
U.S. CONST. pmbl.; see McCulloch v. Maryland, 17 U.S. (4
Wheat.) 316, 405 (1819) (“In form, and in substance, it
emanates from them.”). Much of that power has been further
delegated to a warren of administrative agencies, making
accountability more elusive and more important than ever.
Nowadays we the people tolerate bureaucrats “poking into
every nook and cranny of daily life,” City of Arlington v. FCC,
133 S. Ct. 1863, 1879 (2013) (Roberts, C.J., dissenting), on the
theory that if they exercise their delegated power unjustly,
inexpertly or otherwise at odds with the popular will, we can
elect legislators and a President who will take corrective action,
Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 865 (1984)
(underscoring that “[w]hile agencies are not directly
accountable to the people,” they report to political actors who
are).
But consent of the governed is a sham if an administrative
agency, by design, does not meaningfully answer for its
policies to either of the elected branches. Such is the case with
the Consumer Financial Protection Bureau (CFPB). The
CFPB, created by the Dodd-Frank Wall Street Reform and
Consumer Protection Act of 2010 (Dodd-Frank), Pub. L. No.
111-203, Title X, 124 Stat. 1376, 1955-2113 (July 21, 2010),
perma.cc/6K2U-CD9W, 1 is an agency like no other. Its
Director has immense power to define elastic concepts of
unfairness, deception and abuse in an array of consumer
1
The perma.cc links throughout this opinion archive materials
that are available online. See Encino Motorcars, LLC v. Navarro,
136 S. Ct. 2117, 2123 (2016) (using perma.cc); Bandimere v. SEC,
844 F.3d 1168, 1170 n.1 (10th Cir. 2016) (same).
2
contexts; to enforce his rules in administrative proceedings
overseen by employees he appoints; to adjudicate such actions
himself if he chooses; and to decide what penalties fit the
violation. The Director does all that and more without any
significant check by the President or the Congress. Dodd-
Frank gives the Director a five-year tenure—thereby outlasting
a Presidential term—and prohibits the President from
removing him except for cause. At the same time, the statute
guarantees the CFPB ample annual funding from the Federal
Reserve System, outside the ordinary appropriations process.
It thus frees the agency from a powerful means of Presidential
oversight and the Congress’s most effective means short of
restructuring the agency. Finally, the Director is unique
among the principal officers of independent agencies in that he
exercises vast executive power unilaterally: as a board of one,
he need not deliberate with anyone before acting.
In my view, Dodd-Frank Title X, otherwise known as the
Consumer Financial Protection Act, violates Article II: its
“language providing for good-cause removal is . . . one of a
number of statutory provisions that, working together, produce
a constitutional violation.” Free Enter. Fund v. PCAOB, 561
U.S. 477, 509 (2010). Under Article II, “[t]he executive
Power shall be vested in a President” who “shall take Care that
the Laws be faithfully executed.” U.S. CONST. art. II, §§ 1, 3.
In Myers v. United States, 272 U.S. 52 (1926), the United States
Supreme Court explained that the President must ordinarily
have “unrestricted power” to remove executive officers if he is
to faithfully execute the laws. Id. at 176. More recently, the
Court in Free Enterprise Fund emphasized “the importance of
removal”—based on “simple disagreement with [an agency’s]
policies or priorities”—as a means of ensuring that the modern
administrative state does not “slip from the Executive’s
control, and thus from that of the people.” 561 U.S. at 499,
502. Here, when taken together with the rest of Title X, the
3
for-cause removal provision in effect puts the CFPB beyond
the people’s reach.
I recognize that Humphrey’s Executor v. United States,
295 U.S. 602 (1935), made an exception to the President’s
“exclusive power of removal,” Myers, 272 U.S. at 122, in
holding that the Congress “can, under certain circumstances,
create independent agencies run by principal officers appointed
by the President, whom the President may not remove at will
but only for good cause,” Free Enter. Fund, 561 U.S. at 483(emphasis added) (citing Humphrey’s Ex’r, 295 U.S. 602).
But Humphrey’s Executor remains the exception, not the rule,
and it does not apply here.
Humphrey’s Executor upheld a for-cause limit on the
President’s authority to remove commissioners of the Federal
Trade Commission (FTC), a “legislative agency” headed by a
“non-partisan” “body of experts” whose staggered terms
ensure that the commission does not “complete[ly] change at
any one time” but instead gains collective expertise even as
individual members come and go. 295 U.S. at 624, 628. By
contrast, the CFPB is not a legislative agency, if that means an
agency that reports to the Congress. 2 Nor is it a nonpartisan
body of experts. Unlike the five FTC commissioners, only
three of whom can be members of the same political party, the
CFPB’s sole Director does not have to bother with the give and
take required of a bipartisan multimember body. Also, the
CFPB’s membership is subject to complete change all at once,
at five-year intervals that do not coincide with the four-year
2
The Congress’s abdication of financial responsibility for the
CFPB may give rise to Article I objections beyond the scope of this
opinion. For my purpose, the deficiency in congressional oversight
is important because it is one of several factors distinguishing this
case from Humphrey’s Executor.
4
term of the President. The imperfect overlap means that for
much of the President’s term—sometimes all of it—the sole
“regulator of first resort . . . for a vital sector of our economy,”
Free Enter. Fund, 561 U.S. at 508, might well be faithful to the
policies of the last President, not the views of the current one.
First principles, not Humphrey’s Executor, control here.
This unaccountable agency violates them. I disagree with the
majority’s conclusion to the contrary. Further, although I
agree with portions of Judge Kavanaugh’s dissent, I cannot join
it, primarily because it would strike and sever Title X’s for-
cause removal provision. Even assuming that remedy would
bring the CFPB fully in line with the Constitution, I do not
think we can dictate it to the Congress.
Severability turns on whether the statute, minus any
invalid provision, “will function in a manner consistent with
the intent of Congress” and “is legislation that Congress would
. . . have enacted.” Alaska Airlines, Inc. v. Brock, 480 U.S.
678, 685 (1987) (emphasis in original). Statutory text,
structure and history manifest the 111th Congress’s belief that
the CFPB’s independence from both of the elected branches is
indispensable. Excising only the for-cause removal provision
would leave behind a one-legged agency that, by all
indications, the Congress would not have created. True, the
introduction to the 849-page Dodd-Frank legislation includes a
standard-form severability clause. But such a clause raises
only a “presumption” that “the objectionable provision can be
excised.” Alaska Airlines, 480 U.S. at 686. The presumption
is rebutted here. As I see it, Dodd-Frank’s severability clause
speaks to severing Title X from other titles of the legislation
but does not support severing the for-cause removal provision
from the rest of Title X.
5
Accordingly, I would invalidate Title X in its entirety and
let the Congress decide whether to resuscitate—and, if so, how
to restructure—the CFPB. I would set aside the Director’s
decision as ultra vires and forbid the agency from resuming
proceedings. Because the en banc Court’s decision permits
this case to continue before the agency, I respectfully dissent. 3
I. THE CFPB’S STRUCTURE VIOLATES ARTICLE II
The administrative agencies sprawled across Washington,
D.C.—especially the “independent” ones—do not fit
3
I found it unnecessary to decide the CFPB’s constitutionality
at the panel stage because PHH sought the same relief (“vacatur”)
whether we endorsed its constitutional claim or its statutory claims,
the latter of which the panel unanimously found meritorious. PHH
Corp. v. CFPB, 839 F.3d 1, 56-60 (D.C. Cir. 2016) (Henderson, J.,
concurring in part and dissenting in part), vacated upon grant of
reh’g en banc (Feb. 16, 2017); see PHH Panel Br. 23-24, 61-62; PHH
Panel Reply Br. 31. But unlike its panel briefs, PHH’s en banc
briefs expressly ask that the Director’s decision “be vacated without
remand” and that the Court “forbid the CFPB from resuming
proceedings.” PHH Br. 58; PHH Reply Br. 29. Because that relief
is warranted only if the CFPB is unconstitutionally structured, I
believe the constitutional question can no longer be avoided. See
Citizens United v. FEC, 558 U.S. 310, 375 (2010) (Roberts, C.J.,
concurring) (“When constitutional questions are ‘indispensably
necessary’ to resolving the case at hand, ‘the court must meet and
decide them.’” (quoting Ex parte Randolph, 20 F. Cas. 242, 254 (No.
11,558) (CC Va. 1833) (Marshall, C.J.))); see also infra note 17. In
any event, because the majority decides the constitutional question
and gets it wrong, I see no reason to withhold my views. Cf. Freytag
v. Comm’r, 501 U.S. 868, 892-922 (1991) (Scalia, J., concurring in
part and concurring in the judgment) (expressing views on merits
after disagreeing with Court’s decision to reach Appointments
Clause issue).
6
comfortably within the text and structure of the Constitution.4
FTC v. Ruberoid Co., 343 U.S. 470, 487 (1952) (Jackson, J.,
dissenting) (“[A]dministrative bodies . . . have become a
veritable fourth branch of the Government, which has deranged
our three-branch legal theories . . . .”); see PHILIP HAMBURGER,
IS ADMINISTRATIVE LAW UNLAWFUL? 1-2 (2014)
(“Constitution generally establishes three avenues of power”
but administrative state “prefers to drive off-road”).
Cognizant of modern-day complexities, and bowing to
perceived necessity, the judiciary has made accommodations
such as Humphrey’s Executor. But the accommodations have
limits and the CFPB exceeds them.
A. THE PRESIDENT’S REMOVAL POWER
Three Article II cases—Myers, Humphrey’s Executor and
Free Enterprise Fund—set forth the legal framework for
deciding the CFPB’s constitutionality. I discuss each in turn.
1. Myers
One would not know it from the CFPB’s one-sentence
treatment, CFPB Br. 32, but Myers is a “landmark,” Free
Enter. Fund, 561 U.S. at 492. In 1917, President Wilson, by
and with the advice and consent of the Senate, appointed Frank
Myers to a four-year term as first-class postmaster. Myers,
272 U.S. at 56, 106. He did so pursuant to an 1876 statute
providing in relevant part that “[p]ostmasters of the first,
second and third classes shall be appointed and may be
removed by the President by and with the advice and consent
of the Senate.” Id. at 107 (quoting Act of July 12, 1876, ch.
4
In this opinion, I use the term “independent agency” to mean
an agency whose principal officers enjoy protection from removal at
the President’s will. See Free Enter. Fund, 561 U.S. at 483.
7
179, § 6, 19 Stat. 80, 81). In 1920, for reasons undisclosed in
the Myers opinion, 5 President Wilson removed Myers from
office without the Senate’s advice and consent. Id. at 106-07.
Invoking the 1876 statute, Myers sued for “salary from the date
of his removal.” Id. at 106. He lost. In an opinion authored
by Chief Justice Taft—Wilson’s predecessor as President—the
Supreme Court held that requiring the President to obtain
advice and consent in order to remove an executive officer
violates Article II. Id. at 108, 176.
Because the Constitution contains “no express provision
respecting removals” and “[t]he subject was not discussed in
the Constitutional Convention,” 272 U.S. at 109-10, the Court
focused on the First Congress, id. at 111-36. In 1789, the First
Congress enacted a law that effectively recognized “the power
of the President under the Constitution to remove the Secretary
of Foreign Affairs”—now the Secretary of State—“without the
advice and consent of the Senate.” Id. at 114; see id. at 111-
15. The Court gave “great[] weight” to the debates on the bill
because the First Congress “numbered among its leaders those
who had been members of the Convention.” Id. at 136, 174-
75. The Court pointed especially to James Madison’s
“masterly” arguments about the removal power because they
“carried the House.” Id. at 115. Collecting the views of
Madison and his colleagues, and “supplementing them” with
“additional considerations” of its own, the Court declared that
generally the President’s “executive power” “includ[es] . . . the
5
Many years later, the Supreme Court noted that Myers had
been suspected of fraud. Raines v. Byrd, 521 U.S. 811, 827 (1997).
Historical records indicate that he also alienated colleagues and
ensnared himself in one political dustup after another. See Jonathan
L. Entin, The Curious Case of the Pompous Postmaster: Myers v.
United States, 65 CASE W. RES. L. REV. 1059, 1062-64 (2015)
(citing contemporaneous news accounts and personal letters).
8
exclusive power of removal.” Id. at 115, 122. The Court
supported that general proposition with four reasons rooted in
constitutional text, structure and function. Id. at 115-35.
First, Article II gives the President not only the power to
execute the laws but the obligation “to take care that they be
faithfully executed.” 272 U.S. at 117. He cannot do so
“unaided”; he needs “the assistance of subordinates.” Id.
Because “his selection of administrative officers is essential to”
his faithful execution of the laws, “so must be his power of
removing those for whom he can not continue to be
responsible.” Id. (citing 1 ANNALS OF CONG. 474 (1789)
(Joseph Gales ed., 1834) (available in photo. reprint, William
S. Hein & Co. 2003) (statement of Fisher Ames)). And
because the crown—the British executive—had the power to
appoint and remove executive officers, “it was natural” for the
Framers “to regard the words ‘executive power’ as including
both.” Id. at 118.
Second, the Constitution divides legislative and executive
powers, giving them to two separate but coequal political
branches as a check against oppression by either. 272 U.S. at
120-21. Some Framers had thought it an “unchaste”
“mingling” of the legislative and executive powers even to give
the Senate the job of advising on and consenting to the
President’s appointments. Id. at 120 (quoting 1 ANNALS OF
CONG. 557 (statement of Abraham Baldwin)). In the First
Congress, Madison and others cautioned against “‘extend[ing]
this connexion’” to “the removal of an officer who has served
under the President.” Id. at 121 (quoting 1 ANNALS OF CONG.
380 (statement of James Madison)). Whereas a veto on the
appointment power merely “enables the Senate to prevent the
filling of offices with bad or incompetent men,” a veto on the
President’s “exclusive power of removal” entangles the
Congress in an executive function: deciding whether an
9
incumbent officer has the requisite “loyalty” to the President’s
agenda. Id. at 121-22, 131, 134.
Third, the President’s removal power is especially strong
with respect to principal executive officers. 272 U.S. at 126-
29. The first half of the Appointments Clause requires the
President personally to appoint, with the Senate’s advice and
consent, “Ambassadors, other public Ministers and Consuls,
Judges of the supreme Court, and all other Officers of the
United States, whose Appointments are not herein otherwise
provided for, and which shall be established by Law.” U.S.
CONST. art. II, § 2, cl. 2. By way of an “exception,” 272 U.S.
at 127, the second half of the Appointments Clause provides:
“[B]ut the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone,
in the Courts of Law, or in the Heads of Departments.” U.S.
CONST. art. II, § 2, cl. 2. The Congress accordingly has
“legislative power in the matter of appointments and removals
in the case of inferior executive officers.” 272 U.S. at 127
(citing United States v. Perkins, 116 U.S. 483, 485 (1886)).
“By the plainest implication,” however, the Appointments
Clause “excludes Congressional dealing with appointments or
removals of executive officers not falling within the [inferior-
officer] exception, and leaves unaffected the executive power
of the President to appoint and remove” principal officers. Id.Fourth, the Framers did not “intend[], without express
provision, to give to Congress . . . the means of thwarting the
Executive . . . by fastening upon him, as subordinate executive
officers, men who by their inefficient service,” “lack of
loyalty” or “different views of policy” would make it “difficult
or impossible” for him to “faithfully execute[]” the laws. 272
U.S. at 131. The removal power was vested in the President
to help him “secure th[e] unitary and uniform execution of the
laws,” id. at 135, and to preserve a discernible “chain” of
10
“responsibility” from appointed officers to the President and
from the President to the people, id. at 131-32 (quoting 1
ANNALS OF CONG. 499, 523 (statements of James Madison and
Theodore Sedgwick)).
For those four reasons, the Court concluded that the
President must ordinarily have “unrestricted power” to
“remov[e] executive officers who ha[ve] been appointed by
him by and with the advice and consent of the Senate.” 272
U.S. at 176. Because the 1876 statute restricting removal of
postmasters violated that general rule, the Court invalidated the
statute. Id.
2. Humphrey’s Executor
Less than a decade after Myers, the Supreme Court in
Humphrey’s Executor again addressed the scope of the
President’s removal power, this time in the context of the FTC.
Under section 1 of the Federal Trade Commission Act (FTC
Act), an FTC commissioner “may be removed by the President
for inefficiency, neglect of duty, or malfeasance in office.” 15
U.S.C. § 41. In 1933, President Roosevelt requested the
resignation of William Humphrey, a business-friendly FTC
commissioner appointed by President Coolidge and
reappointed by President Hoover. 295 U.S. at 618; see
RICHARD A. HARRIS & SIDNEY M. MILKIS, THE POLITICS OF
REGULATORY CHANGE: A TALE OF TWO AGENCIES 153 (2d ed.
1996) (noting that Humphrey’s appointment was perceived as
“transform[ing] the FTC into an agency that served not as an
overseer but a partner of business” (internal quotation
omitted)). In his correspondence with Humphrey, President
Roosevelt cited “polic[y]” differences and “disclaim[ed] any
reflection upon the commissioner personally or upon his
services.” 295 U.S. at 618-19 (internal quotation omitted).
Humphrey refused to resign and the President removed him.
11
Id. at 619. Humphrey died shortly thereafter but his executor
sued to recover Humphrey’s salary from the date of removal.
Id. at 618-19.
The Court in Humphrey’s Executor confronted two
questions. First, does section 1 of the FTC Act prohibit the
President from removing an FTC commissioner for any reason
other than inefficiency, neglect or malfeasance? 295 U.S. at
619. Second, if so, “is such a restriction or limitation valid
under the Constitution”? Id. The Court answered yes to both
questions. Id. at 632. In considering the first question, the
Court described at length “the character of the commission,”
id. at 624, as manifested in the FTC Act’s text and legislative
history, id. at 619-26. And in considering the second question,
the Court indicated that “the character of the office” would
determine the Congress’s ability to restrict the President’s
removal power. Id. at 631.
In other words, the constitutionality of the FTC Act, like
any other law, depended on its content. The CFPB resists this
truism, suggesting the “Court’s discussion of the FTC’s
structure” is irrelevant because it “comes in the statutory
interpretation part of the decision.” CFPB Br. 31. But
Humphrey’s Executor makes plain that, if we are to understand
what it says about Article II, we must understand the structure
of the agency it sustained. 295 U.S. at 632 (holding that
President’s “unrestrictable power” of removal “does not extend
to an office such as that here involved” (emphasis added)); see
Free Enter. Fund, 561 U.S. at 516 (Breyer, J., dissenting)
(recognizing that applicability of Humphrey’s Executor turns
in part on “the nature of the office,” “its function” and “its
subject matter”); see also Maj. Op. 22, 36 (“Supreme Court
looks to the character of the office” and “the sort of agency
involved” when “analyzing where Congress may deploy . . .
for-cause protection” (internal quotation omitted)).
12
As summarized in Humphrey’s Executor, the FTC’s
structure is as follows:
• It is composed of five commissioners. 295 U.S. at
619-20. Together they “are called upon to exercise the
trained judgment of a body of experts . . . informed by
experience.” Id. at 624 (internal quotation omitted).
• The FTC has certain “powers of investigation,” id. at
621, but they are legislative rather than executive
because they are for the purpose of making reports and
recommendations to the Congress, id. at 621, 628.
• With the advice and consent of the Senate, the President
appoints each commissioner to a seven-year term
staggered with those of his fellow commissioners. Id.
at 620, 624. The duration and “arrange[ment]” of the
terms foster collective expertise. Id. at 624 (seven
years is “‘long enough’” to “‘acquire . . . expertness’”
if “membership [is not] subject to complete change at
any one time” (quoting S. REP. NO. 63-597, at 11
(1914))).
• The FTC is a “non-partisan” “agency of the legislative
and judicial departments.” Id. at 624, 630. “Its duties
are neither political nor executive, but predominantly
quasi-judicial and quasi-legislative.” Id. at 624; see id.
at 628-29. To ensure the FTC’s “entire impartiality”
in carrying out its duties—and to insulate it from
“suspicion of partisan direction”—no more than three
of its commissioners can be members of the same
political party. Id. at 620, 624-25.
Having made these observations, the Court concluded that
an FTC commissioner “is so essentially unlike” a first-class
13
postmaster that Myers “cannot be accepted as controlling our
decision here.” 295 U.S. at 627. Unlike a postmaster, the
Court reasoned, an FTC commissioner “exercises no part of the
executive power . . . in the constitutional sense.” Id. at 628.
Rather, “[t]o the extent that [the FTC] exercises any executive
function, . . . it does so in the discharge and effectuation of its
quasi-legislative and quasi-judicial powers” as an expert
agency “charged with the enforcement of no policy except the
policy of the law.” Id. at 624, 628. In the Court’s view, just
as the Congress has limited power to interfere with the
President’s removal of executive officers, the President has
“[]limitable power” to remove FTC commissioners because
they are legislative or judicial officers. Id. at 629; see id. at
630 (“The sound application of a principle that makes one
master in his own house precludes him from imposing his
control in the house of another who is master there.”).
3. Free Enterprise Fund
In Free Enterprise Fund, the Supreme Court’s most recent
decision on the scope of the removal power, the Court was
asked to extend Humphrey’s Executor to “a new situation” it
had “not yet encountered.” 561 U.S. at 483. It declined the
invitation. At issue were provisions that precluded the
Securities and Exchange Commission (SEC) from removing
members of the Public Company Accounting Oversight Board
(Board) except for cause. Id. at 486 (citing 15 U.S.C.
§§ 7211(e)(6), 7217(d)(3)). Based on the “understanding”
that SEC commissioners “cannot themselves be removed by
the President except” for cause, id. at 487, the Court held that
two layers of “good-cause protection” violate Article II
because together they prevent the President from “oversee[ing]
the faithfulness” of officers who “determine[] the policy and
enforce[] the laws of the United States,” id. at 484.
14
The Court acknowledged that the Congress has “power to
create a vast and varied federal bureaucracy” to ensure
“apolitical expertise.” 561 U.S. at 498-99 (internal quotation
omitted). But faced with a “novel structure” not squarely
authorized by Humphrey’s Executor or any other precedent, id.
at 496; see id. at 483, 492-96, 514, the Court returned to the
most fundamental of first principles: “Our Constitution was
adopted to enable the people to govern themselves, through
their elected leaders.” Id. at 499. In view of that principle,
the Court held that the Congress could not “encase[]” the Board
“within a Matryoshka doll of tenure protections” and thereby
“immun[ize] from Presidential oversight” the “regulator of first
resort . . . for a vital sector of our economy.” Id. at 497, 508;
see id. at 485 (detailing Board’s “expansive powers to govern
an entire industry” through rulemaking, audits, inspections,
investigations, monetary penalties and other forms of
discipline). Concluding otherwise, the Court reasoned, would
sever the chain of responsibility linking the Board to the people
via the President. Id. at 495 (“The result is a Board that is not
accountable to the President, and a President who is not
responsible for the Board.”).
B. THE CFPB’S STRUCTURAL DEFECTS
Under the foregoing framework and considering Title X as
a whole, I believe the CFPB’s structure violates Article II.
1. Novelty
For me the initial question is whether the Supreme Court
has “encountered” an agency like the CFPB or if, instead, its
structure is “novel.” Free Enter. Fund, 561 U.S. at 483, 496.
Although structural “innovation” is not itself unconstitutional,
Mistretta v. United States, 488 U.S. 361, 385 (1989); see Maj.
Op. 53-54, a novel agency fights uphill: “the lack of historical
precedent for [an] entity” is “[p]erhaps the most telling
15
indication of [a] severe constitutional problem.” Free Enter.
Fund, 561 U.S. at 505 (internal quotation omitted). The CFPB
argues that it is sufficiently like the FTC to fall within the ambit
of Humphrey’s Executor. CFPB Br. 13-14, 18-21, 23, 30-31.
It also relies on Morrison v. Olson, 487 U.S. 654 (1988), which
involved the independent counsel. CFPB Br. 18-21, 24-25,
31-32. Finally, along with Humphrey’s Executor and
Morrison, my colleagues invoke Wiener v. United States, 357
U.S. 349 (1958), which involved a claims adjudicator. Maj.
Op. 7-9, 20-30, 36, 38, 42, 58, 66-67; Wilkins Concurring Op.
4-5, 10. None of this is precedent for the CFPB or its Director.
Before explaining why, I recap essential elements of the
CFPB’s design.
a. Title X
Equating financial products with household appliances,
Professor Elizabeth Warren in 2007 advocated for the creation
of a federal agency to protect consumers from “[u]nsafe”
mortgages, student loans and credit cards in the same way the
Consumer Product Safety Commission protects consumers
from exploding toasters. Elizabeth Warren, Unsafe at Any
Rate, DEMOCRACY (Summer 2007), perma.cc/52X3-892V.
She proposed that the Congress consolidate in the new agency
the power to administer most federal consumer-protection
laws, the result being “the review of financial products in a
single location.” Id. The proposed agency was to be
“independent” of “national politic[s],” the “financial . . .
industry lobby” and “legislative micromanaging.” Id. Freed
of such burdens, the agency could take “quick action” to solve
the problems regularly generated by a financial services
industry bent on “increas[ing] profits.” Id. The agency, in
short, was to “side” with consumers against the industry. Id.16
Consistent with Professor Warren’s proposal, Title X
established the CFPB as “an independent bureau” to “regulate
the offering and provision of consumer financial products or
services under the Federal consumer financial laws.” 12
U.S.C. § 5491(a). It transferred to the CFPB the authority to
enforce eighteen existing laws previously administered by
seven different federal agencies. Id. §§ 5481(12), 5581(a)(2),
(b). Those eighteen laws cover most consumer credit
products, including mortgages, student loans and credit cards.
The CFPB now has all but exclusive power “to prescribe rules
or issue orders or guidelines pursuant to” all eighteen laws. Id.
§ 5581(a)(1)(A); see id. §§ 5481(12), 5512(b)(4). The agency
also has expansive new powers under Title X to investigate,
charge, adjudicate and penalize—through (inter alia)
subpoena, rescission, restitution, disgorgement and monetary
penalties—a consumer-connected “act or practice” the agency
defines as “unfair, deceptive, or abusive.” Id. § 5531(a), (b);
see id. §§ 5562-5565.
The CFPB’s expansive powers are vested in and derive
from its sole Director. 12 U.S.C. § 5491(b)(1) (Director is
“head” of CFPB); id. § 5491(b)(5)(A) (Director appoints
Deputy Director); id. § 5492(b) (Director “may delegate to any
duly authorized employee, representative, or agent any power
vested in the Bureau by law”); id. § 5493(a)(1)(A) (Director
“fix[es] the number of” CFPB employees and “appoint[s]” and
“direct[s]” all of them); id. § 5512(b)(1) (Director “may
prescribe rules and issue orders and guidance, as may be
necessary or appropriate to enable the Bureau to administer and
carry out the purposes and objectives of the Federal consumer
financial laws, and to prevent evasions thereof”).
The President appoints the Director “by and with the
advice and consent of the Senate.” 12 U.S.C. § 5491(b)(2).
The Director is thereafter insulated from both political
17
branches. He has a five-year term, id. § 5491(c)(1), and the
President may remove him only “for cause,” i.e., “inefficiency,
neglect of duty, or malfeasance in office,” id. § 5491(c)(3). 6
At the same time, the Director obtains funding from the Federal
Reserve System, outside the Congress’s appropriations
process. Id. § 5497(a)(1). On a quarterly basis, the Director
determines how much money the CFPB “reasonably” needs,
id., up to 12 per cent of the Federal Reserve budget, id.
§ 5497(a)(2)(A)(iii). The Federal Reserve “shall” then
transfer that amount to the CFPB. 7 Id. § 5497(a)(1). The
money “shall not be subject to review by the Committees on
Appropriations of the House of Representatives and the
Senate.” Id. § 5497(a)(2)(C). Nor does the Director need
“any” form of “consent or approval” from the executive
branch’s Office of Management and Budget (OMB), which
lacks “any jurisdiction or oversight over the affairs or
operations of the Bureau.” Id. § 5497(a)(4)(E).
6
Title X permits the Director to continue serving “after the
expiration of the term for which [he is] appointed, until a successor
has been appointed and qualified.” 12 U.S.C. § 5491(c)(2). Citing
a CFPB concession, Oral Arg. Tr. 48-49, the Court suggests the
President may remove the Director at will during any holdover
period, Maj. Op. 12 n.1. I agree. Nothing in the statute authorizes
the Senate to keep a holdover Director in office against the
President’s will by failing to act on a nominee even after expiration
of the Director’s term has triggered the President’s appointment
power under 12 U.S.C. § 5491(b)(2). Cf. Swan v. Clinton, 100 F.3d
973, 981-88 (D.C. Cir. 1996) (no good-cause protection for holdover
board member of National Credit Union Administration).
7
Through three quarters of fiscal year 2017, the Director
claimed $517.4 million, putting him on pace for the maximum of
$646.2 million for the year. CFPB, Semiannual Report 122 (Spring
2017), perma.cc/M7XD-4QMT.
18
b. CFPB distinguished from FTC
The agency just described is not even a distant cousin of
the FTC blessed by Humphrey’s Executor. I see at least three
critical distinctions.
First, like nearly all other administrative agencies, the
FTC is and always has been subject to the appropriations
process. 15 U.S.C. § 42; see HARRIS & MILKIS, supra, at 146,
204-05 (discussing FTC appropriations); see also Note,
Independence, Congressional Weakness, and the Importance
of Appointment: The Impact of Combining Budgetary
Autonomy with Removal Protection, 125 HARV. L. REV. 1822,
1823 (2012) (Budgetary Autonomy) (“A complete exemption
from appropriations is rare . . . .”). Accordingly, the FTC must
go to the Congress every year with a detailed budget request
explaining its expenditure of public money. See, e.g., FTC,
Fiscal Year 2018 Congressional Budget Justification (May 22,
2017) (185-page request), perma.cc/4V7G-83JL. The
procedure provides a measure of public accountability and
helps explain the Supreme Court’s description of the FTC as a
“quasi-legislative” agency that “report[s] to Congress.”
Humphrey’s Ex’r, 295 U.S. at 621, 624, 628-29.
The CFPB is different. As the agency itself declares, it is
“fund[ed] outside of the congressional appropriations process
to ensure full independence.” CFPB, Strategic Plan: FY2013-
FY2017, at 36 (Apr. 2013), perma.cc/XQW5-5S5S. The
agency has made the most of its autonomy: when legislators
have sought explanation for its spending or policies, it has
stonewalled. See, e.g., Letter from Rep. Randy Neugebauer et
al. to Richard Cordray (May 2, 2012) (noting CFPB’s “wholly
unresponsive” posture to “requests for additional budget
information”), perma.cc/NTH6-KR98; Letter from Sen. Rob
Portman et al. to Richard Cordray (Oct. 30, 2013) (seeking
19
“greater transparency for the Bureau’s activity”),
perma.cc/5N3Z-GGCQ. Perhaps the best illustration is a
2015 hearing in which a legislator asked the Director who
authorized a CFPB project that cost more than $215 million.
House Financial Services Committee, Hearings and Meetings
(Mar. 17, 2015), www.congress.gov/committees/video/house-
financial-services/hsba00/5IxSfJ638cs. The Director replied:
“Why does that matter to you?” Id.The appropriations process has long been considered “the
most potent form of Congressional oversight.” 2 SENATE
COMMITTEE ON GOVERNMENT OPERATIONS, STUDY ON
FEDERAL REGULATION: CONGRESSIONAL OVERSIGHT OF
REGULATORY AGENCIES 42 (1977); see MICHAEL J. KLARMAN,
THE FRAMERS’ COUP: THE MAKING OF THE UNITED STATES
CONSTITUTION 16 (2016) (founding generation “generally
embraced the maxim that the power which holds the purse-
strings absolutely will rule” (internal quotation and brackets
omitted)). Because of its freedom from appropriations, the
CFPB cannot be called “an agency of the legislative . . .
department[]” and the Congress cannot be called its “master.”
Humphrey’s Ex’r, 295 U.S. at 630. The agency argues that,
whatever its accountability to the Congress, its budgetary
independence “does not interfere with the President’s power to
take care that the laws be faithfully executed.” CFPB Br. 28
& n.8 (emphasis added); see Maj. Op. 41 (“The CFPB’s
budgetary independence . . . does not intensify any effect on
the President of the removal constraint.”). The contention
overlooks the President’s constitutional role in the budget
process.
Lest it be forgotten, the Presentment Clause gives the
President the power to veto legislation, including spending
bills. U.S. CONST. art. I, § 7, cl. 2. Armed with that authority
and the prerogative to “recommend to [the Congress’s]
20
Consideration such Measures as he shall judge necessary and
expedient,” U.S. CONST. art. II, § 3, the President has for the
past century submitted an annual budget to the Congress, see
LOUIS FISHER, CONGRESSIONAL ABDICATION ON WAR AND
SPENDING 24 (2000) (tracing practice to Budget and
Accounting Act of 1921). Indeed, the President has long been
required to submit an annual budget. 31 U.S.C. § 1105(a).
Acting through OMB, the President uses his annual budget
to influence the policies of independent agencies, including the
FTC. Eloise Pasachoff, The President’s Budget as a Source
of Agency Policy Control, 125 YALE L.J. 2182, 2191, 2203-04
(2016) (independent agencies “must participate in the annual
budget cycle under [the] oversight” of OMB’s Resource
Management Offices, which in turn “serve as a conduit for
policy and political direction from the President” and his staff);
see, e.g., HARRIS & MILKIS, supra, at 204-05 (noting policy-
driven budget cuts at FTC under President Reagan). The
President lacks that leverage over the CFPB, which stands
outside the budget. 12 U.S.C. § 5497(a)(1).
Similarly, the President requires the FTC and other
independent agencies to (inter alia) “prepare an agenda of all
regulations under development or review” and submit them to
the Office of Information and Regulatory Affairs, an arm of
OMB, to ensure “coordination of regulations” that “promote
the President’s priorities.” Exec. Order No. 12866 § 4, 58
Fed. Reg. 51735 (Sept. 30, 1993); see Exec. Order No. 13563
§ 1(b), 76 Fed. Reg. 3821 (Jan. 18, 2011) (“reaffirm[ing]” 1993
order). But the requirements apply only “to the extent
permitted by law,” Exec. Order No. 12866 § 4, and Title X
exempts the CFPB by shielding it from OMB’s “jurisdiction or
oversight,” 12 U.S.C. § 5497(a)(4)(E).
21
Second, unlike the FTC, the CFPB is not a “non-partisan”
commission pursuing “entire impartiality” in law and policy.
Humphrey’s Ex’r, 295 U.S. at 624. In contrast to the FTC, see
id. at 620, the CFPB does not have a partisan balance
requirement. Its single Director is from a single party—in
most cases, presumably, the party of the President who
appoints him.
The CFPB contends that its single-Director, single-party
structure is no greater threat to the President’s faithful
execution of the laws than is the FTC’s multimember bipartisan
structure. CFPB Br. 23-32. In fact, the CFPB says, the
President can more easily replace or persuade one Director than
three of five commissioners. See, e.g., Oral Arg. Tr. 49; see
also Maj. Op. 35, 43-44 (making similar points). But if the
President’s dissatisfaction is rooted in policy, it is just as
impossible for him to remove a single official with for-cause
protection as it is to remove several such officials. 8 And
8
Some commentators have suggested that a provision
permitting removal for “‘inefficiency, neglect of duty, or
malfeasance in office’” allows the President “to discharge officials
whom he finds incompetent because of their consistently foolish
policy choices.” Richard H. Pildes & Cass R. Sunstein, Reinventing
the Regulatory State, 62 U. CHI. L. REV. 1, 30 (1995). Humphrey’s
Executor leaves little or no room for that argument: the Supreme
Court rebuffed President Roosevelt’s attempt to remove Humphrey
based on the policies Humphrey had pursued for years. 295 U.S. at
619 (President told Humphrey, “I do not feel that your mind and my
mind go along together on either the policies or the administering of
the Federal Trade Commission” (internal quotation omitted)); see
Free Enter. Fund, 561 U.S. at 502 (reading Humphrey’s Executor to
suggest that “simple disagreement with [an official’s] policies or
priorities” does not “constitute ‘good cause’ for [his] removal”); see
also Amicus Br. of Current and Former Members of Congress
Supporting CFPB 2 (arguing that 12 U.S.C. § 5491(c)(3) does not
permit President to remove Director “for policy differences alone”);
22
whether directed at one officer or more, attempts at persuasion
are no substitute for removal. Free Enter. Fund, 561 U.S. at
502 (“Congress cannot reduce the Chief Magistrate to a
cajoler-in-chief.”).
Moreover, because of the mismatch between the
President’s four-year term and the Director’s five-year term,
the CFPB’s entire leadership may for much of the President’s
tenure—and sometimes all of it—identify with a political party
other than the President’s. This does not happen at the FTC.
The difference matters for accountability: a minority party of a
multimember agency is “a built-in monitoring system,”
dissenting when appropriate and serving as a “fire alarm” for
the President and the public. Rachel E. Barkow, Insulating
Agencies: Avoiding Capture Through Institutional Design, 89
TEX. L. REV. 15, 41 (2010).
Further, whereas the FTC is structured to administer the
laws apolitically and with “impartiality,” Humphrey’s Ex’r,
295 U.S. at 624, the CFPB’s design encourages the opposite.
Title X gives the Director latitude to define and punish “unfair,
deceptive, or abusive acts or practices” broadly or narrowly,
Press Conference, Financial Regulations Bill, C-SPAN (Mar. 24,
2010) (Rep. Frank: “I am obviously committed to a very strong
independent consumer agency that can’t be overruled on policy
grounds . . . .”), www.c-span.org/video/?292698-2/financial-
regulations-bill (3:52-3:58). In a testament to how difficult it may
be to remove a principal officer for cause, the CFPB admits that it
“cannot” provide “any example where an agency head has been
actually successfully removed for cause.” Oral Arg. Tr. 72. In any
event, if Article II authorizes the President to remove a particular
officer at will, he should not have to concern himself with the
potential political cost of asserting inefficiency, neglect or
malfeasance as cover for a policy choice. Cf. Free Enter. Fund, 561
U.S. at 547 (Breyer, J., dissenting).
23
depending on his policy preferences. 12 U.S.C. § 5531(a),
(b); see id. § 5531(c), (d) (malleable statutory definitions of
“unfair” and “abusive”). The legislators who supported Title
X expected the Director to use that power—together with his
authority over eighteen other laws—to “stick[] up for the little
guy” in the “battle” against “all the big sharks and lobbyists
and lawyers who are ganged up against [him].” 156 CONG.
REC. 6364, 6366, 7015 (2010) (statements of Sen.
Whitehouse); see id. at 3187 (statement of Sen. Kaufman)
(CFPB is to “look[] out totally for the interest of consumers and
consumers alone”). 9 The agency’s first Director shared that
one-sided vision, describing his “sole focus” as “protecting
consumers.” CFPB, Written Testimony of CFPB Director
Richard Cordray Before the House Committee on Financial
Services (Mar. 3, 2015), perma.cc/GAG6-ENDN.
I do not question the importance of protecting consumers.
But an agency cannot be considered “impartial[]” under
Humphrey’s Executor if in partisan fashion it uniformly
crusades for one segment of the populace against others.
Consistent with its design, that is what the CFPB has done.
See Dep’t of Treasury, A Financial System That Creates
Economic Opportunities: Banks and Credit Unions 82-87
9
See also, e.g., 156 CONG. REC. 2052 (statement of Rep.
Tsongas) (CFPB was designed to “level [the] playing field”); id. at
6240 (statement of Sen. Franken) (it is “an independent watchdog for
consumers”); id. at 7486 (statement of Sen. Dodd) (it is “one single,
empowered, focused cop on the consumer protection beat”); id. at
11814 (statement of Rep. Lee) (it “puts consumers first”); id.
(statement of Rep. Fudge) (it “hold[s] Wall Street and the big banks
accountable”); id. at 12414 (statement of Rep. McGovern) (it
“empower[s] consumers”); id. at 12434 (statement of Rep. Maloney)
(it is “on their side”); id. at 13135 (statement of Sen. Cardin) (it
“represent[s]” consumers “in the financial structure”).
24
(June 2017) (Economic Opportunities) (cataloging
questionable practices CFPB has undertaken at expense of
regulated parties), perma.cc/V3SC-VXBH; Amicus Br. of U.S.
Chamber of Commerce 16-29 (same).
By at least some accounts, for instance, the CFPB under
its first Director hired all but exclusively from one political
party, deliberately weeding out applicants from other parties
and the banking industry. Todd Zywicki, The Consumer
Financial Protection Bureau: Savior or Menace?, 81 GEO.
WASH. L. REV. 856, 877, 895 (2013) (asserting that agency
hired staffers and “true believers” from one political party);
Ronald L. Rubin, The Tragic Downfall of the Consumer
Financial Protection Bureau, NAT’L REV., Dec. 21, 2016
(alleging, from insider’s perspective, that agency used
“screening techniques”), perma.cc/VR9F-TWHQ; cf. Bill
McMorris, 100% of CFPB Donations Went to Democrats,
WASH. FREE BEACON, Nov. 23, 2016 (reporting that, during
2016 Presidential election, CFPB employees made more than
300 donations totaling about $50,000, all of which went to
candidates of one party), perma.cc/6JVQ-RRRQ.
Additionally, the CFPB provides an online forum for
consumers to complain publicly about providers of mortgages,
student loans, credit cards and other financial products.
CFPB, Consumer Complaint Database, perma.cc/VT2D-
E6K5. The agency acknowledges that some complaints may
be misleading or flat wrong. Disclosure of Consumer
Complaint Narrative Data, 79 Fed. Reg. 42765, 42767 (July 23,
2014) (“[T]he narratives may contain factually incorrect
information . . . .”). Without attempting to verify them, the
agency publishes the complaints anyway, knowing it is
providing a “megaphone” for debtors who needlessly damage
business reputations. CFPB, Prepared Remarks of CFPB
Director Richard Cordray at the Consumer Response Field
25
Hearing (July 16, 2014), perma.cc/4S3G-9ALK. Compare
that blinkered outlook with the FTC’s approach. The FTC
likewise provides a complaint database to help deter and detect
unfair business practices. But its database can be accessed
only by law enforcement agencies, yielding similar value
without the reputational costs. FTC, Consumer Sentinel
Network, perma.cc/M5TZ-5USM. One cannot help but think
that the difference in the FTC’s policy owes at least in part to
the difference in its design.
Consider also PHH’s case. In rulings reinstated today,
see Maj. Op. 16-17, the panel rejected: the Director’s new
interpretation of the anti-kickback provision of the Real Estate
Settlement Procedures Act (RESPA), PHH Corp. v. CFPB, 839
F.3d 1, 39-44 (D.C. Cir. 2016), vacated upon grant of reh’g en
banc (Feb. 16, 2017); his attempt to apply that interpretation
retroactively to PHH, id. at 44-49; his construction of RESPA’s
limitations provision, id. at 52-55; and his theory that the CFPB
is bound by no limitations period in any administrative
enforcement action under any of the laws the agency
administers, id. at 50-52. The issues were “not a close call”:
the CFPB flunked “Rule of Law 101” and was called out for
“gamesmanship” and “absurd[]” reasoning. Id. at 41, 48-49,
55. An agency that gets the law so badly wrong four times
over in its first major case in this circuit has a steep climb in
claiming “[i]t is charged with the enforcement of no policy
except the policy of the law.” Humphrey’s Ex’r, 295 U.S. at
624.
Third, and relatedly, the Director is not a “body of experts”
“informed by experience,” Humphrey’s Ex’r, 295 U.S. at 624(internal quotation omitted), because he is not a body at all.
When a Director leaves at the end of his term, he takes with
him all of the expertise and experience that his board of one
has collected in five years. The new Director—faced with a
26
one-sided mission and armed with unilateral power to
administer a complex web of laws at the heart of the credit
economy—starts with no expertise qua rector and has no
coequal colleagues with whom to deliberate. Far from
“promot[ing] stability and confidence,” Maj. Op. 13; see id. at
7, 33, full turnover from one insulated Director to the next is a
recipe for jarring policy changes and costly rookie mistakes,
see, e.g., PHH Corp., 839 F.3d at 7 (multitude of errors
“resulted in a $109 million order against” PHH).
By contrast, each FTC commissioner is informed by
fellow commissioners who have years of collective experience
as commissioners. See Kirti Datla & Richard L. Revesz,
Deconstructing Independent Agencies (and Executive
Agencies), 98 CORNELL L. REV. 769, 794 (2013)
(“[M]ultimember agencies allow for the development of
institutional memory.”). From the FTC’s inception, its
staggered multimember structure has been central to its
functions. The Congress passed the FTC Act in part because
of dissatisfaction with the Bureau of Corporations, “a single-
headed organization” better suited to “investigation and
publicity” than to “judgment and discretion.” 51 CONG. REC.
11092 (1914) (statement of Sen. Newlands, sponsor of FTC
Act). As the Senate Report explained:
It is manifestly desirable that the terms of the
commissioners shall be long enough to give
them an opportunity to acquire the expertness in
dealing with these special questions concerning
industry that comes from experience. The
terms of the commissioners should expire in
different years, in order that such changes as
may be made from time to time shall not leave
the commission deprived of men of experience
in such questions.
27
One of the chief advantages of the proposed
commission over the Bureau of Corporations
lies in the fact that it will have greater prestige
and independence, and its decisions, coming
from a board of several persons, will be more
readily accepted as impartial and well
considered.
S. REP. NO. 63-597, at 10-11 (1914).
The CFPB’s proponents view its single-Director structure
as a strong selling point. In the 111th Congress, they
advocated for a regulator who can “keep pace with the
changing financial system” and “respond quickly and
effectively to . . . new threats to consumers.” S. REP. NO. 111-
176, at 18, 40 (2010); see id. at 11 (agency must be
“streamlined” and “have enough flexibility to address future
problems as they arise”); 156 CONG. REC. 6237 (2010)
(statement of Sen. Whitehouse) (agency must “monitor the
market and act quickly when there is a consumer hazard”); id.
at 12436 (statement of Rep. Meeks) (agency must “act swiftly”
to protect consumers “from unscrupulous behavior”); id. at
15025 (statement of Sen. Durbin) (agency must “keep up with
the[] lawyers and accountants” of “the big banks on Wall
Street”); cf. Warren, Unsafe at Any Rate, supra (agency must
be prepared to take “quick action” against financial services
industry). Similarly, in this Court, the agency’s proponents
tout its single-Director structure as essential to preventing “the
delay and gridlock to which multimember commissions are
susceptible.” Amicus Br. of Current and Former Members of
Congress Supporting CFPB 2; see id. at 15-20.
I do not begin to assert that the Constitution “enacts social
science about the benefits of group decision-making.” Tatel
Concurring Op. 6 (internal quotation omitted). Far be it from
28
a judge to question the Congress’s conclusion that a single
Director beats a multimember commission as a fast-acting
solution to real-time problems. See Buckley v. Valeo, 424 U.S.
1, 138-39 (1976) (per curiam) (subject to constitutional
constraints, Congress has authority to create and structure
government offices “as it chooses”). My point is more
modest: if the Director is a speedy unitary actor, he cannot also
be a “quasi-legislative and quasi-judicial” “body of experts”
exercising “trained judgment” by considered consensus.
Humphrey’s Ex’r, 295 U.S. at 624, 629; compare THE
FEDERALIST NO. 70, at 472 (Alexander Hamilton) (J. Cooke
ed., 1961) (“power in a single hand” is exercised with
“dispatch”), with John Locke, The Second Treatise of Civil
Government, in 2 THE TRADITION OF FREEDOM 201, 252 § 160
(M. Mayer ed., 1957) (legislative power is “too numerous and
so too slow for the dispatch requisite to execution”).
In sum, the FTC is a deliberative expert nonpartisan
agency that reports to the Congress. The CFPB is a unitary
inexpert partisan agency that reports to no one. Because the
former is no precedent for the latter, Humphrey’s Executor
does not control here.
c. CFPB Director distinguished from independent counsel
As for Morrison, that case and this one are not on the same
jurisprudential planet. At issue in Morrison was (inter alia)
whether the Ethics in Government Act “impermissibly
interferes with the President’s exercise of his constitutionally
appointed functions” by “restricting the Attorney General’s
power to remove the independent counsel to only those
instances in which he can show ‘good cause.’” 487 U.S. at
685. The Supreme Court found no violation. Id. at 685-93,
695-96. Crucially, however, the Court recognized that “the
independent counsel [was] an inferior officer under the
29
Appointments Clause, with limited jurisdiction and tenure and
lacking policymaking or significant administrative authority.”
Id. at 691 (emphasis added).
The CFPB Director has even less in common with the
independent counsel than with an FTC commissioner. As no
one disputes, the Director is a principal officer: he has no
“superior” who “direct[s] and supervise[s]” his work.
Edmond v. United States, 520 U.S. 651, 662-63 (1997). The
distinction between principal and inferior makes a considerable
difference. The Constitution gives the Congress much more
power over the appointment and removal of an inferior officer
than over the appointment and removal of a principal officer,
see U.S. CONST. art. II, § 2, cl. 2; Myers, 272 U.S. at 126-29, at
least where, as here, the principal officer is not a legislative
agent under Humphrey’s Executor. 10
10
During oral argument before the en banc Court, there was
much discussion about our being bound by Morrison whether we like
it or not. Oral Arg. Tr. 12-17, 25-26, 30-31, 82-83. Today, three
of my colleagues continue to push the point. Tatel Concurring Op.
5 (joined by Millett and Pillard, JJ.). I do not contradict it. See
Hutto v. Davis, 454 U.S. 370, 375 (1982) (per curiam) (“[U]nless we
wish anarchy to prevail within the federal judicial system, a
precedent of [the Supreme] Court must be followed by the lower
federal courts no matter how misguided the judges of those courts
may think it to be.”). All but lost in that discussion, however, has
been the distinction between this case’s principal officer and
Morrison’s inferior officer. Counsel at oral argument only
fleetingly mentioned it. Oral Arg. Tr. 15, 30-31, 83. The majority
relegates it to an ipse dixit footnote, Maj. Op. 42 n.2, ignoring vital
discussion in Myers, 272 U.S. at 126-29; see supra p. 9. And my
colleagues in concurrence denigrate the distinction as “strained”
without explaining why. Tatel Concurring Op. 5. I submit they
can’t. The Supreme Court has described Morrison, together with
Perkins, 116 U.S. at 485, as cases in which “the Court sustained . . .
30
The distinction makes good sense “in the context of a
Clause designed to preserve political accountability relative to
important Government assignments.” Edmond, 520 U.S. at
663. The more important the officer’s assignments, the more
directly his actions implicate the President’s responsibility to
faithfully execute the laws. Myers, 272 U.S. at 132(President’s oversight “varies with the character of [the
officer’s] service”); see id. at 132-33 (each principal executive
officer charged with “highest and most important duties” of his
department “must be the President’s alter ego”). And the
more powerful the officer, the more likely the people will hold
the President personally responsible if the officer formulates
bad policy. 1 ANNALS OF CONG. 499 (statement of James
Madison) (describing “chain of dependence” from “lowest
officers” to “middle grade” to “highest” to “President” to
restrictions on the power of principal executive officers—themselves
responsible to the President—to remove their own inferiors,” Free
Enter. Fund., 561 U.S. at 483 (emphasis added). Administrations
across the political spectrum have recognized that Morrison does not
apply to removal of a principal officer. See The Constitutional
Separation of Powers Between the President and Congress, 20 Op.
O.L.C. 124, 169 (1996) (“The Morrison Court . . . had no occasion
to consider the validity of removal restrictions affecting principal
officers, officers with broad statutory responsibilities, or officers
involved in executive branch policy formulation.”), perma.cc/DF3R-
FFER; Amicus Br. of United States 14 n.3 (Morrison “obviously
does not apply to any principal officer who heads an executive
agency”). And most importantly, Article II itself distinguishes
between principal and inferior. U.S. CONST. art. II, § 2, cl. 2; see 1
ANNALS OF CONG. 548 (statement of James Madison) (“If the
gentleman admits that the Legislature may vest the power of
removal, with respect to inferior officers, he must also admit that the
Constitution vests the President with the power of removal in the
case of superior officers; because both powers are implied in the
same words.”).
31
“community”); see, e.g., Editorial, President Cordray Strikes
Again, WALL ST. J., Oct. 5, 2017 (criticizing President for not
removing Director), on.wsj.com/2xmzcii; Editorial,
Republicans for Richard Cordray, WALL ST. J., Aug. 11, 2017
(same), on.wsj.com/2fjuMpe; Editorial, Richard Cordray’s
Financial Damage, WALL ST. J., July 12, 2017 (same),
on.wsj.com/2w7nuIr; Editorial, Trump to Cordray: You’re Not
Fired, WALL ST. J., June 20, 2017 (same),
on.wsj.com/2hjw2G5.
The Director is more powerful than the independent
counsel and poses a more permanent threat to the President’s
faithful execution of the laws. The independent counsel had
“limited jurisdiction” to investigate and prosecute crimes
pursuant to Department of Justice policy. Morrison, 487 U.S.
at 691; see id. at 672. She lacked “any authority to formulate
policy” of her own. Id. at 671; see id. at 691. She performed
no “administrative duties outside of those necessary to operate
her office.” Id. at 671-72. She had “limited . . . tenure” and
“no ongoing responsibilities”: her “temporary” office
“terminated” when she finished investigating or prosecuting
the matters for which she was called to duty. Id. at 672(internal quotation omitted); see id. at 664, 691.
The Director’s jurisdiction and tenure, by contrast, are
anything but “limited” and “temporary.” He has all but
exclusive power to make and enforce rules under eighteen
preexisting consumer laws and a nineteenth in Title X itself.
12 U.S.C. §§ 5481(12), 5512(b)(4), 5562-5565, 5581(a)(1)(A).
Under the latter, his power to define and punish “unfair,
deceptive, or abusive acts or practices” is cabined by little more
than his imagination. Id. § 5531(a), (b). Absent inefficiency,
neglect or malfeasance, he is guaranteed five years in which to
impose on the people his version of consumer protection. 12
32
U.S.C. § 5491(c)(1), (3). And the cycle immediately begins
again when he is through.
d. CFPB Director distinguished from claims adjudicator
Wiener has still less bearing on this case than Morrison
does. The parties apparently recognize as much, as their briefs
do not cite it.
In 1948, the Congress established the War Claims
Commission, a temporary body consisting of three
Commissioners whose sole task was to “adjudicate according
to law” claims seeking compensation for injuries suffered
during World War II. Wiener, 357 U.S. at 349-50 (quoting
War Claims Act of 1948, Pub. L. No. 80-896, § 3, 62 Stat.
1240, 1241 (July 3, 1948)). In 1950, President Truman, by
and with the advice and consent of the Senate, appointed
Myron Wiener as a Commissioner. Id. In 1953, President
Eisenhower removed Wiener not for lack of “rectitude” but
because the President wanted “‘personnel of my own
selection.’” Id. at 350, 356. The Commission was abolished
in 1954. Id. at 350. Wiener sued for salary from the date of
his removal. Id. at 350-51.
Viewing Wiener’s case as a “variant” of Humphrey’s
Executor, the Supreme Court held that the War Claims Act
implicitly protected him from removal except for cause and
that the statute so construed was consistent with Article II.
Wiener, 357 U.S. at 351; see id. at 352-56. The Court noted
that Humphrey’s Executor “explicitly ‘disapproved’ the
expressions in Myers supporting the President’s inherent
constitutional power to remove members of quasi-judicial
bodies.” Id. at 352 (quoting Humphrey’s Ex’r, 295 U.S. at
626-27). Emphasizing “the intrinsic judicial character of the
task with which the Commission was charged”—i.e.,
adjudicating individual claims based on “evidence and
33
governing legal considerations”—the Court concluded that
“[t]he philosophy of Humphrey’s Executor” controlled. Id. at
355-56.
As I read it, Wiener stands for the narrow proposition that
the Congress can constitutionally bestow for-cause protection
on an officer whose primary function is adjudication, given his
need for independence. 357 U.S. at 355; see The
Constitutional Separation of Powers Between the President and
Congress, 20 Op. O.L.C. 124, 170 & n.120 (1996) (suggesting
Wiener is limited to officers “whose only functions are
adjudicatory” or at most to officers “whose primary duties
involve the adjudication of disputes involving private
persons”), perma.cc/DF3R-FFER.
The CFPB is not a quasi-judicial body. Nor does its
Director have an “intrinsic judicial character.” Wiener, 357
U.S. at 355. Nor does the Director have as his primary
function the adjudication of disputes. Adjudicative power is
only a fraction of his entire authority. He is no less than the
czar of consumer finance. In that realm, he is legislator,
enforcer and judge. See supra pp. 16-17, 31-32. James
Madison wrote that “[t]he accumulation of all powers
legislative, executive, and judiciary in the same hands . . . may
justly be pronounced the very definition of tyranny.” THE
FEDERALIST NO. 47, at 324. The Director’s adjudicative
power is part of the reason he meets Madison’s definition of a
tyrant. And a tyrant with complete authority over “a vital
sector of our economy,” Free Enter. Fund, 561 U.S. at 508,
cannot but threaten the President’s faithful execution of the
laws in that realm. In my estimation, then, the Director’s
34
adjudicative power does not exempt him from at-will
removal. 11
My colleagues invoke Madison for the opposite
conclusion. Maj. Op. 21, 31; Wilkins Concurring Op. 3-5.
They point to his statement in the First Congress that “there
may be strong reasons why” the Comptroller of the Treasury
“should not hold his office at the pleasure of the Executive
branch.” 1 ANNALS OF CONG. 612. He underscored that the
Comptroller—whose “principal duty seems to be deciding
upon the lawfulness and justice of the claims and accounts
subsisting between the United States and particular citizens”—
“partakes strongly of the judicial character.” Id. at 611-12.
For reasons just explained, that observation is inapposite here.
It does not describe the CFPB Director, whose “principal duty”
consists of far more than adjudicating “claims and accounts”
through rote application of existing law. 12 Id.11
Two of my colleagues think it significant not just that the
Director has adjudicative power but that this case involves
adjudication rather than enforcement. Wilkins Concurring Op. 1, 3,
8 (joined by Rogers, J.). At best that is an argument for reserving
judgment until, in a future case, a regulated party challenges the
CFPB’s structure in the context of a rulemaking. It is not a basis for
giving the agency an all-encompassing stamp of Article II approval
in an opinion that does not purport to limit itself to cases involving
adjudication. See generally Maj. Op. 1-68 (joined by Rogers and
Wilkins, JJ.). In any event, no one has cited any authority for the
idea that the CFPB’s constitutionality may differ case by case,
depending on whether and to what extent the Director is wearing his
adjudicator’s hat.
12
My colleagues also neglect the context of Madison’s
statement. He made it in proposing that the Comptroller have fixed
tenure “unless sooner removed by the President,” presumably for
cause only. 1 ANNALS OF CONG. 612. His colleagues, including
35
*****
In short, the CFPB and its Director have no ancestor in
Humphrey’s Executor, Morrison or Wiener. Undeterred, the
CFPB takes a divide-and-conquer approach to the structural
features that in combination differentiate it from any
predecessor. It contends that each feature has no
constitutional import standing alone and that, collectively, they
add up to no problem at all. Oral Arg. Tr. 66-67 (“[W]hen you
add them all together you’re adding zero plus zero plus zero
plus zero, and at the end of the day . . . you’re still there with
zero.”). The apt analogy is not math but chemistry: even if
innocuous in isolation, some elements are toxic in combination.
See, e.g., THE CAMBRIDGE ENCYCLOPEDIA 328 (D. Crystal ed.,
1990) (cyanide, merely carbon plus nitrogen, is deadly); see
also Free Enter. Fund, 561 U.S. at 496 (second layer of for-
cause protection did not only “add to the Board’s
independence, but transform[ed] it”); id. at 509 (“a number of
statutory provisions,” “working together,” “produce[d] a
constitutional violation”); Ass’n of Am. R.Rs. v. Dep’t of
Transp., 721 F.3d 666, 673 (D.C. Cir. 2013) (“[J]ust because
his allies, disagreed with the proposal. Theodore Sedgwick, for one,
objected that the Comptroller’s duties were both sufficiently
“important” and sufficiently “Executive” that “the man who has to
perform them ought . . . to be dependent upon the President.” Id. at
613. Likewise, Egbert Benson lamented that Madison’s proposal
“set[] afloat” what the House had already resolved: namely, that
“judges hold their[] [offices] during good behaviour, as established
by the Constitution” and that “all others [serve] during pleasure.”
Id. at 614. Madison—who was known to change his mind, see, e.g.,
KLARMAN, supra, at 384, 392-93, 561-66, 574-75, 737 n.300, 799
n.58; David A. O’Neil, The Political Safeguards of Executive
Privilege, 60 VAND. L. REV. 1079, 1134 & nn.232-35 (2007)—
withdrew his proposal the very next day. 1 ANNALS OF CONG. 615.
36
two structural features raise no constitutional concerns
independently does not mean Congress may combine them in
a single statute.”), vacated on other grounds, 135 S. Ct. 1225(2015).
The CFPB is not the first agency exempt from
appropriations. See Budgetary Autonomy, supra, at 1823
(pointing out, however, that list of other exempt agencies is
“short” and “composed of narrowly focused” regulators
“operat[ing] in technical sectors”). It is not the first agency
headed by a single official or lacking a partisan balance
requirement. See Datla & Revesz, supra, at 793-94 & nn.125,
127 (listing agencies headed by single official); id. at 797
(listing agencies with no partisan balance requirement). It is
not the first agency with sweeping rulemaking and enforcement
powers over an entire sector of the economy—the SEC comes
to mind. But the CFPB is the only agency that combines each
and every one of these elements with for-cause removal
protection and a mission to “side” with one segment of the
population against others. Neither the Supreme Court nor our
Court has upheld anything like it before.
2. Diminution of the Presidency
Because the CFPB falls between the existing removal
cases, our job is to decide the agency’s validity under first principles.13
13
I concede that Myers and Free Enterprise Fund do not
squarely dictate the outcome here. The CFPB Director does not
resemble a first-class postmaster and Title X does not purport to
require the Senate’s advice and consent to remove him. Nor is the
Director ensconced in multiple layers of for-cause removal
protection. Recognizing as much, however, does not negate the
textual, structural and functional lessons of Myers and Free
37
Humphrey’s Ex’r, 295 U.S. at 632 (acknowledging possible
“field of doubt” between Myers and Humphrey’s Executor and
“leav[ing] such cases as may fall within it for future
consideration”). So I go back to the beginning. Because
“[o]ur Constitution was adopted to enable the people to govern
themselves, through their elected leaders,” the President “as a
general matter” has power to remove the principal officers of
an agency—based on “simple disagreement with the
[agency’s] policies or priorities”—as a means of ensuring that
the agency does not “slip from the Executive’s control, and
thus from that of the people.” Free Enter. Fund, 561 U.S. at
499, 502, 513; see id. at 509 (“Under the traditional default
rule, removal is incident to the power of appointment.”); 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.”). If it were otherwise, the President would be
“fasten[ed]” to subordinates who “by their lack of loyalty” or
“different views of policy” would make it “difficult or
impossible” for him to “faithfully execute[]” the laws. Myers,
272 U.S. at 131.
To date, the Supreme Court has recognized only one
exception to the default rule: Humphrey’s Executor. The
CFPB violates the rule, see 12 U.S.C. § 5491(c)(3), and does
not fit within the exception, see supra pp. 15-28. The
question, then, is whether we should stretch the exception to
reach the CFPB. That is what my colleagues do today, even if
they do not say so. But just as we cannot overrule Supreme
Court decisions, Shea v. Kerry, 796 F.3d 42, 54 (D.C. Cir.
2015); see Tatel Concurring Op. 5, we have no business
fundamentally recalibrating them, Humphries v. Ozmint, 397
F.3d 206, 225 n.9 (4th Cir. 2005) (en banc) (“we, as judges of
Enterprise Fund. They are the best guidance we have about the
original and enduring meaning of Article II.
38
an inferior court, are without liberty to change” Supreme Court
“framework”). Even if the FTC and the CFPB were not as
dissimilar as I believe they are, I would be loath to cede any
more of Article II than Humphrey’s Executor squarely
demands. See FCC v. Fox Television Stations, Inc., 556 U.S.
502, 525-26 (2009) (opinion of Scalia, J.) (“There is no reason
to magnify the separation-of-powers dilemma posed by the
headless Fourth Branch . . . .”); see also Ziglar v. Abbasi, 137
S. Ct. 1843, 1864 (2017) (“[E]ven a modest extension is still
an extension.”).
Given the CFPB’s novelty, we must “[a]t the very least”
“‘pause to consider the implications of’” sustaining it. Cf.
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 550
(2012) (opinion of Roberts, C.J.) (quoting United States v.
Lopez, 514 U.S. 549, 564 (1995)). The CFPB assures us that
“the President has an 80 percent chance . . . to be guaranteed
an opportunity to replace the Bureau’s Director.” Oral Arg.
Tr. 49. That is hardly comforting. It means there is a twenty
per cent chance the President will have no at-will opportunity
to replace the agency’s leader—and no real policy influence
over the agency—for the entirety of the President’s four-year
term. Furthermore, the odds grow ever larger that the
President will have no such opportunity or influence during his
first three years, first two years, first year and first hundred
days. The President cannot be reduced to appointer-in-chief,
cf. Free Enter. Fund, 561 U.S. at 502, especially if his
appointment power turns on luck of the draw, see id. at 500(separation of powers “cannot be permitted to turn on”
“bureaucratic minutiae” (internal quotation omitted)).
Even assuming the CFPB violates Article II only some of
the time—a year here, a couple years there—that is not a strong
point in its favor. Heedless of the implications for the
Presidency, my colleagues plow ahead and sustain the agency
39
anyway. The case-specific result is disturbing enough: the
people will suffer this agency’s unnecessary mistakes for years
to come. Worse, however, is that the majority’s logic invites
aggregation. Suppose the Congress over time decides to
restructure, say, the FTC, the SEC, the Federal Election
Commission (FEC) and the National Labor Relations Board
(NLRB) so that each stands outside of the appropriations
process and is headed by a single political-minded director
removable only for cause and tenured for five years. 14 Or
make it seven years. Cf. 15 U.S.C. § 41 (tenure for FTC
commissioner). Or fourteen years. Cf. 12 U.S.C. § 241(tenure for member of Federal Reserve Board of Governors).
Now throw in fourteen years for the CFPB Director. I can
discern no reason why the majority would not approve all of
that and more if it happened one step at a time. But if the FTC,
SEC, FEC, NLRB and CFPB were each headed by a fast-acting
partisan director with fourteen years of tenure, the policy havoc
they could collectively inflict from within the executive branch
without having to answer to the executive would be too much
for Article II to bear.
14
This is not a farfetched hypothetical. The principal officers
of each agency already have for-cause removal protection. 15
U.S.C. § 41 (expressly providing it for FTC commissioners); Free
Enter. Fund, 561 U.S. at 487 (assuming, even absent express
provision, that SEC commissioners have it); FEC v. NRA Political
Victory Fund, 6 F.3d 821, 826 (D.C. Cir. 1993) (same as to FEC
commissioners); 29 U.S.C. § 153(a) (expressly providing it for
NLRB members). Also, the principal officers of each agency
already enjoy tenure of at least five years. 15 U.S.C. § 41 (seven
years for FTC commissioners); 15 U.S.C. § 78d(a) (five years for
SEC commissioners); 52 U.S.C. § 30106(a)(2)(A) (six years for FEC
commissioners); 29 U.S.C. § 153(a) (five years for NLRB members).
40
The erosion of Presidential responsibility, no less than the
“accretion” of Presidential power, can be “dangerous” even
when it “does not come in a day.” Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 594 (1952) (Frankfurter, J.,
concurring); see Free Enter. Fund, 561 U.S. at 497 (“[I]f
allowed to stand, this dispersion of responsibility could be
multiplied.”); id. at 499 (“[W]here, in all this, is the role for
oversight by an elected President?”). I would draw the line
right here and now.
3. Lack of accountability
If forced to expand the Humphrey’s Executor exception, I
would limit it to an agency that answers in some meaningful
way to the policy oversight of at least one political branch.
See Myers, 272 U.S. at 131-32 (emphasizing need for “chain”
of “responsibility” from appointed officers to populace
(quoting 1 ANNALS OF CONG. 499, 523 (statements of James
Madison and Theodore Sedgwick))); see also Free Enter.
Fund, 561 U.S. at 501 (“The Framers created a structure in
which ‘[a] dependence on the people’ would be the ‘primary
controul on the government.’” (quoting THE FEDERALIST NO.
51, at 349 (James Madison))); McCulloch, 17 U.S. (4 Wheat.)
at 405 (ours is “a government of the people”). The CFPB fails
even this minimal test of accountability. The agency and its
proponents cite a grab bag of purported checks on the agency’s
authority but none is an adequate substitute for removal at the
President’s will. 15
15
In my view, there is no constitutionally appropriate stand-in
for the President’s removal power. See Horne v. USDA, 135 S. Ct.
2419, 2428 (2015) (because Constitution “is concerned with means
as well as ends,” court cannot permit “shorter cut than the
constitutional way” (internal quotation omitted)). But because the
majority downgrades at-will removal to a congressional benefaction,
41
First, the Congress’s ability to restructure the CFPB is not
an adequate substitute check. Contra, e.g., CFPB Br. 28 n.8
(emphasizing that Congress can pass legislation subjecting
CFPB to appropriations process); Amicus Br. of Americans for
Financial Reform et al. 15 (pointing out that Congress can
amend “organic statute” if it wants to “revisit[]” agency’s
design).
In Free Enterprise Fund, the Supreme Court rejected the
contention that the SEC’s functional control over the Public
Company Accounting Oversight Board “blun[ted] the
constitutional impact of for-cause removal.” 561 U.S. at 504(internal quotation omitted). The Court explained that
“altering the budget or powers of an agency as a whole is a
problematic way to control an inferior officer. The [SEC]
cannot wield a free hand to supervise individual members if it
must destroy the Board in order to fix it.” Id.The Court’s reasoning applies with equal force to the
Congress’s ability to restructure the CFPB. See Oral Arg. Tr.
34, Free Enter. Fund v. PCAOB, S. Ct. No. 08-861 (Dec. 7,
2009) (Justice Scalia: “I’m not sure that [the Congress’s]
ability to take away responsibility . . . from an agency is the
same as controlling what authority that agency does exercise.”
(emphasis added)). Refashioning the agency as a whole is a
ham-handed way to monitor the Director’s handling of a
specific policy matter. Similarly, threatening to alter the
agency does not give the Congress much leverage either. Any
Director with the political instinct for the job knows that,
nowadays especially, transformative legislation is akin to a bolt
of lightning. See Perry v. MSPB, 137 S. Ct. 1975, 1990 (2017)
(Gorsuch, J., dissenting) (“[T]he demands of bicameralism and
we should at least require the Congress to devise a second-best way
of ensuring the CFPB answers to the people.
42
presentment are real and the process can be protracted. [And]
the difficulty of making new laws isn’t some bug in the
constitutional design; it’s the point of the design . . . .”);
Budgetary Autonomy, supra, at 1831-32 (describing hurdles
such as “crowded agenda,” “filibuster” and need for “support
of congressional leadership”). At all events, an otherwise
invalid agency is no less invalid merely because the Congress
can fix it at some undetermined point in the future.
Second, judicial review under the Administrative
Procedure Act is not a meaningful substitute check. Contra,
e.g., Amicus Br. of Americans for Financial Reform et al. 15.
Some of the CFPB’s excesses will “occur[] in the twilight of
judicially unreviewable discretion.” PHH Corp., 839 F.3d at
35; see Chevron, 467 U.S. at 844-45; 12 U.S.C.
§§ 5512(b)(4)(B), 5581(b)(5)(E)(ii); 15 U.S.C. § 1693b(e)(1).
And even if the courts could review de novo everything the
CFPB does, that would not suffice for today’s purpose. The
chain of responsibility from the agency to the judiciary does
not then link to the people. Federal judges “have no
constituency,” Chevron, 467 U.S. at 866, and are therefore no
proxy for the people’s representatives in deciding consumer-
finance policy, TVA v. Hill, 437 U.S. 153, 195 (1978) (courts
decide legal questions, leaving it to “political branches” to
decide “what accords with common sense and the public weal”
(internal quotation omitted)).
Third, procedural requirements associated with CFPB
rulemaking are not a meaningful substitute check. Contra,
e.g., Amicus Br. of Financial Regulation Scholars 23.
Granted, the agency must adhere to notice-and-comment
procedures, 5 U.S.C. §§ 500(a)(1), 551, 553; must “consider”
the costs and benefits of proposed rules, 12 U.S.C.
§ 5512(b)(2)(A); and must “consult” with other financial
regulators about the rules, id. § 5512(b)(2)(B). But
43
rulemaking requirements cannot constrain the CFPB when it
formulates policy through an enforcement action rather than
rulemaking. The CFPB has done this a lot, perhaps because
of the rulemaking requirements. See Dep’t of Treasury,
Economic Opportunities, supra, at 82-83 (describing CFPB’s
“[e]xcessive reliance on enforcement actions, rather than rules
and guidance, to regulate conduct”). Notably, the CFPB has
initiated no rulemaking to explain to the regulated public, ex
ante, what the agency will deem “an unfair, deceptive, or
abusive act or practice.” 12 U.S.C. § 5531(a). Nor is there
any indication in the briefs or the record before us that the
agency has any plans to change its know-it-when-we-see-it
approach. See CFPB, Prepared Remarks of CFPB Director
Richard Cordray at the Consumer Bankers Association (Mar.
9, 2016) (suggesting that CFPB’s critics “set[] the bar too high”
in expecting agency to “think through and explicitly articulate
rules for every eventuality” before initiating enforcement
actions), perma.cc/79TC-BQMA.
Fourth, and finally, the threat of supermajority veto by the
Financial Stability Oversight Council is not a meaningful
substitute check. Contra, e.g., Amicus Br. of Financial
Regulation Scholars 23; Wilkins Concurring Op. 13-15. The
Council (another unelected body) can “set aside a final
regulation” of the CFPB only if the regulation “would put the
safety and soundness of the United States banking system or
the stability of the financial system of the United States at risk.”
12 U.S.C. § 5513(a). As far as the Council is concerned, then,
the CFPB can break the law or abuse its power as long as it
does so (1) in an enforcement action or (2) in a regulation that
does not threaten national financial ruin.
A recent episode illustrates how toothless the Council’s
veto is in controlling CFPB policy. In July 2017, the CFPB
finalized one of its most controversial policies to date: a rule
44
prohibiting certain providers from entering arbitration
agreements with consumers to stave off class actions. CFPB,
Final Rule: Arbitration Agreements (July 10, 2017),
perma.cc/N3JH-573A. The acting Comptroller of the
Currency, one of the Council’s ten voting members, 12 U.S.C.
§ 5321(b)(1)(C), sought data so that he could determine the
rule’s “safety and soundness implications.” Letter from Keith
Noreika to Richard Cordray (July 17, 2017), perma.cc/3X6D-
YZS6. In response, the CFPB Director asserted that, because
the rule’s projected impact is “less than $1 billion per year,” it
is “plainly frivolous” to suggest the rule “poses a safety and
soundness issue.” Letter from Richard Cordray to Keith
Noreika (July 18, 2017), perma.cc/76MU-39PC. The
Director also implied that the Comptroller was “distort[ing] the
FSOC process” because of a mere “disagree[ment] with the
policy judgments for the rule.” Id.The rule was published in the Federal Register the next
day. 16 Arbitration Agreements, 82 Fed. Reg. 33210 (July 19,
2017). The fact that anyone mentions the Council’s narrow
16
A few months later, the Congress passed and the President
signed a joint resolution that disapproves the rule. Joint Resolution
of Nov. 1, 2017, Pub. L. No. 115-74, 131 Stat. 1243,
perma.cc/U4GE-6W72. The Congress acted pursuant to the
Congressional Review Act (CRA), 5 U.S.C. §§ 801 et seq., which
authorizes it to disapprove an agency rule by simple majority in both
Houses within 60 legislative days after the agency submits the rule.
See Daniel Cohen & Peter L. Strauss, Congressional Review of
Agency Regulations, 49 ADMIN. L. REV. 95, 96-102 (1997) (detailing
CRA’s provisions and procedures). Regarding the CFPB, the CRA
is not an adequate substitute for at-will removal, especially in light
of its inapplicability to enforcement actions.
45
veto as a check is instead a testament to the CFPB’s
unaccountable policymaking power.
II. THE FOR-CAUSE REMOVAL PROVISION CANNOT
BE SEVERED FROM THE REST OF TITLE X
Judge Kavanaugh and I agree that Title X’s for-cause
removal provision, 12 U.S.C. § 5491(c)(3), is unconstitutional.
But he would excise section 5491(c)(3) and preserve the rest of
Title X. Kavanaugh Dissenting Op. 68-73. I respectfully
disagree with that approach. Above all else, the 111th
Congress wanted the CFPB to be independent: free, that is,
from industry influence and the changing political tides that
come with accountability to the President. Severing section
5491(c)(3) would yield an executive agency entirely at odds
with the legislative design. In my view, the Congress would
not have enacted Title X in its current form absent for-cause
removal protection. I believe, therefore, that the appropriate
remedy for the CFPB’s Article II problem is to invalidate Title
X in its entirety. 17
17
I recognize that severability is to be considered “when
confronting a constitutional flaw in a statute,” Free Enter. Fund, 561
U.S. at 508 (internal quotation omitted), and that my colleagues in
the majority find no such flaw in Title X. I nonetheless address
severability because it bears on my threshold view that we must
decide the Article II question in light of the relief PHH now seeks:
vacatur without remand and cessation of any further proceedings.
See supra note 3; cf. INS v. Chadha, 462 U.S. 919, 931-36 (1983)
(addressing severability at threshold because it bore on standing).
46
A. THE LAW OF SEVERABILITY
When remedying a constitutional defect, a court should not
“nullify more of a legislature’s work than is necessary” because
the “ruling of unconstitutionality” already “frustrates the intent
of the elected representatives of the people.” Ayotte v.
Planned Parenthood of N. New Eng., 546 U.S. 320, 329 (2006)
(internal quotation omitted). Neither, however, should the
court use the severability doctrine to “rewrit[e]” an
unconstitutional statute because that also “circumvent[s] the
intent of the legislature.” Id. at 329-30 (internal quotation
omitted); see Free Enter. Fund, 561 U.S. at 510 (doctrine does
not give court “editorial freedom”); United States v. Reese, 92
U.S. 214, 221 (1875) (court cannot “introduce words” into
statute).
With those competing considerations in mind, the court
must ask whether the statute minus any invalid provision “will
function in a manner consistent with the intent of Congress”
and “is legislation that Congress would . . . have enacted.”
Alaska Airlines, 480 U.S. at 685 (emphasis in original). If the
answer to either component of the question is no, the invalid
provision cannot be severed. Id. In deciding the question,
the court looks to the statute’s “language,” “structure” and
“legislative history.” Id. at 687; see, e.g., id. at 687-97
(weighing all three); Regan v. Time, Inc., 468 U.S. 641, 652-55
(1984) (plurality opinion) (same); INS v. Chadha, 462 U.S.
919, 931-35 (1983) (same); see also 2 NORMAN J. SINGER &
J.D. SHAMBIE SINGER, SUTHERLAND STATUTES & STATUTORY
CONSTRUCTION § 44:3, at 591-92 (7th ed. 2009) (noting related
factors such as “circumstances” of enactment and “object” of
statute).
A severability clause can be probative of legislative intent
but it is by no means dispositive. Dorchy v. Kansas, 264 U.S.
47286, 290 (1924) (“[I]t is an aid merely; not an inexorable
command.”); see United States v. Jackson, 390 U.S. 570, 585
n.27 (1968) (“[T]he ultimate determination of severability will
rarely turn on the presence or absence of such a clause.”); 2
SINGER & SINGER, supra, § 44:8, at 627 (“Because of the
frequency with which it is used, the separability clause is
regarded as little more than a mere formality.”). In the federal
courts, a severability clause creates only a rebuttable
“presumption that Congress did not intend the validity of the
statute in question to depend on the validity of the
constitutionally offensive provision.” Alaska Airlines, 480
U.S. at 686; see Dorchy, 264 U.S. at 290 (treating severability
clause as “a rule of construction”). Thus, the Supreme Court
sometimes declines to sever an invalid provision despite a
severability clause. See, e.g., City of Akron v. Akron Ctr. for
Reprod. Health, Inc., 462 U.S. 416, 425 n.8, 445-46 n.37
(1983), overruled on other grounds by Planned Parenthood of
Se. Pa. v. Casey, 505 U.S. 833 (1992); Planned Parenthood of
Cent. Mo. v. Danforth, 428 U.S. 52, 83-84 (1976); Sloan v.
Lemon, 413 U.S. 825, 833-35 (1973); Hill v. Wallace, 259 U.S.
44, 70-71 (1922).
B. INDEPENDENCE AS SINE QUA NON OF TITLE X
At the outset of Title X, the Congress “established” the
CFPB as “an independent bureau.” 12 U.S.C. § 5491(a). 18
The Supreme Court has long used the term “independent
18
Section 5491(a) also says that the CFPB “shall be
considered an Executive agency, as defined in section 105 of Title
5.” All that really means, however, is that the agency is an arm of
the federal government: for the purpose of 5 U.S.C. § 105, an
“Executive agency” includes not only “an Executive department” but
also “a Government corporation” and “an independent
establishment.”
48
agenc[y]” to describe an agency run by principal officers
sheltered from the “President’s power to remove.” Buckley,
424 U.S. at 136; see, e.g., Bowsher v. Synar, 478 U.S. 714, 725
n.4 (1986). Significantly, the Court used the same definition
in Free Enterprise Fund just a few weeks before the Congress
enacted Title X. 561 U.S. at 483 (“Congress can, under
certain circumstances, create independent agencies run by
principal officers appointed by the President, whom the
President may not remove at will but only for good cause.”).
Because we are to assume the Congress is familiar with
Supreme Court precedents—especially the “unusually
important” ones, Cannon v. Univ. of Chicago, 441 U.S. 677,
699 (1979)—“an independent bureau” is best understood to
mean the kind of agency Free Enterprise Fund described: one
whose principal officer enjoys for-cause removal protection.
In other words, section 5491(a) ties the CFPB’s very
existence to its freedom from the President. That is powerful
evidence the Congress opposed the idea of a CFPB answerable
to him. Other statutory features reinforce the conclusion.
As discussed earlier, the Congress transferred to the CFPB
the authority to enforce and issue rules under eighteen existing
laws previously administered by seven different federal
agencies. 12 U.S.C. §§ 5481(12), 5512(b)(4), 5581. A
majority of those agencies are themselves more or less free
from Presidential control. Id. § 5581(a)(2)(A) (Federal
Reserve Board of Governors, Federal Deposit Insurance
Corporation, FTC and National Credit Union Administration).
Reinventing the CFPB as an executive agency through excision
of section 5491(c)(3) would by judicial decree transfer to the
executive branch far-reaching new powers that, before Title X,
resided with several non-executive agencies.
49
Even if that result might be worth cheering for the purpose
of accountability, it is not what the Congress had in mind. The
floor statements in support of Title X highlighted, more than
any other consideration, the CFPB’s need for independence.
See, e.g., 156 CONG. REC. 2052 (2010) (statement of Rep.
Tsongas); id. at 3187 (statement of Sen. Kaufman); id. at 6237,
6365, 7015 (statements of Sen. Whitehouse); id. at 6240
(statement of Sen. Franken); id. at 6990 (statement of Sen.
Reid); id. at 7481, 7485-86, 8931 (statements of Sen. Dodd);
id. at 9447 (statement of Rep. Kilroy); id. at 9839 (statement of
Rep. Holt); id. at 11814 (statement of Rep. Lee); id. at 12434
(statement of Rep. Maloney); id. at 13135 (statement of Sen.
Cardin).
Likewise, in this Court, the CFPB’s strongest backers have
repeatedly emphasized its independence as a sine qua non.
See, e.g., Amicus Br. of Current and Former Members of
Congress Supporting Rehearing En Banc 2 (“By . . . severing
the provision that made [the] Director removable only for
cause, the panel decision fundamentally altered the CFPB and
hampered its ability to function as Congress intended.”);
Amicus Br. of Americans for Financial Reform et al. 2-3 (“The
Bureau’s independence has been critical to its ability to remain
a steadfast enforcer of the consumer protection laws despite
massive political opposition from the financial industry.”);
Amicus Br. of Financial Regulation Scholars 17-18
(“Regulated industries are likely to bring concentrated political
pressure to bear on the White House to influence an agency
whose head is subject to at-will removal to adjust policy in
favor of the industry.”); cf. Maj. Op. 16, 68 (Congress sought
to “insulat[e]” CFPB “from political winds and [P]residential
will” but panel majority, by excising section 5491(c)(3),
“effectively turned the CFPB into an instrumentality of the
President”).
50
Indeed, the Congress so valued the CFPB’s independence
that it forfeited its own oversight by exempting the agency from
appropriations. The intent, as the CFPB’s architects made
plain, was to give the agency watertight freedom from both of
the elected branches, lest the agency’s mission be
compromised by shifting popular will, the “financial . . .
industry lobby” or “legislative micromanaging.” Warren,
Unsafe at Any Rate, supra; see, e.g., S. REP. NO. 111-176, at
163 (finding that “adequate funding, independent of the
Congressional appropriations process, is absolutely essential”
to CFPB’s “independent operations”); 156 CONG. REC. 8931
(statement of Sen. Dodd) (“[T]he [CFPB’s] funding will be
independent and reliable so that its mission cannot be
compromised by political maneuvering.”). 19
The upshot is that excising section 5491(c)(3) would yield
a mutant CFPB responsive to the President—and hence to
majoritarian politics and lobbying—but nowise accountable to
the Congress. Where, as here, severing a statutory provision
“alters the balance of powers between the Legislative and
Executive Branches,” we must consider whether our effective
“delegation[] of power to the Executive . . . may have been so
controversial or so broad that Congress would have been
19
Title X’s proponents modeled the CFPB in part on the
Consumer Product Safety Commission. See, e.g., Warren, Unsafe
at Any Rate, supra; 156 CONG. REC. 6219 (statement of Sen. Dodd);
id. at 6237 (statement of Sen. Whitehouse); id. at 6239 (statement of
Sen. Merkley); id. at 6363 (statement of Sen. Durbin). But they also
learned a lesson from the Commission: because it is subject to
appropriations, it answers to “budgetary politics” and has long
suffered policy-based cuts. HARRIS & MILKIS, supra, at 124; see,
e.g., id. (describing cuts under President Reagan); Eric Lipton, Safety
Agency Faces Scrutiny Amid Changes, N.Y. TIMES, Sept. 2, 2007
(describing cuts under President George W. Bush), nyti.ms/2jKal6h.
51
unwilling to make the delegation without a strong oversight
mechanism.” Alaska Airlines, 480 U.S. at 685 (considering
severability of legislative veto). After all, “one branch’s
handicap is another’s strength” and vice versa. Free Enter.
Fund, 561 U.S. at 500.
A CFPB responsive to the President would have been too
“controversial” to pass the 111th Congress. Alaska Airlines,
480 U.S. at 685. At the very least it would not have passed
absent “strong oversight” via the appropriations process. Id.But we judges cannot subject the agency to appropriations; to
do so would be to “blue-pencil” still more of Title X, Free
Enter. Fund, 561 U.S. at 509, and potentially introduce new
provisions of our own. Nor can we convert the agency into a
multimember commission. True, in contrast to a CFPB
responsive to the President, a multimember CFPB “would
deviate less radically from Congress’ intended system.”
United States v. Booker, 543 U.S. 220, 247 (2005); see Amicus
Br. of Current and Former Members of Congress Supporting
CFPB 17-20 (Congress seriously considered multimember
structure). Yet that alternative, too, would be a rewrite for the
Congress and not the courts. See Free Enter. Fund, 561 U.S.
at 509-10; Ayotte, 546 U.S. at 329-30; Reese, 92 U.S. at 221.
The best argument for excising section 5491(c)(3) is
Dodd-Frank’s severability clause, 12 U.S.C. § 5302, but it does
not change my view. Appearing in the mega Dodd-Frank
legislation 574 pages before section 5491(c)(3), see 124 Stat.
at 1390, 1964, section 5302 provides in relevant part that “[i]f
any provision of this Act . . . is held to be unconstitutional, the
remainder of this Act . . . shall not be affected thereby.” The
clause says nothing specific about Title X, let alone the CFPB’s
independence, let alone for-cause removal, let alone the
massive transfer of power inherent in deleting section
5491(c)(3), let alone whether the Congress would have
52
endorsed that transfer of power even while subjecting the
CFPB to the politics of Presidential control. Instead, as one of
Dodd-Frank’s architects said decades earlier of a materially
identical clause: “This is just boilerplate severability.” 134
CONG. REC. 12280 (1988) (statement of Rep. Frank). Thus,
beyond the standard presumption that section 5302 creates, see
Alaska Airlines, 480 U.S. at 686, it tells us little about how the
Congress would deal with invalidation of section 5491(c)(3) in
particular, see Max Radin, A Short Way With Statutes, 56
HARV. L. REV. 388, 419 (1942) (“Are we really to imagine that
the legislature . . . weighed each paragraph literally and c[a]me
to the conclusion that it would have enacted that paragraph if
all the rest of the statute were invalid?”).
For reasons already stated, the presumption of severability
is rebutted here. A severability clause “does not give the court
power to amend” a statute. Hill, 259 U.S. at 71. Nor is it a
license to cut out the “heart” of a statute. Cf. Alaska Airlines,
480 U.S. at 691. Because section 5491(c)(3) is at the heart of
Title X, I would strike Title X in its entirety.
*****
As a guarantor of self-government, Article II has always
been “one of the Constitution’s best provisions.” Saikrishna
Prakash, The Essential Meaning of Executive Power, 2003 U.
ILL. L. REV. 701, 725 (quoting 1788 North Carolina ratification
debate) (brackets omitted). But it suffers a major defeat today
and will suffer more if today’s decision stands. In my view,
the CFPB violates Article II and should be invalidated top to
bottom.
Accordingly, I dissent.
KAVANAUGH, Circuit Judge, with whom Senior Circuit
Judge RANDOLPH joins, dissenting:
INTRODUCTION AND SUMMARY
This is a case about executive power and individual
liberty.
To prevent tyranny and protect individual liberty, the
Framers of the Constitution separated the legislative,
executive, and judicial powers of the new national government.
To further safeguard liberty, the Framers insisted upon
accountability for the exercise of executive power. The
Framers lodged full responsibility for the executive power in a
President of the United States, who is elected by and
accountable to the people. The first 15 words of Article II
speak with unmistakable clarity about who controls the
executive power: “The executive Power shall be vested in a
President of the United States of America.” U.S. CONST. art.
II, § 1. And Article II assigns the President alone the authority
and responsibility to “take Care that the Laws be faithfully
executed.” Id. § 3. The purpose “of the separation and
equilibration of powers in general, and of the unitary Executive
in particular, was not merely to assure effective government but
to preserve individual freedom.” Morrison v. Olson, 487 U.S.
654, 727 (1988) (Scalia, J., dissenting).
Of course, the President executes the laws with the
assistance of subordinate executive officers who are appointed
by the President, often with the advice and consent of the
Senate. To carry out the executive power and be accountable
for the exercise of that power, the President must be able to
supervise and direct those subordinate officers. In its
landmark decision in Myers v. United States, 272 U.S. 52(1926), authored by Chief Justice and former President Taft,
the Supreme Court recognized the President’s Article II
2
authority to supervise, direct, and remove at will subordinate
officers in the Executive Branch.
In 1935, however, the Supreme Court carved out an
exception to Myers and Article II by permitting Congress to
create independent agencies that exercise executive power.
See Humphrey’s Executor v. United States, 295 U.S. 602(1935). An agency is “independent” when the agency’s
commissioners or board members are removable by the
President only for cause, not at will, and therefore are not
supervised or directed by the President. Examples of
independent agencies include well-known bodies such as the
Federal Trade Commission, the Federal Communications
Commission, the Securities and Exchange Commission, the
National Labor Relations Board, and the Federal Energy
Regulatory Commission.
Those and other independent agencies exercise executive
power by bringing enforcement actions against private citizens.
Those agencies often promulgate legally binding regulations
pursuant to statutes enacted by Congress, and they adjudicate
disputes involving private parties. So those agencies exercise
executive, quasi-legislative, and quasi-judicial power.
The independent agencies collectively constitute, in effect,
a headless fourth branch of the U.S. Government. They hold
enormous power over the economic and social life of the
United States. Because of their massive power and the
absence of Presidential supervision and direction, independent
agencies pose a significant threat to individual liberty and to
the constitutional system of separation of powers and checks
and balances.
To mitigate the risk to individual liberty, the independent
agencies historically have been headed by multiple
3
commissioners or board members. In the Supreme Court’s
words, each independent agency has traditionally been
established as a “body of experts appointed by law and
informed by experience.” Humphrey’s Executor, 295 U.S. at
624. Multi-member independent agencies do not concentrate
all power in one unaccountable individual, but instead divide
and disperse power across multiple commissioners or board
members. The multi-member structure thereby reduces the
risk of arbitrary decisionmaking and abuse of power, and helps
protect individual liberty.
In other words, the heads of executive agencies are
accountable to and checked by the President; and the heads of
independent agencies, although not accountable to or checked
by the President, are at least accountable to and checked by
their fellow commissioners or board members. No
independent agency exercising substantial executive authority
has ever been headed by a single person.
Until now.
In the Dodd-Frank Act of 2010, Congress created a new
independent agency, the Consumer Financial Protection
Bureau. As originally proposed by then-Professor and now-
Senator Elizabeth Warren, the CFPB was to be another
traditional, multi-member independent agency. The initial
Executive Branch proposal from President Obama’s
Administration likewise envisioned a multi-member
independent agency. The House-passed bill sponsored by
Congressman Barney Frank and championed by Speaker
Nancy Pelosi also contemplated a multi-member independent
agency.
But Congress ultimately departed from the Warren and
Executive Branch proposals, and from the House bill
4
sponsored by Congressman Frank. Congress established the
CFPB as an independent agency headed not by a multi-member
commission but rather by a single Director.
The Director of the CFPB wields enormous power over
American businesses, American consumers, and the overall
U.S. economy. The Director unilaterally implements and
enforces 19 federal consumer protection statutes, covering
everything from home finance to student loans to credit cards
to banking practices.
The Director alone may decide what rules to issue. The
Director alone may decide how to enforce, when to enforce,
and against whom to enforce the law. The Director alone may
decide whether an individual or entity has violated the law.
The Director alone may decide what sanctions and penalties to
impose on violators of the law.
Because the CFPB is an independent agency headed by a
single Director and not by a multi-member commission, the
Director of the CFPB possesses more unilateral authority – that
is, authority to take action on one’s own, subject to no check –
than any single commissioner or board member in any other
independent agency in the U.S. Government. Indeed, other
than the President, the Director enjoys more unilateral
authority than any other official in any of the three branches of
the U.S. Government.
That combination – power that is massive in scope,
concentrated in a single person, and unaccountable to the
President – triggers the important constitutional question at
issue in this case.
The petitioner here, PHH, is a mortgage lender and was the
subject of a CFPB enforcement action that resulted in a $109
5
million sanction. In seeking to vacate the CFPB’s order, PHH
argues that the CFPB’s novel structure – an independent
agency headed by a single Director – violates Article II of the
Constitution. I agree with PHH.
Three considerations inform my Article II analysis:
history, liberty, and Presidential authority.
First, history. In separation of powers cases, the Supreme
Court has repeatedly emphasized the significance of historical
practice. See, e.g., NLRB v. Noel Canning, 134 S. Ct. 2550(2014); Free Enterprise Fund v. Public Company Accounting
Oversight Board, 561 U.S. 477 (2010). The single-Director
structure of the CFPB represents a gross departure from settled
historical practice. Never before has an independent agency
exercising substantial executive authority been headed by just
one person. That history matters. In Free Enterprise Fund,
in invalidating the novel structure of another newly created
independent agency, the Public Company Accounting
Oversight Board, the Supreme Court stated: “Perhaps the
most telling indication of the severe constitutional problem
with the PCAOB is the lack of historical precedent for this
entity.” Id. at 505. Here too: Perhaps the most telling
indication of the severe constitutional problem with the CFPB
is the lack of historical precedent for this entity.
Second, liberty. The CFPB’s concentration of enormous
power in a single unaccountable, unchecked Director poses a
far greater risk of arbitrary decisionmaking and abuse of power,
and a far greater threat to individual liberty, than a multi-
member independent agency does. The overarching
constitutional concern with independent agencies is that the
agencies exercise executive power but are unchecked by the
President, the official who is accountable to the people and who
is responsible under Article II for the exercise of executive
6
power. In lieu of Presidential control, the multi-member
structure of independent agencies operates as a critical
substitute check on the excesses of any individual independent
agency head. This new agency, the CFPB, lacks that critical
check, yet still wields vast power over American businesses
and consumers. This “wolf comes as a wolf.” Morrison, 487
U.S. at 699 (Scalia, J., dissenting).
Third, Presidential authority. The single-Director CFPB
diminishes the President’s Article II authority to control the
Executive Branch more than traditional multi-member
independent agencies do. In comparable multi-member
independent agencies such as the Federal Trade Commission
(to which the CFPB repeatedly compares itself), the President
ordinarily retains power to designate the chairs of the agencies
and to remove chairs at will from the chair position. As a
result, Presidents can maintain at least some influence over the
general direction of the agencies. Soon after a new President
enters office, the new President typically designates new
chairs. Those independent agencies therefore flip to control
by chairs who are aligned with the new President. For
example, shortly after he took office on January 20, 2017,
President Trump designated new Chairs of the Federal Trade
Commission, the Federal Communications Commission, the
Securities and Exchange Commission, and the National Labor
Relations Board, among others. President Obama did the
same within a few weeks of taking office in 2009.
A President possesses far less influence over the single-
Director CFPB. The single CFPB Director serves a fixed five-
year term and, absent good cause, may not be replaced by the
President, even by a newly elected President. The upshot is
that a President may be stuck for years with a CFPB Director
who was appointed by the prior President and who vehemently
opposes the current President’s agenda. To illustrate, upon
7
taking office in January 2017, the President could not appoint
a new Director of the CFPB, at least absent good cause for
terminating the existing Director. It will get worse in the
future. Any new President who is elected in 2020, 2024, or
2028 may spend a majority of his or her term with a CFPB
Director who was appointed by a prior President. That does
not happen with the chairs of the traditional multi-member
independent agencies. That dramatic and meaningful
difference vividly illustrates that the CFPB’s novel single-
Director structure diminishes Presidential power more than
traditional multi-member independent agencies do.
In sum, because of the consistent historical practice in
which independent agencies have been headed by multiple
commissioners or board members; because of the serious threat
to individual liberty posed by a single-Director independent
agency; and because of the diminution of Presidential authority
caused by this single-Director independent agency, I conclude
that the CFPB violates Article II of the Constitution. Under
Article II, an independent agency that exercises substantial
executive power may not be headed by a single Director. As
to remedy, I agree with the United States as amicus curiae:
The Supreme Court’s Free Enterprise Fund decision and the
Court’s other severability precedents require that we sever the
CFPB’s for-cause provision, so that the Director of the CFPB
is supervised, directed, and removable at will by the President.
8
I. HISTORY
I begin by describing the history of independent agencies
in general and of the CFPB in particular. That history
demonstrates that, in order to comply with Article II,
independent agencies exercising substantial executive power
must be structured as multi-member agencies.
A
As the Supreme Court has explained, our Constitution
“was adopted to enable the people to govern themselves,
through their elected leaders,” and the Constitution “requires
that a President chosen by the entire Nation oversee the
execution of the laws.” Free Enterprise Fund v. Public
Company Accounting Oversight Board, 561 U.S. 477, 499
(2010). Article II of the Constitution provides quite simply:
“The executive Power shall be vested in a President of the
United States of America.” U.S. CONST. art. II, § 1. And
Article II assigns the President alone the authority and
responsibility to “take Care that the Laws be faithfully
executed.” Id. § 3. Article II makes “emphatically clear
from start to finish” that the President is “personally
responsible for his branch.” AKHIL REED AMAR, AMERICA’S
CONSTITUTION: A BIOGRAPHY 197 (2005).
To exercise the executive power, the President must be
assisted by subordinates. The Framers anticipated and
provided for executive departments, and for officers (principal
and inferior) in those departments who would assist the
President. See U.S. CONST. art. II, § 2. In 1789, soon after
being sworn in, the First Congress established new executive
Departments of Foreign Affairs, War, and Treasury, and
created various offices in those new Departments.
9
In order to control the exercise of executive power and take
care that the laws are faithfully executed, the President must be
able to supervise and direct those subordinate executive
officers. As James Madison stated during the First Congress,
“if any power whatsoever is in its nature Executive, it is the
power of appointing, overseeing, and controlling those who
execute the laws.” 1 ANNALS OF CONGRESS 463 (Madison)
(1789) (Joseph Gales ed., 1834); see also Neomi Rao,
Removal: Necessary and Sufficient for Presidential Control, 65
Ala. L. Rev. 1205, 1215 (2014) (“The text and structure of
Article II provide the President with the power to control
subordinates within the executive branch.”).
To supervise and direct executive officers, the President
must be able to remove those officers at will. Otherwise, a
subordinate could ignore the President’s supervision and
direction without fear, and the President could do nothing about
it. See Bowsher v. Synar, 478 U.S. 714, 726 (1986) (“Once an
officer is appointed, it is only the authority that can remove
him, and not the authority that appointed him, that he must fear
and, in the performance of his functions, obey.”).
The Article II chain of command therefore depends on the
President’s removal power. As James Madison explained
during the First Congress: “If the President should possess
alone the power of removal from office, those who are
employed in the execution of the law will be in their proper
situation, and the chain of dependence be preserved; the lowest
officers, the middle grade, and the highest, will depend, as they
ought, on the President, and the President on the community.”
1 ANNALS OF CONGRESS 499 (Madison).
In 1789, the First Congress confirmed that Presidents may
remove executive officers at will. As the Supreme Court has
explained: “The removal of executive officers was discussed
10
extensively in Congress when the first executive departments
were created. The view that ‘prevailed, as most consonant to
the text of the Constitution’ and ‘to the requisite responsibility
and harmony in the Executive Department,’ was that the
executive power included a power to oversee executive officers
through removal.” Free Enterprise Fund, 561 U.S. at 492(quoting Letter from James Madison to Thomas Jefferson (June
30, 1789), 16 DOCUMENTARY HISTORY OF THE FIRST FEDERAL
CONGRESS 893 (2004)). That Decision of 1789 “soon became
the settled and well understood construction of the
Constitution.” Free Enterprise Fund, 561 U.S. at 492.
To summarize: “The Constitution that makes the
President accountable to the people for executing the laws also
gives him the power to do so. That power includes, as a
general matter, the authority to remove those who assist him in
carrying out his duties. Without such power, the President
could not be held fully accountable for discharging his own
responsibilities; the buck would stop somewhere else.” Id. at
513-14.
But that bedrock constitutional principle was challenged in
the late 1800s and the early 1900s. As part of the Progressive
Movement and an emerging belief in expert, apolitical, and
scientific answers to certain public policy questions, Congress
began creating new agencies that were independent of the
President but that exercised combined powers: the executive
power of enforcement, the legislative power of issuing binding
legal rules, and the judicial power of deciding adjudications
and appeals. The heads of those independent agencies were
removable by the President only for cause, not at will, and were
neither supervised nor directed by the President. Some early
examples included the Interstate Commerce Commission
(1887) and the Federal Trade Commission (1914).
Importantly, the independent agencies were multi-member
11
bodies: They were designed as non-partisan expert agencies
that could neutrally and impartially issue rules, initiate law
enforcement actions, and conduct or review administrative
adjudications.
The constitutionality of those independent agencies was
called into doubt by the Supreme Court in the 1926 Myers
decision written by Chief Justice and former President Taft.
In that case, the Supreme Court ruled that, under Article II, the
President must be able to supervise, direct, and remove at will
executive officers. The Court stated: When “the grant of the
executive power is enforced by the express mandate to take
care that the laws be faithfully executed, it emphasizes the
necessity for including within the executive power as conferred
the exclusive power of removal.” Myers v. United States, 272
U.S. 52, 122 (1926).
The Myers Court’s articulation of the President’s broad
removal power appeared to mean that Congress could no
longer create independent agencies. Indeed, Congress itself
read Myers that way. For several years after Myers, Congress
therefore did not create any new agencies whose heads were
protected by for-cause removal provisions.
In the 1930s, based on his reading of Article II and buoyed
by Myers, President Franklin Roosevelt vigorously challenged
the notion of independent agencies. President Roosevelt did
not necessarily object to the existence of the agencies; rather,
he objected to the President’s lack of control over the agencies.
The issue came to a head in President Roosevelt’s dispute
with William E. Humphrey, a commissioner of the Federal
Trade Commission. Commissioner Humphrey was a
Republican holdover from the Hoover Administration who, in
President Roosevelt’s view, was too sympathetic to big
12
business and too hostile to the Roosevelt Administration’s
regulatory agenda. Asserting his authority under Article II,
President Roosevelt fired Commissioner Humphrey.
Humphrey contested the removal (and after Humphrey’s death,
his representative continued the litigation in order to obtain
back pay). Humphrey’s representative argued that Humphrey
was protected against firing by the statute’s for-cause removal
provision, and further argued that Congress could create
independent agencies without violating Article II. The case
reached the Supreme Court in 1935.
At its core, the Humphrey’s Executor case raised the
question whether Article II permitted independent agencies.
Representing President Roosevelt, the Solicitor General
contended that Congress could not create independent
agencies. The Solicitor General relied on the text and history
of Article II, as well as the Supreme Court’s 1926 decision in
Myers. But notwithstanding Article II and Myers, the
Supreme Court upheld the constitutionality of independent
agencies – an unexpected decision that incensed President
Roosevelt and helped trigger his ill-fated court reorganization
proposal in 1937. See Humphrey’s Executor v. United States,
295 U.S. 602, 631-32 (1935).
In allowing independent agencies, the Humphrey’s
Executor Court emphasized that the Federal Trade
Commission was intended “to be non-partisan” and “to
exercise the trained judgment of a body of experts appointed
by law and informed by experience.” Id. at 624. Those
characteristics, among others, led the Court to conclude that
Congress could create an independent agency “wholly
disconnected from the executive department,” except in its
selection. Id. at 630, 625. According to the Court, Congress
could limit the President’s power to remove the commissioners
of the Federal Trade Commission and, by extension, Congress
13
could limit the President’s power to remove the commissioners
and board members of similar independent agencies. Id. at
628-30.
Ever since the 1935 Humphrey’s Executor decision,
independent agencies have played a significant role in the U.S.
Government. The independent agencies possess
extraordinary authority over vast swaths of American
economic and social life – from securities to antitrust to
telecommunications to labor to energy. The list goes on.
Importantly, however, each of the independent agencies
has traditionally operated – and each continues to operate – as
a multi-member “body of experts appointed by law and
informed by experience.” Id. at 624. Independent agencies
are not headed by single Directors. As Professor Amar has
explained, “the Decision of 1789” has remained controlling, at
least to the extent that the Decision “established that in all one-
headed departments, the department head must be removable
at will by the president.” AKHIL REED AMAR, AMERICA’S
UNWRITTEN CONSTITUTION 323 (2012).
The independent agency at issue here, the CFPB, arose out
of an idea originally advanced by then-Professor and now-
Senator Elizabeth Warren. In 2007, concerned about
balkanized and inconsistent federal law enforcement of
consumer protection statutes, Professor Warren encouraged
Congress to create a new independent agency, a Financial
Product Safety Commission. This new agency would
centralize and unify federal law enforcement efforts to protect
consumers. See Elizabeth Warren, Unsafe at Any Rate: If It’s
Good Enough for Microwaves, It’s Good Enough for
Mortgages. Why We Need a Financial Product Safety
Commission, Democracy, Summer 2007, at 8, 16-18.
14
The agency proposed by Professor Warren was to operate
as a traditional multi-member independent agency. The
subsequent Executive Branch proposal by President Obama’s
Administration likewise contemplated a multi-member
independent agency. See DEPARTMENT OF THE TREASURY,
FINANCIAL REGULATORY REFORM: A NEW FOUNDATION:
REBUILDING FINANCIAL SUPERVISION AND REGULATION 58
(2009). The originally passed House bill sponsored by
Congressman Barney Frank and supported by Speaker Nancy
Pelosi similarly would have created a multi-member
independent agency. See H.R. 4173, 111th Cong. § 4103 (as
passed by House, Dec. 11, 2009).
But Congress ultimately departed from the Warren and
Executive Branch proposals, from the House bill, and from
historical practice by creating an independent agency with only
a single Director. See Dodd-Frank Wall Street Reform and
Consumer Protection Act, Pub. L. No. 111-203, Title X § 1011,
124 Stat. 1376, 1964 (codified at 12 U.S.C. § 5491). The
single Director of the CFPB is removable only for cause – that
is, for “inefficiency, neglect of duty, or malfeasance in office”
– during the Director’s fixed five-year term. See 12 U.S.C.
§ 5491(c)(3); cf. Humphrey’s Executor, 295 U.S. at 620.
Congress’s choice of a single-Director CFPB was not an
especially considered legislative decision. No committee
report or substantial legislative history delved into the benefits
of single-Director independent agencies versus multi-member
independent agencies. No congressional hearings studied the
question. Congress apparently stumbled into this single-
Director structure as a compromise or landing point between
the original Warren multi-member independent agency
proposal and a traditional executive agency headed by a single
person.
15
Under the law as enacted, the President may not supervise,
direct, or remove at will the CFPB Director. As a result, a
Director appointed by a President may continue to serve in
office even if the President later wants to remove the Director
based on a policy disagreement, for example. More
importantly, a Director may continue to serve as Director under
a new President (until the Director’s statutory five-year tenure
has elapsed), even though the new President might strongly
disagree with that Director about policy issues or the overall
direction of the agency.
Congress insulated the CFPB’s Director from Presidential
influence, yet also granted the CFPB extraordinarily broad
authority to implement and enforce U.S. consumer protection
laws. Under the Dodd-Frank Act, the CFPB may
“implement[] the Federal consumer financial laws through
rules, orders, guidance, interpretations, statements of policy,
examinations, and enforcement actions.” 12 U.S.C. §
5492(10). The CFPB may “prescribe rules or issue orders or
guidelines pursuant to” 19 distinct consumer protection laws.
Id. § 5581(a)(1)(A); see also id. §§ 5481(14), 5512(b). That
rulemaking power was previously exercised by seven different
government agencies. See id. § 5581(b) (transferring to the
CFPB certain “consumer financial protection functions”
previously exercised by the Federal Reserve, the Comptroller
of the Currency, the Office of Thrift Supervision, the Federal
Deposit Insurance Corporation, the National Credit Union
Administration, the Department of Housing and Urban
Development, and the Federal Trade Commission).
The CFPB may pursue enforcement actions in federal
court, as well as before administrative law judges. The agency
may issue subpoenas requesting documents or testimony in
connection with those enforcement actions. See id. §§ 5562-
5564. The CFPB may adjudicate disputes. And the CFPB
16
may impose a wide range of legal and equitable relief,
including restitution, disgorgement, money damages,
injunctions, and civil monetary penalties. Id. § 5565(a)(2).
All of that massive power is ultimately lodged in one
person – the Director of the CFPB – who is not supervised,
directed, or removable at will by the President.
Because the Director acts alone and without Presidential
supervision or direction, and because the CFPB wields broad
authority over the U.S. economy, the Director enjoys
significantly more unilateral power than any single member of
any other independent agency. By “unilateral power,” I mean
power that is not checked by the President or by other
commissioners or board members. Indeed, other than the
President, the Director of the CFPB is the single most powerful
official in the entire U.S. Government, at least when measured
in terms of unilateral power. That is not an overstatement.
What about the Speaker of the House? The Speaker can pass
legislation only if 218 Members agree. The Senate Majority
Leader? The Leader typically needs 60 Senators to invoke
cloture, and needs a majority of Senators (usually 51 Senators
or 50 plus the Vice President) to approve a law or nomination.
The Chief Justice? The Chief Justice must obtain four other
Justices’ votes in order to prevail. The Chair of the Federal
Reserve? The Chair often needs the approval of a majority of
the Federal Reserve Board. The Secretary of Defense? The
Secretary is supervised and directed and removable at will by
the President. On any decision, the Secretary must do as the
President says. So too with the Secretary of State, and the
Secretary of the Treasury, and the Attorney General.
To be sure, the Dodd-Frank Act requires the Director to
establish and consult with a “Consumer Advisory Board.” See
id. § 5494. But the advisory board is just that: advisory. The
17
Director need not heed the Board’s advice. Without the
formal authority to block unilateral action by the Director, the
Advisory Board does not come close to the kind of check
provided by the multi-member structure of traditional
independent agencies.
The Act also, in theory, allows a supermajority of the
Financial Stability Oversight Council to veto certain
regulations of the Director. See id. §§ 5513, 5321. But by
statute, the veto power may be used only to prevent regulations
(not to overturn enforcement actions or adjudications); only
when two-thirds of the Council members agree; and only when
a particular regulation puts “the safety and soundness of the
United States banking system or the stability of the financial
system of the United States at risk,” a standard unlikely to be
met in practice in most cases. Id. § 5513(c)(3)(B)(ii); see S.
Rep. No. 111-176, at 166 (“The Committee notes that there was
no evidence provided during its hearings that consumer
protection regulation would put safety and soundness at risk.”);
see also Todd Zywicki, The Consumer Financial Protection
Bureau: Savior or Menace?, 81 Geo. Wash. L. Rev. 856, 875
(2013) (“[S]ubstantive checks on the CFPB can be
triggered . . . only under the extreme circumstance of a severe
threat to the safety and soundness of the American financial
system. It is likely that this extreme test will rarely be satisfied
in practice.”); Recent Legislation, Dodd-Frank Act Creates the
Consumer Financial Protection Bureau, 124 Harv. L. Rev.
2123, 2129 (2011) (“[T]he high standard for vetoing
regulations . . . will be difficult to establish.”). In this case, for
example, the veto power could not have been used to override
the CFPB’s statutory interpretation or its enforcement action
against PHH.
The Act also technically makes the CFPB part of the
Federal Reserve for certain administrative purposes. See, e.g.,
18
12 U.S.C. § 5491(a); see also id. § 5493. But that is irrelevant
to the present analysis because the Federal Reserve Board may
not supervise, direct, or remove the CFPB Director.
In short, when measured in terms of unilateral power, the
Director of the CFPB is the single most powerful official in the
entire U.S. Government, other than the President. Indeed,
within his jurisdiction, the Director of the CFPB is even more
powerful than the President. The Director’s view of consumer
protection law and policy prevails over all others. In essence,
the Director of the CFPB is the President of Consumer Finance.
The concentration of massive, unchecked power in a single
Director marks a dramatic departure from settled historical
practice and makes the CFPB unique among independent
agencies, as I will now explain.
B
As a single-Director independent agency exercising
substantial executive authority, the CFPB is the first of its kind
and an historical anomaly. Until this point in U.S. history,
independent agencies exercising substantial executive
authority have all been multi-member commissions or boards.
A sample list includes:
• Interstate Commerce Commission (1887)
• Federal Reserve Board (1913)
• Federal Trade Commission (1914)
• U.S. International Trade Commission (1916)
• Federal Deposit Insurance Corporation (1933)
• Federal Communications Commission (1934)
• National Mediation Board (1934)
• Securities and Exchange Commission (1934)
• National Labor Relations Board (1935)
19
• Federal Maritime Commission (1961)
• National Transportation Safety Board (1967)
• National Credit Union Administration (1970)
• Occupational Safety and Health Review Commission
(1970)
• Postal Regulatory Commission (1970)
• Consumer Product Safety Commission (1972)
• Nuclear Regulatory Commission (1974)
• Federal Energy Regulatory Commission (1977)
• Federal Mine Safety and Health Review Commission
(1977)
• Federal Labor Relations Authority (1978)
• Merit Systems Protection Board (1978)
• Defense Nuclear Facilities Safety Board (1988)
• National Indian Gaming Commission (1988)
• Chemical Safety and Hazard Investigation Board
(1990)
• Surface Transportation Board (1995)
• Independent Payment Advisory Board (2010). 1
1
In general, an agency without a for-cause removal statute is an
executive agency, not an independent agency, because the President
may supervise, direct, and remove at will the heads of those agencies.
That said, in the period from Myers (1926) to Humphrey’s Executor
(1935), Congress created several multi-member agencies that did not
include for-cause provisions, apparently because Congress
interpreted Myers to outlaw independent agencies. Those agencies
included the FCC and the SEC. After Humphrey’s Executor, those
multi-member agencies were treated as independent agencies even
though the relevant statutes did not include for-cause provisions.
Cf. Free Enterprise Fund v. Public Company Accounting Oversight
Board, 561 U.S. 477, 487 (2010) (deciding case on assumption that
SEC is an independent agency). Because those agencies’ statutes
do not contain express for-cause provisions, some have suggested
that those agencies actually are and should be treated as executive
20
Have there been any independent agencies headed by a
single person? In an effort to be comprehensive, the three-
judge panel in this case issued a pre-argument order asking the
CFPB for all historical or current examples it could find of
independent agencies headed by a single person. The CFPB
found only three examples: the Social Security Administration,
the Office of Special Counsel, and the Federal Housing Finance
Agency. At the en banc stage, the CFPB cited no additional
examples.
None of the three examples, however, has deep historical
roots. Indeed, the Federal Housing Finance Agency has
existed only since 2008, about as long as the CFPB. The other
two are likewise relatively recent. And those other two have
been constitutionally contested by the Executive Branch, and
they do not exercise the core Article II executive power of
bringing law enforcement actions or imposing fines and
penalties against private citizens for violation of statutes or
agency rules.
For those reasons, as I will explain, the three examples are
different in kind from the CFPB. Those examples therefore
do not count for much when compared to the deeply rooted
historical practice of independent agencies as multi-member
agencies. To borrow the words of Justice Breyer in Noel
Canning, as weighed against the settled historical practice,
“these few scattered examples” are “anomalies.” NLRB v.
Noel Canning, 134 S. Ct. 2550, 2567, slip op. at 21 (2014); see
agencies. See Kirti Datla & Richard L. Revesz, Deconstructing
Independent Agencies (and Executive Agencies), 98 Cornell L. Rev.
769, 834-35 (2013); Note, The SEC Is Not an Independent Agency,
126 Harv. L. Rev. 781, 801 (2013). I do not tackle that question in
this opinion and do not imply an answer one way or the other about
the executive or independent status of the multi-member agencies
that lack express for-cause removal provisions.
21
also Free Enterprise Fund v. Public Company Accounting
Oversight Board, 561 U.S. 477, 505-06 (2010).
First, the CFPB cited and primarily relied on the example
of the Social Security Administration, which is an independent
agency headed by a single Social Security Commissioner. See
42 U.S.C. §§ 901(a), 902(a). But the current structure of the
agency is relatively recent. The Social Security
Administration long existed first as a multi-member
independent agency and then as a single-Director executive
agency within various executive departments, most recently the
Department of Health and Human Services. Only in 1994 did
Congress change the Social Security Administration to a
single-Director independent agency. Importantly, when the
agency’s structure was altered in 1994, President Clinton
issued a signing statement pronouncing that the change in the
agency’s structure was constitutionally problematic. See
President William J. Clinton, Statement on Signing the Social
Security Independence and Program Improvements Act of
1994, 2 Pub. Papers 1471, 1472 (Aug. 15, 1994). That
agency’s structure therefore is constitutionally contested. In
those circumstances, the historical precedent counts for little
because it is not settled. Cf. Noel Canning, 134 S. Ct. at 2563-
64, 2567, slip op. at 14-15, 20-21 (discounting example of
appointments during particular inter-session recess because of
Senate Committee’s strong opposition to those appointments);
INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (discounting
prior legislative veto provisions because Presidents had
objected to those provisions). If anything, when considered
against the “settled practice,” the Social Security example only
highlights the anomaly of an independent agency headed by a
single person. Noel Canning, 134 S. Ct. at 2567, slip op. at
21.
22
Moreover, the Social Security Administration is not a
precedent for the CFPB because the Social Security
Commissioner does not possess unilateral authority to bring
law enforcement actions against private citizens, which is the
core of the executive power and the primary threat to individual
liberty posed by executive power. See Morrison v. Olson, 487
U.S. 654, 706 (1988) (Scalia, J., dissenting). The Social
Security Administration does not have power to impose fines
or penalties on private citizens in Social Security benefits
cases. Instead, the bulk of the Social Security
Administration’s authority involves adjudication of private
claims for benefits. Although the agency does possess limited
power to seek civil sanctions against those who file improper
claims, the Commissioner may initiate such a proceeding “only
as authorized by the Attorney General,” who is an executive
officer accountable to the President. 42 U.S.C. § 1320a-8(b).
Second, the CFPB cited the example of the Office of
Special Counsel, an independent agency headed by a single
Special Counsel. The Office has a narrow jurisdiction and
mainly enforces certain personnel rules against government
employers and employees, such as the prohibition against
improper political activity by government employees. Like
the Social Security Administration, the Office of Special
Counsel lacks deep historical roots. It became a single-
Director agency in 1978. And like the Social Security
Administration, the constitutionality of the Special Counsel has
been contested since its creation. Under President Carter, the
Department of Justice opined that the Special Counsel “must
be removable at will by the President,” and the Department
opposed a for-cause restriction on removal of the Special
Counsel. Memorandum Opinion for the General Counsel,
Civil Service Commission, 2 Op. O.L.C. 120, 120 (1978).
When Congress passed subsequent legislation regarding the
Office of Special Counsel, President Reagan vetoed the bill due
23
to “serious constitutional concerns” about the Office’s status as
an independent agency. President Ronald Reagan,
Memorandum of Disapproval on a Bill Concerning
Whistleblower Protection, 2 Pub. Papers 1391, 1392 (Oct. 26,
1988). The history of the Office of Special Counsel confirms
what one former Special Counsel has acknowledged: The
agency is “a controversial anomaly in the federal system.” K.
William O’Connor, Foreword to A LEGISLATIVE HISTORY OF
THE MERIT SYSTEM PRINCIPLES, PROHIBITED PERSONNEL
PRACTICES AND THE OFFICE OF THE SPECIAL COUNSEL, at v
(1985). That agency’s structure remains constitutionally
contested and so is not a meaningful historical precedent for
the CFPB.
Moreover, the Office of Special Counsel is not a precedent
for the CFPB because the Office of Special Counsel is
primarily responsible for enforcing personnel laws against
government agencies and government employees. Unlike the
CFPB, the Office of Special Counsel may not enforce laws
against private citizens or impose fines and penalties on private
citizens. 2
2
Because the Social Security Administration and the Office of
Special Counsel do not exercise the core executive power of bringing
law enforcement actions and because they have narrow jurisdiction,
a holding invalidating the single-Director structure of the CFPB
would not necessarily invalidate the single-Director structure of the
Social Security Administration and the Office of Special Counsel.
That said, if those two agencies are unconstitutionally structured, the
remedy would presumably be the same remedy as in Free Enterprise
Fund: severing the for-cause provision so that the agencies would
continue to fully operate, albeit as traditional executive agencies
rather than independent agencies. I do not address those agencies in
this case.
24
Third, the CFPB pointed to Congress’s 2008 creation of a
single-Director Federal Housing Finance Agency. See
Housing and Economic Recovery Act of 2008, Pub. L. No.
110-289, § 1101, 122 Stat. 2654, 2662 (codified at 12 U.S.C.
§§ 4511-4512). That agency is a contemporary of the CFPB
and merely raises the same question we confront here. An
agency created only in 2008 does not constitute an historical
precedent for the CFPB. Cf. NLRB v. SW General, Inc., 137
S. Ct. 929, 943, slip op. at 17 (2017) (“‘[H]istorical practice’ is
too grand a title for the Board’s evidence. The FVRA was not
enacted until 1998 . . . .”).
Fourth, although not a regulatory agency precedent and not
an example cited by the CFPB as precedent for its single-
Director structure (for good reason), there is at least one other
modern statute that created an independent entity headed by
one person. It is the now-defunct independent counsel law.
But the independent counsel was distinct in numerous
meaningful ways from the CFPB Director. Unlike the CFPB
Director, the independent counsel exercised only executive
power, not rulemaking or adjudicative power. Unlike the
CFPB Director, the independent counsel had only a limited
jurisdiction for particular defined criminal investigations
where the Department of Justice had a conflict of interest.
Most importantly, unlike the CFPB Director, the independent
counsel was an inferior officer, not a principal officer. The
independent counsel was an inferior officer, according to the
Supreme Court, because the independent counsel could be
supervised and directed to some extent by the Attorney
General, who is a principal executive officer accountable to the
President.
Given those important distinctions, the independent
counsel is not an historical precedent for a single principal
officer as the head of an independent regulatory agency. That
25
is no doubt why the CFPB has not relied on the independent
counsel as an historical precedent for a single-Director CFPB.3
So in terms of historical practice, that’s all the CFPB has,
and that’s not much. As Justice Breyer stated for the Supreme
Court when the Court faced a similar (actually, a more robust)
historical record in Noel Canning, the few examples offered by
the CFPB are “anomalies.” 134 S. Ct. at 2567, slip op. at 21.
Or as the Supreme Court put it in Free Enterprise Fund when
confronting a similar historical record, a “handful of isolated”
examples does not count for much when assessed against an
otherwise settled historical practice. 561 U.S. at 505.
3
Recall, moreover, that the independent counsel experiment
ended with nearly universal consensus that the experiment had been
a mistake and that Justice Scalia had been right back in 1988 to view
the independent counsel system as an unwise and unconstitutional
departure from historical practice and a serious threat to individual
liberty. See Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia,
J., dissenting) (“this wolf comes as a wolf”); see also Stanford
Lawyer 4 (Spring 2015) (quoting Justice Kagan’s statement that
Justice Scalia’s dissent in Morrison is “one of the greatest dissents
ever written and every year it gets better”). The independent
counsel experience strongly counsels against single-Director
independent agencies. The independent counsel is, of course,
distinct from the traditional special counsels who are appointed by
the Attorney General for particular matters. Those special counsels
ordinarily report to and are removable by the Attorney General or the
Deputy Attorney General.
In this section of the opinion, I am addressing the historical
practice of how independent agencies are structured. A separate
question is whether Morrison v. Olson constitutes a judicial
precedent on the question of whether a single-Director independent
regulatory agency is constitutional. The answer to that question is
also no, for similar reasons. I will address the Morrison point more
fully in Part IV below.
26
To be sure, in “all the laws enacted since 1789, it is always
possible that Congress” created some other independent
agencies that exercised traditional executive functions but were
headed by single Directors. Free Enterprise Fund v. Public
Company Accounting Oversight Board, 537 F.3d 667, 699 n.8
(D.C. Cir. 2008) (Kavanaugh, J., dissenting); see also Noel
Canning, 134 S. Ct. at 2567, slip op. at 21 (“There may be
others of which we are unaware.”). But “the research of the
parties and the Court has not found such a needle in the
haystack.” Free Enterprise Fund, 537 F.3d at 699 n.8
(Kavanaugh, J., dissenting). “Even if such an example were
uncovered,” there is no question that a single-Director
independent agency “has been rare at best.” Id. 4
In considering precedents for the single-Director structure
of the CFPB, one may wonder about all of the executive
4
Some have suggested that the CFPB Director is similar to the
Comptroller of the Currency. But unlike the Director, the
Comptroller is not independent. The Comptroller is removable at
will by the President. Full stop. See 12 U.S.C. § 2 (“The
Comptroller of the Currency shall be appointed by the President, by
and with the advice and consent of the Senate, and shall hold his
office for a term of five years unless sooner removed by the
President, upon reasons to be communicated by him to the Senate.”).
A predecessor Comptroller of the Treasury, established in 1789,
likewise was not independent. In Free Enterprise Fund, the
Supreme Court definitively explained that the original Comptroller
of the Treasury was removable at will by the President. See 561
U.S. at 500 n.6. The Free Enterprise Fund opinion also addressed
the alleged attribution to Madison of “a belief that some executive
officers, such as the Comptroller, could be made independent of the
President.” Id. The Free Enterprise Fund Court explained that
“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 . . . .’” Id. (quoting
1 ANNALS OF CONGRESS 612 (1789)) (emphasis added).
27
departments and agencies headed by a single person. Why
don’t they provide a precedent for the CFPB? Consider for
example the Department of Justice, the Department of the
Treasury, the Department of State, the Department of Defense,
and the EPA, all headed by a single person.
The distinction, of course, is that those departments and
agencies are executive agencies. They operate within the
Executive Branch chain of command under the supervision and
direction of the President, and those agency heads are
removable at will by the President. The President therefore is
a check on those agencies. Those agencies are accountable to
the President. The President in turn is accountable to the
people of the United States for the exercise of executive power
in the executive agencies. So a single person at the helm of an
executive agency is perfectly constitutional. 5
By contrast, independent agencies operate free of the
President’s supervision and direction. Therefore, they
traditionally have been headed by multiple commissioners or
board members who check one another. An independent
agency operates as “a body of experts appointed by law and
informed by experience.” Humphrey’s Executor v. United
States, 295 U.S. 602, 624 (1935).
That deeply rooted tradition – namely, that independent
agencies are headed by multiple commissioners or board
members – has been widely recognized by leading judges,
congressional committees, and academics who have studied the
issue. Consider the following:
5
Congress may of course establish executive agencies that are
headed by multiple individuals (although Congress rarely does so),
but each agency head must be removable at will by the President in
order for the agency to maintain its status as an executive agency.
28
• Justice Breyer, joined by Justices Stevens, Ginsburg,
and Sotomayor: “Agency independence is a function
of several different factors . . . includ[ing] . . .
composition as a multimember bipartisan board . . . .”
Free Enterprise Fund, 561 U.S. at 547 (Breyer, J.,
dissenting).
• A Senate study: “The traditional independent
regulatory agency is a commission of multiple
members . . . . The size of the commission, the length
of the terms, and the fact that they do not all lapse at
one time are key elements of the independent
structure.” Senate Committee on Governmental
Affairs, STUDY ON FEDERAL REGULATION, S. Doc. No.
95-91, vol. 5, at 35 (1977).
• The same Senate study: The “relative importance to
be attached to group decision-making” is the “[c]hief”
factor legislators consider when deciding whether to
create an independent rather than an executive agency.
Id. at 79.
• Professors Breger and Edles: The multi-member
agency form has become “synonymous with
independence.” Marshall J. Breger & Gary J. Edles,
Established by Practice: The Theory and Operation of
Independent Federal Agencies, 52 Admin. L. Rev.
1111, 1137 (2000).
• Professor Amar: “Viewed through the prism of
practice, the Constitution allows independent agencies
to be created when three factors converge: first, when
an executive entity is best headed up by a committee
rather than by a single officer . . . .” AKHIL REED
AMAR, AMERICA’S UNWRITTEN CONSTITUTION 385
(2012).
• Professor Barkow: “multimember design” is one of
the “[t]raditional [l]odestars” of agency independence.
29
Rachel E. Barkow, Insulating Agencies: Avoiding
Capture Through Institutional Design, 89 Tex. L. Rev.
15, 26 (2010).
• Professor Davis: Independent agencies should be
headed by multiple members “just as we want appellate
courts to be made up of plural members, to protect
against the idiosyncracies of a single individual.”
KENNETH CULP DAVIS, ADMINISTRATIVE LAW OF THE
SEVENTIES 15 (1976).
• Professor Strauss: Independent regulatory
commissions are “governmental agencies headed by
multi-member boards acting collegially on the
regulatory matters within their jurisdiction.” PETER L.
STRAUSS, AN INTRODUCTION TO ADMINISTRATIVE
JUSTICE IN THE UNITED STATES 15 (1989).
• Professors Bressman and Thompson: Independent
agencies, unlike Executive Branch agencies, are
“generally run by multi-member commissions or
boards.” Lisa Schultz Bressman & Robert B.
Thompson, The Future of Agency Independence, 63
Vand. L. Rev. 599, 610 (2010).
• A Harvard Law Review analysis: “Most independent
agencies have multimember boards.” Recent
Legislation, Dodd-Frank Act Creates the Consumer
Financial Protection Bureau, 124 Harv. L. Rev. 2123,
2128 (2011).
The bottom line is that independent agencies historically
have been headed by multiple commissioners or board
members. The CFPB’s single-Director structure flouts that
historical practice. See Who’s Watching the Watchmen?
Oversight of the Consumer Financial Protection Bureau:
Hearing Before the Subcommittee on TARP, Financial
Services and Bailouts of Public and Private Programs of the
House Committee on Oversight and Government Reform,
30
112th Cong. 77 (2011) (statement of Andrew Pincus)
(emphasis added) (“Dodd-Frank sets up for the Bureau an
unprecedented structure that consolidates more power in the
director than in the head of any other agency that regulates
private individuals and entities.”); Dodd-Frank Act Creates the
Consumer Financial Protection Bureau, 124 Harv. L. Rev. at
2130 (emphasis added) (“[T]he CFPB’s design is troubling
because of its unprecedented nature.”); Note, Independence,
Congressional Weakness, and the Importance of Appointment:
The Impact of Combining Budgetary Autonomy with Removal
Protection, 125 Harv. L. Rev. 1822, 1824 n.15 (2012)
(emphasis added) (CFPB’s lack of a multi-member board is
“atypical for independent agencies and will amplify the
Director’s independence”); Todd Zywicki, The Consumer
Financial Protection Bureau: Savior or Menace? 81 Geo.
Wash. L. Rev. 856, 899 (2013) (emphasis added) (“[T]he
agency structure Congress chose for the CFPB – a single-
director structure, devoid of accountability, and with vast, ill-
defined powers – appears to be unique in recent American
history.”). 6
In short, the CFPB is exceptional in our constitutional
structure and unprecedented in our constitutional history.
6
The settled historical practice is further illustrated by the
quorum provisions applicable to independent agencies. Those
quorum provisions reinforce the accepted understanding that
independent agencies must have multiple commissioners or board
members. Cf. New Process Steel, L.P. v. NLRB, 560 U.S. 674(2010); Marshall J. Breger & Gary J. Edles, Established by Practice:
The Theory and Operation of Independent Federal Agencies, 52
Admin. L. Rev. 1111, 1182-83 & app. (2000) (summarizing
independent agency quorum requirements).
31
C
The CFPB’s departure from historical practice matters in
this case because historical practice matters to separation of
powers analysis. A long line of Supreme Court precedent
commands that we heed history and tradition in separation of
powers cases not resolved by the constitutional text alone. 7
As Justice Breyer wrote for the Supreme Court in Noel
Canning, the “longstanding practice of the government can
inform our determination of what the law is.” NLRB v. Noel
Canning, 134 S. Ct. 2550, 2560, slip op. at 7 (2014). Justice
Breyer quoted James Madison’s statement that it was “foreseen
at the birth of the Constitution, that difficulties and differences
of opinion might occasionally arise in expounding terms &
phrases necessarily used in such a charter . . . and that it might
require a regular course of practice to liquidate & settle the
meaning of some of them.” Id., slip op. at 8. Justice Breyer
explained, moreover, that the Court “has treated practice as an
important interpretive factor even when the nature or longevity
of that practice is subject to dispute, and even when that
practice began after the founding era.” Id., slip op. at 8.
All of this, Justice Breyer stated, is “neither new nor
controversial.” Id., slip op. at 7. Consider the following:
• “In separation-of-powers cases this Court has often put
significant weight upon historical practice.”
7
As a matter of first principles, there would be a strong
argument that this case could and should be resolved in PHH’s favor
by the constitutional text alone – on the ground that independent
agencies violate Article II. But Humphrey’s Executor rejected that
broad argument, and we as a lower court are bound by that case.
The question for us is whether Humphrey’s Executor extends to
single-Director independent agencies.
32
Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091, slip op. at
20 (2015).
• “We therefore conclude, in light of historical practice,
that a recess of more than 3 days but less than 10 days
is presumptively too short to fall within the Clause.”
Noel Canning, 134 S. Ct. at 2567, slip op. at 21.
• “Perhaps the most telling indication of the severe
constitutional problem with the PCAOB is the lack of
historical precedent for this entity.” Free Enterprise
Fund v. Public Company Accounting Oversight Board,
561 U.S. 477, 505 (2010).
• This “Court has long made clear that, when we face
difficult questions of the Constitution’s structural
requirements, longstanding customs and practices can
make a difference.” Commonwealth of Puerto Rico v.
Sanchez Valle, 136 S. Ct. 1863, 1884, slip op. at 13
(2016) (Breyer, J., dissenting).
• “[T]raditional ways of conducting government . . . give
meaning to the Constitution.” Mistretta v. United
States, 488 U.S. 361, 401 (1989).
• “Deeply embedded traditional ways of conducting
government cannot supplant the Constitution or
legislation, but they give meaning to the words of a text
or supply them.” Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J.,
concurring).
• “A legislative practice such as we have here, evidenced
not by only occasional instances, but marked by the
movement of a steady stream for a century and a half of
time, goes a long way in the direction of proving the
presence of unassailable ground for the
constitutionality of the practice, to be found in the
origin and history of the power involved, or in its
nature, or in both combined.” United States v. Curtiss-
Wright Export Corp., 299 U.S. 304, 327-28 (1936).
33
• “Long settled and established practice is a
consideration of great weight in a proper interpretation
of constitutional provisions of this character.” The
Pocket Veto Case, 279 U.S. 655, 689 (1929).
• “Such long practice under the pardoning power and
acquiescence in it strongly sustains the construction it
is based on.” Ex parte Grossman, 267 U.S. 87, 118-19
(1925).
• A “page of history is worth a volume of logic.” New
York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).
• In “determining the meaning of a statute or the
existence of a power, weight shall be given to the usage
itself – even when the validity of the practice is the
subject of investigation.” United States v. Midwest Oil
Co., 236 U.S. 459, 473 (1915).
• “[W]here there is ambiguity or doubt [in the words of
the Constitution], or where two views may well be
entertained, contemporaneous and subsequent practical
construction are entitled to the greatest weight.”
McPherson v. Blacker, 146 U.S. 1, 27 (1892).
• A “doubtful question, one on which human reason may
pause, and the human judgment be suspended, in the
decision of which the great principles of liberty are not
concerned, but the respective powers of those who are
equally the representatives of the people, are to be
adjusted; if not put at rest by the practice of the
government, ought to receive a considerable impression
from that practice.” McCulloch v. Maryland, 17 U.S.
316, 401 (1819).
Stated simply, in separation of powers cases not resolved
by the constitutional text alone, historical practice helps define
the constitutional limits on the Legislative and Executive
34
Branches.8 The Supreme Court’s recent decisions in Free
Enterprise Fund and Noel Canning illustrate how the Court
relies on historical practice in the separation of powers
context. 9
In Free Enterprise Fund, the Supreme Court considered
the constitutionality of the new Public Company Accounting
Oversight Board created by the 2002 Sarbanes-Oxley Act.
8
The Supreme Court has relied heavily on historical practice
not just in separation of powers cases, but also in federalism cases.
In several federalism cases over the last 25 years, the Court has
invalidated novel congressional statutes that altered the traditional
federal-state balance. See New York v. United States, 505 U.S. 144,
177 (1992) (“The take title provision appears to be unique. No other
federal statute has been cited which offers a state government no
option other than that of implementing legislation enacted by
Congress.”); Printz v. United States, 521 U.S. 898, 905 (1997) (“[I]f,
as petitioners contend, earlier Congresses avoided use of this highly
attractive power, we would have reason to believe that the power was
thought not to exist.”); Alden v. Maine, 527 U.S. 706, 744 (1999)
(“The provisions of the FLSA at issue here, which were enacted in
the aftermath of Parden, are among the first statutory enactments
purporting in express terms to subject nonconsenting States to
private suits.”); cf. National Federation of Independent Business v.
Sebelius, 567 U.S. 519, 549 (2012) (binding opinion of Roberts, C.J.)
(“But Congress has never attempted to rely on that power to compel
individuals not engaged in commerce to purchase an unwanted
product.”); id. at 659 (joint dissent of Scalia, Kennedy, Thomas, and
Alito, JJ.) (“[T]he relevant history is not that Congress has achieved
wide and wonderful results through the proper exercise of its
assigned powers in the past, but that it has never before used the
Commerce Clause to compel entry into commerce.”).
9
Of course, if the constitutional text is sufficiently clear, then
the existence of any historical practice departing from that text is not
persuasive. See, e.g., INS v. Chadha, 462 U.S. 919, 944-46 (1983);
Powell v. McCormack, 395 U.S. 486, 546-47 (1969).
35
Independent agency heads are ordinarily removable for cause
by the President. But the new Public Company Accounting
Oversight Board’s members were removable only for cause by
the SEC Commissioners, and the SEC Commissioners in turn
were understood to be removable only for cause by the
President. In other words, there were two levels of for-cause
removal between the President and the Accounting Oversight
Board.
The Supreme Court drew a line between one level of for-
cause removal, which was the structure of traditional
independent agencies, and two levels of for-cause removal, the
novel structure of the new Accounting Oversight Board. The
Court ruled that the latter was unconstitutional. The Court
drew that line in part because historical practice had settled on
allowing only one level of for-cause removal between the
President and independent agency heads. There were at most
“only a handful of isolated” precedents for the new Board.
Free Enterprise Fund, 561 U.S. at 505. That mattered,
according to the Court: “Perhaps the most telling indication
of the severe constitutional problem with the PCAOB is the
lack of historical precedent for this entity.” Id. And as the
Court noted, there was a difference between one level of for-
cause removal and two levels of for-cause removal in terms of
an agency’s insulation from Presidential influence. See id. at
495-96. Therefore, the Court invalidated the structure of the
new Board. 10
10
Justice Breyer dissented for four Justices in Free Enterprise
Fund. But importantly, he dissented not because he disagreed with
the Court’s point that historical practice matters, but rather primarily
because he did not see a meaningful difference – in practical,
analytical, or constitutional terms – between one level and two levels
of for-cause removal. See Free Enterprise Fund v. Public Company
Accounting Oversight Board, 561 U.S. 477, 525-26 (2010) (Breyer,
J., dissenting).
36
In Noel Canning, the Supreme Court, speaking through
Justice Breyer, likewise stressed the importance of history
when assessing the constitutionality of a novel practice – in that
case, Presidential recess appointments in Senate recesses of
fewer than 10 days. The Court said: “Long settled and
established practice is a consideration of great weight in a
proper interpretation of constitutional provisions regulating the
relationship between Congress and the President.” Noel
Canning, 134 S. Ct. at 2559, slip op. at 7. Based on that
history, the Supreme Court ruled that a Senate recess of “less
than 10 days is presumptively too short” for constitutional
purposes. Id. at 2567, slip op. at 21.
Why 10 days? After all, the text of the Constitution does
not draw any such 10-day line. The Court reasoned that the
historical practice between the President and the Senate had
established a 10-day line.
Specifically, the Noel Canning Court stated that it had “not
found a single example of a recess appointment made during
an intra-session recess that was shorter than 10 days.” Id. at
2566, slip op. at 20. Although the Court did find “a few
historical examples of recess appointments made during inter-
session recesses shorter than 10 days,” the Court stated: “But
when considered against 200 years of settled practice, we
regard these few scattered examples as anomalies.” Id. at
2567, slip op. at 20-21.
According to the Court, therefore, allowing recess
appointments in Senate recesses of fewer than 10 days would
depart from the settled historical practice and alter the relative
powers of the President and Senate over appointments. So,
too, disallowing recess appointments in Senate recesses of 10
or more days would depart from settled historical practice. In
37
Noel Canning, the Supreme Court relied on that historical
practice in defining the constitutional rule. 11
The history-based analysis of Free Enterprise Fund and
Noel Canning underscores the broader jurisprudential principle
long applied by the Supreme Court: In separation of powers
cases not resolved by the constitutional text alone, historical
practice matters.
***
The CFPB’s single-Director structure is without
meaningful historical precedent. Here, as in Free Enterprise
Fund and prior cases, the lack of historical precedent matters.
To borrow the words of the Supreme Court in Free Enterprise
Fund: “Perhaps the most telling indication of the severe
constitutional problem” with the CFPB “is the lack of historical
precedent for this entity.” 561 U.S. at 505.
11
Justice Scalia concurred in the judgment for four Justices in
Noel Canning, arguing as relevant here that the text of the
Constitution rendered intra-session recess appointments
unconstitutional even in Senate recesses of 10 or more days. But
Justice Scalia did not disagree with the Court’s claim that historical
practice often matters in separation of powers cases involving
ambiguous constitutional text, which is the relevant point for our
purposes. See NLRB v. Noel Canning, 134 S. Ct. 2550, 2594, slip
op. at 5 (2014) (Scalia, J., concurring in judgment) (“Of course,
where a governmental practice has been open, widespread, and
unchallenged since the early days of the Republic, the practice
should guide our interpretation of an ambiguous constitutional
provision.”). Rather, Justice Scalia stated that the constitutional text
in that case was sufficiently clear and dispositive that resort to
historical practice was unnecessary and unwarranted. See id. at
2592, slip op. at 2; see generally John F. Manning, Separation of
Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939 (2011).
38
II. LIBERTY
The CFPB’s single-Director structure not only departs
from historical practice. It also threatens individual liberty
more than the traditional multi-member structure does.
A
The historical practice of structuring independent agencies
as multi-member commissions or boards is the historical
practice for a reason: It reflects a deep and abiding concern
for safeguarding the individual liberty protected by the
Constitution.
“The Framers recognized that, in the long term, structural
protections against abuse of power were critical to preserving
liberty.” Bowsher v. Synar, 478 U.S. 714, 730 (1986). The
“structural principles secured by the separation of powers
protect the individual as well.” Stern v. Marshall, 564 U.S.
462, 483 (2011). As Justice Scalia stated: “The purpose of
the separation and equilibration of powers in general, and of
the unitary Executive in particular, was not merely to assure
effective government but to preserve individual freedom.”
Morrison v. Olson, 487 U.S. 654, 727 (1988) (Scalia, J.,
dissenting).
The basic constitutional concern with independent
agencies is that the agencies are unchecked by the President,
the official who is accountable to the people and responsible
under Article II for the exercise of executive power.
Recognizing the broad and unaccountable power wielded by
independent agencies, Congress has traditionally required
multi-member bodies at the helm of independent agencies. In
the absence of Presidential control, the multi-member structure
39
of independent agencies serves as a critical substitute check on
the excesses of any individual independent agency head.
But in this new agency, the CFPB, that critical check is
absent. And the lack of that traditional safeguard threatens the
individual liberty protected by the Constitution’s separation of
powers.
How does a single-Director independent agency fare
worse than multi-member independent agencies in protecting
individual liberty? A single-Director independent agency
concentrates enforcement, rulemaking, and adjudicative power
in one individual. By contrast, multi-member independent
agencies do not concentrate all of that power in one individual.
The multi-member structure thereby helps to prevent arbitrary
decisionmaking and abuse of power, and to protect individual
liberty.
The point is simple but profound. In a multi-member
independent agency, no single commissioner or board member
can affirmatively do much of anything. Before the agency can
infringe your liberty in some way – for example, by enforcing
a law against you or by issuing a rule that affects your liberty
or property – a majority of commissioners must agree. As a
former Chair of the Federal Trade Commission has explained,
it takes “a consensus decision of at least a majority of
commissioners to authorize, or forbear from, action.” Edith
Ramirez, The FTC: A Framework for Promoting Competition
and Protecting Consumers, 83 Geo. Wash. L. Rev. 2049, 2053
(2015). That in turn makes it harder for the agency to infringe
your liberty.
In addition, unlike single-Director independent agencies,
multi-member independent agencies “can foster more
deliberative decision making.” Kirti Datla & Richard L.
40
Revesz, Deconstructing Independent Agencies (and Executive
Agencies), 98 Cornell L. Rev. 769, 794 (2013). Multi-
member independent agencies benefit from diverse
perspectives and different points of view among the
commissioners and board members. 12 The multiple voices
and perspectives make it more likely that the costs and
downsides of proposed decisions will be more fully ventilated.
See Marshall J. Breger & Gary J. Edles, Established by
Practice: The Theory and Operation of Independent Federal
Agencies, 52 Admin. L. Rev. 1111, 1113 (2000) (independent
agencies “are also multi-member organizations, a fact that
tends toward accommodation of diverse or extreme views
through the compromise inherent in the process of collegial
decisionmaking”); Jacob E. Gersen, Administrative Law Goes
to Wall Street: The New Administrative Process, 65 Admin. L.
Rev. 689, 696 (2013) (A “multimember board allows for a
representation of divergent interests in a way that a single
decisionmaker simply cannot.”); Glen O. Robinson, On
Reorganizing the Independent Regulatory Agencies, 57 Va. L.
Rev. 947, 963 (1971) (“It is not bipartisanship as such that is
important; it is rather the safeguards and balanced viewpoint
that can be provided by plural membership.”); cf. Harry T.
Edwards, The Effects of Collegiality on Judicial Decision
Making, 151 U. Pa. L. Rev. 1639, 1645 (2003) (“[C]ollegiality
plays an important part in mitigating the role of partisan politics
and personal ideology by allowing judges of differing
perspectives and philosophies to communicate with, listen to,
and ultimately influence one another in constructive and law-
abiding ways.”).
12
By statute, certain independent agencies must include
members of both major political parties. See, e.g., 15 U.S.C. § 41(Federal Trade Commission); 15 U.S.C. § 78d(a) (Securities and
Exchange Commission); 15 U.S.C. § 2053(c) (Consumer Product
Safety Commission); 42 U.S.C. § 7171(b)(1) (Federal Energy
Regulatory Commission). Most others are bipartisan by tradition.
41
As compared to a single-Director independent agency
structure, a multi-member independent agency structure – and
its inherent requirement for compromise and consensus – will
tend to lead to decisions that are not as extreme, idiosyncratic,
or otherwise off the rails. Cf. Stephen M. Bainbridge, Why a
Board? Group Decisionmaking in Corporate Governance, 55
Vand. L. Rev. 1, 12-19 (2002). A multi-member independent
agency can go only as far as the middle vote is willing to go.
Conversely, under a single-Director structure, an agency’s
policy goals “will be subject to the whims and idiosyncratic
views of a single individual.” Joshua D. Wright, The
Antitrust/Consumer Protection Paradox: Two Policies at War
with Each Other, 121 Yale L.J. 2216, 2260 (2012); cf. Recent
Legislation, Dodd-Frank Act Creates the Consumer Financial
Protection Bureau, 124 Harv. L. Rev. 2123, 2128 (2011)
(multi-member commission structure “reduces the variance of
policy and improves accuracy through aggregation”); Michael
B. Rappaport, Essay, Replacing Independent Counsels with
Congressional Investigations, 148 U. Pa. L. Rev. 1595, 1601
n.17 (2000) (“independent agencies tend to be headed by
multimember commissions, which function to prevent aberrant
actions”).
Relatedly, as compared to a single-Director independent
agency, a multi-member independent agency (particularly
when bipartisan) supplies “a built-in monitoring system for
interests on both sides because that type of body is more likely
to produce a dissent if the agency goes too far in one direction.”
Rachel E. Barkow, Insulating Agencies: Avoiding Capture
Through Institutional Design, 89 Tex. L. Rev. 15, 41 (2010).
A dissent, in turn, can serve “as a ‘fire alarm’ that alerts
Congress and the public at large that the agency’s decision
might merit closer scrutiny.” Id.; see also Dodd-Frank Act
Creates the Consumer Financial Protection Bureau, 124 Harv.
42
L. Rev. at 2128 (the “presence of dissenters” in agency
proceedings “provides new information and forces the
proponent to articulate a coherent rationale, thus acting as a
constraining force”).
Moreover, multi-member independent agencies are better
structured than single-Director independent agencies to guard
against “capture” of – that is, undue influence over –
independent agencies by regulated entities or interest groups,
for example. As Elizabeth Warren noted in her original
proposal for a multi-member consumer protection agency:
“With every agency, the fear of regulatory capture is ever-
present.” Elizabeth Warren, Unsafe at Any Rate: If It’s Good
Enough for Microwaves, It’s Good Enough for Mortgages.
Why We Need a Financial Product Safety Commission,
Democracy, Summer 2007, at 8, 18. Capture can infringe
individual liberty because capture can prevent a neutral,
impartial agency assessment of what rules to issue or what
enforcement actions to undertake or how to resolve
adjudications. In a multi-member agency, however, the
capturing parties “must capture a majority of the membership
rather than just one individual.” Lisa Schultz Bressman &
Robert B. Thompson, The Future of Agency Independence, 63
Vand. L. Rev. 599, 611 (2010); see also ROBERT E. CUSHMAN,
THE INDEPENDENT REGULATORY COMMISSIONS 153 (1941)
(noting, in reference to Federal Reserve Act of 1913, that it
“seemed easier to protect a board from political control than to
protect a single appointed official”); Barkow, Insulating
Agencies, 89 Tex. L. Rev. at 38 (“[O]nly one person at the apex
can also mean that the agency is more easily captured.”);
Robinson, On Reorganizing the Independent Regulatory
Agencies, 57 Va. L. Rev. at 962 (“[T]he single administrator
may be more vulnerable” to interest group pressures “because
43
he provides a sharper focus for the concentration of special
interest power and influence.”). 13
In short, when an independent agency is structured as a
multi-member agency rather than as a single-Director agency,
the agency can better protect individual liberty because it can
better prevent arbitrary enforcement actions and unlawful or
otherwise unreasonable rules. 14
13
This case exemplifies the reality of (and not just the potential
for) arbitrary decisionmaking by the Director of the CFPB. The
Director discarded the Government’s longstanding interpretation of
the relevant statute, adopted a new interpretation of that statute,
applied that new interpretation retroactively, and then imposed
massive sanctions on PHH for violation of the statute – even though
PHH’s relevant acts occurred before the Director changed his
interpretation of the statute. Cf. Landgraf v. USI Film Products, 511
U.S. 244, 265 (1994) (“Elementary considerations of fairness dictate
that individuals should have an opportunity to know what the law is
and to conform their conduct accordingly.”). Notably, the Director
unilaterally added $103 million to the $6 million in penalties that had
been imposed by the administrative law judge.
14
To be sure, multi-member independent agencies are hardly
perfect. For example, some members of multi-member independent
agencies may occasionally move in lockstep, thereby diminishing the
benefits of multi-member bodies. Moreover, it can be harder to find
three or five highly qualified commissioners than just one highly
qualified commissioner. And multi-member bodies are often not as
efficient as single-headed agencies and can be beset by contentious
relations among the members. That said, “[c]onvenience and
efficiency are not the primary objectives – or the hallmarks – of
democratic government.” Bowsher v. Synar, 478 U.S. 714, 736
(1986). Indeed, so as to avoid falling back into the kind of tyranny
that they had declared independence from, the Framers often made
trade-offs against efficiency in the interest of enhancing liberty.
44
B
Notably, the multi-member structure of independent
agencies is not an accident. On the contrary, Congress has
traditionally designed independent agencies as multi-member
bodies in order to protect liberty and prevent arbitrary
decisionmaking by a single unaccountable Director.
As Franklin Roosevelt’s Administration explained in its
comprehensive study of independent agencies, the “popular
belief that important rule-making functions ought to be
performed by a group rather than by a single officer, by a
commission rather than by a department head,” was a reason
“for the establishment of independent regulatory agencies.”
THE PRESIDENT’S COMMITTEE ON ADMINISTRATIVE
MANAGEMENT, REPORT OF THE COMMITTEE WITH STUDIES OF
ADMINISTRATIVE MANAGEMENT IN THE FEDERAL
GOVERNMENT 216 (1937). In a leading study of independent
commissions, a member of the Roosevelt Administration
analyzed the creation of the Federal Trade Commission and
explained: “The two ideas, a commission and independence
for the commission, were inextricably bound together. At no
point was it proposed that a commission ought to be set up
unless it be independent or that an independent officer should
be created rather than a commission.” ROBERT E. CUSHMAN,
THE INDEPENDENT REGULATORY COMMISSIONS 188 (1941)
(emphasis added).
Senator Newlands, the sponsor of the legislation creating
the Federal Trade Commission, emphasized the need for a
commission rather than a single Director: “If only powers of
investigation and publicity are given a single-headed
organization, like the Bureau of Corporations, might be the best
for the work; but if judgment and discretion are to be exercised,
or if we have in contemplation the exercise of any corrective
45
power hereafter, or if the broad ends above outlined are to be
attained, it seems to me that a commission is required.” 51
Cong. Rec. 11,092 (1914).
In Humphrey’s Executor, the Supreme Court recognized
that Congress intended independent agencies to be multi-
member bodies. The Court repeatedly noted that the Federal
Trade Commission is “a body of experts.” Humphrey’s
Executor v. United States, 295 U.S. 602, 624 (1935). The
Court stated that the nature and functions of the Commission
evinced Congress’s “intent to create a body of experts who
shall gain experience by length of service – a body which shall
be independent of executive authority, except in its selection,
and free to exercise its judgment without the leave or hindrance
of any other official or any department of the government.”
Id. at 625-26 (first emphasis added).
In short, Congress structured independent agencies as
multi-member agencies for good reason – namely, to safeguard
individual liberty from the excesses of a single officer’s
unaccountable decisionmaking.
C
When examining the relevant history, we can see that the
original design, common understanding, and consistent
historical practice of independent agencies as multi-member
bodies reflect the larger values of the Constitution. The
Constitution as a whole embodies the bedrock principle that
dividing power among multiple entities and persons helps
protect individual liberty. The Framers created a federal
system with the national power divided among three branches.
The Framers “viewed the principle of separation of powers as
the absolutely central guarantee of a just Government.”
46
Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J.,
dissenting).
The principle of checks and balances influenced how the
Framers allocated power within the three national branches.
For example, the Framers divided the Legislative Branch into
two houses, each with multiple members. No one person
operates as Legislator in Chief. Rather, 535 Members of
Congress do so, divided into two Houses. Likewise, the
Framers established “one supreme Court” composed of
multiple “Judges” rather than a single judge. No one person
operates as the Supreme Justice. Rather, the Court consists of
one Chief Justice and several Associate Justices, all of whom
have equal votes on cases.
Of course, the one exception to the Constitution’s division
of power among multiple parties within the branches is the
President, who is the lone head of the entire Executive Branch.
But the President is the exception that proves the rule. For
starters, the Framers were concerned that dividing the
executive power among multiple individuals would render the
Executive Branch too weak as compared to the more
formidable Legislative Branch. See THE FEDERALIST NO. 48
(Madison) (It is “against the enterprising ambition” of the
Legislative Branch “that the people ought to indulge all their
jealousy and exhaust all their precautions. The legislative
department derives a superiority in our governments . . . .”).
The Framers sought “[e]nergy in the executive.” THE
FEDERALIST NO. 70 (Hamilton).
At the same time, the Framers certainly recognized the risk
that a single President could lead to tyranny or arbitrary
decisionmaking. To mitigate the risk to liberty from a single
President, the Framers ensured that the President had “a due
dependence on the people.” Id. The President is nationally
47
elected. In choosing the President, “the whole Nation has a
part, making him the focus of public hopes and expectations.”
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653
(1952) (Jackson, J., concurring). Presidential candidates are
put through the wringer precisely because of the power they
may someday wield. In other words, the Framers
concentrated executive power in a single President on the
condition that the President would be nationally elected and
nationally accountable.
The President is therefore the exception to the ordinary
constitutional practice of dividing power among multiple
entities and persons. Apart from the President, the
Constitution reflects the basic commonsense principle that
multi-member bodies – the House, the Senate, the Supreme
Court – do better than single-member bodies in avoiding
arbitrary decisionmaking and abuses of power, and thereby
protecting individual liberty.
That background constitutional principle buttresses the
conclusion that a single-Director independent agency lies
outside the norm and poses a risk to individual liberty. After
all, the Director of the CFPB is not elected by the people and
is of course not remotely comparable to the President in terms
of accountability to the people. And in addition to exercising
executive enforcement authority, the Director of the CFPB
unilaterally exercises quasi-legislative power, even though that
power is ordinarily exercised by multi-member legislative
bodies. Moreover, the Director of the CFPB unilaterally
exercises appellate quasi-judicial power, even though that
power is ordinarily exercised by multi-member bodies.
48
***
Justice Kennedy has stated: “Liberty is always at stake
when one or more of the branches seek to transgress the
separation of powers.” Clinton v. City of New York, 524 U.S.
417, 450 (1998) (Kennedy, J., concurring). In this case, the
CFPB’s novel single-Director structure departs from history,
transgresses the separation of powers, and threatens individual
liberty.
III. PRESIDENTIAL AUTHORITY
The single-Director structure of the CFPB not only departs
from history and threatens individual liberty. It also
diminishes the President’s power to exercise influence over the
CFPB, as compared to the President’s power to exercise
influence over traditional multi-member independent agencies.
That additional diminution of Presidential authority
exacerbates the Article II problem posed by the single-Director
CFPB.
In traditional multi-member agencies, the President may
designate the chair of the agency, and the President may
remove a chair at will from the chair position. (Of course, the
President may not remove that official from the commission or
board altogether, only from the position as chair.) By contrast,
the CFPB has only one Director, and the President may not
designate a new Director until the former Director leaves office
or the Director’s term expires. That structure diminishes the
President’s power to influence the direction of the CFPB, as
compared to the President’s power to influence the direction of
traditional multi-member independent agencies.
49
That diminution of Presidential power runs afoul of the
Article II principle articulated by the Supreme Court in Free
Enterprise Fund. Indeed, this case involves a greater
diminution of Presidential power than occurred in Free
Enterprise Fund.
A
As the Supreme Court stated in Free Enterprise Fund, the
“landmark case of Myers v. United States reaffirmed the
principle that Article II confers on the President the general
administrative control of those executing the laws.” Free
Enterprise Fund v. Public Company Accounting Oversight
Board, 561 U.S. 477, 492-93 (2010). In other words, when it
comes to the “responsibility to take care that the laws be
faithfully executed,” Article II of the Constitution means that
the “buck stops with the President.” Id. at 493. At the same
time, the Free Enterprise Fund Court acknowledged that the
general rule of Presidential removal was cabined by the Court’s
decision in Humphrey’s Executor.
But as the Supreme Court indicated in Free Enterprise
Fund, an independent agency’s structure violates Article II
when it is not historically rooted and when it causes an
additional diminution of Presidential control beyond that
caused by a traditional independent agency. See id. at 501(“We deal with the unusual situation, never before addressed
by the Court, of two layers of for-cause tenure. And though it
may be criticized as ‘elementary arithmetical logic,’ two layers
are not the same as one.”).
The CFPB’s single-Director structure contravenes that
diminution principle. As a result of the CFPB’s novel single-
Director structure and the five-year fixed term for the Director,
a President may be stuck for years – or even for his or her entire
50
four-year term – with a single Director who was appointed by
a prior President and who has different policy views.
Nothing comparable happens in traditional multi-member
independent agencies. Rather, the traditional multi-member
structure ordinarily allows the current President to exercise
some influence over the agency through Presidential
appointment. That is because the President may designate
agency chairs and may remove agency chairs at will from their
positions as chairs. 15
The power to designate and remove chairs at will is
important because, by statute, the “chairs of multimember
agencies have been granted budget, personnel, and agenda
control.” Kirti Datla & Richard L. Revesz, Deconstructing
Independent Agencies (and Executive Agencies), 98 Cornell L.
Rev. 769, 818 (2013). “In many agencies, the chair has the
right to appoint staff directly and is the public voice of the
agency. These powers allow the chair to exercise significant
control over the agency’s agenda.” Rachel E. Barkow,
15
For example, the President unilaterally designates (and may
unilaterally remove at will from the position as chair) the chairs of
the following agencies: the Defense Nuclear Facilities Safety Board,
42 U.S.C. § 2286(c)(1); the Federal Communications Commission,
47 U.S.C. § 154(a); the Federal Energy Regulatory Commission, 42
U.S.C. § 7171(b)(1); the Federal Maritime Commission, 46 U.S.C. §
301(c)(1); the Federal Labor Relations Authority, 5 U.S.C. §
7104(b); the Federal Trade Commission, 15 U.S.C. § 41; the Federal
Mine Safety and Health Review Commission, 30 U.S.C. § 823(a);
the National Labor Relations Board, 29 U.S.C. § 153(a); the Nuclear
Regulatory Commission, 42 U.S.C. § 5841(a); the Occupational
Safety and Health Review Commission, 29 U.S.C. § 661(a); the
Postal Regulatory Commission, 39 U.S.C. § 502(d); the Securities
and Exchange Commission, 15 U.S.C. § 78d note; and the Surface
Transportation Board, 49 U.S.C. § 1301(c).
51
Insulating Agencies: Avoiding Capture Through Institutional
Design, 89 Tex. L. Rev. 15, 39 (2010).
Professor Revesz is one of the Nation’s leading scholars of
the administrative state. He and Kirti Datla have succinctly
summarized the President’s authority with respect to chairs:
The chair of a multimember agency usually holds the
position of chair – but not as a member of the agency – at
the will of the President. After removal of an existing
chair, the President can then appoint a new chair with
preferences closer to his. The ability of the President to
retain policy influence through the selection of the chair is
important because . . . the chair of a multimember agency
is ordinarily its most dominant figure. While there is room
for debate, it is clear that the ability to appoint the head of
an independent agency allows the President to retain some
control over that agency’s activities. An appointed chair
will align with the President for multiple reasons.
Datla & Revesz, Deconstructing Independent Agencies, 98
Cornell L. Rev. at 819 (internal quotation marks omitted)
(emphases added); see also Glen O. Robinson, Independent
Agencies: Form and Substance in Executive Prerogative, 1988
Duke L.J. 238, 245 n.24 (1988) (“It is important to note that
since Humphrey’s Executor the President generally has been
given power to designate agency chairmen. . . . From personal
experience I can report that the FCC’s chairman and a handful
of staff – usually selected by the chair – can and usually do
exercise nearly total control over that agency’s basic policy
agenda.”).
To be sure, the chair alone ordinarily may not affirmatively
issue rules, initiate enforcement actions, or adjudicate disputes.
But the chair both controls the agenda and may prevent certain
52
actions from occurring. So the President’s ability to designate
a chair is valuable, even in circumstances where the agency as
a whole continues to be controlled by commissioners or board
members who might oppose the President’s views.
By exercising their power to appoint chairs of the major
multi-member independent agencies, Presidents may gain
some control over the direction of those agencies within days
of taking office at the start of their first terms. For example,
President Trump replaced the chairs of the FTC, FCC, SEC,
and NLRB within one week of taking office in January 2017.
President Obama did the same by March 2009.
But a President has no such power when it comes to the
single Director of the CFPB, who serves a fixed five-year term.
Unlike with the FTC, FCC, SEC, and NLRB, for example, the
President was not able to designate a new Director of the CFPB
in January 2017.
That problem will only grow worse for the next few
Presidents. The most recent CFPB Director left office in
November 2017. Assuming for present purposes that a new
Director is appointed in 2018 for a five-year term, that Director
may serve until 2023 – several years after the 2020 election.
The President who is elected (or re-elected) in 2020 will have
no power to remove that Director until 2023, some two or three
years into that Presidential term. A new Director then will be
appointed in 2023. That Director could serve until 2028 –
nearly the entire term of the President elected in 2024.
Another new Director may be appointed in 2028. That
Director could serve until 2033, meaning for the entirety of the
term of the President elected in 2028.
Those very realistic scenarios expose the CFPB’s flagrant
disregard of constitutional text, history, structure, and
53
precedent (not to mention, common sense). And those
scenarios convincingly demonstrate that the single-Director
CFPB, with its fixed five-year Director term, causes a
diminution of Presidential power greater than the diminution
that occurs in traditional multi-member independent agencies.
There is more. In a multi-member agency, the
commissioners or board members other than the chair serve
staggered terms and are replaced by the President as their terms
expire. A tradition has developed by which some
commissioners or board members of the opposite party resign
from independent agencies when a new President takes office.
See Datla & Revesz, Deconstructing Independent Agencies, 98
Cornell L. Rev. at 820-21. Even apart from that tradition, the
staggered terms mean that a President will have ever-increasing
influence (through appointments) over an independent agency
during the course of that President’s term. That does not occur
with the single-Director CFPB. Until the Director’s term
expires, the new President has zero influence through
appointment, and the zero remains zero until the Director’s
term expires. Although this line of reasoning “may be
criticized as elementary arithmetical logic,” some influence
exceeds zero influence. Free Enterprise Fund, 561 U.S. at
501.
This is a much starker case of unconstitutionality than Free
Enterprise Fund. In Free Enterprise Fund, the second for-
cause provision did not afford PCAOB members all that much
additional insulation from the President. The case therefore
involved an important but marginal additional diminution of
Presidential authority beyond the diminution that occurs in a
traditional independent agency.
Here, by contrast, Presidents will be stuck for years at a
time with CFPB Directors appointed by prior Presidents. This
54
case therefore involves a substantial additional diminution of
Presidential authority beyond the diminution that occurs in a
traditional independent agency. The additional diminution
exacerbates the Article II problem posed by the single-Director
CFPB.
B
The CFPB says that a single head of an independent
agency might be more responsive on an ongoing basis to the
President than multiple heads of an independent agency are,
thereby mitigating the Article II concern with a single-Director
independent agency. That argument is wrong, both as a matter
of theory and as a matter of fact.
To begin with, whether headed by one, three, or five
members, an independent agency’s heads are not removable at
will by the President. With independent agencies, the
President is limited (after designation of the chair and
appointment of new members) in essence to indirect cajoling.
Cf. Elena Kagan, Presidential Administration, 114 Harv. L.
Rev. 2245, 2323 (2001) (“[A] for-cause removal provision
would buy little substantive independence if the President,
though unable to fire an official, could command or, if
necessary, supplant his every decision.”).16 As Justice Scalia
16
The for-cause removal restrictions attached to independent
agencies ordinarily prohibit removal except in cases of inefficiency,
neglect of duty, or malfeasance. Those restrictions have significant
impact both in law and in practice. See Free Enterprise Fund v.
Public Company Accounting Oversight Board, 561 U.S. 477, 502
(2010) (for-cause restrictions “mean what they say”). Humphrey’s
Executor and Wiener v. United States show, for example, that for-
cause removal requirements prohibit dismissal by the President due
to lack of trust in the administrator, see Humphrey’s Executor v.
United States, 295 U.S. 602, 618-19, 625-26 (1935), differences in
55
once memorably noted, an attempt by the President to
supervise, direct, or threaten to remove the head of an
independent agency with respect to a particular substantive
decision is statutorily impermissible and likely to trigger “an
impeachment motion in Congress.” Tr. of Oral Arg. at 60,
Free Enterprise Fund v. Public Company Accounting
Oversight Board, 561 U.S. 477 (2010). That is true whether
there are one, three, or five heads of the independent agency.
The independent status of an independent agency erects a high
barrier between the President and the independent agency,
regardless of how many people head the independent agency
on the other side of the barrier.
Moreover, even assuming that ongoing influence of
independent agencies can occur in indirect ways, it is not
plausible to say that a President could have more indirect
ongoing influence over (i) a single Director who has policy
views contrary to the President’s than the President has over
(ii) a multi-member independent agency headed by a chair who
policy outlook, id., or the mere desire to install administrators of the
President’s choosing, Wiener v. United States, 357 U.S. 349, 356
(1958).
To cabin the effects of Humphrey’s Executor on the Presidency,
some have proposed reading the standard for-cause removal
restrictions in the statutes creating independent agencies to allow for
Presidential removal of independent agency heads based on policy
differences. But as the Supreme Court recently explained,
Humphrey’s Executor refuted the idea that “simple disagreement”
with an agency head’s “policies or priorities could constitute ‘good
cause’ for its removal.” Free Enterprise Fund, 561 U.S. at 502.
The Free Enterprise Fund Court expressly confirmed that
Humphrey’s Executor “rejected a removal premised on a lack of
agreement on either the policies or the administering of the Federal
Trade Commission.” Id.56
is appointed by the President and shares the same policy views
as the President.
In short, given the President’s inability to designate a new
CFPB Director at the beginning of the Presidency – in contrast
to the President’s ability to appoint chairs of the FTC, FCC,
SEC, and NLRB, for example – the single-Director CFPB
structure diminishes the President’s power more than the
traditional multi-member independent agency does. 17
17
The CFPB says that the Chair of the Federal Reserve Board
is not removable at will from the chair position. That is not apparent
from the statutory language. Cf. infra note 20; see also Adrian
Vermeule, Conventions of Agency Independence, 113 Colum. L.
Rev. 1163, 1196 (2013) (While “the members of the Federal Reserve
Board enjoy statutory for-cause protection, the Chair and Vice Chairs
do not, qua Chairs.”). But even assuming the CFPB’s assertion is
correct, such an exception would simply reflect the unique function
of the Federal Reserve Board with respect to monetary policy. The
Chair of the Federal Reserve Board would be akin to what Justice
Breyer in Noel Canning referred to as an historical anomaly – here,
an anomaly due to the Federal Reserve’s special functions in setting
monetary policy and stabilizing the financial markets. The Federal
Reserve Board is certainly not a model or precedent for wholesale
creation of a vast independent regulatory state run by single-Director
independent agencies that oppose a particular President. If the
CFPB is right in this case, Congress could create an independent
Federal Reserve headed by one Director. The CFPB apparently
thinks that would be fine. I disagree. Indeed, that question should
not be a close call. Apart from the Federal Reserve Board, there are
a few other relatively minor examples where the President arguably
may not have the ability to designate and remove chairs at will. But
as discussed above, there can be no doubt that the common practice
in traditional independent agencies is that the President may
designate a chair and remove a chair at will.
57
The CFPB also says that Congress’s creation of the single-
Director structure is unlikely to afford Congress any greater
influence over the CFPB than Congress has over a multi-
member independent agency. Perhaps true, perhaps not.
Either way, however, the Supreme Court has stressed that
congressional aggrandizement is not a necessary feature of an
Article II violation in this context. The Court squarely said as
much in Free Enterprise Fund. “Even when a branch does not
arrogate power to itself, therefore, it must not impair another in
the performance of its constitutional duties.” 561 U.S. at 500.
And to take an obvious example of the point, if Congress
enacted legislation converting the Department of Justice into
an independent agency, there would be no formal
congressional aggrandizement. But there is little doubt that
such legislation would violate Article II. See Morrison v.
Olson, 487 U.S. 654, 695-96 (1988).
In considering the Presidential power point, keep in mind
that the CFPB repeatedly compares itself to the FTC. That
comparison is wrong as a matter of history and liberty, as
discussed above. But the comparison is also wrong as a matter
of Presidential authority. When the three-judge panel first
heard this case in 2016, some of the threats to Presidential
power may have appeared theoretical. In 2017, those threats
became much more concrete. In January 2017, the President
designated new Chairs of the FTC, FCC, SEC, and NLRB,
among other multi-member independent agencies.
Meanwhile, the President was legally unable to designate a new
CFPB Director. The President’s inability to do so led to a
variety of episodes throughout 2017 that highlighted the
diminution of Presidential power over the CFPB, as compared
to the President’s power over the traditional multi-member
independent agencies. For example, during 2017, the Director
of the CFPB took several major actions contrary to the
President’s policy views.
58
In the wake of the CFPB’s activities over the past year, the
question that the Supreme Court asked in Free Enterprise Fund
is right on point: “where, in all this, is the role for oversight
by an elected President?” 561 U.S. at 499. By disabling the
President from supervising and directing the Director of the
CFPB, the Dodd-Frank Act contravenes the Supreme Court’s
statement in Free Enterprise Fund: “Congress cannot reduce
the Chief Magistrate to a cajoler-in-chief.” Id. at 502.
In sum, the novel single-Director structure of the CFPB
diminishes Presidential authority more than the traditional
multi-member agencies do. That diminution of Presidential
authority exacerbates the Article II problem with the single-
Director CFPB.
C
The CFPB’s departure from historical practice, threat to
individual liberty, and diminution of Presidential authority
combine to make this an overwhelming case of
unconstitutionality.
But suppose that there were no additional diminution of
Presidential authority caused by the single-Director structure
of the CFPB, beyond that which occurs with traditional multi-
member independent agencies. Would the single-Director
structure still be unconstitutional? The answer is yes.
Neither Humphrey’s Executor nor any later case has
granted Congress a free pass, without boundaries, to create
independent agencies that depart from history and threaten
individual liberty. Humphrey’s Executor is not a blank check
for Congress. Humphrey’s Executor does not mean that
anything goes. In that respect, keep in mind (in case I have
not mentioned it enough already) that the Constitution’s
59
separation of powers is not solely or even primarily concerned
with preserving the powers of the branches. The separation of
powers is primarily designed to protect individual liberty.
As I have explained, the single-Director CFPB departs
from settled historical practice and threatens individual liberty
far more than a multi-member independent agency does. The
single-Director CFPB therefore poses a constitutional problem
even if (counter-factually) it does not occasion any additional
diminution of Presidential power beyond that caused by
traditional multi-member independent agencies.
IV. VERTICAL STARE DECISIS AND JUDICIAL DEFERENCE
Notwithstanding all of the above, the CFPB argues that, as
a matter of vertical stare decisis, this case is controlled
by (i) Humphrey’s Executor; (ii) Morrison; or (iii) general
principles of judicial deference. The CFPB is incorrect.
First, the CFPB contends that Humphrey’s Executor
controls this case – in other words, that Humphrey’s Executor
by its terms upheld all independent agencies, including single-
Director independent agencies. That is wrong. In
Humphrey’s Executor, the Supreme Court did not say (or
articulate a principle) that single-Director independent
agencies are constitutional. Not even close.
After all, Humphrey’s representative argued to the
Supreme Court that the “nature” of the Federal Trade
Commission justified independence from the President:
“With the increasing complexity of human activities many
situations arise where governmental control can be secured
only by the ‘board’ or ‘commission’ form of legislation.”
Brief for Samuel F. Rathbun, Executor, at 41, Humphrey’s
Executor v. United States, 295 U.S. 602 (1935) (citation and
60
internal quotation marks omitted). In its opinion, the Court
agreed. The Court noted that the Federal Trade Commission
“is to be non-partisan” and, like the Interstate Commerce
Commission, be composed of members “called upon to
exercise the trained judgment of a body of experts.”
Humphrey’s Executor, 295 U.S. at 624. The Court stated that
the nature and functions of the FTC evinced Congress’s “intent
to create a body of experts who shall gain experience by length
of service – a body which shall be independent of executive
authority, except in its selection, and free to exercise its
judgment without the leave or hindrance of any other official
or any department of the government.” Id. at 625-26(emphasis omitted).
The CFPB responds that the Humphrey’s Executor Court’s
multiple references to a “body of experts” were not relevant to
the Court’s constitutional holding. That is incorrect. The
Court repeatedly referenced the Federal Trade Commission’s
status as a body of experts in concluding that Congress could
permissibly insulate the FTC commissioners from Presidential
removal. The Court wrote: “The Federal Trade Commission
is an administrative body created by Congress to carry into
effect legislative policies embodied in the statute in accordance
with the legislative standard therein prescribed, and to perform
other specified duties as a legislative or as a judicial aid.” Id.
at 628. “Such a body,” according to the Court, “cannot in any
proper sense be characterized as an arm or an eye of the
executive,” and thus such a body can be made independent of
the President. Id.In short, Humphrey’s Executor repeatedly emphasized the
multi-member structure of the FTC. In doing so, Humphrey’s
Executor drew (at least implicitly) the same distinction
between multi-member agencies and single-Director agencies
that I am drawing in this case. At best for the CFPB,
61
Humphrey’s Executor leaves open the single-Director
question. Humphrey’s Executor does not hold that single-
Director independent agencies are constitutional. 18
18
In its brief, PHH has expressly preserved the argument that
Humphrey’s Executor should be overruled. The reasoning of
Humphrey’s Executor is inconsistent with the reasoning in the
Court’s prior decision in Myers. See Humphrey’s Executor v.
United States, 295 U.S. 602, 626 (1935) (“In so far as” the
expressions in Myers are “out of harmony with the views here set
forth, these expressions are disapproved.”). The Humphrey’s
Executor decision subsequently has received significant criticism.
See Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev.
41, 93 (“Humphrey’s Executor, as commentators have noted, is one
of the more egregious opinions to be found on pages of the United
States Supreme Court Reports.”); Peter L. Strauss, The Place of
Agencies in Government: Separation of Powers and the Fourth
Branch, 84 Colum. L. Rev. 573, 611-12 (1984) (“Remarkably, the
Court did not pause to examine how a purpose to create a body
‘subject only to the people of the United States’ – that is, apparently,
beyond control of the constitutionally defined branches of
government – could itself be sustained under the Constitution.”).
Moreover, the reasoning of Humphrey’s Executor is in tension with
the reasoning of the Supreme Court’s recent decision in Free
Enterprise Fund. See In re Aiken County, 645 F.3d 428, 444-46
(D.C. Cir. 2011) (Kavanaugh, J., concurring); Neomi Rao, Removal:
Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev.
1205, 1208 (2014).
For those reasons, among others, PHH preserves the argument
that Humphrey’s Executor should be overruled by the Supreme
Court. Overruling Humphrey’s Executor would not mean the end
of the agencies that are now independent. The agencies would
instead transform into executive agencies supervised and directed by
the President. So the question is not the existence of the agencies;
the question is the President’s control over the agencies and the
resulting accountability of those agencies to the people.
In any event, it is not our job to decide whether to overrule
Humphrey’s Executor. As a lower court, we must follow Supreme
62
Second, the CFPB argues that Morrison v. Olson controls
this case. That suggestion is even further afield. Morrison
upheld the independent counsel law. But the independent
counsel differed in three critical ways from the ordinary
independent agency. The independent counsel had only a
narrowly defined jurisdiction in cases where the Department of
Justice had a conflict of interest. The independent counsel had
only enforcement authority, not rulemaking or adjudicative
authority. And the independent counsel was an inferior
officer, not a principal officer (a point the Supreme Court
emphasized in Free Enterprise Fund). The independent
counsel was an inferior officer, the Morrison Court said,
because she could be supervised and directed by the Attorney
General. Morrison did not hold – or even hint – that a single
principal officer could be the sole head of an independent
regulatory agency with broad enforcement, rulemaking, and
adjudication powers.
Moreover, no party in Morrison argued that the Office of
the Independent Counsel was unconstitutional because a single
person headed it. And it is black-letter law that cases are not
precedent for issues that were not raised or decided. See
BRYAN A. GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT
46, 84, 226-28 (2016). For that reason, too, it is impossible to
rely on the result in Morrison as a binding precedent on the
single-Director question.
The CFPB separately argues that the so-called Morrison
“test” – as distinct from Morrison’s result – dictates a particular
conclusion in this case. In Morrison, the Court said that
Court precedent, including Humphrey’s Executor. But it is
emphatically our job to apply Humphrey’s Executor in a manner
consistent with settled historical practice, the Constitution’s
protection of individual liberty, and Article II’s assignment of
executive authority to the President.
63
removal restrictions could not be “of such a nature that they
impede the President’s ability to perform his constitutional
duty.” Morrison v. Olson, 487 U.S. 654, 691 (1988). As
relevant here, Morrison and Free Enterprise Fund together
mean that Congress may not diminish Presidential control over
independent agencies more than the diminution that occurs
with traditional multi-member agencies.
As explained above, the single-Director independent
agency structure does diminish Presidential authority more
than traditional multi-member independent agencies do. So
the CFPB flunks the Morrison and Free Enterprise Fund test.
Even if that were not the case, however, the Morrison
“test” is not the exclusive way that a novel independent agency
structure may violate Article II. Neither Humphrey’s
Executor nor any later case gives Congress blanket permission
to create independent agencies that depart from history and
threaten individual liberty.
In that regard, I repeat what I wrote 10 years ago in Free
Enterprise Fund:
[T]he lengthy recitation of text, original understanding,
history, and precedent above leads to the following
principle: Humphrey’s Executor and Morrison represent
what up to now have been the outermost constitutional
limits of permissible congressional restrictions on the
President’s removal power. Therefore, given a choice
between drawing the line at the holdings in Humphrey’s
Executor and Morrison or extending those cases to
authorize novel structures such as the PCAOB that further
attenuate the President’s control over executive officers,
we should opt for the former. We should resolve
questions about the scope of those precedents in light of
64
and in the direction of the constitutional text and
constitutional history. . . . In this case, that sensible
principle dictates that we hold the line and not allow
encroachments on the President’s removal power beyond
what Humphrey’s Executor and Morrison already permit.
Free Enterprise Fund v. Public Company Accounting
Oversight Board, 537 F.3d 667, 698 (D.C. Cir. 2008)
(Kavanaugh, J., dissenting).
Third, in addition to invoking Humphrey’s Executor and
Morrison, the CFPB and its amici cite various arguments for
judicial deference to Congress’s choice of a single-Director
structure. Those scattershot arguments are all unavailing.
Some speak of the CFPB as a one-off congressional
experiment (like the independent counsel law) and suggest that
we should let it go as a matter of judicial deference to Congress.
But even apart from the fundamental point that our job as
judges is to enforce the law, not abdicate to the political
branches, cf. Boumediene v. Bush, 553 U.S. 723, 765-66
(2008), we cannot think of this as a one-off case because we
could not cabin the consequences in any principled manner if
we were to uphold the CFPB’s single-Director structure. As
the Supreme Court has warned: “Slight encroachments create
new boundaries from which legions of power can seek new
territory to capture.” Stern v. Marshall, 564 U.S. 462, 503
(2011). Justice Frankfurter captured it well in his opinion in
Youngstown: “The accretion of dangerous power does not
come in a day. It does come, however slowly, from the
generative force of unchecked disregard of the restrictions that
fence in even the most disinterested assertion of authority.”
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 594
(1952) (Frankfurter, J., concurring).
65
That fairly describes what a ruling upholding the CFPB’s
single-Director structure would mean. As the CFPB
acknowledged at oral argument before the three-judge panel, a
ruling in its favor would necessarily allow all extant
independent agencies to be headed by one person. The
CFPB’s position, if accepted, would give Congress the green
light to convert other heads of independent agencies into single
Directors rather than multi-member commissions. A single-
Director SEC, with the power to unilaterally impose $500
million penalties? A single-Director FCC, with the power to
unilaterally mandate or rescind “net neutrality”? A single-
Director NLRB, with the power to unilaterally supervise
employer-employee relations nationwide? A single-Director
Federal Reserve, with the power to unilaterally set monetary
policy for the United States? That’s what the CFPB’s position
would usher in.
“In the past, when faced with novel creations of this sort,
the Supreme Court has looked down the slippery slope – and
has ordinarily refused to take even a few steps down the hill.”
Free Enterprise Fund, 537 F.3d at 700 (Kavanaugh, J.,
dissenting). We should heed that caution and not start down
the hill in this case.
More broadly, some suggest that judges should generally
defer to Congress’s understanding of the Constitution’s
separation of powers. But that hands-off attitude would flout
a long, long line of Supreme Court precedent. See Free
Enterprise Fund v. Public Company Accounting Oversight
Board, 561 U.S. 477, 508 (2010) (invalidating structure of
Public Company Accounting Oversight Board); Boumediene,
553 U.S. at 765-66, 792 (invalidating provision of Military
Commissions Act); Clinton v. City of New York, 524 U.S. 417,
448-49 (1998) (invalidating Line Item Veto Act); Metropolitan
Washington Airports Authority v. Citizens for the Abatement of
66
Aircraft Noise, Inc., 501 U.S. 252, 265-77 (1991) (invalidating
structure of Metropolitan Washington Airports Authority
Board of Review); Bowsher v. Synar, 478 U.S. 714, 733-34
(1986) (invalidating Comptroller General’s powers under
reporting provisions of Balanced Budget and Emergency
Deficit Control Act); INS v. Chadha, 462 U.S. 919, 942 n.13,
957-59 (1983) (invalidating legislative veto provision of
Immigration and Nationality Act); Buckley v. Valeo, 424 U.S.
1, 134-35, 140 (1976) (invalidating structure of Federal
Election Commission); Myers v. United States, 272 U.S. 52(1926) (invalidating provision requiring Senate consent to
President’s removal of executive officer).
Citing the fact that President Obama signed the Dodd-
Frank Act that created the CFPB, some argue that the
Executive Branch has somehow waived any objection to this
Article II violation. But President George W. Bush signed the
Sarbanes-Oxley Act that created the PCAOB. That fact did
not deter the Supreme Court in Free Enterprise Fund. The
Court firmly declared that “the separation of powers does not
depend on the views of individual Presidents, nor on whether
the encroached-upon branch approves the encroachment.”
Free Enterprise Fund, 561 U.S. at 497. A President cannot
“choose to bind his successors by diminishing their powers.”
Id.Some argue that the courts need not intervene to address
the CFPB’s structural flaw because the CFPB is checked by
Congress through Congress’s oversight power and ultimate
control over appropriations. But Congress cannot supervise
or direct the Director on an ongoing basis regarding what rules
67
to issue, what enforcement actions to bring (or decline to
bring), or how to resolve adjudications. 19
In urging judicial deference to the single-Director
structure, the CFPB also points out that the CFPB’s decisions
are checked by the courts, so we should not worry too much
about the CFPB’s single-Director structure. But much of
what an agency does – determining what rules to issue within
a broad statutory authorization and when, how, and against
whom to bring enforcement actions to enforce the law – occurs
in the twilight of discretion. Those discretionary actions have
a critical impact on individual liberty. Yet courts do not
review or only deferentially review such exercises of agency
19
Moreover, Congress’s ability to check the CFPB is less than
its ability to check traditional independent agencies. The CFPB is
not subject to the ordinary annual appropriations process. Instead,
the Dodd-Frank Act requires the Federal Reserve to transfer “from
the combined earnings of the Federal Reserve System” the amount
“determined by the Director,” not to exceed 12 percent of the “total
operating expenses of the Federal Reserve System.” 12 U.S.C.
§ 5497(a)(1)-(2). As those who have labored in Washington well
understand, the regular appropriations process brings at least some
measure of oversight by Congress. The CFPB is exempt from that
check. To be sure, Section 5497 is not an entrenched statute
shielded from future congressional alteration, nor could it be. See,
e.g., Manigault v. Springs, 199 U.S. 473, 487 (1905). But changing
that statutory provision would require Congress to enact a new law.
In short, the CFPB’s current exemption from the ordinary
appropriations process arguably enhances the concern in this case
about the massive power lodged in a single, unaccountable Director.
That said, the single-Director CFPB would constitute an Article
II problem even if the CFPB were subject to the usual appropriations
process. The CFPB’s exemption from the ordinary appropriations
process is at most just “extra icing on” an unconstitutional “cake
already frosted.” Yates v. United States, 135 S. Ct. 1074, 1093, slip
op. at 6 (2015) (Kagan, J., dissenting).
68
discretion. See Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 844-45 (1984); Motor
Vehicle Manufacturers Association of U.S., Inc. v. State Farm
Mutual Automobile Insurance Co., 463 U.S. 29, 41-43 (1983);
Heckler v. Chaney, 470 U.S. 821, 831-33 (1985). The
probability of judicial review of some agency action has never
excused or mitigated an Article II problem in the structure of
the agency. See, e.g., Free Enterprise Fund, 561 U.S. 477;
Buckley, 424 U.S. 1.
***
In sum, the CFPB’s single-Director structure departs from
settled historical practice, threatens individual liberty, and
diminishes the President’s Article II authority to exercise the
executive power. Applying the Supreme Court’s separation
of powers precedents, I conclude that the CFPB is
unconstitutionally structured because it is an independent
agency that exercises substantial executive power and is
headed by a single Director.
V. REMEDY
Having concluded that the CFPB is unconstitutionally
structured, I reach the question of the appropriate remedy.
In light of this one specific constitutional flaw in the Dodd-
Frank Act, must that whole Act be struck down? Or must we
strike down at least those statutory provisions creating the
CFPB and defining the CFPB’s duties and authorities? Or do
we more narrowly strike down and sever the for-cause removal
provision that is the source of the constitutional problem?
Not surprisingly, PHH wants us, at a minimum, to strike
down the CFPB and prevent its continued operation. The
69
United States as amicus curiae agrees with PHH on the merits,
but disagrees on the remedy. According to the United States,
the Supreme Court’s case law requires us to impose the
narrower remedy of simply severing the for-cause removal
provision. I agree with the United States’ reading of the
Supreme Court precedent.
In Free Enterprise Fund, the Supreme Court confronted a
similar issue with respect to the Public Company Accounting
Oversight Board. Having found that Board’s structure
unconstitutional, would the Court invalidate the agency (or
even the whole Sarbanes-Oxley Act) or simply sever the for-
cause provision? The Court stated: “Generally speaking,
when confronting a constitutional flaw in a statute, we try to
limit the solution to the problem, severing any problematic
portions while leaving the remainder intact.” Free Enterprise
Fund v. Public Company Accounting Oversight Board, 561
U.S. 477, 508 (2010). Applying that principle, the Free
Enterprise Fund Court severed the second for-cause provision
and otherwise left the PCAOB intact.
Severability is appropriate, the Free Enterprise Fund
Court stated, so long as (i) Congress would have preferred the
law with the offending provision severed over no law at all; and
(ii) the law with the offending provision severed would remain
“fully operative as a law.” Id. at 509. Both requirements are
met here.
First, in considering Congress’s intent with respect to
severability, courts must decide – or often speculate, truth be
told – whether Congress would “have preferred what is left of
its statute to no statute at all.” Ayotte v. Planned Parenthood
of Northern New England, 546 U.S. 320, 330 (2006); see also
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987) (The
“unconstitutional provision must be severed unless the statute
70
created in its absence is legislation that Congress would not
have enacted.”). Importantly, courts need not speculate and
can presume that Congress wanted to retain the constitutional
remainder of the statute when “Congress has explicitly
provided for severance by including a severability clause in the
statute.” Id. at 686; see also id. (The “inclusion of such a
clause creates a presumption that Congress did not intend the
validity of the statute in question to depend on the validity of
the constitutionally offensive provision.”).
The statute at issue in Free Enterprise Fund had no
express severability clause. By contrast, in this case, the
Dodd-Frank Act contains an express severability clause that
instructs: “If any provision” of the Act “is held to be
unconstitutional, the remainder of” the Act “shall not be
affected thereby.” 12 U.S.C. § 5302.
This case therefore presents an even easier case than Free
Enterprise Fund for severability of the for-cause provision.
Through its express severability clause, the Dodd-Frank Act
itself all but answers the question of presumed congressional
intent. It will be the rare case when a court may ignore a
severability provision set forth in the text of the relevant
statute. See Alaska Airlines, 480 U.S. at 686. I see no
justification for tilting at that windmill in this case.
Second, we also must look at “the balance of the
legislation” to assess whether the statute is capable “of
functioning” without the offending provisions “in a manner
consistent with the intent of Congress.” Id. at 684-85(emphasis omitted). That prong of the analysis in essence
turns on whether the truncated statute is “fully operative as a
law.” Free Enterprise Fund, 561 U.S. at 509. To take just
one example, in Marbury v. Madison, the Court concluded that
Section 13 of the Judiciary Act of 1789 was unconstitutional in
71
part. 5 U.S. 137, 179-80 (1803). But the Court did not
disturb the remainder of the Judiciary Act. Id. at 179-80.
Here, as in Free Enterprise Fund, the Dodd-Frank Act and
its CFPB-related provisions will remain “fully operative as a
law” without the for-cause removal restriction. Free
Enterprise Fund, 561 U.S. at 509. Operating without the for-
cause removal provision and under the supervision and
direction of the President, the CFPB may still “regulate the
offering and provision of consumer financial products or
services under the Federal consumer financial laws,” 12 U.S.C.
§ 5491(a), much as the Public Company Accounting Oversight
Board has continued fulfilling its statutorily authorized mission
in the wake of the Supreme Court’s decision in Free Enterprise
Fund. 20 Moreover, the CFPB’s operation as an executive
agency will not in any way prevent the overall Dodd-Frank Act
from operating as a law.
To be sure, one might ask whether, instead of severing the
for-cause removal provision, which would make the CFPB an
20
The Dodd-Frank Act contains a five-year tenure provision for
the Director, see 12 U.S.C. § 5491(c)(1), akin to the similar 10-year
tenure provision for the Director of the FBI and the 5-year tenure
provision for the Commissioner of the IRS. See Crime Control Act
of 1976, § 203, reprinted in 28 U.S.C. § 532 note (FBI Director “may
not serve more than one ten-year term”); 26 U.S.C. § 7803(a)(1)(B)
(term of the IRS Commissioner “shall be a 5-year term”). But under
Supreme Court precedent, those kinds of tenure provisions do not
prevent the President from removing at will a Director at any time
during the Director’s tenure. See Parsons v. United States, 167 U.S.
324, 343 (1897). Therefore, I would not invalidate and sever the
tenure provision. If such a tenure provision did impair the
President’s ability to remove the Director at will during the
Director’s term, then it too would be unconstitutional, and also would
have to be invalidated and severed.
72
executive agency, we should rewrite and add to the Dodd-
Frank Act by restructuring the CFPB as a multi-member
independent agency. But doing so would require us to create
a variety of new offices, designate one of the offices as chair,
and specify various administrative details of the reconstituted
agency. In Free Enterprise Fund, the Supreme Court firmly
rejected that approach. As the Supreme Court said, all of that
“editorial freedom” would take courts far beyond our judicial
capacity and proper judicial role. 561 U.S. at 510. In
comparable circumstances, no Supreme Court case has adopted
such an approach. We therefore may not do so here.
Congress of course remains free, if it wishes, to reconstruct the
CFPB as a traditional multi-member independent agency.
In similar circumstances, the Supreme Court in Free
Enterprise Fund severed the unconstitutional for-cause
provision but did not otherwise disturb the Sarbanes-Oxley Act
or the operation of the new Public Company Accounting
Oversight Board created by that Act. See id. at 508-10.
Similarly, in a recent case involving the Copyright Royalty
Board, we severed the for-cause provision that rendered that
Board unconstitutional, but did not otherwise disturb the
copyright laws or the operation of the Copyright Royalty
Board. See Intercollegiate Broadcasting System, Inc. v.
Copyright Royalty Board, 684 F.3d 1332, 1340-41 (D.C. Cir.
2012).
In light of the Dodd-Frank Act’s express severability
clause, and because the Act and the CFPB may function
without the CFPB’s for-cause removal provision, we must
remedy the constitutional violation by severing the for-cause
removal provision from the statute. Under that approach, the
CFPB would continue to operate, but would do so as an
executive agency. The President of the United States would
73
have the power to supervise and direct the Director of the
CFPB, and to remove the Director at will at any time.
***
The CFPB violates Article II of the Constitution because
the CFPB is an independent agency that exercises substantial
executive power and is headed by a single Director. We
should invalidate and sever the for-cause removal provision
and hold that the Director of the CFPB may be supervised,
directed, and removed at will by the President. I respectfully
dissent.
RANDOLPH, Senior Circuit Judge, dissenting:
I entirely agree with Judge Kavanaugh’s dissenting
opinion.1 I write to identify a separate constitutional issue that
provides an additional reason for setting aside not only the order
of the Director of the Consumer Financial Protection Bureau,
but also all proceedings before the CFPB’s Administrative Law
Judge, including his Recommended Decision.
After the CFPB’s enforcement unit filed a Notice of
Charges against PHH, an Administrative Law Judge held a nine-
day hearing and issued a recommended decision, concluding
that petitioners had violated the Real Estate Settlement
Procedures Act of 1974. In PHH’s administrative appeal, the
Director “affirm[ed]” the ALJ’s conclusion that PHH had
violated that Act.
I believe the ALJ who presided over the hearing was an
“inferior Officer” within the meaning of Article II, section 2,
clause 2 of the Constitution. That constitutional provision
requires “inferior Officers” to be appointed by the President, the
“Courts of Law,” or the “Heads of Departments.” This ALJ was
not so appointed. Pursuant to an agreement between the CFPB
and the Securities and Exchange Commission, the SEC’s Chief
Administrative Law Judge assigned him to the case. In addition
to the unconstitutional structure of the CFPB, this violation of
1
I do not agree that “[i]n practical effect,” Judge Griffith’s
“approach yields a result somewhat similar to Judge Kavanaugh’s
proposed remedy.” Concurring Op. at 22 (Griffith, J.). There are
substantial differences between the President’s power of removal “for
cause” and the President’s power to remove an individual who has no
such protection. One of the biggest is that non-“for cause” employees
are not entitled due process before being removed from office, see Bd.
of Regents of State Colleges v. Roth, 408 U.S. 564, 578 (1972), but
“for cause” employees are so entitled. Experience under the Civil
Service Reform Act of 1978 proves how time-consuming and
cumbersome pre-removal due process procedures can be.
2
the Appointments Clause rendered the proceedings against PHH
unconstitutional.
This case is indistinguishable from Freytag v.
Commissioner of Internal Revenue, 501 U.S. 868 (1991). My
reasoning is set forth in Landry v. Federal Deposit Insurance
Corp., 204 F.3d 1125, 1140-44 (D.C. Cir. 2000) (Randolph, J.,
concurring in part and concurring in the judgment). There is no
need to repeat what I wrote there. The majority opinion in
Landry disagreed with my position, but PHH has preserved the
issue for judicial review. The CFPB has argued that PHH
waived the issue because it did not raise it before the CFPB. But
the Freytag petitioners also raised their constitutional objection
to the appointment of the special trial judge for the first time on
appeal. See Freytag, 501 U.S. at 892-95 (Scalia, J., concurring).
There is no difference between this case and Freytag, except
that in light of the majority opinion in Landry it would have
been futile for PHH to object, a point that cuts in PHH’s favor.
Since the panel decision in this case, several developments
have occurred with respect to the Appointments Clause issue.
The Tenth Circuit in Bandimere v. SEC, 844 F.3d 1168 (10th
Cir. 2016), pet. for cert. pending, No. 17-475 (filed Sept. 29,
2017), disagreed with the majority opinion in Landry and held
that the SEC’s ALJs are invested with powers that require their
appointment as inferior officers under the Appointments Clause.
In addition, the Fifth Circuit granted a stay of an FDIC order
because the respondent had established a likelihood of success
on his claim that the ALJ who presided over his proceeding was
an officer who was not properly appointed under the
Appointments Clause. Burgess v. FDIC, 871 F.3d 297 (5th Cir.
2017). In so ruling, the Fifth Circuit also expressly disagreed
with Landry.
3
In the meantime, our court, sitting en banc, split 5 to 5 in
Lucia v. SEC, a case in which the panel – relying on Landry –
had reached a conclusion in direct conflict with Bandimere.
Raymond J. Lucia Cos. v. SEC, 868 F.3d 1021 (D.C. Cir. 2017)
(en banc). On June 26, 2017, the equally-divided en banc court
issued a per curiam order denying the petition for review.
On November 29, 2017, the Solicitor General, on behalf of
the SEC, filed a response to Lucia’s certiorari petition. The
Solicitor General confessed error and acquiesced in certiorari.
That is, the S.G. agreed that the SEC’s ALJs are “inferior
officers” within the meaning of the Appointments Clause and,
as such, were not properly appointed. Brief for the Respondent
at 10-19, Lucia v. SEC, No. 17-130 (filed Nov. 29, 2017). On
January 12, 2018, the Supreme Court granted certiorari. 2018
WL 386565 (S. Ct. Jan. 12, 2018).
Given this state of affairs, the en banc majority should
withhold any order remanding this case to the CFPB until the
Supreme Court decides Lucia. Cf. Order, Timbervest, LLC v.
SEC, No. 15-1416 (D.C. Cir. Aug. 8, 2017); Order, J.S. Oliver
Capital Mgmt. v. SEC, No. 16-72703 (9th Cir. Oct. 25, 2017).
As the Court held in Freytag, Appointments Clause violations
go “to the validity” of the underlying proceedings. 501 U.S. at
879. Suppose the Supreme Court agrees with the Solicitor
General in Lucia, which seems entirely probable. Then not only
the CFPB Director’s order, but also all proceedings before the
ALJ, including the ALJ’s Recommended Decision, would be
invalid.
Nevertheless, the majority – relying on the order granting
en banc in PHH – remands the case to the CFPB without
waiting for the Supreme Court to decide Lucia. Maj. Op. at 17.
The en banc order stated: “While not otherwise limited, the
parties are directed to address” the consequences of a decision
4
that the ALJ in Lucia was an inferior officer. Order, PHH Corp.
v. CFPB, No. 15-1177 (D.C. Cir. Feb. 16, 2017) (emphasis
added).
Two points about the order are worth noting. The first is
that the order limited neither the issues to be argued nor the
issues to be decided. The second is that the order embodied the
en banc court’s judgment that the proper disposition of this case
required consideration of the outcome in Lucia. Of course, the
posture has changed. At the time of the en banc order, Lucia
was pending in this court; now Lucia is pending in the Supreme
Court. That difference makes it all the more important that we
wait for the Supreme Court’s decision.