Seila Law LLC v. Consumer Financial Protection Bureau , 207 L. Ed. 2d 494 ( 2020 )

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SEILA LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 19–7. Argued March 3, 2020—Decided June 29, 2020
In the wake of the 2008 financial crisis, Congress established the Con-
sumer Financial Protection Bureau (CFPB), an independent regula-
tory agency tasked with ensuring that consumer debt products are safe
and transparent. See Dodd-Frank Wall Street Reform and Consumer
Protection Act (Dodd-Frank), 124 Stat. 1376. Congress transferred the
administration of 18 existing federal statutes to the CFPB, including
the Fair Credit Reporting Act, the Fair Debt Collection Practices Act,
and the Truth in Lending Act; and Congress enacted a new prohibition
on unfair and deceptive practices in the consumer-finance sector. 12
U. S. C. §5536(a)(1)(B). In doing so, Congress gave the CFPB extensive
rulemaking, enforcement, and adjudicatory powers, including the au-
thority to conduct investigations, issue subpoenas and civil investiga-
tive demands, initiate administrative adjudications, prosecute civil ac-
tions in federal court, and issue binding decisions in administrative
proceedings. The CFPB may seek restitution, disgorgement, injunc-
tive relief, and significant civil penalties for violations of the 19 federal
statutes under its purview. So far, the agency has obtained over $11
billion in relief for more than 25 million consumers.
Unlike traditional independent agencies headed by multimember
boards or commissions, the CFPB is led by a single Director,
§5491(b)(1), who is appointed by the President with the advice and
consent of the Senate, §5491(b)(2), for a five-year term, during which
the President may remove the Director only for “inefficiency, neglect
of duty, or malfeasance in office,” §§5491(c)(1), (3). The CFPB receives
its funding outside the annual appropriations process from the Federal
Reserve, which is itself funded outside the appropriations process
through bank assessments.
2 SEILA LAW LLC v. CONSUMER FINANCIAL
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Syllabus
In 2017, the CFPB issued a civil investigative demand to Seila Law
LLC, a California-based law firm that provides debt-related legal ser-
vices to clients. The civil investigative demand (essentially a sub-
poena) sought information and documents related to the firm’s busi-
ness practices. Seila Law asked the CFPB to set aside the demand on
the ground that the agency’s leadership by a single Director removable
only for cause violated the separation of powers. When the CFPB de-
clined, Seila Law refused to comply with the demand, and the CFPB
filed a petition to enforce the demand in District Court. Seila Law
renewed its claim that the CFPB’s structure violated the separation of
powers, but the District Court disagreed and ordered Seila Law to com-
ply with the demand. The Ninth Circuit affirmed, concluding that
Seila Law’s challenge was foreclosed by Humphrey’s Executor v. United
States, 295 U. S. 602, and Morrison v. Olson, 487 U. S. 654.
Held: The judgment is vacated and remanded.
923 F. 3d 680, vacated and remanded.
THE CHIEF JUSTICE delivered the opinion of the Court with respect
to Parts I, II, and III, concluding:
1. Appointed amicus raises three threshold arguments for why this
Court may not or should not reach the merits of petitioner’s constitu-
tional challenge, but they are unavailing. Pp. 8–11.
2. The CFPB’s leadership by a single individual removable only for
inefficiency, neglect, or malfeasance violates the separation of powers.
Pp. 11–30.
(a) Article II vests the entire “executive Power” in the President
alone, but the Constitution presumes that lesser executive officers will
assist the President in discharging his duties. The President’s execu-
tive power generally includes the power to supervise—and, if neces-
sary, remove—those who exercise the President’s authority on his be-
half. The President’s removal power has long been confirmed by
history and precedent. It was recognized by the First Congress in
1789, confirmed by this Court in Myers v. United States, 272 U. S. 52,
and reiterated in Free Enterprise Fund v. Public Company Accounting
Oversight Bd., 561 U. S. 477. In Free Enterprise Fund, the Court rec-
ognized that it had previously upheld certain congressional limits on
the President’s removal power. But the Court declined to extend those
limits to “a new situation not yet encountered by the Court.” 561 U. S.,
at 483. Free Enterprise Fund left in place only two exceptions to the
President’s unrestricted removal power. First, Humphrey’s Executor
permitted Congress to give for-cause removal protection to a multi-
member body of experts who were balanced along partisan lines, ap-
pointed to staggered terms, performed only “quasi-legislative” and
“quasi-judicial functions,” and were said not to exercise any executive
power. Second, Morrison approved for-cause removal protection for an
Cite as: 591 U. S. ____ (2020) 3
Syllabus
inferior officer—the independent counsel—who had limited duties and
no policymaking or administrative authority. Pp. 11–16.
(b) Neither Humphrey’s Executor nor Morrison resolves whether
the CFPB Director’s insulation from removal is constitutional. The
New Deal-era FTC upheld in Humphrey’s Executor bears little resem-
blance to the CFPB. Unlike the multiple Commissioners of the FTC,
who were balanced along partisan lines and served staggered terms to
ensure the accumulation of institutional knowledge, the CFPB Direc-
tor serves a five-year term that guarantees abrupt shifts in leadership
and the loss of agency expertise. In addition, the Director cannot be
dismissed as a mere legislative or judicial aid. Rather, the Director
possesses significant administrative and enforcement authority, in-
cluding the power to seek daunting monetary penalties against private
parties in federal court—a quintessentially executive power not con-
sidered in Humphrey’s Executor.
The logic of Morrison also does not apply. The independent counsel
approved in Morrison was an inferior officer who lacked policymaking
or administrative authority and exercised narrow authority to initiate
criminal investigations and prosecutions of Governmental actors iden-
tified by others. By contrast, the CFPB Director is a principal officer
whose duties are far from limited. The Director promulgates binding
rules fleshing out 19 consumer-protection statutes that cover every-
thing from credit cards and car payments to mortgages and student
loans. And the Director brings the coercive power of the state to bear
on millions of private citizens and businesses, imposing potentially bil-
lion-dollar penalties through administrative adjudications and civil ac-
tions.
The question here is therefore whether to extend the Humphrey’s
Executor and Morrison exceptions to a “new situation.” Free Enterprise
Fund, 561 U. S., at 433. Pp. 16–18.
(c) The Court declines to extend these precedents to an independ-
ent agency led by a single Director and vested with significant execu-
tive power. Pp. 18–30.
(1) The CFPB’s structure has no foothold in history or tradition.
Congress has provided removal protection to principal officers who
alone wield power in only four isolated instances: the Comptroller of
the Currency (for a one-year period during the Civil War); the Office of
Special Counsel; the Administrator of the Social Security Administra-
tion; and the Director of the Federal Housing Finance Agency. Aside
from the one-year blip for the Comptroller of the Currency, these ex-
amples are modern and contested; and they do not involve regulatory
or enforcement authority comparable to that exercised by the CFPB.
Pp. 18–21.
4 SEILA LAW LLC v. CONSUMER FINANCIAL
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Syllabus
(2) The CFPB’s single-Director configuration is also incompati-
ble with the structure of the Constitution, which—with the sole excep-
tion of the Presidency—scrupulously avoids concentrating power in the
hands of any single individual. The Framers’ constitutional strategy
is straightforward: divide power everywhere except for the Presidency,
and render the President directly accountable to the people through
regular elections. In that scheme, individual executive officials may
wield significant authority, but that authority remains subject to the
ongoing supervision and control of the elected President. The CFPB’s
single-Director structure contravenes this carefully calibrated system
by vesting significant governmental power in the hands of a single in-
dividual who is neither elected by the people nor meaningfully con-
trolled (through the threat of removal) by someone who is. The Direc-
tor may unilaterally, without meaningful supervision, issue final
regulations, oversee adjudications, set enforcement priorities, initiate
prosecutions, and determine what penalties to impose on private par-
ties. And the Director may do so without even having to rely on Con-
gress for appropriations. While the CFPB’s independent, single-Direc-
tor structure is sufficient to render the agency unconstitutional, the
Director’s five-year term and receipt of funds outside the appropria-
tions process heighten the concern that the agency will “slip from the
Executive’s control, and thus from that of the people.” Free Enterprise
Fund, 561 U. S., at 499. Pp. 21–25.
(3) Amicus raises three principal arguments in the agency’s de-
fense. First, amicus challenges the textual basis for the President’s
removal power and highlights statements from individual Framers ex-
pressing divergent views on the subject. This Court’s precedents, how-
ever, make clear that the President’s removal power derives from the
“executive Power” vested exclusively in the President by Article II.
And this Court has already discounted the founding-era statements
cited by amicus in light of their context. Second, amicus claims that
Humphrey’s Executor and Morrison establish a general rule that Con-
gress may freely constrain the President’s removal power, with only
two limited exceptions not applicable here. But text, first principles,
the First Congress’s decision in 1789, Myers, and Free Enterprise Fund
all establish that the President’s removal power is the rule, not the
exception. Finally, amicus submits that this Court can cure any con-
stitutional defect in the CFPB’s structure by interpreting the language
“inefficiency, neglect of duty, or malfeasance in office,” 12 U. S. C.
§5491(c)(3), to reserve substantial discretion to the President. But
Humphrey’s Executor implicitly rejected this position, and the CFPB’s
defenders have not advanced any workable standard derived from the
statutory text. Nor have they explained how a lenient removal stand-
ard can be squared with the Dodd-Frank Act as a whole, which makes
Cite as: 591 U. S. ____ (2020) 5
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plain that the CFPB is an “independent bureau.” §5491(a).
The dissent advances several additional arguments in the agency’s
defense, but they have already been expressly considered and rejected
by the Court in Free Enterprise Fund. Pp. 25–30.
THE CHIEF JUSTICE, joined by JUSTICE ALITO and JUSTICE KAV-
ANAUGH, concluded in Part IV that the Director’s removal protection is
severable from the other provisions of the Dodd-Frank Act that estab-
lish the CFPB and define its authority. Pp. 30–37.
ROBERTS, C. J., delivered the opinion of the Court with respect to Parts
I, II, and III, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ.,
joined, and an opinion with respect to Part IV, in which ALITO and KAV-
ANAUGH, JJ., joined. THOMAS, J., filed an opinion concurring in part and
dissenting in part, in which GORSUCH, J., joined. KAGAN, J., filed an opin-
ion concurring in the judgment with respect to severability and dissent-
ing in part, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.
Cite as: 591 U. S. ____ (2020) 1
Opinion
Opinion of of the Court
ROBERTS , C. J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–7
_________________
SEILA LAW LLC, PETITIONER v. CONSUMER
FINANCIAL PROTECTION BUREAU
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 29, 2020]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court with respect to Parts I, II, and III.
In the wake of the 2008 financial crisis, Congress estab-
lished the Consumer Financial Protection Bureau (CFPB),
an independent regulatory agency tasked with ensuring
that consumer debt products are safe and transparent. In
organizing the CFPB, Congress deviated from the structure
of nearly every other independent administrative agency in
our history. Instead of placing the agency under the lead-
ership of a board with multiple members, Congress pro-
vided that the CFPB would be led by a single Director, who
serves for a longer term than the President and cannot be
removed by the President except for inefficiency, neglect, or
malfeasance. The CFPB Director has no boss, peers, or vot-
ers to report to. Yet the Director wields vast rulemaking,
enforcement, and adjudicatory authority over a significant
portion of the U. S. economy. The question before us is
whether this arrangement violates the Constitution’s sepa-
ration of powers.
Under our Constitution, the “executive Power”—all of
it—is “vested in a President,” who must “take Care that the
2 SEILA LAW LLC v. CONSUMER FINANCIAL
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Opinion
Opinion of of the Court
ROBERTS , C. J.
Laws be faithfully executed.” Art. II, §1, cl. 1; id., §3. Be-
cause no single person could fulfill that responsibility alone,
the Framers expected that the President would rely on sub-
ordinate officers for assistance. Ten years ago, in Free En-
terprise Fund v. Public Company Accounting Oversight Bd.,
561 U. S. 477 (2010), we reiterated that, “as a general mat-
ter,” the Constitution gives the President “the authority to
remove those who assist him in carrying out his duties,” id.,at 513–514. “Without such power, the President could not
be held fully accountable for discharging his own responsi-
bilities; the buck would stop somewhere else.” Id., at 514.
The President’s power to remove—and thus supervise—
those who wield executive power on his behalf follows from
the text of Article II, was settled by the First Congress, and
was confirmed in the landmark decision Myers v. United
States, 272 U. S. 52 (1926). Our precedents have recognized
only two exceptions to the President’s unrestricted removal
power. In Humphrey’s Executor v. United States, 295 U. S.
602 (1935), we held that Congress could create expert agen-
cies led by a group of principal officers removable by the
President only for good cause. And in United States v. Per-
kins, 116 U. S. 483 (1886), and Morrison v. Olson, 487 U. S.
654 (1988), we held that Congress could provide tenure pro-
tections to certain inferior officers with narrowly defined
duties.
We are now asked to extend these precedents to a new
configuration: an independent agency that wields signifi-
cant executive power and is run by a single individual who
cannot be removed by the President unless certain statu-
tory criteria are met. We decline to take that step. While
we need not and do not revisit our prior decisions allowing
certain limitations on the President’s removal power, there
are compelling reasons not to extend those precedents to
the novel context of an independent agency led by a single
Director. Such an agency lacks a foundation in historical
Cite as: 591 U. S. ____ (2020) 3
Opinion of the Court
practice and clashes with constitutional structure by con-
centrating power in a unilateral actor insulated from Pres-
idential control.
We therefore hold that the structure of the CFPB violates
the separation of powers. We go on to hold that the CFPB
Director’s removal protection is severable from the other
statutory provisions bearing on the CFPB’s authority. The
agency may therefore continue to operate, but its Director,
in light of our decision, must be removable by the President
at will.
I
A
In the summer of 2007, then-Professor Elizabeth Warren
called for the creation of a new, independent federal agency
focused on regulating consumer financial products. War-
ren, Unsafe at Any Rate, Democracy (Summer 2007). Pro-
fessor Warren believed the financial products marketed to
ordinary American households—credit cards, student
loans, mortgages, and the like—had grown increasingly un-
safe due to a “regulatory jumble” that paid too much atten-
tion to banks and too little to consumers. Ibid. To remedy
the lack of “coherent, consumer-oriented” financial regula-
tion, she proposed “concentrat[ing] the review of financial
products in a single location”—an independent agency mod-
eled after the multimember Consumer Product Safety Com-
mission. Ibid.That proposal soon met its moment. Within months of
Professor Warren’s writing, the subprime mortgage market
collapsed, precipitating a financial crisis that wiped out
over $10 trillion in American household wealth and cost
millions of Americans their jobs, their retirements, and
their homes. In the aftermath, the Obama administration
embraced Professor Warren’s recommendation. Through
the Treasury Department, the administration encouraged
Congress to establish an agency with a mandate to ensure
4 SEILA LAW LLC v. CONSUMER FINANCIAL
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that “consumer protection regulations” in the financial sec-
tor “are written fairly and enforced vigorously.” Dept. of
Treasury, Financial Regulatory Reform: A New Foundation
55 (2009). Like Professor Warren, the administration envi-
sioned a traditional independent agency, run by a multi-
member board with a “diverse set of viewpoints and experi-
ences.” Id., at 58.
In 2010, Congress acted on these proposals and created
the Consumer Financial Protection Bureau (CFPB) as an
independent financial regulator within the Federal Reserve
System. Dodd-Frank Wall Street Reform and Consumer
Protection Act (Dodd-Frank), 124 Stat. 1376. Congress
tasked the CFPB with “implement[ing]” and “enforc[ing]” a
large body of financial consumer protection laws to “en-
sur[e] that all consumers have access to markets for con-
sumer financial products and services and that markets for
consumer financial products and services are fair, transpar-
ent, and competitive.” 12 U. S. C. §5511(a). Congress
transferred the administration of 18 existing federal stat-
utes to the CFPB, including the Fair Credit Reporting Act,
the Fair Debt Collection Practices Act, and the Truth in
Lending Act. See §§5512(a), 5481(12), (14). In addition,
Congress enacted a new prohibition on “any unfair, decep-
tive, or abusive act or practice” by certain participants in
the consumer-finance sector. §5536(a)(1)(B). Congress au-
thorized the CFPB to implement that broad standard (and
the 18 pre-existing statutes placed under the agency’s pur-
view) through binding regulations. §§5531(a)–(b),
5581(a)(1)(A), (b).
Congress also vested the CFPB with potent enforcement
powers. The agency has the authority to conduct investiga-
tions, issue subpoenas and civil investigative demands, in-
itiate administrative adjudications, and prosecute civil ac-
tions in federal court. §§5562, 5564(a), (f ). To remedy
violations of federal consumer financial law, the CFPB may
seek restitution, disgorgement, and injunctive relief, as
Cite as: 591 U. S. ____ (2020) 5
Opinion of the Court
well as civil penalties of up to $1,000,000 (inflation ad-
justed) for each day that a violation occurs. §§5565(a),
(c)(2); 12 CFR §1083.1(a), Table (2019). Since its inception,
the CFPB has obtained over $11 billion in relief for over 25
million consumers, including a $1 billion penalty against a
single bank in 2018. See CFPB, Financial Report of the
Consumer Financial Protection Bureau, Fiscal Year 2015,
p. 3; CFPB, Bureau of Consumer Financial Protection An-
nounces Settlement With Wells Fargo for Auto-Loan Ad-
ministration and Mortgage Practices (Apr. 20, 2018).
The CFPB’s rulemaking and enforcement powers are cou-
pled with extensive adjudicatory authority. The agency
may conduct administrative proceedings to “ensure or en-
force compliance with” the statutes and regulations it ad-
ministers. 12 U. S. C. §5563(a). When the CFPB acts as an
adjudicator, it has “jurisdiction to grant any appropriate le-
gal or equitable relief.” §5565(a)(1). The “hearing officer”
who presides over the proceedings may issue subpoenas, or-
der depositions, and resolve any motions filed by the par-
ties. 12 CFR §1081.104(b). At the close of the proceedings,
the hearing officer issues a “recommended decision,” and
the CFPB Director considers that recommendation and “is-
sue[s] a final decision and order.” §§1081.400(d),
1081.402(b); see also §1081.405.
Congress’s design for the CFPB differed from the pro-
posals of Professor Warren and the Obama administration
in one critical respect. Rather than create a traditional in-
dependent agency headed by a multimember board or com-
mission, Congress elected to place the CFPB under the
leadership of a single Director. 12 U. S. C. §5491(b)(1). The
CFPB Director is appointed by the President with the ad-
vice and consent of the Senate. §5491(b)(2). The Director
serves for a term of five years, during which the President
may remove the Director from office only for “inefficiency,
neglect of duty, or malfeasance in office.” §§5491(c)(1), (3).
Unlike most other agencies, the CFPB does not rely on
6 SEILA LAW LLC v. CONSUMER FINANCIAL
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Opinion of the Court
the annual appropriations process for funding. Instead, the
CFPB receives funding directly from the Federal Reserve,
which is itself funded outside the appropriations process
through bank assessments. Each year, the CFPB requests
an amount that the Director deems “reasonably necessary
to carry out” the agency’s duties, and the Federal Reserve
grants that request so long as it does not exceed 12% of the
total operating expenses of the Federal Reserve (inflation
adjusted). §§5497(a)(1), (2)(A)(iii), 2(B). In recent years,
the CFPB’s annual budget has exceeded half a billion dol-
lars. See CFPB, Fiscal Year 2019: Ann. Performance Plan
and Rep., p. 7.
B
Seila Law LLC is a California-based law firm that pro-
vides debt-related legal services to clients. In 2017, the
CFPB issued a civil investigative demand to Seila Law to
determine whether the firm had “engag[ed] in unlawful acts
or practices in the advertising, marketing, or sale of debt
relief services.” 2017 WL 6536586, *1 (CD Cal., Aug. 25,
2017). See also 12 U. S. C. §5562(c)(1) (authorizing the
agency to issue such demands to persons who “may have
any information[ ] relevant to a violation” of one of the laws
enforced by the CFPB). The demand (essentially a sub-
poena) directed Seila Law to produce information and doc-
uments related to its business practices.
Seila Law asked the CFPB to set aside the demand, ob-
jecting that the agency’s leadership by a single Director re-
movable only for cause violated the separation of powers.
The CFPB declined to address that claim and directed Seila
Law to comply with the demand.
When Seila Law refused, the CFPB filed a petition to en-
force the demand in the District Court. See §5562(e)(1) (cre-
ating cause of action for that purpose). In response, Seila
Law renewed its defense that the demand was invalid and
must be set aside because the CFPB’s structure violated the
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Opinion of the Court
Constitution. The District Court disagreed and ordered
Seila Law to comply with the demand (with one modifica-
tion not relevant here).
The Court of Appeals affirmed. 923 F. 3d 680 (CA9 2019).
The Court observed that the “arguments for and against”
the constitutionality of the CFPB’s structure had already
been “thoroughly canvassed” in majority, concurring, and
dissenting opinions by the en banc Court of Appeals for the
District of Columbia Circuit in PHH Corp. v. CFPB, 881
F. 3d 75 (2018), which had rejected a challenge similar to
the one presented here. 923 F. 3d, at 682. The Court saw
“no need to re-plow the same ground.” Ibid. Instead, it pro-
vided a brief explanation for why it agreed with the PHH
Court’s core holding. The Court took as its starting point
Humphrey’s Executor, which had approved for-cause re-
moval protection for the Commissioners of the Federal
Trade Commission (FTC). In applying that precedent, the
Court recognized that the CFPB wields “substantially more
executive power than the FTC did back in 1935” and that
the CFPB’s leadership by a single Director (as opposed to a
multimember commission) presented a “structural differ-
ence” that some jurists had found “dispositive.” 923 F. 3d,
at 683–684. But the Court felt bound to disregard those
differences in light of our decision in Morrison, which per-
mitted a single individual (an independent counsel) to exer-
cise a core executive power (prosecuting criminal offenses)
despite being insulated from removal except for cause. Be-
cause the Court found Humphrey’s Executor and Morrison
“controlling,” it affirmed the District Court’s order requir-
ing compliance with the demand. 923 F. 3d, at 684.
We granted certiorari to address the constitutionality of
the CFPB’s structure. 589 U. S. ___ (2019). We also re-
quested argument on an additional question: whether, if
the CFPB’s structure violates the separation of powers, the
CFPB Director’s removal protection can be severed from the
rest of the Dodd-Frank Act.
8 SEILA LAW LLC v. CONSUMER FINANCIAL
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Opinion of the Court
Because the Government agrees with petitioner on the
merits of the constitutional question, we appointed Paul
Clement to defend the judgment below as amicus curiae.
He has ably discharged his responsibilities.
II
We first consider three threshold arguments raised by
the appointed amicus for why we may not or should not
reach the merits. Each is unavailing.
First, amicus argues that the demand issued to petitioner
is not “traceable” to the alleged constitutional defect be-
cause two of the three Directors who have in turn played a
role in enforcing the demand were (or now consider them-
selves to be) removable by the President at will. Brief for
Court-Appointed Amicus Curiae 21–24. Amicus highlights
the Government’s argument below that the demand, origi-
nally issued by former Director Richard Cordray, had been
ratified by an acting CFPB Director who, according to the
Office of Legal Counsel (OLC), was removable by the Pres-
ident at will. See Brief for Appellee in No. 17–56324 (CA9),
pp. 1, 10, 13–19 (citing Designating an Acting Director of
the Bureau of Consumer Financial Protection, 41 Op. OLC
___, ___ (Nov. 25, 2017)). Amicus further observes that cur-
rent CFPB Director Kathleen Kraninger, now responsible
for enforcing the demand, agrees with the Solicitor Gen-
eral’s position in this case that her for-cause removal pro-
tection is unconstitutional. See Brief for Respondent on
Pet. for Cert. 20; Letter from K. Kraninger, CFPB Director,
to M. McConnell, Majority Leader, U. S. Senate, p. 2 (Sept.
17, 2019); Letter from K. Kraninger, CFPB Director, to N.
Pelosi, Speaker, U. S. House of Representatives, p. 2 (Sept.
17, 2019).1 In amicus’ view, these developments reveal that
the demand would have been issued—and would continue
——————
1 Director Kraninger did not indicate whether she would disregard her
statutory removal protection if the President attempted to remove her
without cause.
Cite as: 591 U. S. ____ (2020) 9
Opinion of the Court
to be enforced—even in the absence of the CFPB Director’s
removal protection, making the asserted separation of pow-
ers dispute “artificial.” Brief for Court-Appointed Amicus
Curiae 22.
Even if that were true, it would not deprive us of jurisdic-
tion. Amicus’ traceability argument appears to challenge
petitioner’s Article III standing. See Lujan v. Defenders of
Wildlife, 504 U. S. 555, 560 (1992) (explaining that the
plaintiff ’s injury must be “fairly traceable to the challenged
action of the defendant” (internal quotation marks and al-
terations omitted)). But amicus’ argument does not cast
any doubt on the jurisdiction of the District Court because
petitioner is the defendant and did not invoke the Court’s
jurisdiction. See Bond v. United States, 564 U. S. 211, 217
(2011) (When the plaintiff has standing, “Article III does
not restrict the opposing party’s ability to object to relief be-
ing sought at its expense.”).
It is true that “standing must be met by persons seeking
appellate review, just as it must be met by persons appear-
ing in courts of first instance.” Hollingsworth v. Perry, 570
U. S. 693, 705 (2013) (internal quotation marks omitted).
But petitioner’s appellate standing is beyond dispute. Peti-
tioner is compelled to comply with the civil investigative de-
mand and to provide documents it would prefer to withhold,
a concrete injury. That injury is traceable to the decision
below and would be fully redressed if we were to reverse the
judgment of the Court of Appeals and remand with instruc-
tions to deny the Government’s petition to enforce the
demand.
Without engaging with these principles, amicus contends
that a litigant wishing to challenge an executive act on the
basis of the President’s removal power must show that the
challenged act would not have been taken if the responsible
official had been subject to the President’s control. See
Brief for Court-Appointed Amicus Curiae 21–24. Our prec-
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edents say otherwise. We have held that a litigant chal-
lenging governmental action as void on the basis of the sep-
aration of powers is not required to prove that the Govern-
ment’s course of conduct would have been different in a
“counterfactual world” in which the Government had acted
with constitutional authority. Free Enterprise Fund, 561
U. S., at 512, n. 12. In the specific context of the President’s
removal power, we have found it sufficient that the chal-
lenger “sustain[s] injury” from an executive act that alleg-
edly exceeds the official’s authority. Bowsher v. Synar, 478
U. S. 714, 721 (1986).
Second, amicus contends that the proper context for as-
sessing the constitutionality of an officer’s removal re-
striction is a contested removal. See Brief for Court-Ap-
pointed Amicus Curiae 24–27. While that is certainly one
way to review a removal restriction, it is not the only way.
Our precedents have long permitted private parties ag-
grieved by an official’s exercise of executive power to chal-
lenge the official’s authority to wield that power while insu-
lated from removal by the President. See Bowsher, 478
U. S., at 721 (lawsuit filed by aggrieved third party in the
absence of contested removal); Free Enterprise Fund, 561
U. S., at 487 (same); Morrison, 487 U. S., at 668–669 (de-
fense to subpoena asserted by third party in the absence of
contested removal). Indeed, we have expressly “reject[ed]”
the “argument that consideration of the effect of a removal
provision is not ‘ripe’ until that provision is actually used,”
because when such a provision violates the separation of
powers it inflicts a “here-and-now” injury on affected third
parties that can be remedied by a court. Bowsher, 478 U. S.,
at 727, n. 5 (internal quotation marks omitted). The Court
of Appeals therefore correctly entertained petitioner’s con-
stitutional defense on the merits.
Lastly, amicus contends that we should dismiss the case
because the parties agree on the merits of the constitutional
question and the case therefore lacks “adverseness.” Tr. of
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Oral Arg. 42–43, 45–46. That contention, however, is fore-
closed by United States v. Windsor, 570 U. S. 744 (2013).
There, we explained that a lower court order that presents
real-world consequences for the Government and its adver-
sary suffices to support Article III jurisdiction—even if “the
Executive may welcome” an adverse order that “is accom-
panied by the constitutional ruling it wants.” Id., at 758.
Here, petitioner and the Government disagree about
whether petitioner must comply with the civil investigative
demand. The lower courts sided with the Government, and
the Government has not volunteered to relinquish that vic-
tory and withdraw the demand. To the contrary, while the
Government agrees that the agency is unconstitutionally
structured, it believes it may nevertheless enforce the de-
mand on remand. See infra, at 30. Accordingly, our “deci-
sion will have real meaning” for the parties. INS v.
Chadha, 462 U. S. 919, 939 (1983). And, as in Windsor, any
prudential concerns with deciding an important legal ques-
tion in this posture can be addressed by “the practice of en-
tertaining arguments made by an amicus when the Solici-
tor General confesses error with respect to a judgment
below,” which we have done. 570 U. S., at 760.
We therefore turn to the merits of petitioner’s constitu-
tional challenge.
III
We hold that the CFPB’s leadership by a single individual
removable only for inefficiency, neglect, or malfeasance vi-
olates the separation of powers.
A
Article II provides that “[t]he executive Power shall be
vested in a President,” who must “take Care that the Laws
be faithfully executed.” Art. II, §1, cl. 1; id., §3. The entire
“executive Power” belongs to the President alone. But be-
cause it would be “impossib[le]” for “one man” to “perform
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all the great business of the State,” the Constitution as-
sumes that lesser executive officers will “assist the supreme
Magistrate in discharging the duties of his trust.” 30 Writ-
ings of George Washington 334 (J. Fitzpatrick ed. 1939).
These lesser officers must remain accountable to the
President, whose authority they wield. As Madison ex-
plained, “[I]f any power whatsoever is in its nature Execu-
tive, it is the power of appointing, overseeing, and control-
ling those who execute the laws.” 1 Annals of Cong. 463
(1789). That power, in turn, generally includes the ability
to remove executive officials, for it is “only the authority
that can remove” such officials that they “must fear and, in
the performance of [their] functions, obey.” Bowsher, 478
U. S., at 726 (internal quotation marks omitted).
The President’s removal power has long been confirmed
by history and precedent. It “was discussed extensively in
Congress when the first executive departments were cre-
ated” in 1789. Free Enterprise Fund, 561 U. S., at 492. “The
view that ‘prevailed, as most consonant to the text of the
Constitution’ and ‘to the requisite responsibility and har-
mony in the Executive Department,’ was that the executive
power included a power to oversee executive officers
through removal.” Ibid. (quoting Letter from James Madi-
son to Thomas Jefferson (June 30, 1789), 16 Documentary
History of the First Federal Congress 893 (2004)). The First
Congress’s recognition of the President’s removal power in
1789 “provides contemporaneous and weighty evidence of
the Constitution’s meaning,” Bowsher, 478 U. S., at 723 (in-
ternal quotation marks omitted), and has long been the
“settled and well understood construction of the Constitu-
tion,” Ex parte Hennen, 13 Pet. 230, 259 (1839).
The Court recognized the President’s prerogative to re-
move executive officials in Myers v. United States, 272 U. S.
52. Chief Justice Taft, writing for the Court, conducted an
exhaustive examination of the First Congress’s determina-
Cite as: 591 U. S. ____ (2020) 13
Opinion of the Court
tion in 1789, the views of the Framers and their contempo-
raries, historical practice, and our precedents up until that
point. He concluded that Article II “grants to the President”
the “general administrative control of those executing the
laws, including the power of appointment and removal of
executive officers.” Id., at 163–164 (emphasis added). Just
as the President’s “selection of administrative officers is es-
sential to the execution of the laws by him, so must be his
power of removing those for whom he cannot continue to be
responsible.” Id., at 117. “[T]o hold otherwise,” the Court
reasoned, “would make it impossible for the President . . .
to take care that the laws be faithfully executed.” Id.,
at 164.
We recently reiterated the President’s general removal
power in Free Enterprise Fund. “Since 1789,” we recapped,
“the Constitution has been understood to empower the
President to keep these officers accountable—by removing
them from office, if necessary.” 561 U. S., at 483. Although
we had previously sustained congressional limits on that
power in certain circumstances, we declined to extend those
limits to “a new situation not yet encountered by the
Court”—an official insulated by two layers of for-cause re-
moval protection. Id., at 483, 514. In the face of that novel
impediment to the President’s oversight of the Executive
Branch, we adhered to the general rule that the President
possesses “the authority to remove those who assist him in
carrying out his duties.” Id., at 513–514.
Free Enterprise Fund left in place two exceptions to the
President’s unrestricted removal power. First, in Humph-
rey’s Executor, decided less than a decade after Myers, the
Court upheld a statute that protected the Commissioners of
the FTC from removal except for “inefficiency, neglect of
duty, or malfeasance in office.” 295 U. S., at 620 (quoting
15 U. S. C. §41). In reaching that conclusion, the Court
stressed that Congress’s ability to impose such removal re-
strictions “will depend upon the character of the office.” 295
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U. S., at 631.
Because the Court limited its holding “to officers of the
kind here under consideration,” id., at 632, the contours of
the Humphrey’s Executor exception depend upon the char-
acteristics of the agency before the Court. Rightly or
wrongly, the Court viewed the FTC (as it existed in 1935)
as exercising “no part of the executive power.” Id., at 628.
Instead, it was “an administrative body” that performed
“specified duties as a legislative or as a judicial aid.” Ibid.
It acted “as a legislative agency” in “making investigations
and reports” to Congress and “as an agency of the judiciary”
in making recommendations to courts as a master in chan-
cery. Ibid. “To the extent that [the FTC] exercise[d] any
executive function[,] as distinguished from executive power
in the constitutional sense,” it did so only in the discharge
of its “quasi-legislative or quasi-judicial powers.” Ibid. (em-
phasis added).2
The Court identified several organizational features that
helped explain its characterization of the FTC as non-exec-
utive. Composed of five members—no more than three from
the same political party—the Board was designed to be
“non-partisan” and to “act with entire impartiality.” Id., at
624; see id., at 619–620. The FTC’s duties were “neither
political nor executive,” but instead called for “the trained
judgment of a body of experts” “informed by experience.”
Id., at 624 (internal quotation marks omitted). And the
Commissioners’ staggered, seven-year terms enabled the
——————
2 The Court’s conclusion that the FTC did not exercise executive power
has not withstood the test of time. As we observed in Morrison v. Olson,
487 U. S. 654 (1988), “[I]t is hard to dispute that the powers of the FTC
at the time of Humphrey’s Executor would at the present time be consid-
ered ‘executive,’ at least to some degree.” Id., at 690, n. 28. See also
Arlington v. FCC, 569 U. S. 290, 305, n. 4 (2013) (even though the activ-
ities of administrative agencies “take ‘legislative’ and ‘judicial’ forms,”
“they are exercises of—indeed, under our constitutional structure they
must be exercises of—the ‘executive Power’ ” (quoting Art. II, §1, cl. 1)).
Cite as: 591 U. S. ____ (2020) 15
Opinion of the Court
agency to accumulate technical expertise and avoid a “com-
plete change” in leadership “at any one time.” Ibid.
In short, Humphrey’s Executor permitted Congress to
give for-cause removal protections to a multimember body
of experts, balanced along partisan lines, that performed
legislative and judicial functions and was said not to exer-
cise any executive power. Consistent with that understand-
ing, the Court later applied “[t]he philosophy of Humphrey’s
Executor” to uphold for-cause removal protections for the
members of the War Claims Commission—a three-member
“adjudicatory body” tasked with resolving claims for com-
pensation arising from World War II. Wiener v. United
States, 357 U. S. 349, 356 (1958).
While recognizing an exception for multimember bodies
with “quasi-judicial” or “quasi-legislative” functions,
Humphrey’s Executor reaffirmed the core holding of Myers
that the President has “unrestrictable power . . . to remove
purely executive officers.” 295 U. S., at 632. The Court
acknowledged that between purely executive officers on the
one hand, and officers that closely resembled the FTC Com-
missioners on the other, there existed “a field of doubt” that
the Court left “for future consideration.” Ibid.We have recognized a second exception for inferior offic-
ers in two cases, United States v. Perkins and Morrison v.
Olson.3 In Perkins, we upheld tenure protections for a na-
val cadet-engineer. 116 U. S., at 485. And, in Morrison, we
upheld a provision granting good-cause tenure protection to
——————
3 Article II distinguishes between two kinds of officers—principal offic-
ers (who must be appointed by the President with the advice and consent
of the Senate) and inferior officers (whose appointment Congress may
vest in the President, courts, or heads of Departments). §2, cl. 2. While
“[o]ur cases have not set forth an exclusive criterion for distinguishing
between principal and inferior officers,” we have in the past examined
factors such as the nature, scope, and duration of an officer’s duties. Ed-
mond v. United States, 520 U. S. 651, 661 (1997). More recently, we have
focused on whether the officer’s work is “directed and supervised” by a
principal officer. Id., at 663.
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an independent counsel appointed to investigate and pros-
ecute particular alleged crimes by high-ranking Govern-
ment officials. 487 U. S., at 662–663, 696–697. Backing
away from the reliance in Humphrey’s Executor on the con-
cepts of “quasi-legislative” and “quasi-judicial” power, we
viewed the ultimate question as whether a removal re-
striction is of “such a nature that [it] impede[s] the Presi-
dent’s ability to perform his constitutional duty.” 487 U. S.,
at 691. Although the independent counsel was a single per-
son and performed “law enforcement functions that typi-
cally have been undertaken by officials within the Execu-
tive Branch,” we concluded that the removal protections did
not unduly interfere with the functioning of the Executive
Branch because “the independent counsel [was] an inferior
officer under the Appointments Clause, with limited juris-
diction and tenure and lacking policymaking or significant
administrative authority.” Ibid.These two exceptions—one for multimember expert agen-
cies that do not wield substantial executive power, and one
for inferior officers with limited duties and no policymaking
or administrative authority—“represent what up to now
have been the outermost constitutional limits of permissi-
ble congressional restrictions on the President’s removal
power.” PHH, 881 F. 3d, at 196 (Kavanaugh, J., dissenting)
(internal quotation marks omitted).
B
Neither Humphrey’s Executor nor Morrison resolves
whether the CFPB Director’s insulation from removal is
constitutional. Start with Humphrey’s Executor. Unlike
the New Deal-era FTC upheld there, the CFPB is led by a
single Director who cannot be described as a “body of ex-
perts” and cannot be considered “non-partisan” in the same
sense as a group of officials drawn from both sides of the
aisle. 295 U. S., at 624. Moreover, while the staggered
Cite as: 591 U. S. ____ (2020) 17
Opinion of the Court
terms of the FTC Commissioners prevented complete turn-
overs in agency leadership and guaranteed that there
would always be some Commissioners who had accrued sig-
nificant expertise, the CFPB’s single-Director structure and
five-year term guarantee abrupt shifts in agency leadership
and with it the loss of accumulated expertise.
In addition, the CFPB Director is hardly a mere legisla-
tive or judicial aid. Instead of making reports and recom-
mendations to Congress, as the 1935 FTC did, the Director
possesses the authority to promulgate binding rules flesh-
ing out 19 federal statutes, including a broad prohibition on
unfair and deceptive practices in a major segment of the
U. S. economy. And instead of submitting recommended
dispositions to an Article III court, the Director may unilat-
erally issue final decisions awarding legal and equitable re-
lief in administrative adjudications. Finally, the Director’s
enforcement authority includes the power to seek daunting
monetary penalties against private parties on behalf of the
United States in federal court—a quintessentially execu-
tive power not considered in Humphrey’s Executor.4
The logic of Morrison also does not apply. Everyone
agrees the CFPB Director is not an inferior officer, and her
duties are far from limited. Unlike the independent coun-
sel, who lacked policymaking or administrative authority,
——————
4 The dissent would have us ignore the reasoning of Humphrey’s Exec-
utor and instead apply the decision only as part of a reimagined Humph-
rey’s-through-Morrison framework. See post, at 18, n. 7, 19–22 (KAGAN,
J., concurring in judgment with respect to severability and dissenting in
part) (hereinafter dissent). But we take the decision on its own terms,
not through gloss added by a later Court in dicta. The dissent also criti-
cizes us for suggesting that the 1935 FTC may have had lesser responsi-
bilities than the present FTC. See post, at 27, n. 10. Perhaps the FTC
possessed broader rulemaking, enforcement, and adjudicatory powers
than the Humphrey’s Court appreciated. Perhaps not. Either way, what
matters is the set of powers the Court considered as the basis for its de-
cision, not any latent powers that the agency may have had not alluded
to by the Court.
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the Director has the sole responsibility to administer 19
separate consumer-protection statutes that cover every-
thing from credit cards and car payments to mortgages and
student loans. It is true that the independent counsel in
Morrison was empowered to initiate criminal investigations
and prosecutions, and in that respect wielded core executive
power. But that power, while significant, was trained in-
ward to high-ranking Governmental actors identified by
others, and was confined to a specified matter in which the
Department of Justice had a potential conflict of interest.
By contrast, the CFPB Director has the authority to bring
the coercive power of the state to bear on millions of private
citizens and businesses, imposing even billion-dollar penal-
ties through administrative adjudications and civil actions.
In light of these differences, the constitutionality of the
CFPB Director’s insulation from removal cannot be settled
by Humphrey’s Executor or Morrison alone.
C
The question instead is whether to extend those prece-
dents to the “new situation” before us, namely an independ-
ent agency led by a single Director and vested with signifi-
cant executive power. Free Enterprise Fund, 561 U. S., at
483. We decline to do so. Such an agency has no basis in
history and no place in our constitutional structure.
1
“Perhaps the most telling indication of [a] severe consti-
tutional problem” with an executive entity “is [a] lack of his-
torical precedent” to support it. Id., at 505 (internal quota-
tion marks omitted). An agency with a structure like that
of the CFPB is almost wholly unprecedented.
After years of litigating the agency’s constitutionality,
the Courts of Appeals, parties, and amici have identified
“only a handful of isolated” incidents in which Congress has
provided good-cause tenure to principal officers who wield
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power alone rather than as members of a board or commis-
sion. Ibid. “[T]hese few scattered examples”—four to be
exact—shed little light. NLRB v. Noel Canning, 573 U. S.
513, 538 (2014).
First, the CFPB’s defenders point to the Comptroller of
the Currency, who enjoyed removal protection for one year
during the Civil War. That example has rightly been dis-
missed as an aberration. It was “adopted without discus-
sion” during the heat of the Civil War and abandoned before
it could be “tested by executive or judicial inquiry.” Myers,
272 U. S., at 165. (At the time, the Comptroller may also
have been an inferior officer, given that he labored “under
the general direction of the Secretary of the Treasury.” Ch.
58, 12 Stat. 665.)5
Second, the supporters of the CFPB point to the Office of
the Special Counsel (OSC), which has been headed by a sin-
gle officer since 1978.6 But this first enduring single-leader
office, created nearly 200 years after the Constitution was
ratified, drew a contemporaneous constitutional objection
from the Office of Legal Counsel under President Carter
and a subsequent veto on constitutional grounds by Presi-
dent Reagan. See Memorandum Opinion for the General
Counsel, Civil Service Commission, 2 Op. OLC 120, 122
(1978); Public Papers of the Presidents, Ronald Reagan,
Vol. II, Oct. 26, 1988, pp. 1391–1392 (1991).7 In any event,
——————
5 The dissent suggests that the Comptroller still enjoyed some degree
of insulation after his removal protection was repealed because the Pres-
ident faced a new requirement to “communicate[ ]” his “reasons” for ter-
minating the Comptroller to the Senate. Post, at 15 (quoting Act of June
3, 1864, ch. 106, §1, 13 Stat. 100). But the President could still remove
the Comptroller for any reason so long as the President was, in the dis-
sent’s phrase, “in a firing mood.” Post, at 15.
6 The OSC should not be confused with the independent counsel in
Morrison or the special counsel recently appointed to investigate allega-
tions related to the 2016 Presidential election. Despite sharing similar
titles, those individuals have no relationship to the OSC.
7 An Act similar to the one vetoed by President Reagan was eventually
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the OSC exercises only limited jurisdiction to enforce cer-
tain rules governing Federal Government employers and
employees. See 5 U. S. C. §1212. It does not bind private
parties at all or wield regulatory authority comparable to
the CFPB.
Third, the CFPB’s defenders note that the Social Security
Administration (SSA) has been run by a single Administra-
tor since 1994. That example, too, is comparatively recent
and controversial. President Clinton questioned the consti-
tutionality of the SSA’s new single-Director structure upon
signing it into law. See Public Papers of the Presidents,
William J. Clinton, Vol. II, Aug. 15, 1994, pp. 1471–1472
(1995) (inviting a “corrective amendment” from Congress).
In addition, unlike the CFPB, the SSA lacks the authority
to bring enforcement actions against private parties. Its
role is largely limited to adjudicating claims for Social
Security benefits.
The only remaining example is the Federal Housing Fi-
nance Agency (FHFA), created in 2008 to assume responsi-
bility for Fannie Mae and Freddie Mac. That agency is es-
sentially a companion of the CFPB, established in response
to the same financial crisis. See Housing and Economic Re-
covery Act of 2008, 122 Stat. 2654. It regulates primarily
Government-sponsored enterprises, not purely private ac-
tors. And its single-Director structure is a source of ongoing
controversy. Indeed, it was recently held unconstitutional
by the Fifth Circuit, sitting en banc. See Collins v.
Mnuchin, 938 F. 3d 553, 587–588 (2019).
With the exception of the one-year blip for the Comptrol-
ler of the Currency, these isolated examples are modern and
contested. And they do not involve regulatory or enforce-
ment authority remotely comparable to that exercised by
——————
signed by President George H. W. Bush after extensive negotiations and
compromises with Congress. See Public Papers of the Presidents, George
H. W. Bush, Vol. I, Apr. 10, 1989, p. 391 (1990).
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Opinion of the Court
the CFPB. The CFPB’s single-Director structure is an in-
novation with no foothold in history or tradition.8
2
In addition to being a historical anomaly, the CFPB’s sin-
gle-Director configuration is incompatible with our consti-
tutional structure. Aside from the sole exception of the
Presidency, that structure scrupulously avoids concentrat-
ing power in the hands of any single individual.
“The Framers recognized that, in the long term, struc-
tural protections against abuse of power were critical to
preserving liberty.” Bowsher, 478 U. S., at 730. Their solu-
tion to governmental power and its perils was simple: di-
vide it. To prevent the “gradual concentration” of power in
the same hands, they enabled “[a]mbition . . . to counteract
ambition” at every turn. The Federalist No. 51, p. 349 (J.
Cooke ed. 1961) (J. Madison). At the highest level, they
“split the atom of sovereignty” itself into one Federal Gov-
ernment and the States. Gamble v. United States, 587 U. S.
___, ___ (2019) (slip op., at 9) (internal quotation marks
omitted). They then divided the “powers of the new Federal
Government into three defined categories, Legislative, Ex-
ecutive, and Judicial.” Chadha, 462 U. S., at 951.
They did not stop there. Most prominently, the Framers
bifurcated the federal legislative power into two Chambers:
the House of Representatives and the Senate, each com-
posed of multiple Members and Senators. Art. I, §§2, 3.
The Executive Branch is a stark departure from all this
——————
8 The dissent categorizes the CFPB as one of many “financial regula-
tors” that have historically enjoyed some insulation from the President.
See post, at 11–16. But even assuming financial institutions like the
Second Bank and the Federal Reserve can claim a special historical sta-
tus, the CFPB is in an entirely different league. It acts as a mini legis-
lature, prosecutor, and court, responsible for creating substantive rules
for a wide swath of industries, prosecuting violations, and levying knee-
buckling penalties against private citizens. See supra, at 4–5. And, of
course, it is the only agency of its kind run by a single Director.
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division. The Framers viewed the legislative power as a
special threat to individual liberty, so they divided that
power to ensure that “differences of opinion” and the “jar-
rings of parties” would “promote deliberation and circum-
spection” and “check excesses in the majority.” See The
Federalist No. 70, at 475 (A. Hamilton); see also id., No. 51,
at 350. By contrast, the Framers thought it necessary to
secure the authority of the Executive so that he could carry
out his unique responsibilities. See id., No. 70, at 475–478.
As Madison put it, while “the weight of the legislative au-
thority requires that it should be . . . divided, the weakness
of the executive may require, on the other hand, that it
should be fortified.” Id., No. 51, at 350.
The Framers deemed an energetic executive essential to
“the protection of the community against foreign attacks,”
“the steady administration of the laws,” “the protection of
property,” and “the security of liberty.” Id., No. 70, at 471.
Accordingly, they chose not to bog the Executive down with
the “habitual feebleness and dilatoriness” that comes with
a “diversity of views and opinions.” Id., at 476. Instead,
they gave the Executive the “[d]ecision, activity, secrecy,
and dispatch” that “characterise the proceedings of one
man.” Id., at 472.
To justify and check that authority—unique in our con-
stitutional structure—the Framers made the President the
most democratic and politically accountable official in Gov-
ernment. Only the President (along with the Vice Presi-
dent) is elected by the entire Nation. And the President’s
political accountability is enhanced by the solitary nature
of the Executive Branch, which provides “a single object for
the jealousy and watchfulness of the people.” Id., at 479.
The President “cannot delegate ultimate responsibility or
the active obligation to supervise that goes with it,” because
Article II “makes a single President responsible for the ac-
tions of the Executive Branch.” Free Enterprise Fund, 561
U. S., at 496–497 (quoting Clinton v. Jones, 520 U. S. 681,
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712–713 (1997) (BREYER, J., concurring in judgment)).
The resulting constitutional strategy is straightforward:
divide power everywhere except for the Presidency, and
render the President directly accountable to the people
through regular elections. In that scheme, individual exec-
utive officials will still wield significant authority, but that
authority remains subject to the ongoing supervision and
control of the elected President. Through the President’s
oversight, “the chain of dependence [is] preserved,” so that
“the lowest officers, the middle grade, and the highest” all
“depend, as they ought, on the President, and the President
on the community.” 1 Annals of Cong. 499 (J. Madison).
The CFPB’s single-Director structure contravenes this
carefully calibrated system by vesting significant govern-
mental power in the hands of a single individual accounta-
ble to no one. The Director is neither elected by the people
nor meaningfully controlled (through the threat of removal)
by someone who is. The Director does not even depend on
Congress for annual appropriations. See The Federalist
No. 58, at 394 (J. Madison) (describing the “power over the
purse” as the “most compleat and effectual weapon” in rep-
resenting the interests of the people). Yet the Director may
unilaterally, without meaningful supervision, issue final
regulations, oversee adjudications, set enforcement priori-
ties, initiate prosecutions, and determine what penalties to
impose on private parties. With no colleagues to persuade,
and no boss or electorate looking over her shoulder, the Di-
rector may dictate and enforce policy for a vital segment of
the economy affecting millions of Americans.
The CFPB Director’s insulation from removal by an ac-
countable President is enough to render the agency’s struc-
ture unconstitutional. But several other features of the
CFPB combine to make the Director’s removal protection
even more problematic. In addition to lacking the most di-
rect method of presidential control—removal at will—the
agency’s unique structure also forecloses certain indirect
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methods of Presidential control.
Because the CFPB is headed by a single Director with a
five-year term, some Presidents may not have any oppor-
tunity to shape its leadership and thereby influence its ac-
tivities. A President elected in 2020 would likely not ap-
point a CFPB Director until 2023, and a President elected
in 2028 may never appoint one. That means an unlucky
President might get elected on a consumer-protection plat-
form and enter office only to find herself saddled with a
holdover Director from a competing political party who is
dead set against that agenda. To make matters worse, the
agency’s single-Director structure means the President will
not have the opportunity to appoint any other leaders—
such as a chair or fellow members of a Commission or
Board—who can serve as a check on the Director’s author-
ity and help bring the agency in line with the President’s
preferred policies.
The CFPB’s receipt of funds outside the appropriations
process further aggravates the agency’s threat to Presiden-
tial control. The President normally has the opportunity to
recommend or veto spending bills that affect the operation
of administrative agencies. See Art. I, §7, cl. 2; Art. II, §3.
And, for the past century, the President has annually sub-
mitted a proposed budget to Congress for approval. See
Budget and Accounting Act, 1921, ch. 18, §201, 42 Stat. 20.
Presidents frequently use these budgetary tools “to influ-
ence the policies of independent agencies.” PHH, 881 F. 3d,
at 147 (Henderson, J., dissenting) (citing Pasachoff, The
President’s Budget as a Source of Agency Policy Control,
125 Yale L. J. 2182, 2191, 2203–2204 (2016)). But no simi-
lar opportunity exists for the President to influence the
CFPB Director. Instead, the Director receives over $500
million per year to fund the agency’s chosen priorities. And
the Director receives that money from the Federal Reserve,
which is itself funded outside of the annual appropriations
process. This financial freedom makes it even more likely
Cite as: 591 U. S. ____ (2020) 25
Opinion of the Court
that the agency will “slip from the Executive’s control, and
thus from that of the people.” Free Enterprise Fund, 561
U. S., at 499.9
3
Amicus raises three principal arguments in the agency’s
defense. At the outset, amicus questions the textual basis
for the removal power and highlights statements from Mad-
ison, Hamilton, and Chief Justice Marshall expressing “het-
erodox” views on the subject. Brief for Court-Appointed
Amicus Curiae 4–5, 28–29. But those concerns are mis-
placed. It is true that “there is no ‘removal clause’ in the
Constitution,” id., at 1, but neither is there a “separation of
powers clause” or a “federalism clause.” These foundational
doctrines are instead evident from the Constitution’s vest-
ing of certain powers in certain bodies. As we have ex-
plained many times before, the President’s removal power
stems from Article II’s vesting of the “executive Power” in
the President. Free Enterprise Fund, 561 U. S., at 483(quoting Art. II, §1, cl. 1). As for the opinions of Madison,
Hamilton, and Chief Justice Marshall, we have already con-
sidered the statements cited by amicus and discounted
them in light of their context (Madison), the fact they reflect
initial impressions later abandoned by the speaker (Hamil-
ton), or their subsequent rejection as ill-considered dicta
——————
9 Amicus and the dissent try to diminish the CFPB’s insulation from
Presidential control by observing that the CFPB’s final rules can be set
aside by a super majority of the Financial Stability and Oversight Coun-
cil (FSOC). See Brief for Court-Appointed Amicus Curiae 40; post, at 33,
n. 13, 36. But the FSOC’s veto power is statutorily reserved for extreme
situations, when two-thirds of the Council concludes that a CFPB regu-
lation would “put the safety and soundness of the United States banking
system or the stability of the financial system of the United States at
risk.” 12 U. S. C. §§5513(a), (c)(3). That narrow escape hatch has no
impact on the CFPB’s enforcement or adjudicatory authority and has
never been used in the ten years since the agency’s creation. It certainly
does not render the CFPB’s independent, single-Director structure
constitutional.
26 SEILA LAW LLC v. CONSUMER FINANCIAL
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(Chief Justice Marshall). See Free Enterprise Fund, 561
U. S., at 500, n. 6 (Madison); Myers, 272 U. S., at 136–139,
142–144 (Hamilton and Chief Justice Marshall).10
Next, amicus offers a grand theory of our removal prece-
dents that, if accepted, could leave room for an agency like
the CFPB—and many other innovative intrusions on Arti-
cle II. According to amicus, Humphrey’s Executor and Mor-
rison establish a general rule that Congress may impose
“modest” restrictions on the President’s removal power,
with only two limited exceptions. Brief for Court-Appointed
Amicus Curiae 33–37. Congress may not reserve a role for
itself in individual removal decisions (as it attempted to do
in Myers and Bowsher). And it may not eliminate the Pres-
ident’s removal power altogether (as it effectively did in
——————
10 The dissent likewise points to Madison’s statement in The Federalist
No. 39 that the “tenure” of “ministerial offices generally will be a subject
of legal regulation.” Post, at 10 (quoting The Federalist No. 39, p. 253 (J.
Cooke ed. 1961)). But whatever Madison may have meant by that state-
ment, he later led the charge in contending, on the floor of the First Con-
gress, that “inasmuch as the power of removal is of an Executive nature
. . . it is beyond the reach of the Legislative body.” 1 Annals of Cong. 464
(1789); see also id., at 462–464, 495–496. Like the dissent in Free Enter-
prise Fund, the dissent goes on to “attribute[ ] to Madison a belief that
. . . the Comptroller[ ] could be made independent of the President. But
Madison’s actual proposal, consistent with his view of the Constitution,
was that the Comptroller hold office for a term of ‘years, unless sooner
removed by the President’; he would thus be ‘dependent upon the Presi-
dent, because he can be removed by him,’ and also ‘dependent upon the
Senate, because they must consent to his [reappointment] for every term
of years.’ ” Free Enterprise Fund v. Public Company Accounting Over-
sight Bd., 561 U. S. 477, 499, 500 n. 6 (2010) (citation omitted) (quoting
1 Annals of Cong. 612). See post, at 10, n. 4. The dissent further notes
that, at the time of the founding, some States placed limitations on their
Governors’ removal power. See post, at 7. But the Framers hardly
viewed State Governors as a reliable guide in fashioning the Federal Ex-
ecutive. Indeed, they expressly rejected the “executive council” structure
favored by most States, fearing that subjecting the President to over-
sight, as the States had, would “distract and . . . enervate the whole sys-
tem of administration” and inject it with “habitual feebleness and dilato-
riness.” The Federalist No. 70, at 473, 476 (A. Hamilton).
Cite as: 591 U. S. ____ (2020) 27
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Free Enterprise Fund). Outside those two situations, ami-
cus argues, Congress is generally free to constrain the Pres-
ident’s removal power. See also post, at 16–22 (KAGAN, J.,
concurring in judgment with respect to severability and dis-
senting in part) (hereinafter dissent) (expressing similar
view).
But text, first principles, the First Congress’s decision in
1789, Myers, and Free Enterprise Fund all establish that
the President’s removal power is the rule, not the exception.
While we do not revisit Humphrey’s Executor or any other
precedent today, we decline to elevate it into a freestanding
invitation for Congress to impose additional restrictions on
the President’s removal authority.11
Finally, amicus contends that if we identify a constitu-
tional problem with the CFPB’s structure, we should avoid
——————
11 Building on amicus’ proposal, the dissent would endorse whatever
“the times demand, so long as the President retains the ability to carry
out his constitutional functions.” Post, at 4. But that amorphous test
provides no real limiting principle. The “clearest” (and only) “example”
the dissent can muster for what may be prohibited is a for-cause removal
restriction placed on the President’s “close military or diplomatic advis-
ers.” Post, at 17. But that carveout makes no logical or constitutional
sense. In the dissent’s view, for-cause removal restrictions are permissi-
ble because they guarantee the President “meaningful control” over his
subordinates. Post, at 28 (internal quotation marks and alterations
omitted); see also post, at 8, 20, 26, 36. If that is the theory, then what
is the harm in giving the President the same “meaningful control” over
his close advisers? The dissent claims to see a constitutional distinction
between the President’s “own constitutional duties in foreign relations
and war” and his duty to execute laws passed by Congress. Post, at 13.
But the same Article that establishes the President’s foreign relations
and war duties expressly entrusts him to take care that the laws be faith-
fully executed. And, from the perspective of the governed, it is far from
clear that the President’s core and traditional powers present greater
cause for concern than peripheral and modern ones. If anything, “[t]he
growth of the Executive Branch, which now wields vast power and
touches almost every aspect of daily life, heightens the concern that it
may slip from the Executive’s control, and thus from that of the people.”
Free Enterprise Fund, 561 U. S., at 499 (emphasis added).
28 SEILA LAW LLC v. CONSUMER FINANCIAL
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it by broadly construing the statutory grounds for removing
the CFPB Director from office. See Brief for Court-Ap-
pointed Amicus Curiae 50–53; Tr. of Oral Arg. 57–62. The
Dodd-Frank Act provides that the Director may be removed
for “inefficiency, neglect of duty, or malfeasance in office.”
12 U. S. C. §5491(c)(3). In amicus’ view, that language
could be interpreted to reserve substantial discretion to the
President. Brief for Court-Appointed Amicus Curiae 51.
We are not persuaded. For one, Humphrey’s Executor im-
plicitly rejected an interpretation that would leave the
President free to remove an officer based on disagreements
about agency policy. See 295 U. S., at 619, 625–626. In
addition, while both amicus and the House of Representa-
tives invite us to adopt whatever construction would cure
the constitutional problem, they have not advanced any
workable standard derived from the statutory language.
Amicus suggests that the proper standard might permit re-
movals based on general policy disagreements, but not spe-
cific ones; the House suggests that the permissible bases for
removal might vary depending on the context and the Pres-
idential power involved. See Tr. of Oral Arg. 58–60, 76–77.
They do not attempt to root either of those standards in the
statutory text. Further, although nearly identical language
governs the removal of some two-dozen multimember inde-
pendent agencies, amicus suggests that the standard
should vary from agency to agency, morphing as necessary
to avoid constitutional doubt. Tr. of Oral Arg. 55–56. We
decline to embrace such an uncertain and elastic approach
to the text.
Amicus and the House also fail to engage with the Dodd-
Frank Act as a whole, which makes plain that the CFPB is
an “independent bureau.” 12 U. S. C. §5491(a); see also 44
U. S. C. §3502(5) (listing the CFPB as an “independent reg-
ulatory agency”). Neither amicus nor the House explains
how the CFPB would be “independent” if its head were re-
quired to implement the President’s policies upon pain of
Cite as: 591 U. S. ____ (2020) 29
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removal. See Black’s Law Dictionary 838 (9th ed. 2009) (de-
fining “independent” as “[n]ot subject to the control or influ-
ence of another”). The Constitution might of course compel
the agency to be dependent on the President notwithstand-
ing Congress’s contrary intent, but that result cannot fairly
be inferred from the statute Congress enacted.
Constitutional avoidance is not a license to rewrite Con-
gress’s work to say whatever the Constitution needs it to
say in a given situation. Without a proffered interpretation
that is rooted in the statutory text and structure, and would
avoid the constitutional violation we have identified, we
take Congress at its word that it meant to impose a mean-
ingful restriction on the President’s removal authority.
The dissent, for its part, largely reprises points that the
Court has already considered and rejected: It notes the lack
of an express removal provision, invokes Congress’s general
power to create and define executive offices, highlights iso-
lated statements from individual Framers, downplays the
decision of 1789, minimizes Myers, brainstorms methods of
Presidential control short of removal, touts the need for cre-
ative congressional responses to technological and economic
change, and celebrates a pragmatic, flexible approach to
American governance. See post, at 1–25, 32–33, 38.
If these arguments sound familiar, it’s because they are.
They were raised by the dissent in Free Enterprise Fund.
Compare post, at 1–25, 32–33, 38, with Free Enterprise
Fund, 561 U. S., at 515–524, 530 (BREYER, J., dissenting).
The answers to these repeated concerns (beyond those we
have already covered) are the same today as they were ten
years ago. Today, as then, Congress’s “plenary control over
the salary, duties, and even existence of executive offices”
makes “Presidential oversight” more critical—not less—as
the “[o]nly” tool to “counter [Congress’s] influence.” Id., at
500 (opinion of the Court). Today, as then, the various “bu-
reaucratic minutiae” a President might use to corral agency
personnel is no substitute for at will removal. Ibid. And
30 SEILA LAW LLC v. CONSUMER FINANCIAL
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today, as always, the urge to meet new technological and
societal problems with novel governmental structures must
be tempered by constitutional restraints that are not
known—and were not chosen—for their efficiency or flexi-
bility. Id., at 499.
As we explained in Free Enterprise Fund, “One can have
a government that functions without being ruled by func-
tionaries, and a government that benefits from expertise
without being ruled by experts.” Ibid. While “[n]o one
doubts Congress’s power to create a vast and varied federal
bureaucracy,” the expansion of that bureaucracy into new
territories the Framers could scarcely have imagined only
sharpens our duty to ensure that the Executive Branch is
overseen by a President accountable to the people. Ibid.IV
Having concluded that the CFPB’s leadership by a single
independent Director violates the separation of powers, we
now turn to the appropriate remedy. We directed the par-
ties to brief and argue whether the Director’s removal pro-
tection was severable from the other provisions of the Dodd-
Frank Act that establish the CFPB. If so, then the CFPB
may continue to exist and operate notwithstanding Con-
gress’s unconstitutional attempt to insulate the agency’s
Director from removal by the President. There is a live con-
troversy between the parties on that question, and resolv-
ing it is a necessary step in determining petitioner’s entitle-
ment to its requested relief.
As the defendant in this action, petitioner seeks a
straightforward remedy. It asks us to deny the Govern-
ment’s petition to enforce the civil investigative demand
and dismiss the case. The Government counters that the
demand, though initially issued by a Director unconstitu-
tionally insulated from removal, can still be enforced on re-
mand because it has since been ratified by an Acting Direc-
tor accountable to the President. The parties dispute
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Opinion of of the Court
ROBERTS , C. J.
whether this alleged ratification in fact occurred and
whether, if so, it is legally sufficient to cure the constitu-
tional defect in the original demand. That debate turns on
case-specific factual and legal questions not addressed be-
low and not briefed here. A remand for the lower Courts to
consider those questions in the first instance is therefore
the appropriate course—unless such a remand would be
futile.
In petitioner’s view, it would be. Before the Court of Ap-
peals, petitioner contended that, regardless of any ratifica-
tion, the demand is unenforceable because the statutory
provision insulating the CFPB Director from removal can-
not be severed from the other statutory provisions that de-
fine the CFPB’s authority. See Brief for Appellant in No.
17–56324 (CA9), pp. 27–28, 30–32. If petitioner is correct,
and the offending removal provision means the entire
agency is unconstitutional and powerless to act, then a re-
mand would be pointless. With no agency left with statu-
tory authority to maintain this suit or otherwise enforce the
demand, the appropriate disposition would be to reverse
with instructions to deny the Government’s petition to en-
force the agency’s demand for documents and dismiss the
case, as petitioner requests.
Accordingly, there is a live controversy over the question
of severability. And that controversy is essential to our
ability to provide petitioner the relief it seeks: If the re-
moval restriction is not severable, then we must grant the
relief requested, promptly rejecting the demand outright.
If, on the other hand, the removal restriction is severable,
we must instead remand for the Government to press its
ratification arguments in further proceedings. Unlike the
lingering ratification issue, severability presents a pure
question of law that has been fully briefed and argued by
the parties. We therefore proceed to address it.12
——————
12 JUSTICE THOMAS believes that any ratification is irrelevant. In his
32 SEILA LAW LLC v. CONSUMER FINANCIAL
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ROBERTS , C. J.
It has long been settled that “one section of a statute may
be repugnant to the Constitution without rendering the
whole act void.” Loeb v. Columbia Township Trustees, 179
U. S. 472, 490 (1900) (quoting Treasurer of Fayette Cty. v.
People’s & Drovers’ Bank, 47 Ohio St. 503, 523, 25 N. E. 697,
702 (1890)). Because a “statute bad in part is not neces-
sarily void in its entirety,” “[p]rovisions within the legisla-
tive power may stand if separable from the bad.” Dorchy v.
Kansas, 264 U. S. 286, 289–290 (1924).
“Generally speaking, when confronting a constitutional
flaw in a statute, we try to limit the solution to the problem,
severing any problematic portions while leaving the re-
mainder intact.” Free Enterprise Fund, 561 U. S., at 508(internal quotation marks omitted). Even in the absence of
a severability clause, the “traditional” rule is that “the un-
constitutional provision must be severed unless the statute
created in its absence is legislation that Congress would not
have enacted.” Alaska Airlines, Inc. v. Brock, 480 U. S. 678,
685 (1987). When Congress has expressly provided a sev-
erability clause, our task is simplified. We will presume
“that Congress did not intend the validity of the statute in
question to depend on the validity of the constitutionally of-
fensive provision . . . unless there is strong evidence that
Congress intended otherwise.” Id., at 686.
The only constitutional defect we have identified in the
CFPB’s structure is the Director’s insulation from removal.
If the Director were removable at will by the President, the
——————
view, even if the issuance of the demand and initiation of this suit have
been validly ratified, Director Kraninger’s activities in litigating the
case—after inheriting it from an Acting Director, but before becoming
removable at will herself in light of our decision—present a distinct con-
stitutional injury requiring immediate dismissal. See post, at 17–19
(opinion concurring in part and dissenting in part). But whether and
when the temporary involvement of an unconstitutionally insulated of-
ficer in an otherwise valid prosecution requires dismissal falls outside
the questions presented, has not been fully briefed, and is best resolved
by the lower courts in the first instance.
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ROBERTS , C. J.
constitutional violation would disappear. We must there-
fore decide whether the removal provision can be severed
from the other statutory provisions relating to the CFPB’s
powers and responsibilities.
In Free Enterprise Fund, we found a set of unconstitu-
tional removal provisions severable even in the absence of
an express severability clause because the surviving provi-
sions were capable of “functioning independently” and
“nothing in the statute’s text or historical context [made] it
evident that Congress, faced with the limitations imposed
by the Constitution, would have preferred no Board at all
to a Board whose members are removable at will.” 561
U. S., at 509 (internal quotation marks omitted).
So too here. The provisions of the Dodd-Frank Act bear-
ing on the CFPB’s structure and duties remain fully opera-
tive without the offending tenure restriction. Those provi-
sions are capable of functioning independently, and there is
nothing in the text or history of the Dodd-Frank Act that
demonstrates Congress would have preferred no CFPB to a
CFPB supervised by the President. Quite the opposite. Un-
like the Sarbanes-Oxley Act at issue in Free Enterprise
Fund, the Dodd-Frank Act contains an express severability
clause. There is no need to wonder what Congress would
have wanted if “any provision of this Act” is “held to be un-
constitutional” because it has told us: “the remainder of this
Act” should “not be affected.” 12 U. S. C. §5302.
Petitioner urges us to disregard this plain language for
three reasons. None is persuasive. First, petitioner dis-
misses the clause as non-probative “boilerplate” because it
applies “to the entire, 848-page Dodd-Frank Act” and “ap-
pears almost 600 pages before the removal provision at is-
sue.” Brief for Petitioner 45. In petitioner’s view, that
means we cannot be certain that Congress really meant to
apply the clause to each of the Act’s provisions. But boiler-
plate is boilerplate for a reason—because it offers tried-and-
true language to ensure a precise and predictable result.
34 SEILA LAW LLC v. CONSUMER FINANCIAL
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ROBERTS , C. J.
That is the case here. The language unmistakably refer-
ences “any provision of this Act.” 12 U. S. C. §5302 (empha-
sis added). And it appears in a logical and prominent place,
immediately following the Act’s title and definitions sec-
tions, reinforcing the conclusion that it applies to the en-
tirety of the Act. Congress was not required to laboriously
insert duplicative severability clauses, provision by provi-
sion, to accomplish its stated objective.
Second, petitioner points to an additional severability
clause in the Act that applies only to one of the Act’s subti-
tles. See 15 U. S. C. §8232. In petitioner’s view, that clause
would be superfluous if Congress meant the general sever-
ability clause to apply across the Act. But “our preference
for avoiding surplusage constructions is not absolute.”
Lamie v. United States Trustee, 540 U. S. 526, 536 (2004).
In this instance, the redundant language appears to reflect
the fact that the subtitle to which it refers originated as a
standalone bill that was later incorporated into Dodd-
Frank. Compare 15 U. S. C. §8232 with H. R. 2571, 111th
Cong., 1st Sess., §302 (2009). And petitioner does not offer
any construction that would give effect to both provisions,
making the redundancy both inescapable and unilluminat-
ing. See Microsoft Corp. v. i4i L. P., 564 U. S. 91, 106 (2011)
(“The canon against superfluity assists only where a com-
peting interpretation gives effect to every clause and word
of a statute.” (internal quotation marks omitted)).
Finally, petitioner argues more broadly that Congress
would not have wanted to give the President unbridled con-
trol over the CFPB’s vast authority. Petitioner highlights
the references to the CFPB’s independence in the statutory
text and legislative history, as well as in Professor Warren’s
and the Obama administration’s original proposals. See
Brief for Petitioner 43–44 (collecting examples). And peti-
tioner submits that Congress might not have exempted the
CFPB from congressional oversight via the appropriations
process if it had known that the CFPB would come under
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ROBERTS , C. J.
executive control.
These observations certainly confirm that Congress pre-
ferred an independent CFPB to a dependent one; but they
shed little light on the critical question whether Congress
would have preferred a dependent CFPB to no agency at all.
That is the only question we have the authority to decide,
and the answer seems clear. Petitioner assumes that, if we
eliminate the CFPB, regulatory and enforcement authority
over the statutes it administers would simply revert back
to the handful of independent agencies previously responsi-
ble for them. See id., at 46. But, as the Solicitor General
and House of Representatives explain, that shift would trig-
ger a major regulatory disruption and would leave appre-
ciable damage to Congress’s work in the consumer-finance
arena. See Reply Brief for Respondent 21–22; Tr. of Oral
Arg. 67–68. One of the agencies whose regulatory authority
was transferred to the CFPB no longer exists. See 12
U. S. C. §§5412–5413 (Office of Thrift Supervision). The
others do not have the staff or appropriations to absorb the
CFPB’s 1,500-employee, 500-million-dollar operations.
And none has the authority to administer the Dodd-Frank
Act’s new prohibition on unfair and deceptive practices in
the consumer-finance sector. Given these consequences, it
is far from evident that Congress would have preferred no
CFPB to a CFPB led by a Director removable at will by the
President.
JUSTICE THOMAS would have us junk our settled severa-
bility doctrine and start afresh, even though no party has
asked us to do so. See post, at 15–16, 21–24 (opinion con-
curring in part and dissenting in part). Among other
things, he objects that it is sheer “speculation” that Con-
gress would prefer that its consumer protection laws be en-
forced by a Director accountable to the President rather
than not at all. Post, at 23–24. We think it clear that Con-
gress would prefer that we use a scalpel rather than a bull-
dozer in curing the constitutional defect we identify today.
36 SEILA LAW LLC v. CONSUMER FINANCIAL
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ROBERTS , C. J.
And such an approach by this Court can come as no surprise
to Congress, which was on notice of constitutional objec-
tions to single-Director agencies by multiple past Presi-
dents from both political parties, supra, at 19–20, and en-
acted Dodd-Frank against the background of our
established severability doctrine.
As in every severability case, there may be means of rem-
edying the defect in the CFPB’s structure that the Court
lacks the authority to provide. Our severability analysis
does not foreclose Congress from pursuing alternative re-
sponses to the problem—for example, converting the CFPB
into a multimember agency. The Court’s only instrument,
however, is a blunt one. We have “the negative power to
disregard an unconstitutional enactment,” Massachusetts
v. Mellon, 262 U. S. 447, 488 (1923); see Marbury v. Madi-
son, 1 Cranch 137, 178 (1803), but we cannot re-write Con-
gress’s work by creating offices, terms, and the like. “[S]uch
editorial freedom . . . belongs to the Legislature, not the Ju-
diciary.” Free Enterprise Fund, 561 U. S., at 510.
Because we find the Director’s removal protection sever-
able from the other provisions of Dodd-Frank that establish
the CFPB, we remand for the Court of Appeals to consider
whether the civil investigative demand was validly ratified.
* * *
A decade ago, we declined to extend Congress’s authority
to limit the President’s removal power to a new situation,
never before confronted by the Court. We do the same to-
day. In our constitutional system, the executive power be-
longs to the President, and that power generally includes
the ability to supervise and remove the agents who wield
executive power in his stead. While we have previously up-
held limits on the President’s removal authority in certain
contexts, we decline to do so when it comes to principal of-
ficers who, acting alone, wield significant executive power.
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The Constitution requires that such officials remain depend-
ent on the President, who in turn is accountable to the people.
The judgment of the United States Court of Appeals for
the Ninth Circuit is vacated, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Cite as: 591 U. S. ____ (2020) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–7
_________________
SEILA LAW LLC, PETITIONER v. CONSUMER
FINANCIAL PROTECTION BUREAU
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 29, 2020]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
concurring in part and dissenting in part.
The Court’s decision today takes a restrained approach
on the merits by limiting Humphrey’s Executor v. United
States, 295 U. S. 602 (1935), rather than overruling it. At
the same time, the Court takes an aggressive approach on
severability by severing a provision when it is not necessary
to do so. I would do the opposite.
Because the Court takes a step in the right direction by
limiting Humphrey’s Executor to “multimember expert
agencies that do not wield substantial executive power,”
ante, at 16 (emphasis added), I join Parts I, II, and III of its
opinion. I respectfully dissent from the Court’s severability
analysis, however, because I do not believe that we should
address severability in this case.
I
The decision in Humphrey’s Executor poses a direct
threat to our constitutional structure and, as a result, the
liberty of the American people. The Court concludes that it
is not strictly necessary for us to overrule that decision. See
ante, at 2, 13–17. But with today’s decision, the Court has
repudiated almost every aspect of Humphrey’s Executor. In
a future case, I would repudiate what is left of this errone-
ous precedent.
2 SEILA LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
Opinion of THOMAS, J.
A
“The Constitution does not vest the Federal Government
with an undifferentiated ‘governmental power.’ ” Depart-
ment of Transportation v. Association of American Rail-
roads, 575 U. S. 43, 67 (2015) (THOMAS, J., concurring in
judgment). It sets out three branches and vests a different
form of power in each—legislative, executive, and judicial.
See Art. I, §1; Art. II, §1, cl. 1; Art. III, §1.
Article II of the Constitution vests “[t]he executive
Power” in the “President of the United States of America,”
§1, cl. 1, and directs that he shall “take Care that the Laws
be faithfully executed,” §3. Of course, the President cannot
fulfill his role of executing the laws without assistance. See
Myers v. United States, 272 U. S. 52, 117 (1926). He there-
fore must “select those who [are] to act for him under his
direction in the execution of the laws.” Ibid. While these
officers assist the President in carrying out his constitution-
ally assigned duties, “[t]he buck stops with the President.”
Free Enterprise Fund v. Public Company Accounting Over-
sight Bd., 561 U. S. 477, 493 (2010). “Since 1789, the Con-
stitution has been understood to empower the President to
keep [his] officers accountable—by removing them from of-
fice, if necessary.” Id., at 483. The Framers “insist[ed]”
upon “unity in the Federal Executive” to “ensure both vigor
and accountability” to the people. Printz v. United States,
521 U. S. 898, 922 (1997); see also ante, at 22.
Despite the defined structural limitations of the Consti-
tution and the clear vesting of executive power in the Pres-
ident, Congress has increasingly shifted executive power to
a de facto fourth branch of Government—independent
agencies. These agencies wield considerable executive
power without Presidential oversight. They are led by of-
ficers who are insulated from the President by removal re-
strictions, “reduc[ing] the Chief Magistrate to [the role of]
cajoler-in-chief.” Free Enterprise Fund, 561 U. S., at 502.
But “[t]he people do not vote for the Officers of the United
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States. They instead look to the President to guide the as-
sistants or deputies subject to his superintendence.” Id., at
497–498 (alterations, internal quotation marks and citation
omitted). Because independent agencies wield substantial
power with no accountability to either the President or the
people, they “pose a significant threat to individual liberty
and to the constitutional system of separation of powers
and checks and balances.” PHH Corp. v. CFPB, 881 F. 3d
75, 165 (CADC 2018) (Kavanaugh, J., dissenting).
Unfortunately, this Court “ha[s] not always been vigilant
about protecting the structure of our Constitution,” at times
endorsing a “more pragmatic, flexible approach” to our Gov-
ernment’s design. Perez v. Mortgage Bankers Assn., 575
U. S. 92, 115–116 (2015) (THOMAS, J., concurring in judg-
ment) (internal quotation marks omitted). Our tolerance of
independent agencies in Humphrey’s Executor is an unfor-
tunate example of the Court’s failure to apply the Constitu-
tion as written. That decision has paved the way for an
ever-expanding encroachment on the power of the Execu-
tive, contrary to our constitutional design.
B
1
The lead up to Humphrey’s Executor begins with this
Court’s decision in Myers, 272 U. S. 52. Myers involved a
federal statute that prohibited the President from removing
certain postmasters except “by and with the advice and con-
sent of the Senate.” Id., at 107 (internal quotation marks
omitted). The question presented was “whether under the
Constitution the President has the exclusive power of re-
moving executive officers of the United States whom he has
appointed by and with the advice and consent of the Sen-
ate.” Id., at 106. In a 70-page opinion by Chief Justice Taft,
the Court held that the Constitution did vest such power in
the President.
The Court anchored its analysis in evidence from the
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founding era. It acknowledged that the “subject [of re-
moval] was not discussed in the Constitutional Conven-
tion,” id., at 109–110, but it reviewed in detail the First
Congress’ vigorous debate about the removal of executive
officers in what is known as the Decision of 1789, id., at
111–135.1 In the course of analyzing the Decision of
1789, the Court explained that Article II vests “the execu-
tive power of the Government . . . in one person”—the
President—and that the executive power includes the au-
thority to “select those who [are] to act for him under his
direction in the execution of the laws.” Id., at 116–117. Re-
iterating the position of James Madison and other Members
of the First Congress, the Court noted that allowing limits
on the President’s removal authority would grant Congress
“the means of thwarting the Executive in the exercise of his
great powers and in the bearing of his great responsibility,
by fastening upon him, as subordinate executive officers,
men who by their inefficient service under him, by their
lack of loyalty to the service, or by their different views of
policy might make his taking care that the laws be faith-
fully executed most difficult or impossible.” Id., at 131. Af-
ter “devot[ing] much space to [the] discussion and decision
of the question of the Presidential power of removal in the
First Congress” as well as its understanding of the execu-
tive power, id., at 136, the Court concluded that “the power
to remove officers appointed by the President and the Sen-
ate vested in the President alone,” id., at 114. It repeatedly
described this removal power as “unrestricted.” Id., at 115,
134, 150, 172, 176.
The Court noted that the First Congress’ understanding
of the removal question was quickly “accepted as a final de-
cision of the question by all branches of the Government.”
——————
1 For a comprehensive review of the Decision of 1789, see Prakash, New
Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006).
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Opinion of THOMAS, J.
Id., at 136. The decision was “affirmed by this Court in un-
mistakable terms.” Id., at 148, 152–153 (discussing Ex
parte Hennen, 13 Pet. 230, 259 (1839); Parsons v. United
States, 167 U. S. 324, 330 (1897)). Presidents had “uni-
form[ly]” adopted the First Congress’ view “whenever an is-
sue ha[d] clearly been raised.” Myers, 272 U. S., at 169.
And “Congress, in a number of acts, followed and enforced
the legislative decision of 1789 for seventy-four years.” Id.,
at 145. While disputes with President Andrew Johnson
over Reconstruction led Congress to “enact legislation to
curtail the then acknowledged powers of the President,” id.,
at 165, the Myers Court declined to give these politically
charged acts any weight, id., at 175–176.
After exhaustively analyzing the historical evidence, the
Court had “no hesitation in holding that [the First Con-
gress’] conclusion [was] correct.” Id., at 176. Accordingly,
the Court held that “the provision of the law [at issue], by
which the unrestricted power of removal of first class post-
masters is denied to the President, [was] in violation of the
Constitution, and invalid.” Ibid.2
Nine years after Myers, the Court decided Humphrey’s
Executor. That case arose from the attempted removal of
Commissioner William Humphrey from the Federal Trade
Commission (FTC). In 1931, President Herbert Hoover ap-
pointed Humphrey to serve a 7-year term as one of the
FTC’s five Commissioners. By all accounts, Humphrey
proved to be a controversial figure. See Crane, Debunking
Humphrey’s Executor, 83 Geo. Wash. L. Rev. 1836, 1841
(2015); Winerman, The FTC at Ninety: History Through
Headlines, 72 Antitrust L. J. 871, 878–879 (2005); Yoo,
Calabresi, & Nee, The Unitary Executive During the Third
Half-Century, 1889–1945, 80 Notre Dame L. Rev. 1, 64
(2004). He reportedly “vowed not to approve any Commis-
sion action that did not have as its goal to help business
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help itself,” “threaten[ed] criminal prosecution against
other commissioners who publicly dissented,” and “called
his fellow commissioners men drunk with their own great-
ness” when they voted to initiate an investigation. Crane,
supra, at 1841 (internal quotation marks omitted).
Less than two years into Humphrey’s term, newly inau-
gurated President Franklin D. Roosevelt wrote Humphrey
a letter, asking for his resignation. The President ex-
plained that, in his view, “the aims and purposes of the Ad-
ministration with respect to the work of the Commission
[could] be carried out most effectively with personnel of
[his] own selection.” Humphrey’s Executor, 295 U. S., at 618(internal quotation marks omitted). A little over a month
after his first letter, President Roosevelt wrote Humphrey
again to ask for his resignation. The letter stated: “You will,
I know, realize that I do not feel that your mind and my
mind go along together on either the policies or the admin-
istering of the [FTC], and, frankly, I think it is best for the
people of this country that I should have a full confidence.”
Id., at 619 (internal quotation marks omitted). Humphrey
declined to resign. In October 1933, President Roosevelt in-
formed Humphrey that he was removed from his position.
Humphrey did not comply, continuing “to insist that he was
still a member of the commission, entitled to perform its
duties and receive the compensation provided by law.” Ibid.Four months later, Humphrey died. The executor of his
estate brought suit in the Court of Claims, seeking to re-
cover Humphrey’s salary from the date of his removal until
the date of his death. The Court of Claims certified two
questions to this Court: (1) whether §1 of the Federal Trade
Commission Act of 1914, ch. 311, 38 Stat. 717, prohibited
the President from removing FTC Commissioners except
for “inefficiency, neglect of duty, or malfeasance in office,”
and (2) if so, whether that restriction was constitutional.
295 U. S., at 619 (internal quotation marks omitted).
The Court answered both of these questions in favor of
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Humphrey’s estate. It first held that the FTC Act “limit[ed]
the executive power of removal to the causes enumerated”
therein—inefficiency, neglect of duty, or malfeasance in of-
fice. Id., at 626. In the Court’s view, this construction of
the Act was clear from “the face of the statute” and “the
character of the commission,” id., at 624, which the Court
described as a “body of experts” that operates “independent
of executive authority . . . and free to exercise its judgment
without the leave or hindrance of any other official,” id., at
625–626.
Then, notwithstanding the text of Article II of the Consti-
tution and the decision in Myers, the Court held that the
Act’s restriction on the President’s authority to remove
Commissioners was constitutional. The Court acknowl-
edged that the “recently decided” Myers decision had “fully
review[ed] the general subject of the power of executive re-
moval” and “examine[d] at length the historical, legislative
and judicial data bearing upon the question.” Humphrey’s
Executor, 295 U. S., at 626. And it conceded that executive
officers are “subject to the exclusive and illimitable power
of removal by the Chief Executive.” Id., at 627; see also id.,
at 631 (recognizing “the President’s illimitable power of re-
moval” over executive officers).2 The Court, however,
claimed that “[t]he office of a postmaster is so essentially
unlike the office [of an FTC Commissioner] that the deci-
sion in the Myers case [could not] be accepted as control-
——————
2 The explicit and repeated recognition of the President’s “illimitable
power” in Humphrey’s Executor highlights the dissent’s error in claiming
that Humphrey’s Executor “abandoned [the] view” set out in Myers v.
United States, 272 U. S. 52 (1926). Post, at 17 (KAGAN, J., concurring in
judgment with respect to severability and dissenting in part) (hereinaf-
ter dissent). Humphrey’s Executor did not abandon Myers; it distin-
guished Myers based on the flawed premise that the FTC exercised
“quasi-legislative” and “quasi-judicial” power that is not part of “the ex-
ecutive power vested by the Constitution in the President.” Humphrey’s
Executor, 295 U. S., at 628; see also infra, at 9–11.
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ling.” Id., at 627. In the Court’s view, unlike the postmas-
ter in Myers, FTC commissioners did not qualify as “purely
executive officers.” 295 U. S., at 632.
The Court grounded its analysis in its assertion that the
FTC “occupies no place in the executive department and . . .
exercises no part of the executive power vested by the Con-
stitution in the President.” Id., at 628. Rather, in the
Court’s view, by “filling in and administering the details
embodied by [the FTC Act’s] general standard[,] the com-
mission act[ed] in part quasi-legislatively and in part quasi-
judicially.” Ibid. The Court stated that the FTC acted “as
a legislative agency” by “making investigations and reports
thereon for the information of Congress” and acted “as an
agency of the judiciary” when performing its role “as a mas-
ter in chancery under rules prescribed by the court.” Ibid.“Such a body,” the Court explained, “cannot in any proper
sense be characterized as an arm or an eye of the executive.”
Ibid.After distinguishing “purely executive officers” from offic-
ers exercising “quasi-legislative or quasi-judicial powers,”
ibid., the Court held that “[w]hether the power of the Pres-
ident to remove an officer shall prevail over the authority
of Congress to condition the power by . . . precluding a re-
moval except for cause, will depend upon the character of
the office,” id., at 631. “[P]urely executive officers” are sub-
ject to the President’s “unrestrictable power . . . to remove.”
Id., at 632. But with regard to “quasi-legislative” and
“quasi-judicial” officers, the Court concluded that “no re-
moval [could] be made . . . except for one or more of the
causes named.” Ibid.3
Humphrey’s Executor laid the foundation for a fundamen-
tal departure from our constitutional structure with noth-
ing more than handwaving and obfuscating phrases such as
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“quasi-legislative” and “quasi-judicial.” Unlike the thor-
ough analysis in Myers, the Court’s thinly reasoned decision
is completely “devoid of textual or historical precedent for
the novel principle it set forth.” Morrison v. Olson, 487
U. S. 654, 726 (1988) (Scalia, J., dissenting). The excep-
tional weakness of the reasoning could be a product of the
circumstances under which the case was decided—in the
midst of a bitter standoff between the Court and President
Roosevelt3—or it could be just another example of this
Court departing from the strictures of the Constitution for
a “more pragmatic, flexible approach” to our government’s
design. Perez, 575 U. S., at 116 (opinion of THOMAS, J.) (in-
ternal quotation marks omitted). But whatever the moti-
vation, Humphrey’s Executor does not comport with the
Constitution.
Humphrey’s Executor relies on one key premise: the no-
tion that there is a category of “quasi-legislative” and
“quasi-judicial” power that is not exercised by Congress or
the Judiciary, but that is also not part of “the executive
power vested by the Constitution in the President.”
Humphrey’s Executor, supra, at 628. Working from that
premise, the Court distinguished the “illimitable” power of
removal recognized in Myers, Humphrey’s Executor, 295
——————
3 A number of historical sources indicate that President Roosevelt saw
Humphrey’s Executor v. United States, 295 U. S. 602 (1935), as an attack
on his administration. Given the Court’s recent decision in Myers, the
Roosevelt administration was reportedly “stunned” by the Court’s deci-
sion in Humphrey’s Executor, and the President was particularly an-
noyed that the decision “ma[de] it appear that he had been willfully vio-
lating the Constitution.” See W. Leuchtenberg, The Supreme Court
Reborn 78 (1995). Justice Jackson, who was serving in the Roosevelt
administration at the time, stated in an interview that “ ‘the decision that
made Roosevelt madder at the Court than any other decision was that
. . . little case of Humphrey’s Executor v. United States. The President
thought they went out of their way to spite him personally.’ ” E. Gerhart,
America’s Advocate: Robert H. Jackson 99 (1958) (quoting 1949 inter-
view with Justice Jackson).
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U. S., at 627–628, and upheld the FTC Act’s removal re-
striction, while simultaneously acknowledging that the
Constitution vests the President with the entirety of the ex-
ecutive power, id., at 628.
The problem is that the Court’s premise was entirely
wrong. The Constitution does not permit the creation of of-
ficers exercising “quasi-legislative” and “quasi-judicial pow-
ers” in “quasi-legislative” and “quasi-judicial agencies.” Id.,at 628–629. No such powers or agencies exist. Congress
lacks the authority to delegate its legislative power, Whit-
man v. American Trucking Assns., Inc., 531 U. S. 457, 472
(2001), and it cannot authorize the use of judicial power by
officers acting outside of the bounds of Article III, Stern v.
Marshall, 564 U. S. 462, 484 (2011). Nor can Congress cre-
ate agencies that straddle multiple branches of Govern-
ment. The Constitution sets out three branches of Govern-
ment and provides each with a different form of power—
legislative, executive, and judicial. See Art. I, §1; Art. II,
§1, cl. 1; Art. III, §1. Free-floating agencies simply do not
comport with this constitutional structure. “[A]gencies
have been called quasi-legislative, quasi-executive or quasi-
judicial, as the occasion required, in order to validate their
functions within the separation-of-powers scheme of the
Constitution.” FTC v. Ruberoid Co., 343 U. S. 470, 487
(1952) (Jackson, J., dissenting). But “[t]he mere retreat to
the qualifying ‘quasi’ is implicit with confession that all rec-
ognized classifications have broken down, and ‘quasi’ is a
smooth cover which we draw over our confusion as we might
use a counterpane to conceal a disordered bed.” Id., at 487–
488.
That is exactly what happened in Humphrey’s Executor.
The Court upheld the FTC Act’s removal restriction by us-
ing the “quasi” label to support its claim that the FTC “ex-
ercise[d] no part of the executive power vested by the Con-
stitution in the President.” Humphrey’s Executor, supra, at
628. But “it is hard to dispute that the powers of the FTC
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at the time of Humphrey’s Executor would at the present
time be considered ‘executive,’ at least to some degree.”
Morrison, supra, at 690, n. 28; see ante, at 14, n. 2; see post,
at 18, n. 7 (KAGAN, J., concurring in judgment with respect
to severability and dissenting in part).
C
Today’s decision constitutes the latest in a series of cases
that have significantly undermined Humphrey’s Executor.
First, in Morrison, the Court repudiated the reasoning of
the decision. 487 U. S., at 689. Then, in Free Enterprise
Fund, we returned to the principles set out in the “land-
mark case of Myers.” 561 U. S., at 492. And today, the
Court rightfully limits Humphrey’s Executor to “multimem-
ber expert agencies that do not wield substantial executive
power.” Ante, at 16. After these decisions, the foundation
for Humphrey’s Executor is not just shaky. It is nonexist-
ent.
This Court’s repudiation of Humphrey’s Executor began
with its decision in Morrison. There, the Court upheld a
statute insulating an independent counsel from removal by
the Attorney General absent a showing of “good cause.”
Morrison, supra, at 659–660. In doing so, the Court set
aside the reasoning of Humphrey’s Executor. It recognized
that Humphrey’s Executor “rel[ied] on the terms ‘quasi-
legislative’ and ‘quasi-judicial’ to distinguish the officials
involved in Humphrey’s Executor . . . from those in Myers.”
487 U. S., at 689. But it then immediately stated that its
“present considered 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.’ ” Ibid. The Court
also rejected Humphrey’s Executor’s conclusion that the
FTC did not exercise executive power, stating that “the
powers of the FTC at the time of Humphrey’s Executor
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would at the present time be considered ‘executive.’ ” Mor-
rison, supra, at 690, n. 28. The lone dissenter, Justice
Scalia, disagreed with much of the Court’s analysis but
noted that the Court had rightfully “swept” Humphrey’s Ex-
ecutor “into the dustbin of repudiated constitutional princi-
ples.” 487 U. S., at 725. Thus, all nine Members of the
Court in Morrison rejected the core rationale of Humphrey’s
Executor.
The reasoning of the Court’s decision in Free Enterprise
Fund created further tension (if not outright conflict) with
Humphrey’s Executor. In Free Enterprise Fund, the Court
concluded that a dual layer of for-cause removal restrictions
for members of the Public Company Accounting Oversight
Board violated the Constitution. In its analysis, the Court
recognized that allowing officers to “execute the laws”
beyond the President’s control “is contrary to Article II’s
vesting of the executive power in the President.” 561 U. S.,
at 496 (emphasis added). The Court acknowledged that
“the executive power include[s] a power to oversee executive
officers through removal.” Id., at 492. And it explained
that, without the power of removal, the President cannot
“be held fully accountable” for the exercise of the executive
power, “ ‘greatly diminish[ing] the intended and necessary
responsibility of the chief magistrate himself.’ ” Id., at 514(quoting The Federalist No. 70, p. 478 (J. Cooke ed. 1961)
(A. Hamilton)). Accountability, the Court repeatedly em-
phasized, plays a central role in our constitutional struc-
ture. See, e.g., Free Enterprise Fund, 561 U. S., at 498(“[E]xecutive power without the Executive’s oversight . . .
subverts the President’s ability to ensure that the laws are
faithfully executed—as well as the public’s ability to pass
judgment on his efforts”); id., at 513 (“The Constitution that
makes the President accountable to the people for executing
the laws also gives him the power to do so”). Humphrey’s
Executor is at odds with every single one of these principles:
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It ignores Article II’s Vesting Clause, sidesteps the Presi-
dent’s removal power, and encourages the exercise of exec-
utive power by unaccountable officers. The reasoning of the
two decisions simply cannot be reconciled.
Finally, today’s decision builds upon Morrison and Free
Enterprise Fund, further eroding the foundation of Humph-
rey’s Executor. The Court correctly notes that “[t]he entire
‘executive Power’ belongs to the President alone.” Ante, at
11. The President therefore must have “power to remove—
and thus supervise—those who wield executive power on
his behalf.” Ante, at 2. As a result, the Court concludes
that Humphrey’s Executor must be limited to “multimem-
ber expert agencies that do not wield substantial executive
power.” Ante, at 16 (emphasis added). And, at the same
time, it recognizes (as the Court did in Morrison) that “[t]he
Court’s conclusion that the FTC did not exercise executive
power has not withstood the test of time.” Ante, at 14, n. 2.
In other words, Humphrey’s Executor does not even satisfy
its own exception.
In light of these decisions, it is not clear what is left of
Humphrey’s Executor’s rationale.4 But if any remnant of
that decision is still standing, it certainly is not enough to
justify the numerous, unaccountable independent agencies
——————
4 The dissent, while vigorously defending the holding of Humphrey's
Executor, can muster no defense for the reasoning of the decision. The
dissent does not defend the notion of “quasi” powers or “quasi” agencies,
recognizing that the power exercised by the FTC was executive power.
See post, at 18, n. 7. And, in 39 pages, it cannot explain how any aspect
of Humphrey’s Executor (other than its holding) survived Morrison v. Ol-
son, 487 U. S. 654 (1988), and Free Enterprise Fund v. Public Company
Accounting Oversight Bd., 561 U. S. 477 (2010). Instead, the dissent
simply claims that Humphrey’s Executor was “extended” and “clarified”
in Morrison, post, at 19, attempting to breathe validity into Humphrey’s
Executor through the Court’s Morrison decision. But the dissent’s read-
ing of Morrison as “extend[ing] Humphrey’s domain” is baffling. Post, at
19. Morrison expressly repudiated the substantive reasoning of Humph-
rey’s Executor. See supra, at 11–12.
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that currently exercise vast executive power outside the
bounds of our constitutional structure.
* * *
Continued reliance on Humphrey’s Executor to justify the
existence of independent agencies creates a serious, ongo-
ing threat to our Government’s design. Leaving these un-
constitutional agencies in place does not enhance this
Court’s legitimacy; it subverts political accountability and
threatens individual liberty. We have a “responsibility to
‘examin[e] without fear, and revis[e] without reluctance,’
any ‘hasty and crude decisions’ rather than leaving ‘the
character of [the] law impaired, and the beauty and har-
mony of the [American constitutional] system destroyed by
the perpetuity of error.’ ” Gamble v. United States, 587 U. S.
___, ___ (2019) (THOMAS, J., concurring) (slip op., at 7)
(quoting 1 J. Kent, Commentaries on American Law 444
(1826); some alterations in original). We simply cannot
compromise when it comes to our Government’s structure.
Today, the Court does enough to resolve this case, but in
the future, we should reconsider Humphrey’s Executor
in toto. And I hope that we will have the will to do so.
II
While I think that the Court correctly resolves the merits
of the constitutional question, I do not agree with its deci-
sion to sever the removal restriction in 12 U. S. C.
§5491(c)(3). See ante, at 30–36; post, at 37. To resolve this
case, I would simply deny the Consumer Financial Protec-
tion Bureau (CFPB) petition to enforce the civil investiga-
tive demand.
A
Article III of the Constitution vests “[t]he judicial Power
of the United States” in the “supreme Court” and the lower
federal courts established by Congress. §1. “[T]he judicial
power is, fundamentally, the power to render judgments in
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individual cases” or controversies that are properly before
the court. Murphy v. National Collegiate Athletic Assn., 584
U. S. ___, ___–___ (2018) (THOMAS, J., concurring) (slip op.,
at 2–3); see also Plaut v. Spendthrift Farm, Inc., 514 U. S.
211, 219 (1995) (“ ‘[A] “judicial Power” is one to render dis-
positive judgments’ ”); Baude, The Judgment Power, 96
Geo. L. J. 1807, 1815–1816 (2008). “[T]he power exercised
is that of ascertaining and declaring the law applicable to
the controversy.” Massachusetts v. Mellon, 262 U. S. 447,
488 (1923). In the context of a constitutional challenge, “[i]t
amounts to little more than the negative power to disregard
an unconstitutional enactment.” Ibid.; see also Mitchell,
The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936
(2018). Thus, if a party argues that a statute and the Con-
stitution conflict, “then courts must resolve that dispute
and, . . . follow the higher law of the Constitution.” Murphy,
584 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3).
Consistent with this understanding, “[e]arly American
courts did not have a severability doctrine.” Id., at ___ (slip
op., at 2) (citing Walsh, Partial Unconstitutionality, 85
N. Y. U. L. Rev. 738, 769 (2010)). If a statute was unconsti-
tutional, the court would just decline to enforce the statute
in the case before it. 584 U. S., at ___ (THOMAS, J., concur-
ring) (slip op., at 3). That was the end of the matter.
“[T]here was no ‘next step’ in which [a] cour[t]” severed por-
tions of a statute. Walsh, supra, at 777.
Our modern severability precedents create tension with
this historic practice. Instead of declining to enforce an un-
constitutional statute in an individual case, this Court has
stated that courts must “seve[r] and excis[e]” portions of a
statute to “remedy” the constitutional problem. United
States v. Booker, 543 U. S. 220, 245 (2005); Alaska Airlines,
Inc. v. Brock, 480 U. S. 678, 686 (1987). The Court’s rheto-
ric when discussing severance implies that a court’s deci-
sion to sever a provision “formally suspend[s] or erase[s it],
when [the provision] actually remains on the books as a
16 SEILA LAW LLC v. CONSUMER FINANCIAL
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Opinion of THOMAS, J.
law.” Mitchell, supra, at 1017. The Federal Judiciary does
not have the power to excise, erase, alter, or otherwise
strike down a statute. Murphy, supra, at ___ (THOMAS, J.,
concurring) (slip op., at 4); Mitchell, supra, at 936. And the
Court’s reference to severability as a “remedy” is inaccu-
rate. Traditional remedies—like injunctions, declarations,
or damages—“ ‘operate with respect to specific parties,’ not
‘on legal rules in the abstract.’ ” Murphy, supra, at ___
(THOMAS, J., concurring) (slip op., at 3) (quoting Harrison,
Severability, Remedies, and Constitutional Adjudication,
83 Geo. Wash. L. Rev. 56, 85 (2014)).
Because the power of judicial review does not allow courts
to revise statutes, Mitchell, supra, at 983, the Court’s sev-
erability doctrine must be rooted in statutory interpreta-
tion. But, even viewing severability as an interpretive
question, I remain skeptical of our doctrine. As I have pre-
viously explained, “the severability doctrine often requires
courts to weigh in on statutory provisions that no party has
standing to challenge, bringing courts dangerously close to
issuing advisory opinions.” Murphy, 584 U. S., at ___ (con-
curring opinion) (slip op., at 5). And the application of the
doctrine “does not follow basic principles of statutory inter-
pretation.” Id., at ___ (slip op., at 4). Instead of determin-
ing the meaning of a statute’s text, severability involves
“nebulous inquir[ies] into hypothetical congressional in-
tent.” Booker, supra, at 320, n. 7 (THOMAS, J., dissenting in
part).
B
Consistent with the traditional understanding of the ju-
dicial power, I would deny CFPB’s petition to enforce the
civil investigative demand that it issued to Seila. See
§5562(e)(1). Seila “challenge[d] the validity of both the civil
investigative demand and the ensuing enforcement action.”
Reply Brief for Petitioner 5. Seila has not countersued or
sought affirmative relief preventing the CFPB from acting
Cite as: 591 U. S. ____ (2020) 17
Opinion of THOMAS, J.
in the future; it simply asks us to “reverse the court of ap-
peals’ judgment.” Brief for Petitioner 35. I would do just
that. As the Court recognizes, the enforcement of a civil
investigative demand by an official with unconstitutional
removal protection injures Seila. See ante, at 9–10. Pre-
sented with an enforcement request from an unconstitu-
tionally insulated Director, I would simply deny the CFPB’s
petition for an order of enforcement. This approach would
resolve the dispute before us without addressing the issue
of severability.
The Court, however, does more. In the plurality’s view,5
because the CFPB raised a ratification argument before the
Court of Appeals, we can (and should) reach the question of
severability. See ante, at 30–31. But as explained more
fully below, resolving this question is wholly unnecessary.
Regardless of whether the CFPB’s ratification theory is
valid, the Court of Appeals on remand must reach the same
outcome: The CFPB’s civil investigative demand cannot be
enforced against Seila.
The ratification argument presented by the CFPB is quite
simple. Since its creation in 2010, the CFPB has had three
Directors—first Director Richard Cordray, then Acting Di-
rector Mick Mulvaney, and now Director Kathleen Kran-
inger. The CFPB’s first Director, Director Cordray, issued
a civil investigative demand to Seila and initiated the en-
forcement action. The CFPB has conceded that these ac-
tions were unconstitutional. But, in the Ninth Circuit, the
CFPB argued that the investigative demand was ratified by
Acting Director Mulvaney, who it claimed was not insulated
by the removal provision. Brief for Appellee in No. 17–
56324, pp. 13–19. In the CFPB’s view, the President could
——————
5 The dissent provides no analysis of severability, simply stating “if the
agency’s removal provision is unconstitutional, it should be severed.”
Post, at 37.
18 SEILA LAW LLC v. CONSUMER FINANCIAL
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Opinion of THOMAS, J.
remove Acting Director Mulvaney at will because the “re-
moval provision by its terms applies only to ‘the Director,’
not to an Acting Director,” and the Federal Vacancy Reform
Act “does not limit the President’s ability to designate a dif-
ferent person as Acting Director.” Id., at 14. Based on this
ratification theory, the CFPB asked the Ninth Circuit to af-
firm the District Court’s order granting the CFPB’s petition
to enforce its investigative demand.
The CFPB does not ask this Court to address ratification
on the merits, but it does rely on its unresolved ratification
theory to assert that the Court should reach severability.
In doing so, the CFPB relies on the same theory that it pre-
sented to the Ninth Circuit. Thus, the only live ratification
claim is the theory that Acting Director Mulvaney ratified
the civil investigative demand. See ante, at 30–31.6
The resolution of the CFPB’s Acting-Director ratification
theory, however, has no bearing on the outcome of the dis-
pute before us and therefore provides no basis for address-
ing severability. If the Acting Director did not ratify the
investigative demand, then there is obviously no need to ad-
dress severability. And even if he did, the Court still does
not need to address severability because the alleged ratifi-
cation does not cure the constitutional injury—enforcement
of an investigative demand by an unconstitutionally insu-
lated Director. Seila “challenge[d] the validity of both the
civil investigative demand and the ensuing enforcement ac-
tion.” Reply Brief for Petitioner 5 (emphasis added). Acting
Director Mulvaney may (or may not) have properly ratified
——————
6 The Court-appointed amicus suggests that the CFPB’s current Direc-
tor, Director Kraninger, ratified the enforcement proceeding by main-
taining the suit after she stated her belief that the removal provision is
unconstitutional. But the CFPB expressly disclaimed the notion that
Director Kraninger had the power to ratify the civil investigative de-
mand, stating that she “remains statutorily insulated from removal, re-
gardless whether she believes the law is invalid.” Reply Brief for Re-
spondent 7.
Cite as: 591 U. S. ____ (2020) 19
Opinion of THOMAS, J.
the issuance of the investigative demand and the initiation
of the enforcement proceedings. But he certainly could not
ratify the continuance of the enforcement action by his suc-
cessor, Director Kraninger. Id., at 7. Thus, even if the
CFPB’s ratification theory is valid, Seila still has an injury:
It has been (and continues to be) subjected to enforcement
of an investigative demand by Director Kraninger, who “re-
mains statutorily insulated from removal.” Reply Brief for
Respondent 7; see also Free Enterprise Fund, 561 U. S., at
513; ante, at 10. Thus, we should decline to enforce the civil
investigative demand against Seila. See supra, at 14–15.
Ultimately, I cannot see how the resolution of the sever-
ability question affects the dispute before us. And even if
severability could affect this case in some hypothetical
scenario, I would not reach out to resolve the issue given
my growing discomfort with our current severability
precedents.
C
Confident that it can address the question of severability,
the plurality moves on to conduct its analysis. It starts by
pointing to the severability clause in the Dodd-Frank Act.
See ante, at 33. That clause states: “If any provision of this
Act, an amendment made by this Act, or the application of
such provision or amendment to any person or circum-
stance is held to be unconstitutional, the remainder of this
Act, the amendments made by this Act, and the application
of the provisions of such to any person or circumstance shall
not be affected thereby.” §5302. The plurality states that
“[i]f the Director were removable at will by the President,
the constitutional violation would disappear.” Ante, at 32–
33. Then, relying on language in the severability clause, it
concludes that the removal provision, §5491(c)(3), should be
severed.
The plurality suggests that its analysis is a matter of
simply enforcing the “plain language” of the severability
20 SEILA LAW LLC v. CONSUMER FINANCIAL
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Opinion of THOMAS, J.
clause. See ante, at 33. But I am not sure it is that simple.
For one, the plurality does not actually analyze the statu-
tory language.7 Second, the analysis the plurality does pro-
vide looks nothing like traditional statutory interpretation.
Generally, when we interpret a statute, we do not hold that
the text sets out a “presum[ption]” that can be rebutted by
looking to atextual evidence of legislative intent. Ante, at
32. A text-based interpretation does not allow a free-rang-
ing inquiry into what “ ‘Congress, faced with the limitations
imposed by the Constitution, would have preferred’ ” had it
known of a constitutional issue. Ante, at 33 (quoting Free
Enterprise Fund, supra, at 509). Nor does it consider
whether Congress would have wanted to avoid “a major reg-
ulatory disruption.” Ante, at 35. Statutory interpretation
focuses on the text.
Even treating the question as a matter of pure statutory
interpretation and assuming that the plurality points to the
correct language, the text of the severability clause cannot,
in isolation, justify severance of the removal provision. In
——————
7 The severability clause refers to three alternative scenarios: (1) a
“provision of [the] Act . . . is held to be unconstitutional”; (2) “an amend-
ment made by [the] Act . . . is held unconstitutional”; and (3) “the appli-
cation of [a] provision or amendment [of the Act] to any person or circum-
stance is held to be unconstitutional.” 12 U. S. C. §5302. The plurality
assumes, with no analysis, that this case falls in the first scenario, call-
ing for a provision to be severed from the Dodd-Frank Act. See ante, at
33. But, as discussed below, there is no single “provision” of the Act that
has led to the constitutional injury in this case. See infra, at 20–21. It
is the attempted enforcement of a civil investigative demand under
§5562(e)(1) by an unconstitutionally insulated Director that causes the
constitutional injury in this case. There is at least a nonfrivolous argu-
ment that this case implicates the third scenario contemplated by the
severability clause—i.e., “the application of [a] provision” in a certain
“circumstance.” §5302. If that were so, the text of the severability clause
would not require any “provision” to be severed; the unconstitutional ap-
plication of §5562(e)(1) simply would not affect other provisions of the
Dodd-Frank Act. Such a reading would be consistent with the traditional
limits on the judicial power. See supra, at 14–15.
Cite as: 591 U. S. ____ (2020) 21
Opinion of THOMAS, J.
some instances, a constitutional injury arises as a result of
two or more statutory provisions operating together. See,
e.g., Free Enterprise Fund, supra, at 509 (stating that the
convergence of “a number of statutory provisions” produce
a constitutional violation); Booker, 543 U. S., at 316–317
(opinion of THOMAS, J.) (explaining that “the concerted ac-
tion of [18 U. S. C.] §3553(b)(1) and the operative Guide-
lines and the relevant Rule of Criminal Procedure resulted
in unconstitutional judicial factfinding”); Lea, Situation
Severability, 103 Va. L. Rev. 735, 778–780 (2017) (discuss-
ing statutory convergences). That is precisely the situation
we have in this case. As in Free Enterprise Fund, the pro-
vision requiring “good-cause removal is only one of [the]
statutory provisions that, working together, produce a con-
stitutional violation.” 561 U. S., at 509. The constitutional
violation results from, at a minimum, the combination of
the removal provision, 12 U. S. C. §5491(c)(3), and the pro-
vision allowing the CFPB to seek enforcement of a civil in-
vestigative demand, §5562(e)(1). When confronted with
two provisions that operate together to violate the Consti-
tution, the text of the severability clause provides no guid-
ance as to which provision should be severed. Thus, we
must choose, based on something other than the severabil-
ity clause, which provision to sever.
Without text to guide us, the severability inquiry moves
away from statutory interpretation and falls back on this
Court’s questionable precedents. See Murphy, 584 U. S.,
at ___–___ (THOMAS, J., concurring) (slip op., at 4–6). An
analysis of the Court’s decisions in Booker and Free Enter-
prise Fund illustrates the Court’s approach to determining
which provision to sever when confronting an injury caused
by an unconstitutional convergence of multiple statutory
provisions.
In Booker, a Rule of Criminal Procedure, a subset of pro-
visions in the Sentencing Guidelines, and a statutory pro-
vision operated together to require unconstitutional judicial
22 SEILA LAW LLC v. CONSUMER FINANCIAL
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Opinion of THOMAS, J.
factfinding. To determine which aspect of the sentencing
scheme to sever, the Court sought to divine “what Congress
would have intended in light of the Court’s constitutional
holding.” Booker, 543 U. S., at 246 (internal quotation
marks omitted). The Court “recognize[d] that sometimes
severability questions . . . can arise [in the context of] a leg-
islatively unforeseen constitutional problem.” Id., at 247.
But it nonetheless felt qualified to craft a remedy that
would “move sentencing in Congress’ preferred direction.”
Id., at 264. Surprisingly, that “move” did not involve en-
forcing the constitutional aspects of Congress’ sentencing
scheme. The Court stated that “we cannot assume that
Congress, if faced with the statute’s invalidity in key appli-
cations, would have preferred to apply the statute in as
many other instances as possible.” Id., at 248.8 Despite the
fact that there were a plethora of cases in which mandatory
Sentencing Guidelines would have posed no constitutional
problem, the Court decided to “sever and excise . . . the pro-
vision that requires sentencing courts to impose a sentence
within the applicable Guidelines range,” along with another
provision which was not even at issue in the case. Id., at
259. In essence, the Court crafted a new sentencing
scheme, transforming the Sentencing Guidelines into an
entirely discretionary system based on its estimation that
Congress would have wanted that result.
The Court in Free Enterprise Fund declined to explicitly
engage in Booker’s free-wheeling inquiry into Congress’
hypothetical preferences, but it did not replace that inquiry
with a clear standard. In that case, the Court held that a
——————
8 This statement in Booker is irreconcilable with the plurality’s asser-
tion here that “Congress would prefer that we use a scalpel rather than
a bulldozer in curing the constitutional defect.” Ante, at 35. Thus, it
appears that the plurality either sub silentio “junk[s] our settled severa-
bility doctrine,” ibid., or invokes, without explanation, different assump-
tions for different cases.
Cite as: 591 U. S. ____ (2020) 23
Opinion of THOMAS, J.
“number of statutory provisions . . . , working together, pro-
duce[d] a constitutional violation” similar to the violation at
issue here. Free Enterprise Fund, 561 U. S., at 509. The
Court decided to sever the Board’s removal restriction. It
explicitly recognized that there were multiple ways to ad-
dress the constitutional injury, stating that the Court could,
for example, “blue-pencil a sufficient number of the Board’s
responsibilities,” or “restrict the Board’s enforcement pow-
ers.” Ibid. But it described these alternative options as in-
volving “editorial freedom—far more extensive than [the]
holding today—[that] belongs to the Legislature, not the
Judiciary.” Id., at 510. The Court did not explain, however,
why the option that it chose was not also “editorial freedom”
that belongs to the Legislature or why the alternatives in-
volved “more extensive” “editorial freedom” than its pre-
ferred option. Ibid. The most that the Court provided was
a suggestion that fewer provisions would have to be severed
under its approach. Id., at 509–510.
Today’s plurality opinion provides no further guidance.
In fact, the plurality does not even recognize that it has
made a choice between the provisions that cause the consti-
tutional injury. It merely states that “[i]f the Director were
removable at will by the President, the constitutional viola-
tion would disappear.” Ante, at 32–33. Fair enough. But if
the Director lacked executive authority under the statute to
seek enforcement of a civil investigative demand,
§5562(e)(1), the constitutional violation in this case would
also disappear. The plurality thus chooses which of the pro-
visions to sever.
In short, when multiple provisions of law combine to
cause a constitutional injury, the Court’s current approach
allows the Court to decide which provision to sever. The
text of a severability clause does not guide that choice. Nor
does the practice of early American courts. See supra, at
14–15. The Court is thus left to choose based on nothing
more than speculation as to what the Legislature would
24 SEILA LAW LLC v. CONSUMER FINANCIAL
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Opinion of THOMAS, J.
have preferred. And the result of its choice can have a dra-
matic effect on the governing statutory scheme. See Booker,
supra, at 259 (converting the entirety of the Sentencing
Guidelines from a mandatory to a discretionary system).
This is not a simple matter of following the “plain language”
of a statute. Ante, at 33. It is incumbent on us to take a
close look at our precedents to make sure that we are not
exceeding the scope of the judicial power.
* * *
Given my concerns about our modern severability doc-
trine and the fact that severability makes no difference to
the dispute before us, I would resolve this case by simply
denying the CFPB’s petition to enforce the civil investiga-
tive demand.
Cite as: 591 U. S. ____ (2020) 1
K AGAN, J.,
Opinion of dissenting
KAGAN, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–7
_________________
SEILA LAW LLC, PETITIONER v. CONSUMER
FINANCIAL PROTECTION BUREAU
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 29, 2020]
JUSTICE KAGAN, with whom JUSTICE GINSBURG, JUSTICE
BREYER, and JUSTICE SOTOMAYOR join, concurring in the
judgment with respect to severability and dissenting in
part.
Throughout the Nation’s history, this Court has left most
decisions about how to structure the Executive Branch to
Congress and the President, acting through legislation they
both agree to. In particular, the Court has commonly al-
lowed those two branches to create zones of administrative
independence by limiting the President’s power to remove
agency heads. The Federal Reserve Board. The Federal
Trade Commission (FTC). The National Labor Relations
Board. Statute after statute establishing such entities in-
structs the President that he may not discharge their direc-
tors except for cause—most often phrased as inefficiency,
neglect of duty, or malfeasance in office. Those statutes,
whose language the Court has repeatedly approved, provide
the model for the removal restriction before us today. If
precedent were any guide, that provision would have sur-
vived its encounter with this Court—and so would the in-
tended independence of the Consumer Financial Protection
Bureau (CFPB).
Our Constitution and history demand that result. The
text of the Constitution allows these common for-cause re-
moval limits. Nothing in it speaks of removal. And it
2 SEILA LAW LLC v. CONSUMER FINANCIAL
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K AGAN, J.,
Opinion of dissenting
KAGAN, J.
grants Congress authority to organize all the institutions of
American governance, provided only that those arrange-
ments allow the President to perform his own constitution-
ally assigned duties. Still more, the Framers’ choice to give
the political branches wide discretion over administrative
offices has played out through American history in ways
that have settled the constitutional meaning. From the
first, Congress debated and enacted measures to create
spheres of administration—especially of financial affairs—
detached from direct presidential control. As the years
passed, and governance became ever more complicated,
Congress continued to adopt and adapt such measures—
confident it had latitude to do so under a Constitution
meant to “endure for ages to come.” McCulloch v. Mary-
land, 4 Wheat. 316, 415 (1819) (approving the Second Bank
of the United States). Not every innovation in govern-
ance—not every experiment in administrative independ-
ence—has proved successful. And debates about the pru-
dence of limiting the President’s control over regulatory
agencies, including through his removal power, have never
abated.1 But the Constitution—both as originally drafted
and as practiced—mostly leaves disagreements about ad-
ministrative structure to Congress and the President, who
have the knowledge and experience needed to address
them. Within broad bounds, it keeps the courts—who do
not—out of the picture.
The Court today fails to respect its proper role. It recog-
nizes that this Court has approved limits on the President’s
removal power over heads of agencies much like the CFPB.
Agencies possessing similar powers, agencies charged with
——————
1 In the academic literature, compare, e.g., Kagan, Presidential Admin-
istration, 114 Harv. L. Rev. 2245, 2331–2346 (2001) (generally favoring
presidential control over agencies), with, e.g., Strauss, Overseer, or “The
Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev.
696, 704, 713–715 (2007) (generally favoring administrative independ-
ence).
Cite as: 591 U. S. ____ (2020) 3
K AGAN, J.,
Opinion of dissenting
KAGAN, J.
similar missions, agencies created for similar reasons. The
majority’s explanation is that the heads of those agencies
fall within an “exception”—one for multimember bodies and
another for inferior officers—to a “general rule” of unre-
stricted presidential removal power. Ante, at 13. And the
majority says the CFPB Director does not. That account,
though, is wrong in every respect. The majority’s general
rule does not exist. Its exceptions, likewise, are made up
for the occasion—gerrymandered so the CFPB falls outside
them. And the distinction doing most of the majority’s
work—between multimember bodies and single directors—
does not respond to the constitutional values at stake. If a
removal provision violates the separation of powers, it is be-
cause the measure so deprives the President of control over
an official as to impede his own constitutional functions.
But with or without a for-cause removal provision, the Pres-
ident has at least as much control over an individual as over
a commission—and possibly more. That means the consti-
tutional concern is, if anything, ameliorated when the
agency has a single head. Unwittingly, the majority shows
why courts should stay their hand in these matters. “Com-
pared to Congress and the President, the Judiciary pos-
sesses an inferior understanding of the realities of admin-
istration” and the way “political power[ ] operates.” Free
Enterprise Fund v. Public Company Accounting Oversight
Bd., 561 U. S. 477, 523 (2010) (BREYER, J., dissenting).
In second-guessing the political branches, the majority
second-guesses as well the wisdom of the Framers and the
judgment of history. It writes in rules to the Constitution
that the drafters knew well enough not to put there. It re-
pudiates the lessons of American experience, from the 18th
century to the present day. And it commits the Nation to a
static version of governance, incapable of responding to new
conditions and challenges. Congress and the President es-
tablished the CFPB to address financial practices that had
brought on a devastating recession, and could do so again.
4 SEILA LAW LLC v. CONSUMER FINANCIAL
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K AGAN, J.,
Opinion of dissenting
KAGAN, J.
Today’s decision wipes out a feature of that agency its cre-
ators thought fundamental to its mission—a measure of in-
dependence from political pressure. I respectfully dissent.
I
The text of the Constitution, the history of the country,
the precedents of this Court, and the need for sound and
adaptable governance—all stand against the majority’s
opinion. They point not to the majority’s “general rule” of
“unrestricted removal power” with two grudgingly applied
“exceptions.” Ante, at 13, 16. Rather, they bestow discre-
tion on the legislature to structure administrative institu-
tions as the times demand, so long as the President retains
the ability to carry out his constitutional duties. And most
relevant here, they give Congress wide leeway to limit the
President’s removal power in the interest of enhancing in-
dependence from politics in regulatory bodies like the
CFPB.
A
What does the Constitution say about the separation of
powers—and particularly about the President’s removal
authority? (Spoiler alert: about the latter, nothing at all.)
The majority offers the civics class version of separation
of powers—call it the Schoolhouse Rock definition of the
phrase. See Schoolhouse Rock! Three Ring Government
(Mar. 13, 1979), http://www.youtube.com/watch?v=
pKSGyiT-o3o (“Ring one, Executive. Two is Legislative,
that’s Congress. Ring three, Judiciary”). The Constitu-
tion’s first three articles, the majority recounts, “split the
atom of sovereignty” among Congress, the President, and
the courts. Ante, at 21 (internal quotation marks omitted).
And by that mechanism, the Framers provided a “simple”
fix “to governmental power and its perils.” Ibid.There is nothing wrong with that as a beginning (except
the adjective “simple”). It is of course true that the Framers
Cite as: 591 U. S. ____ (2020) 5
K AGAN, J.,
Opinion of dissenting
KAGAN, J.
lodged three different kinds of power in three different en-
tities. And that they did so for a crucial purpose—because,
as James Madison wrote, “there can be no liberty where the
legislative and executive powers are united in the same per-
son[ ] or body” or where “the power of judging [is] not sepa-
rated from the legislative and executive powers.” The Fed-
eralist No. 47, p. 325 (J. Cooke ed. 1961) (quoting Baron de
Montesquieu).
The problem lies in treating the beginning as an ending
too—in failing to recognize that the separation of powers is,
by design, neither rigid nor complete. Blackstone, whose
work influenced the Framers on this subject as on others,
observed that “every branch” of government “supports and
is supported, regulates and is regulated, by the rest.” 1 W.
Blackstone, Commentaries on the Laws of England 151
(1765). So as James Madison stated, the creation of distinct
branches “did not mean that these departments ought to
have no partial agency in, or no controul over the acts of
each other.” The Federalist No. 47, at 325 (emphasis de-
leted).2 To the contrary, Madison explained, the drafters of
the Constitution—like those of then-existing state constitu-
tions—opted against keeping the branches of government
“absolutely separate and distinct.” Id., at 327. Or as Jus-
tice Story reiterated a half-century later: “[W]hen we speak
of a separation of the three great departments of govern-
ment,” it is “not meant to affirm, that they must be kept
wholly and entirely separate.” 2 J. Story, Commentaries on
the Constitution of the United States §524, p. 8 (1833). In-
stead, the branches have—as they must for the whole ar-
rangement to work—“common link[s] of connexion [and] de-
pendence.” Ibid.
——————
2 The principle of separation of powers, Madison continued, main-
tained only that “where the whole power of one department is exercised
by the same hands which possess the whole power of another depart-
ment, the fundamental principles of a free constitution[ ] are subverted.”
The Federalist No. 47, at 325–326.
6 SEILA LAW LLC v. CONSUMER FINANCIAL
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K AGAN, J.,
Opinion of dissenting
KAGAN, J.
One way the Constitution reflects that vision is by giving
Congress broad authority to establish and organize the Ex-
ecutive Branch. Article II presumes the existence of “Of-
ficer[s]” in “executive Departments.” §2, cl. 1. But it does
not, as you might think from reading the majority opinion,
give the President authority to decide what kinds of offic-
ers—in what departments, with what responsibilities—the
Executive Branch requires. See ante, at 11 (“The entire ‘ex-
ecutive Power’ belongs to the President alone”). Instead,
Article I’s Necessary and Proper Clause puts those deci-
sions in the legislature’s hands. Congress has the power
“[t]o make all Laws which shall be necessary and proper for
carrying into Execution” not just its own enumerated pow-
ers but also “all other Powers vested by this Constitution in
the Government of the United States, or in any Department
or Officer thereof.” §8, cl. 18. Similarly, the Appointments
Clause reflects Congress’s central role in structuring the
Executive Branch. Yes, the President can appoint principal
officers, but only as the legislature “shall . . . establish[] by
Law” (and of course subject to the Senate’s advice and con-
sent). Art. II, §2, cl. 2. And Congress has plenary power to
decide not only what inferior officers will exist but also who
(the President or a head of department) will appoint them.
So as Madison told the first Congress, the legislature gets
to “create[ ] the office, define[ ] the powers, [and] limit[ ] its
duration.” 1 Annals of Cong. 582 (1789). The President, as
to the construction of his own branch of government, can
only try to work his will through the legislative process.3
——————
3 Article II’s Opinions Clause also demonstrates the possibility of limits
on the President’s control over the Executive Branch. Under that Clause,
the President “may require the Opinion, in writing, of the principal Of-
ficer in each of the executive Departments, upon any Subject relating to
the Duties of their respective Offices.” §2, cl. 1. For those in the major-
ity’s camp, that Clause presents a puzzle: If the President must always
have the direct supervisory control they posit, including by threat of re-
moval, why would he ever need a constitutional warrant to demand
agency heads’ opinions? The Clause becomes at least redundant—
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The majority relies for its contrary vision on Article II’s
Vesting Clause, see ante, at 11–12, 25, but the provision
can’t carry all that weight. Or as Chief Justice Rehnquist
wrote of a similar claim in Morrison v. Olson, 487 U. S. 654(1988), “extrapolat[ing]” an unrestricted removal power
from such “general constitutional language”—which says
only that “[t]he executive Power shall be vested in a Presi-
dent”—is “more than the text will bear.” Id., at 690, n. 29.
Dean John Manning has well explained why, even were it
not obvious from the Clause’s “open-ended language.” Sep-
aration of Powers as Ordinary Interpretation, 124 Harv.
L. Rev. 1939, 1971 (2011). The Necessary and Proper
Clause, he writes, makes it impossible to “establish a con-
stitutional violation simply by showing that Congress has
constrained the way ‘[t]he executive Power’ is imple-
mented”; that is exactly what the Clause gives Congress the
power to do. Id., at 1967. Only “a specific historical under-
standing” can bar Congress from enacting a given con-
straint. Id., at 2024. And nothing of that sort broadly pre-
vents Congress from limiting the President’s removal
power. I’ll turn soon to the Decision of 1789 and other evi-
dence of Post-Convention thought. See infra, at 9–13. For
now, note two points about practice before the Constitu-
tion’s drafting. First, in that era, Parliament often re-
stricted the King’s power to remove royal officers—and the
President, needless to say, wasn’t supposed to be a king.
See Birk, Interrogating the Historical Basis for a Unitary
Executive, 73 Stan. L. Rev. (forthcoming 2021). Second,
many States at the time allowed limits on gubernatorial re-
moval power even though their constitutions had similar
vesting clauses. See Shane, The Originalist Myth of the
Unitary Executive, 19 U. Pa. J. Const. L. 323, 334–344
(2016). Historical understandings thus belie the majority’s
——————
though really, inexplicable—under the majority’s idea of executive
power.
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“general rule.”
Nor can the Take Care Clause come to the majority’s res-
cue. That Clause cannot properly serve as a “placeholder
for broad judicial judgments” about presidential control.
Goldsmith & Manning, The Protean Take Care Clause, 164
U. Pa. L. Rev. 1835, 1867 (2016); but see ante, at 11–12, 27–
28, n. 11 (using it that way). To begin with, the provision—
“he shall take Care that the Laws be faithfully executed”—
speaks of duty, not power. Art. II, §3. New scholarship sug-
gests the language came from English and colonial oaths
taken by, and placing fiduciary obligations on, all manner
and rank of executive officers. See Kent, Leib, &
Shugerman, Faithful Execution and Article II, 132 Harv.
L. Rev. 2111, 2121–2178 (2019). To be sure, the imposition
of a duty may imply a grant of power sufficient to carry it
out. But again, the majority’s view of that power ill com-
ports with founding-era practice, in which removal limits
were common. See, e.g., Corwin, Tenure of Office and the
Removal Power Under the Constitution, 27 Colum. L. Rev.
353, 385 (1927) (noting that New York’s Constitution of
1777 had nearly the same clause, though the State’s execu-
tive had “very little voice” in removals). And yet more im-
portant, the text of the Take Care Clause requires only
enough authority to make sure “the laws [are] faithfully ex-
ecuted”—meaning with fidelity to the law itself, not to every
presidential policy preference. As this Court has held, a
President can ensure “ ‘faithful execution’ of the laws”—
thereby satisfying his “take care” obligation—with a re-
moval provision like the one here. Morrison, 487 U. S., at
692. A for-cause standard gives him “ample authority to
assure that [an official] is competently performing [his]
statutory responsibilities in a manner that comports with
the [relevant legislation’s] provisions.” Ibid.Finally, recall the Constitution’s telltale silence: No-
where does the text say anything about the President’s
power to remove subordinate officials at will. The majority
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professes unconcern. After all, it says, “neither is there a
‘separation of powers clause’ or a ‘federalism clause.’ ” Ante,
at 25. But those concepts are carved into the Constitution’s
text—the former in its first three articles separating pow-
ers, the latter in its enumeration of federal powers and its
reservation of all else to the States. And anyway, at-will
removal is hardly such a “foundational doctrine[ ],” ibid.:
You won’t find it on a civics class syllabus. That’s because
removal is a tool—one means among many, even if some-
times an important one, for a President to control executive
officials. See generally Free Enterprise Fund, 561 U. S., at
524 (BREYER, J., dissenting). To find that authority hidden
in the Constitution as a “general rule” is to discover what is
nowhere there.
B
History no better serves the majority’s cause. As Madi-
son wrote, “a regular course of practice” can “liquidate &
settle the meaning of ” disputed or indeterminate constitu-
tional provisions. Letter to Spencer Roane (Sept. 2, 1819),
in 8 Writings of James Madison 450 (G. Hunt ed. 1908); see
NLRB v. Noel Canning, 573 U. S. 513, 525 (2014). The ma-
jority lays claim to that kind of record, asserting that its
muscular view of “[t]he President’s removal power has long
been confirmed by history.” Ante, at 12. But that is not so.
The early history—including the fabled Decision of 1789—
shows mostly debate and division about removal authority.
And when a “settle[ment of] meaning” at last occurred, it
was not on the majority’s terms. Instead, it supports wide
latitude for Congress to create spheres of administrative in-
dependence.
1
Begin with evidence from the Constitution’s ratification.
And note that this moment is indeed the beginning: Dele-
gates to the Constitutional Convention never discussed
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whether or to what extent the President would have power
to remove executive officials. As a result, the Framers ad-
vocating ratification had no single view of the matter. In
Federalist No. 77, Hamilton presumed that under the new
Constitution “[t]he consent of [the Senate] would be neces-
sary to displace as well as to appoint” officers of the United
States. Id., at 515. He thought that scheme would promote
“steady administration”: “Where a man in any station had
given satisfactory evidence of his fitness for it, a new presi-
dent would be restrained” from substituting “a person more
agreeable to him.” Ibid. By contrast, Madison thought the
Constitution allowed Congress to decide how any executive
official could be removed. He explained in Federalist No.
39: “The tenure of the ministerial offices generally will be a
subject of legal regulation, conformably to the reason of the
case, and the example of the State Constitutions.” Id., at
253. Neither view, of course, at all supports the majority’s
story.4
The second chapter is the Decision of 1789, when Con-
gress addressed the removal power while considering the
bill creating the Department of Foreign Affairs. Speaking
through Chief Justice Taft—a judicial presidentialist if ever
there was one—this Court in Myers v. United States, 272
U. S. 52 (1926), read that debate as expressing Congress’s
judgment that the Constitution gave the President illimit-
able power to remove executive officials. The majority rests
——————
4 The majority dismisses Federalist Nos. 77 and 39 as “reflect[ing] ini-
tial impressions later abandoned.” Ante, at 26, and n. 10. But even Ham-
ilton’s and Madison’s later impressions are less helpful to the majority
than it suggests. Assuming Hamilton gave up on the Senate’s direct par-
ticipation in removal (the evidence is sketchy but plausible), there is no
evidence to show he accepted the majority’s view. And while Madison
opposed the first Congress’s enactment of removal limits (as the majority
highlights), he also maintained that the legislature had constitutional
power to protect the Comptroller of the Treasury from at-will firing. See
infra, at 12–13. In any event, such changing minds and inconstant opin-
ions don’t usually prove the existence of constitutional rules.
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its own historical claim on that analysis (though somehow
also finding room for its two exceptions). See ante, at 12–
13. But Taft’s historical research has held up even worse
than Myers’ holding (which was mostly reversed, see infra,
at 17–18). As Dean Manning has concluded after reviewing
decades’ worth of scholarship on the issue, “the implications
of the debate, properly understood, [are] highly ambiguous
and prone to overreading.” Manning, 124 Harv. L. Rev., at
1965, n. 135; see id., at 2030–2031.
The best view is that the First Congress was “deeply di-
vided” on the President’s removal power, and “never
squarely addressed” the central issue here. Id., at 1965, n.
135; Prakash, New Light on the Decision of 1789, 91 Cornell
L. Rev. 1021, 1072 (2006). The congressional debates re-
vealed three main positions. See Corwin, 27 Colum.
L. Rev., at 361. Some shared Hamilton’s Federalist No. 77
view: The Constitution required Senate consent for re-
moval. At the opposite extreme, others claimed that the
Constitution gave absolute removal power to the President.
And a third faction maintained that the Constitution placed
Congress in the driver’s seat: The legislature could regu-
late, if it so chose, the President’s authority to remove. In
the end, Congress passed a bill saying nothing about re-
moval, leaving the President free to fire the Secretary of
Foreign Affairs at will. But the only one of the three views
definitively rejected was Hamilton’s theory of necessary
Senate consent. As even strong proponents of executive
power have shown, Congress never “endorse[d] the view
that [it] lacked authority to modify” the President’s removal
authority when it wished to. Prakash, supra, at 1073; see
Manning, supra, at 1965, n. 135, 2030–2031. The summer
of 1789 thus ended without resolution of the critical ques-
tion: Was the removal power “beyond the reach of congres-
sional regulation?” Prakash, supra, at 1072.
At the same time, the First Congress gave officials han-
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dling financial affairs—as compared to diplomatic and mil-
itary ones—some independence from the President. The ti-
tle and first section of the statutes creating the Depart-
ments of Foreign Affairs and War designated them
“executive departments.” Act of July 27, 1789, ch. 4, 1 Stat.
28; Act of Aug. 7, 1789, ch. 7, 1 Stat. 49. The law creating
the Treasury Department conspicuously avoided doing so.
See Act of Sept. 2, 1789, ch. 12, 1 Stat. 65. That difference
in nomenclature signaled others of substance. Congress left
the organization of the Departments of Foreign Affairs and
War skeletal, enabling the President to decide how he
wanted to staff them. See Casper, An Essay in Separation
of Powers, 30 Wm. & Mary L. Rev. 211, 239–241 (1989). By
contrast, Congress listed each of the offices within the
Treasury Department, along with their functions. See ibid.Of the three initial Secretaries, only the Treasury’s had an
obligation to report to Congress when requested. See §2, 1
Stat. 65–66. And perhaps most notable, Congress soon
deemed the Comptroller of the Treasury’s settlements of
public accounts “final and conclusive.” Act of Mar. 3, 1795,
ch. 48, §4, 1 Stat. 441–442. That decision, preventing pres-
idential overrides, marked the Comptroller as exercising in-
dependent judgment.5 True enough, no statute shielded the
——————
5 As President Jefferson explained: “[W]ith the settlement of the ac-
counts at the Treasury I have no right to interfere in the least,” because
the Comptroller of the Treasury “is the sole & supreme judge for all
claims of money against the US. and would no more receive a direction
from me” than would “one of the judges of the supreme court.” Letter
from T. Jefferson to B. Latrobe (June 2, 1808), in Thomas Jefferson and
the National Capital 429, 431 (S. Padover ed. 1946). A couple of decades
later, Attorney General William Wirt reached the same conclusion, stat-
ing that “the President has no right to interpose in the settling of ac-
counts” because Congress had “separated” the Comptroller from the
President’s authority. 1 Op. Atty. Gen. 636, 637 (1824); 1 Op. Atty. Gen.
678, 680 (1824). And indeed, Wirt believed that Congress could restrict
the President’s authority to remove such officials, at least so long as it
“express[ed] that intention clearly.” 1 Op. Atty. Gen. 212, 213 (1818).
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Comptroller from discharge. But even James Madison, who
at this point opposed most removal limits, told Congress
that “there may be strong reasons why an officer of this
kind should not hold his office at the pleasure” of the Secre-
tary or President. 1 Annals of Cong. 612. At the least, as
Professor Prakash writes, “Madison maintained that Con-
gress had the [constitutional] authority to modify [the
Comptroller’s] tenure.” Prakash, supra, at 1071.
Contrary to the majority’s view, then, the founding era
closed without any agreement that Congress lacked the
power to curb the President’s removal authority. And as it
kept that question open, Congress took the first steps—
which would launch a tradition—of distinguishing financial
regulators from diplomatic and military officers. The latter
mainly helped the President carry out his own constitu-
tional duties in foreign relations and war. The former
chiefly carried out statutory duties, fulfilling functions Con-
gress had assigned to their offices. In addressing the new
Nation’s finances, Congress had begun to use its powers un-
der the Necessary and Proper Clause to design effective ad-
ministrative institutions. And that included taking steps
to insulate certain officers from political influence.
2
As the decades and centuries passed, those efforts picked
up steam. Confronting new economic, technological, and
social conditions, Congress—and often the President—saw
new needs for pockets of independence within the federal
bureaucracy. And that was especially so, again, when it
came to financial regulation. I mention just a few high-
lights here—times when Congress decided that effective
governance depended on shielding technical or expertise-
based functions relating to the financial system from polit-
ical pressure (or the moneyed interests that might lie be-
hind it). Enacted under the Necessary and Proper Clause,
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those measures—creating some of the Nation’s most endur-
ing institutions—themselves helped settle the extent of
Congress’s power. “[A] regular course of practice,” to use
Madison’s phrase, has “liquidate[d]” constitutional mean-
ing about the permissibility of independent agencies. See
supra, at 9.
Take first Congress’s decision in 1816 to create the Sec-
ond Bank of the United States—“the first truly independent
agency in the republic’s history.” Lessig & Sunstein, The
President and the Administration, 94 Colum. L. Rev. 1, 30
(1994). Of the twenty-five directors who led the Bank, the
President could appoint and remove only five. See Act of
Apr. 10, 1816, §8, 3 Stat. 269. Yet the Bank had a greater
impact on the Nation than any but a few institutions, regu-
lating the Nation’s money supply in ways anticipating what
the Federal Reserve does today. Of course, the Bank was
controversial—in large part because of its freedom from
presidential control. Andrew Jackson chafed at the Bank’s
independence and eventually fired his Treasury Secretary
for keeping public moneys there (a dismissal that itself pro-
voked a political storm). No matter. Innovations in govern-
ance always have opponents; administrative independence
predictably (though by no means invariably) provokes pres-
idential ire. The point is that by the early 19th century,
Congress established a body wielding enormous financial
power mostly outside the President’s dominion.
The Civil War brought yet further encroachments on
presidential control over financial regulators. In response
to wartime economic pressures, President Lincoln (not
known for his modest view of executive power) asked Con-
gress to establish an office called the Comptroller of the
Currency. The statute he signed made the Comptroller re-
movable only with the Senate’s consent—a version of the
old Hamiltonian idea, though this time required not by the
Constitution itself but by Congress. See Act of Feb. 25,
1863, ch. 58, 12 Stat. 665. A year later, Congress amended
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the statute to permit removal by the President alone, but
only upon “reasons to be communicated by him to the Sen-
ate.” Act of June 3, 1864, §1, 13 Stat. 100. The majority
dismisses the original version of the statute as an “aberra-
tion.” Ante, at 19. But in the wake of the independence
given first to the Comptroller of the Treasury and then to
the national Bank, it’s hard to conceive of this newest
Comptroller position as so great a departure. And even the
second iteration of the statute preserved a constraint on the
removal power, requiring a President in a firing mood to
explain himself to Congress—a demand likely to make him
sleep on the subject. In both versions of the law, Congress
responded to new financial challenges with new regulatory
institutions, alert to the perils in this area of political inter-
ference.6
And then, nearly a century and a half ago, the floodgates
opened. In 1887, the growing power of the railroads over
the American economy led Congress to create the Interstate
——————
6 The Comptroller legislation of the Civil War provided a key precedent
for what does appear a historical “aberration”—the Tenure of Office Act
of 1867. See ch. 154, 14 Stat. 430. Anxious to prevent President Andrew
Johnson from interfering with reconstruction policies—including
through his command of the military—Congress barred presidential re-
moval of any Senate-confirmed officials without the Senate’s consent.
The law thus severed the President’s removal authority over even offi-
cials like the Secretaries of War and State. The statute became the basis
for the Nation’s first presidential impeachment, but was repealed in
1887. See Act of Mar. 3, 1887, ch. 353, 24 Stat. 500. In one sense, the
two-decade-long existence of the Tenure of Office Act reveals the 19th-
century political system’s comfort with expansive restrictions on presi-
dential removal. But the ultimate repudiation of the law, and the broad
historical consensus that it went too far, just as strongly shows the limits
that system later accepted on legislative power—that Congress may not
impose removal restrictions preventing the President from carrying out
his own constitutionally assigned functions in areas like war or foreign
affairs. See Morrison v. Olson, 487 U. S. 654, 689–691 (1988) (recogniz-
ing that limit as the constitutional standard).
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Commerce Commission. Under that legislation, the Presi-
dent could remove the five Commissioners only “for ineffi-
ciency, neglect of duty, or malfeasance in office”—the same
standard Congress applied to the CFPB Director. Act of
Feb. 4, 1887, §11, 24 Stat. 383. More—many more—for-
cause removal provisions followed. In 1913, Congress gave
the Governors of the Federal Reserve Board for-cause pro-
tection to ensure the agency would resist political pressure
and promote economic stability. See Act of Dec. 23, 1913,
ch. 6, 38 Stat. 251. The next year, Congress provided simi-
lar protection to the FTC in the interest of ensuring “a con-
tinuous policy” “free from the effect” of “changing [White
House] incumbency.” 51 Cong. Rec. 10376 (1914). The Fed-
eral Deposit Insurance Corporation (FDIC), the Securities
and Exchange Commission (SEC), the Commodity Futures
Trading Commission. In the financial realm, “independent
agencies have remained the bedrock of the institutional
framework governing U. S. markets.” Gadinis, From Inde-
pendence to Politics in Financial Regulation, 101 Cal.
L. Rev. 327, 331 (2013). By one count, across all subject
matter areas, 48 agencies have heads (and below them hun-
dreds more inferior officials) removable only for cause. See
Free Enterprise Fund, 561 U. S., at 541 (BREYER, J., dis-
senting). So year by year by year, the broad sweep of his-
tory has spoken to the constitutional question before us: In-
dependent agencies are everywhere.
C
What is more, the Court’s precedents before today have
accepted the role of independent agencies in our govern-
mental system. To be sure, the line of our decisions has not
run altogether straight. But we have repeatedly upheld
provisions that prevent the President from firing regulatory
officials except for such matters as neglect or malfeasance.
In those decisions, we sounded a caution, insisting that
Congress could not impede through removal restrictions the
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President’s performance of his own constitutional duties.
(So, to take the clearest example, Congress could not curb
the President’s power to remove his close military or diplo-
matic advisers.) But within that broad limit, this Court
held, Congress could protect from at-will removal the offi-
cials it deemed to need some independence from political
pressures. Nowhere do those precedents suggest what the
majority announces today: that the President has an “unre-
stricted removal power” subject to two bounded exceptions.
Ante, at 2.
The majority grounds its new approach in Myers, ignor-
ing the way this Court has cabined that decision. Myers,
the majority tells us, found an unrestrained removal power
“essential to the [President’s] execution of the laws.” Ante,
at 13 (quoting Myers, 272 U. S., at 117). What the majority
does not say is that within a decade the Court abandoned
that view (much as later scholars rejected Taft’s one-sided
history, see supra, at 10–11). In Humphrey’s Executor v.
United States, 295 U. S. 602 (1935), the Court unceremoni-
ously—and unanimously—confined Myers to its facts.
“[T]he narrow point actually decided” there, Humphrey’s
stated, was that the President could “remove a postmaster
of the first class, without the advice and consent of the Sen-
ate.” 295 U. S., at 626. Nothing else in Chief Justice Taft’s
prolix opinion “c[a]me within the rule of stare decisis.” Ibid.(Indeed, the Court went on, everything in Myers “out of har-
mony” with Humphrey’s was expressly “disapproved.” 295
U. S., at 626.) Half a century later, the Court was more
generous. Two decisions read Myers as standing for the
principle that Congress’s own “participation in the removal
of executive officers is unconstitutional.” Bowsher v. Synar,
478 U. S. 714, 725 (1986); see Morrison, 487 U. S., at 686(“As we observed in Bowsher, the essence” of “Myers was the
judgment that the Constitution prevents Congress from
draw[ing] to itself ” the power to remove (internal quotation
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marks omitted)). Bowsher made clear that Myers had noth-
ing to say about Congress’s power to enact a provision
merely “limit[ing] the President’s powers of removal”
through a for-cause provision. 478 U. S., at 724. That is-
sue, the Court stated, was “not presented” in “the Myers
case.” Ibid. Instead, the relevant cite was Humphrey’s.
And Humphrey’s found constitutional a statute identical
to the one here, providing that the President could remove
FTC Commissioners for “inefficiency, neglect of duty, or
malfeasance in office.” 295 U. S., at 619. The Humphrey’s
Court, as the majority notes, relied in substantial part on
what kind of work the Commissioners performed. See id.,
at 628, 631; ante, at 14. (By contrast, nothing in the deci-
sion turned—as the majority suggests, see ante, at 14–15—
on any of the agency’s organizational features. See infra,
at 30.) According to Humphrey’s, the Commissioners’ pri-
mary work was to “carry into effect legislative policies”—
“filling in and administering the details embodied by [a
statute’s] general standard.” 295 U. S., at 627–628. In ad-
dition, the Court noted, the Commissioners recommended
dispositions in court cases, much as a special master does.
Given those “quasi-legislative” and “quasi-judicial”—as op-
posed to “purely executive”—functions, Congress could
limit the President’s removal authority. Id., at 628.7 Or
said another way, Congress could give the FTC some “inde-
penden[ce from] executive control.” Id., at 629.
About two decades later, an again-unanimous Court in
——————
7 The majority is quite right that today we view all the activities of
administrative agencies as exercises of “the ‘executive Power.’ ” Arling-
ton v. FCC, 569 U. S. 290, 305, n. 4 (2013) (quoting Art. II, §1, cl.1); see
ante, at 14, n. 2. But we well understand, just as the Humphrey’s Court
did, that those activities may “take ‘legislative’ and ‘judicial’ forms.” Ar-
lington, 569 U. S., at 305, n. 4. The classic examples are agency rule-
makings and adjudications, endemic in agencies like the FTC and CFPB.
In any event, the Court would soon make clear that Congress can also
constrain the President’s removal authority over officials performing
even the most “executive” of functions. See infra, at 19–20.
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Wiener v. United States, 357 U. S. 349 (1958), reaffirmed
Humphrey’s. The question in Wiener was whether the Pres-
ident could dismiss without cause members of the War
Claims Commission, an entity charged with compensating
injuries arising from World War II. Disdaining Myers and
relying on Humphrey’s, the Court said he could not. The
Court described as “short-lived” Myers’ view that the Presi-
dent had “inherent constitutional power to remove officials,
no matter what the relation of the executive to the dis-
charge of their duties.” 357 U. S., at 352.8 Here, the Com-
missioners were not close agents of the President, who
needed to be responsive to his preferences. Rather, they
exercised adjudicatory responsibilities over legal claims.
Congress, the Court found, had wanted the Commissioners
to do so “free from [political] control or coercive influence.”
Id., at 355 (quoting Humphrey’s, 295 U. S., at 629). And
that choice, as Humphrey’s had held, was within Congress’s
power. The Constitution enabled Congress to take down
“the Damocles’ sword of removal” hanging over the Com-
missioners’ heads. 357 U. S., at 356.
Another three decades on, Morrison both extended
Humphrey’s domain and clarified the standard for address-
ing removal issues. The Morrison Court, over a one-Justice
dissent, upheld for-cause protections afforded to an inde-
pendent counsel with power to investigate and prosecute
crimes committed by high-ranking officials. The Court well
understood that those law enforcement functions differed
from the rulemaking and adjudicatory duties highlighted in
——————
8 Expressing veiled contempt as only he could, Justice Frankfurter
wrote for the Court that Chief Justice Taft’s opinion had “laboriously
traversed” American history and that it had failed to “restrict itself to
the immediate issue before it.” 357 U. S., at 351. No wonder Humphrey’s
had “narrowly confined the scope of the Myers decision.” 357 U. S., at
352. Justice Frankfurter implied that the “Chief Justice who himself
had been President” was lucky his handiwork had not been altogether
reversed. Id., at 351.
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Humphrey’s and Wiener. But that difference did not resolve
the issue. An official’s functions, Morrison held, were rele-
vant to but not dispositive of a removal limit’s constitution-
ality. The key question in all the cases, Morrison saw, was
whether such a restriction would “impede the President’s
ability to perform his constitutional duty.” 487 U. S., at
691. Only if it did so would it fall outside Congress’s power.
And the protection for the independent counsel, the Court
found, did not. Even though the counsel’s functions were
“purely executive,” the President’s “need to control the ex-
ercise of [her] discretion” was not “so central to the func-
tioning of the Executive Branch as to require” unrestricted
removal authority. Id., at 690–691. True enough, the Court
acknowledged, that the for-cause standard prevented the
President from firing the counsel for discretionary decisions
or judgment calls. But it preserved “ample authority” in the
President “to assure that the counsel is competently per-
forming” her “responsibilities in a manner that comports
with” all legal requirements. Id., at 692. That meant the
President could meet his own constitutional obligation “to
ensure ‘the faithful execution’ of the laws.” Ibid.; see supra,
at 8.9
——————
9 Pretending this analysis is mine rather than Morrison’s, the majority
registers its disagreement. See ante, at 27–28, n. 11. In its view, a test
asking whether a for-cause provision impedes the President’s ability to
carry out his constitutional functions has “no real limiting principle.”
Ibid. If the provision leaves the President with constitutionally sufficient
control over some subordinates (like the independent counsel), the ma-
jority asks, why not over even his close military or diplomatic advisers?
See ibid. But the Constitution itself supplies the answer. If the only
presidential duty at issue is the one to ensure faithful execution of the
laws, a for-cause provision does not stand in the way: As Morrison recog-
nized, it preserves authority in the President to ensure (just as the Take
Care Clause requires) that an official is abiding by law. See 487 U. S.,
at 692. But now suppose an additional constitutional duty is impli-
cated—relating, say, to the conduct of foreign affairs or war. To carry
out those duties, the President needs advisers who will (beyond comply-
ing with law) help him devise and implement policy. And that means he
Cite as: 591 U. S. ____ (2020) 21
K AGAN, J.,
Opinion of dissenting
KAGAN, J.
The majority’s description of Morrison, see ante, at 15–
16, is not true to the decision. (Mostly, it seems, the major-
ity just wishes the case would go away. See ante, at 17,
n. 4.) First, Morrison is no “exception” to a broader rule
from Myers. Morrison echoed all of Humphrey’s criticism of
the by-then infamous Myers “dicta.” 487 U. S., at 687. It
again rejected the notion of an “all-inclusive” removal
power. Ibid. It yet further confined Myers’ reach, making
clear that Congress could restrict the President’s removal
of officials carrying out even the most traditional executive
functions. And the decision, with care, set out the govern-
ing rule—again, that removal restrictions are permissible
so long as they do not impede the President’s performance
of his own constitutionally assigned duties. Second, as all
that suggests, Morrison is not limited to inferior officers. In
the eight pages addressing the removal issue, the Court
constantly spoke of “officers” and “officials” in general. 487
U. S., at 685–693. By contrast, the Court there used the
word “inferior” in just one sentence (which of course the ma-
jority quotes), when applying its general standard to the
case’s facts. Id., at 691. Indeed, Justice Scalia’s dissent
emphasized that the counsel’s inferior-office status played
no role in the Court’s decision. See id., at 724 (“The Court
could have resolved the removal power issue in this case by
simply relying” on that status, but did not). As Justice
Scalia noted, the Court in United States v. Perkins, 116
U. S. 483, 484–485 (1886), had a century earlier allowed
Congress to restrict the President’s removal power over in-
ferior officers. See Morrison, 487 U. S., at 723–724. Were
that Morrison’s basis, a simple citation would have sufficed.
Even Free Enterprise Fund, in which the Court recently
held a removal provision invalid, operated within the
framework of this precedent—and in so doing, left in place
——————
needs the capacity to fire such advisers for disagreeing with his policy
calls.
22 SEILA LAW LLC v. CONSUMER FINANCIAL
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Opinion of dissenting
KAGAN, J.
a removal provision just like the one here. In that case, the
Court considered a “highly unusual” scheme of double for-
cause protection. 561 U. S., at 505. Members of an account-
ing board were protected from removal by SEC Commis-
sioners, who in turn were protected from removal by the
President. The Court found that the two-layer structure
deprived the President of “adequate control” over the Board
members. Id., at 508. The scheme “impaired” the Presi-
dent’s “ability to execute the laws,” the Court explained, be-
cause neither he nor any fully dependent agent could decide
“whether[ ] good cause exists” for a discharge. Id., at 495–
496. That holding cast no doubt on ordinary for-cause pro-
tections, of the kind in the Court’s prior cases (and here as
well). Quite the opposite. The Court observed that it did
not “take issue with for-cause limitations in general”—
which do enable the President to determine whether good
cause for discharge exists (because, say, an official has vio-
lated the law). Id., at 501. And the Court’s solution to the
constitutional problem it saw was merely to strike one level
of insulation, making the Board removable by the SEC at
will. That remedy left the SEC’s own for-cause protection
in place. The President could thus remove Commissioners
for malfeasance or neglect, but not for policy disagreements.
See ante, at 28.
So caselaw joins text and history in establishing the gen-
eral permissibility of for-cause provisions giving some inde-
pendence to agencies. Contrary to the majority’s view,
those laws do not represent a suspicious departure from il-
limitable presidential control over administration. For al-
most a century, this Court has made clear that Congress
has broad discretion to enact for-cause protections in pur-
suit of good governance.
D
The deferential approach this Court has taken gives Con-
Cite as: 591 U. S. ____ (2020) 23
K AGAN, J.,
Opinion of dissenting
KAGAN, J.
gress the flexibility it needs to craft administrative
agencies. Diverse problems of government demand diverse
solutions. They call for varied measures and mixtures of
democratic accountability and technical expertise, energy
and efficiency. Sometimes, the arguments push toward
tight presidential control of agencies. The President’s en-
gagement, some people say, can disrupt bureaucratic stag-
nation, counter industry capture, and make agencies more
responsive to public interests. See, well, Kagan, Presiden-
tial Administration, 114 Harv. L. Rev. 2245, 2331–2346
(2001). At other times, the arguments favor greater inde-
pendence from presidential involvement. Insulation from
political pressure helps ensure impartial adjudications. It
places technical issues in the hands of those most capable
of addressing them. It promotes continuity, and prevents
short-term electoral interests from distorting policy. (Con-
sider, for example, how the Federal Reserve’s independence
stops a President trying to win a second term from manip-
ulating interest rates.) Of course, the right balance be-
tween presidential control and independence is often uncer-
tain, contested, and value-laden. No mathematical formula
governs institutional design; trade-offs are endemic to the
enterprise. But that is precisely why the issue is one for the
political branches to debate—and then debate again as
times change. And it’s why courts should stay (mostly) out
of the way. Rather than impose rigid rules like the major-
ity’s, they should let Congress and the President figure out
what blend of independence and political control will best
enable an agency to perform its intended functions.
Judicial intrusion into this field usually reveals only how
little courts know about governance. Even everything I just
said is an over-simplification. It suggests that agencies can
easily be arranged on a spectrum, from the most to the least
presidentially controlled. But that is not so. A given
agency’s independence (or lack of it) depends on a wealth of
features, relating not just to removal standards, but also to
24 SEILA LAW LLC v. CONSUMER FINANCIAL
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K AGAN, J.,
Opinion of dissenting
KAGAN, J.
appointments practices, procedural rules, internal organi-
zation, oversight regimes, historical traditions, cultural
norms, and (inevitably) personal relationships. It is hard
to pinpoint how those factors work individually, much less
in concert, to influence the distance between an agency and
a President. In that light, even the judicial opinions’ per-
ennial focus on removal standards is a bit of a puzzle. Re-
moval is only the most obvious, not necessarily the most po-
tent, means of control. See generally Free Enterprise Fund,
561 U. S., at 524 (BREYER, J., dissenting). That is because
informal restraints can prevent Presidents from firing at-
will officers—and because other devices can keep officers
with for-cause protection under control. Of course no court,
as Free Enterprise Fund noted, can accurately assess the
“bureaucratic minutiae” affecting a President’s influence
over an agency. Id., at 500 (majority opinion); ante, at 30
(reprising the point). But that is yet more reason for courts
to defer to the branches charged with fashioning adminis-
trative structures, and to hesitate before ruling out agency
design specs like for-cause removal standards.
Our Constitution, as shown earlier, entrusts such deci-
sions to more accountable and knowledgeable actors. See
supra, at 4–9. The document—with great good sense—sets
out almost no rules about the administrative sphere. As
Chief Justice Marshall wrote when he upheld the first in-
dependent financial agency: “To have prescribed the means
by which government should, in all future time, execute its
powers, would have been to change, entirely, the character
of the instrument.” McCulloch, 4 Wheat., at 415. That
would have been, he continued, “an unwise attempt to pro-
vide, by immutable rules, for exigencies which, if foreseen
at all, must have been seen dimly.” Ibid. And if the Con-
stitution, for those reasons, does not lay out immutable
rules, then neither should judges. This Court has usually
respected that injunction. It has declined to second-guess
the work of the political branches in creating independent
Cite as: 591 U. S. ____ (2020) 25
K AGAN, J.,
Opinion of dissenting
KAGAN, J.
agencies like the CFPB. In reversing course today—in
spurning a “pragmatic, flexible approach to American gov-
ernance” in favor of a dogmatic, inflexible one, ante, at 29—
the majority makes a serious error.
II
As the majority explains, the CFPB emerged out of disas-
ter. The collapse of the subprime mortgage market “precip-
itat[ed] a financial crisis that wiped out over $10 trillion in
American household wealth and cost millions of Americans
their jobs, their retirements, and their homes.” Ante, at 3.
In that moment of economic ruin, the President proposed
and Congress enacted legislation to address the causes of
the collapse and prevent a recurrence. An important part
of that statute created an agency to protect consumers from
exploitative financial practices. The agency would take
over enforcement of almost 20 existing federal laws. See 12
U. S. C. §5581. And it would administer a new prohibition
on “unfair, deceptive, or abusive act[s] or practice[s]” in the
consumer-finance sector. §5536(a)(1)(B).
No one had a doubt that the new agency should be inde-
pendent. As explained already, Congress has historically
given—with this Court’s permission—a measure of inde-
pendence to financial regulators like the Federal Reserve
Board and the FTC. See supra, at 11–16. And agencies of
that kind had administered most of the legislation whose
enforcement the new statute transferred to the CFPB. The
law thus included an ordinary for-cause provision—once
again, that the President could fire the CFPB’s Director
only for “inefficiency, neglect of duty, or malfeasance in of-
fice.” §5491(c)(3). That standard would allow the President
to discharge the Director for a failure to “faithfully exe-
cute[ ]” the law, as well as for basic incompetence. U. S.
Const., Art. II, §3; see supra, at 8, 20. But it would not per-
mit removal for policy differences.
The question here, which by now you’re well equipped to
26 SEILA LAW LLC v. CONSUMER FINANCIAL
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K AGAN, J.,
Opinion of dissenting
KAGAN, J.
answer, is whether including that for-cause standard in the
statute creating the CFPB violates the Constitution.
A
Applying our longstanding precedent, the answer is clear:
It does not. This Court, as the majority acknowledges, has
sustained the constitutionality of the FTC and similar in-
dependent agencies. See ante, at 2, 13–16. The for-cause
protections for the heads of those agencies, the Court has
found, do not impede the President’s ability to perform his
own constitutional duties, and so do not breach the separa-
tion of powers. See supra, at 18–22. There is nothing dif-
ferent here. The CFPB wields the same kind of power as
the FTC and similar agencies. And all of their heads receive
the same kind of removal protection. No less than those
other entities—by now part of the fabric of government—
the CFPB is thus a permissible exercise of Congress’s power
under the Necessary and Proper Clause to structure admin-
istration.
First, the CFPB’s powers are nothing unusual in the uni-
verse of independent agencies. The CFPB, as the majority
notes, can issue regulations, conduct its own adjudications,
and bring civil enforcement actions in court—all backed by
the threat of penalties. See ante, at 1; 12 U. S. C. §§5512,
5562–5565. But then again, so too can (among others) the
FTC and SEC, two agencies whose regulatory missions par-
allel the CFPB’s. See 15 U. S. C. §§45, 53, 57a, 57b–3, 78u,
78v, 78w. Just for a comparison, the CFPB now has 19 en-
forcement actions pending, while the SEC brought 862 such
actions last year alone. See Brief for Petitioner 7; SEC, Div.
of Enforcement 2019 Ann. Rep. 14. And although the ma-
jority bemoans that the CFPB can “bring the coercive power
of the state to bear on millions of private citizens,” ante, at
18, that scary-sounding description applies to most inde-
pendent agencies. Forget that the more relevant factoid for
those many citizens might be that the CFPB has recovered
Cite as: 591 U. S. ____ (2020) 27
K AGAN, J.,
Opinion of dissenting
KAGAN, J.
over $11 billion for banking consumers. See ante, at 5. The
key point here is that the CFPB got the mass of its regula-
tory authority from other independent agencies that had
brought the same “coercive power to bear.” See 12 U. S. C.
§5581 (transferring power from, among others, the Federal
Reserve, FTC, and FDIC). Congress, to be sure, gave the
CFPB new authority over “unfair, deceptive, or abusive
act[s] or practice[s]” in transactions involving a “consumer
financial product or service.” §§5517(a)(1), 5536(a)(1). But
again, the FTC has power to go after “unfair or deceptive
acts or practices in or affecting commerce”—a portfolio
spanning a far wider swath of the economy. 15 U. S. C.
§45(a)(1).10 And if influence on economic life is the measure,
consider the Federal Reserve, whose every act has global
consequence. The CFPB, gauged by that comparison, is a
piker.
Second, the removal protection given the CFPB’s Director
——————
10 The majority suggests that the FTC was a different animal when this
Court upheld its independent status in Humphrey’s. See ante, at 17. But
then, as now, the FTC’s organic statute broadly “empowered and di-
rected” the agency “to prevent persons” or businesses “from using unfair
methods of competition in commerce.” Act of Sept. 26, 1914, §5, 38 Stat.
719. To fulfill that mandate, the agency could and did run investigations,
bring administrative charges, and conduct adjudications. See ibid.;
§6(a), id., at 721; FTC Ann. Rep. (1935) (describing the FTC’s extensive
enforcement activities in the year before Humphrey’s). And if any person
refused to comply with an order, the agency could seek its enforcement
in federal court under a highly deferential standard. See §5, 38 Stat.
720; FTC v. Pacific States Paper Trade Assn., 273 U. S. 52, 63 (1927).
Still more, the FTC has always had statutory rulemaking authority, even
though (like several other agencies) it relied on adjudications until the
1960s. See §6(g), 38 Stat. 722; National Petroleum Refiners Assn. v. FTC,
482 F. 2d 672, 686 (CADC 1973). (The majority’s reply that a court in-
cluding Charles Evans Hughes, Louis Brandeis, Benjamin Cardozo, and
Harlan Stone somehow misunderstood these powers, see ante, at 17, n. 4,
lacks all plausibility.) And in any case, the relevant point of comparison
is the present-day FTC, which remains independent even if it now has
some expanded powers—and which remains constitutional under not
only Humphrey’s but also Morrison. See supra, at 18–20.
28 SEILA LAW LLC v. CONSUMER FINANCIAL
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KAGAN, J.
is standard fare. The removal power rests with the Presi-
dent alone; Congress has no role to play, as it did in the laws
struck down in Myers and Bowsher. See supra, at 17–18.
The statute provides only one layer of protection, unlike the
law in Free Enterprise Fund. See supra, at 21–22. And the
clincher, which you have heard before: The for-cause stand-
ard used for the CFPB is identical to the one the Court up-
held in Humphrey’s. Both enable the President to fire an
agency head for “inefficiency, neglect of duty, or malfea-
sance in office.” See 12 U. S. C. §5491(c)(3); 15 U. S. C. §41;
supra, at 18. A removal provision of that kind applied to a
financial agency head, this Court has held, does not “unduly
trammel[ ] on executive authority,” even though it prevents
the President from dismissing the official for a discretion-
ary policy judgment. Morrison, 487 U. S., at 691. Once
again: The removal power has not been “completely
stripped from the President,” providing him with no means
to “ensure the ‘faithful execution’ of the laws.” Id., at 692;
see supra, at 20. Rather, this Court has explained, the for-
cause standard gives the President “ample authority to as-
sure that [the official] is competently performing his or her
statutory responsibilities in a manner that comports with”
all legal obligations. 487 U. S., at 692; see supra, at 20. In
other words—and contra today’s majority—the President’s
removal power, though not absolute, gives him the “mean-
ingful[ ] control[ ]” of the Director that the Constitution re-
quires. Ante, at 23.
The analysis is as simple as simple can be. The CFPB
Director exercises the same powers, and receives the same
removal protections, as the heads of other, constitutionally
permissible independent agencies. How could it be that this
opinion is a dissent?
B
The majority focuses on one (it says sufficient) reason:
Cite as: 591 U. S. ____ (2020) 29
K AGAN, J.,
Opinion of dissenting
KAGAN, J.
The CFPB Director is singular, not plural. “Instead of plac-
ing the agency under the leadership of a board with multi-
ple members,” the majority protests, “Congress provided
that the CFPB would be led by a single Director.” Ante, at
1.11 And a solo CFPB Director does not fit within either of
the majority’s supposed exceptions. He is not an inferior
officer, so (the majority says) Morrison does not apply; and
he is not a multimember board, so (the majority says) nei-
ther does Humphrey’s. Further, the majority argues, “[a]n
agency with a [unitary] structure like that of the CFPB” is
“novel”—or, if not quite that, “almost wholly unprece-
dented.” Ante, at 2, 18. Finally, the CFPB’s organizational
form violates the “constitutional structure” because it vests
power in a “single individual” who is “insulated from Presi-
dential control.” Ante, at 2–3, 23.
I’m tempted at this point just to say: No. All I’ve ex-
plained about constitutional text, history, and precedent in-
validates the majority’s thesis. But I’ll set out here some
more targeted points, taking step by step the majority’s rea-
soning.
First, as I’m afraid you’ve heard before, the majority’s
“exceptions” (like its general rule) are made up. See supra,
——————
11 The majority briefly mentions, but understandably does not rely on,
two other features of Congress’s scheme. First, the majority notes that
the CFPB receives its funding outside the normal appropriations process.
See ante, at 24–25. But so too do other financial regulators, including
the Federal Reserve Board and the FDIC. See 12 U. S. C. §§243, 1815(d),
1820(e). And budgetary independence comes mostly at the expense of
Congress’s control over the agency, not the President’s. (Because that is
so, it actually works to the President’s advantage.) Second, the majority
complains that the Director’s five-year term may prevent a President
from “shap[ing the agency’s] leadership” through appointments. Ante, at
24. But again that is true, to one degree or another, of quite a few
longstanding independent agencies, including the Federal Reserve, the
FTC, the Merit Systems Protection Board, and the Postal Service Board
of Governors. See, e.g., §§241, 242; 15 U. S. C. §41; 5 U. S. C. §§1201,
1202; 39 U. S. C. §202. (If you think the last is unimportant, just ask the
current President whether he agrees.)
30 SEILA LAW LLC v. CONSUMER FINANCIAL
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Opinion of dissenting
KAGAN, J.
at 16–22. To begin with, our precedents reject the very idea
of such exceptions. “The analysis contained in our removal
cases,” Morrison stated, shuns any attempt “to define rigid
categories” of officials who may (or may not) have job pro-
tection. 487 U. S., at 689. Still more, the contours of the
majority’s exceptions don’t connect to our decisions’ reason-
ing. The analysis in Morrison, as I’ve shown, extended far
beyond inferior officers. See supra, at 20–21. And of course
that analysis had to apply to individual officers: The inde-
pendent counsel was very much a person, not a committee.
So the idea that Morrison is in a separate box from this case
doesn’t hold up.12 Similarly, Humphrey’s and later prece-
dents give no support to the majority’s view that the num-
ber of people at the apex of an agency matters to the consti-
tutional issue. Those opinions mention the “groupness” of
the agency head only in their background sections. The ma-
jority picks out that until-now-irrelevant fact to distinguish
the CFPB, and constructs around it an until-now-unheard-
of exception. So if the majority really wants to see some-
thing “novel,” ante, at 2, it need only look to its opinion.
By contrast, the CFPB’s single-director structure has a
fair bit of precedent behind it. The Comptroller of the Cur-
rency. The Office of the Special Counsel (OSC). The Social
Security Administration (SSA). The Federal Housing Fi-
nance Agency (FHFA). Maybe four prior agencies is in the
eye of the beholder, but it’s hardly nothing. I’ve already
——————
12 The majority, seeking some other way to distinguish Morrison, as-
serts that the independent counsel’s “duties” were more “limited” than
the CFPB Director’s. Ante, at 17–18. That’s true in a sense: All (all?) the
special counsel had to do was decide whether the President and his top
advisers had broken the law. But I doubt (and I suspect Presidents
would too) whether the need to control those duties was any less “central
to the functioning of the Executive Branch” than the need to control the
CFPB’s. Morrison, 487 U. S., at 691–692. And in any event, as I’ve
shown, Morrison did much more than approve a specific removal provi-
sion; it created a standard to govern all removal cases that is at complete
odds with the majority’s reasoning. See supra, at 19–21.
Cite as: 591 U. S. ____ (2020) 31
K AGAN, J.,
Opinion of dissenting
KAGAN, J.
explained why the earliest of those agencies—the Civil-
War-era Comptroller—is not the blip the majority de-
scribes. See supra, at 14–15. The office is one in a long line,
starting with the founding-era Comptroller of the Treasury
(also one person), of financial regulators designed to do
their jobs with some independence. As for the other three,
the majority objects: too powerless and too contested. See
ante, at 18–21. I think not. On power, the SSA runs the
Nation’s largest government program—among other
things, deciding all claims brought by its 64 million benefi-
ciaries; the FHFA plays a crucial role in overseeing the
mortgage market, on which millions of Americans annually
rely; and the OSC prosecutes misconduct in the two-mil-
lion-person federal workforce. All different from the CFPB,
no doubt; but the majority can’t think those matters be-
neath a President’s notice. (Consider: Would the President
lose more votes from a malfunctioning SSA or CFPB?) And
controversial? Well, yes, they are. Almost all independent
agencies are controversial, no matter how many directors
they have. Or at least controversial among Presidents and
their lawyers. That’s because whatever might be said in
their favor, those agencies divest the President of some re-
moval power. If signing statements and veto threats made
independent agencies unconstitutional, quite a few
wouldn’t pass muster. Maybe that’s what the majority re-
ally wants (I wouldn’t know)—but it can’t pretend the dis-
putes surrounding these agencies had anything to do with
whether their heads are singular or plural.
Still more important, novelty is not the test of constitu-
tionality when it comes to structuring agencies. See Mis-
tretta v. United States, 488 U. S. 361, 385 (1989) (“[M]ere
anomaly or innovation” does not violate the separation of
powers). Congress regulates in that sphere under the Nec-
essary and Proper Clause, not (as the majority seems to
think) a Rinse and Repeat Clause. See supra, at 6. The
Framers understood that new times would often require
32 SEILA LAW LLC v. CONSUMER FINANCIAL
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Opinion of dissenting
KAGAN, J.
new measures, and exigencies often demand innovation.
See McCulloch, 4 Wheat., at 415; supra, at 24. In line with
that belief, the history of the administrative sphere—its
rules, its practices, its institutions—is replete with experi-
ment and change. See supra, at 9–16. Indeed, each of the
agencies the majority says now fits within its “exceptions”
was once new; there is, as the saying goes, “a first time for
everything.” National Federation of Independent Business
v. Sebelius, 567 U. S. 519, 549 (2012). So even if the CFPB
differs from its forebears in having a single director, that
departure is not itself “telling” of a “constitutional prob-
lem.” Ante, at 18. In deciding what this moment demanded,
Congress had no obligation to make a carbon copy of a de-
sign from a bygone era.
And Congress’s choice to put a single director, rather
than a multimember commission, at the CFPB’s head vio-
lates no principle of separation of powers. The purported
constitutional problem here is that an official has “slip[ped]
from the Executive’s control” and “supervision”—that he
has become unaccountable to the President. Ante, at 23, 25
(internal quotation marks omitted). So to make sense on
the majority’s own terms, the distinction between singular
and plural agency heads must rest on a theory about why
the former more easily “slip” from the President’s grasp.
But the majority has nothing to offer. In fact, the opposite
is more likely to be true: To the extent that such matters
are measurable, individuals are easier than groups to su-
pervise.
To begin with, trying to generalize about these matters is
something of a fool’s errand. Presidential control, as noted
earlier, can operate through many means—removal to be
sure, but also appointments, oversight devices (e.g., central-
ized review of rulemaking or litigating positions), budget-
ary processes, personal outreach, and more. See Free En-
terprise Fund, 561 U. S., at 524 (BREYER, J., dissenting);
Cite as: 591 U. S. ____ (2020) 33
K AGAN, J.,
Opinion of dissenting
KAGAN, J.
supra, at 23–24.13 The effectiveness of each of those control
mechanisms, when present, can then depend on a multi-
tude of agency-specific practices, norms, rules, and or-
ganizational features. In that complex stew, the difference
between a singular and plural agency head will often make
not a whit of difference. Or to make the point more con-
crete, a multimember commission may be harder to control
than an individual director for a host of reasons unrelated
to its plural character. That may be so when the two are
subject to the same removal standard, or even when the in-
dividual director has greater formal job protection. Indeed,
the very category of multimember commissions breaks
apart under inspection, spoiling the majority’s essential di-
chotomy. See generally Brief for Rachel E. Barkow et al. as
Amici Curiae. Some of those commissions have chairs ap-
pointed by the President; others do not. Some of those
chairs are quite powerful; others are not. Partisan balance
requirements, term length, voting rules, and more—all
vary widely, in ways that make a significant difference to
the ease of presidential control. Why, then, would anyone
——————
13 To use one important example, Congress provided for executive over-
sight of all the CFPB’s rulemaking. The Financial Stability Oversight
Council can veto by a two-thirds vote any CFPB regulation it deems a
threat to the “safety and soundness” of the financial system. 12 U. S. C.
§5513(a). The FSOC is chaired by the Treasury Secretary, and most of
its members are under the direct supervision of the President. See
§5321. So the majority is wrong in saying that the CFPB’s Director can
“unilaterally” issue final regulations. Ante, at 23 (emphasis in original).
Indeed, the President has more control over rulemaking at the CFPB
than at any similar independent agency. And the majority is similarly
wrong to think that because the FSOC has not yet issued a formal veto,
its review authority makes no practical difference. See ante, at 25, n. 9.
Regulatory review, whether by the Office of Management and Budget or
the FSOC, usually relies more on the threat of vetoes than on their exe-
cution. OMB casts a long shadow over rulemaking in the Executive
Branch, but rarely uses its veto pen. See Sunstein, The Office of Infor-
mation and Regulatory Affairs: Myths and Realities, 126 Harv. L. Rev.
1838, 1846–1847, n. 37 (2013).
34 SEILA LAW LLC v. CONSUMER FINANCIAL
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K AGAN, J.,
Opinion of dissenting
KAGAN, J.
distinguish along a simple commission/single-director axis
when deciding whether the Constitution requires at-will re-
moval?
But if the demand is for generalization, then the major-
ity’s distinction cuts the opposite way: More powerful con-
trol mechanisms are needed (if anything) for commissions.
Holding everything else equal, those are the agencies more
likely to “slip from the Executive’s control.” Ante, at 25.
Just consider your everyday experience: It’s easier to get
one person to do what you want than a gaggle. So too, you
know exactly whom to blame when an individual—but not
when a group—does a job badly. The same is true in bu-
reaucracies. A multimember structure reduces accounta-
bility to the President because it’s harder for him to oversee,
to influence—or to remove, if necessary—a group of five or
more commissioners than a single director. Indeed, that is
why Congress so often resorts to hydra-headed agencies.
“[M]ultiple membership,” an influential Senate Report con-
cluded, is “a buffer against Presidential control” (especially
when combined, as it often is, with partisan-balance re-
quirements). Senate Committee on Governmental Affairs,
Study on Federal Regulation, S. Doc. No. 95–91, vol. 5, p.
75 (1977). So, for example, Congress constructed the Fed-
eral Reserve as it did because it is “easier to protect a board
from political control than to protect a single appointed of-
ficial.” R. Cushman, The Independent Regulatory Commis-
sions 153 (1941).14 It is hard to know why Congress did not
——————
14 I could go on. A recent study prepared for the Administrative Con-
ference of the United States noted that “[g]overnance by multiple mem-
bers limits the President’s influence.” J. Selin & D. Lewis, Sourcebook
of United States Executive Agencies 89 (2d ed. 2018). And the General
Accounting Office has recognized that the desire for “greater independ-
ence” is what “most likely explains why the Congress in the past has
opted to head independent regulatory bodies with multimember commis-
sions rather than single administrators.” Hearing before the Senate
Subcommittee on the Consumer of the Committee on Commerce, Science,
and Transportation, 100th Cong., 1st Sess., 135 (1987) (Statement of F.
Cite as: 591 U. S. ____ (2020) 35
K AGAN, J.,
Opinion of dissenting
KAGAN, J.
take the same tack when creating the CFPB. But its choice
brought the agency only closer to the President—more ex-
posed to his view, more subject to his sway. In short, the
majority gets the matter backward: Where presidential con-
trol is the object, better to have one than many.
Because it has no answer on that score, the majority
slides to a different question: Assuming presidential control
of any independent agency is vanishingly slim, is a single-
head or a multi-head agency more capable of exercising
power, and so of endangering liberty? See ante, at 21–23.
The majority says a single head is the greater threat be-
cause he may wield power “unilaterally” and “[w]ith no col-
leagues to persuade.” Ante, at 23 (emphasis in original). So
the CFPB falls victim to what the majority sees as a consti-
tutional anti-power-concentration principle (with an excep-
tion for the President).
If you’ve never heard of a statute being struck down on
that ground, you’re not alone. It is bad enough to “extrapo-
lat[e]” from the “general constitutional language” of Article
II’s Vesting Clause an unrestricted removal power con-
straining Congress’s ability to legislate under the Neces-
sary and Proper Clause. Morrison, 487 U. S., at 690, n. 29;
see supra, at 7. It is still worse to extrapolate from the Con-
stitution’s general structure (division of powers) and im-
plicit values (liberty) a limit on Congress’s express power to
create administrative bodies. And more: to extrapolate
from such sources a distinction as prosaic as that between
the SEC and the CFPB—i.e., between a multi-headed and
single-headed agency. That is, to adapt a phrase (or two)
from our precedent, “more than” the emanations of “the text
will bear.” Morrison, 487 U. S., at 690, n. 29. By using ab-
stract separation-of-powers arguments for such purposes,
the Court “appropriate[s]” the “power delegated to Congress
——————
Frazier).
36 SEILA LAW LLC v. CONSUMER FINANCIAL
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K AGAN, J.,
Opinion of dissenting
KAGAN, J.
by the Necessary and Proper Clause” to compose the gov-
ernment. Manning, Foreword: The Means of Constitutional
Power, 128 Harv. L. Rev. 1, 78 (2014). In deciding for itself
what is “proper,” the Court goes beyond its own proper
bounds.
And in doing so, the majority again reveals its lack of in-
terest in how agencies work. First, the premise of the ma-
jority’s argument—that the CFPB head is a mini-dictator,
not subject to meaningful presidential control, see ante, at
23—is wrong. As this Court has seen in the past, independ-
ent agencies are not fully independent. A for-cause removal
provision, as noted earlier, leaves “ample” control over
agency heads in the hands of the President. Morrison, 487
U. S., at 692; see supra, at 20. He can discharge them for
failing to perform their duties competently or in accordance
with law, and so ensure that the laws are “faithfully exe-
cuted.” U. S. Const., Art. II, §3; see supra, at 8, 20. And he
can use the many other tools attached to the Office of the
Presidency—including in the CFPB’s case, rulemaking re-
view—to exert influence over discretionary policy calls. See
supra, at 33, and n. 13. Second, the majority has nothing
but intuition to back up its essentially functionalist claim
that the CFPB would be less capable of exercising power if
it had more than one Director (even supposing that were a
suitable issue for a court to address). Ante, at 21, 23.
Maybe the CFPB would be. Or maybe not. Although a mul-
timember format tends to frustrate the President’s control
over an agency, see supra, at 34–35, it may not lessen the
agency’s own ability to act with decision and dispatch.
(Consider, for a recent example, the Federal Reserve
Board.) That effect presumably would depend on the
agency’s internal organization, voting rules, and similar
matters. At the least: If the Court is going to invalidate
statutes based on empirical assertions like this one, it
should offer some empirical support. It should not pretend
that its assessment that the CFPB wields more power more
Cite as: 591 U. S. ____ (2020) 37
K AGAN, J.,
Opinion of dissenting
KAGAN, J.
dangerously than the SEC comes from someplace in the
Constitution. But today the majority fails to accord even
that minimal respect to Congress.
III
Recall again how this dispute got started. In the midst of
the Great Recession, Congress and the President came to-
gether to create an agency with an important mission. It
would protect consumers from the reckless financial prac-
tices that had caused the then-ongoing economic collapse.
Not only Congress but also the President thought that the
new agency, to fulfill its mandate, needed a measure of in-
dependence. So the two political branches, acting together,
gave the CFPB Director the same job protection that innu-
merable other agency heads possess. All in all, those
branches must have thought, they had done a good day’s
work. Relying on their experience and knowledge of admin-
istration, they had built an agency in the way best suited to
carry out its functions. They had protected the public from
financial chicanery and crisis. They had governed.
And now consider how the dispute ends—with five une-
lected judges rejecting the result of that democratic process.
The outcome today will not shut down the CFPB: A differ-
ent majority of this Court, including all those who join this
opinion, believes that if the agency’s removal provision is
unconstitutional, it should be severed. But the majority on
constitutionality jettisons a measure Congress and the
President viewed as integral to the way the agency should
operate. The majority does so even though the Constitution
grants to Congress, acting with the President’s approval,
the authority to create and shape administrative bodies.
And even though those branches, as compared to courts,
have far greater understanding of political control mecha-
nisms and agency design.
Nothing in the Constitution requires that outcome; to the
contrary. “While the Constitution diffuses power the better
38 SEILA LAW LLC v. CONSUMER FINANCIAL
PROTECTION BUREAU
K AGAN, J.,
Opinion of dissenting
KAGAN, J.
to secure liberty, it also contemplates that practice will in-
tegrate the dispersed powers into a workable government.”
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635
(1952) (Jackson, J., concurring). The Framers took pains to
craft a document that would allow the structures of govern-
ance to change, as times and needs change. The Constitu-
tion says only a few words about administration. As Chief
Justice Marshall wrote: Rather than prescribing “immuta-
ble rules,” it enables Congress to choose “the means by
which government should, in all future time, execute its
powers.” McCulloch, 4 Wheat., at 415. It authorizes Con-
gress to meet new exigencies with new devices. So Article
II does not generally prohibit independent agencies. Nor do
any supposed structural principles. Nor do any odors waft-
ing from the document. Save for when those agencies im-
pede the President’s performance of his own constitutional
duties, the matter is left up to Congress.
Our history has stayed true to the Framers’ vision. Con-
gress has accepted their invitation to experiment with ad-
ministrative forms—nowhere more so than in the field of
financial regulation. And this Court has mostly allowed it
to do so. The result is a broad array of independent agen-
cies, no two exactly alike but all with a measure of insula-
tion from the President’s removal power. The Federal Re-
serve Board; the FTC; the SEC; maybe some you’ve never
heard of. As to each, Congress thought that formal job pro-
tection for policymaking would produce regulatory out-
comes in greater accord with the long-term public interest.
Congress may have been right; or it may have been wrong;
or maybe it was some of both. No matter—the branches
accountable to the people have decided how the people
should be governed.
The CFPB should have joined the ranks. Maybe it will
still do so, even under today’s opinion: The majority tells
Congress that it may “pursu[e] alternative responses” to the
identified constitutional defect—“for example, converting
Cite as: 591 U. S. ____ (2020) 39
K AGAN, J.,
Opinion of dissenting
KAGAN, J.
the CFPB into a multimember agency.” Ante, at 36. But
there was no need to send Congress back to the drawing
board. The Constitution does not distinguish between sin-
gle-director and multimember independent agencies. It in-
structs Congress, not this Court, to decide on agency design.
Because this Court ignores that sensible—indeed, that ob-
vious—division of tasks, I respectfully dissent.