Facing an existential threat at the U.S. Supreme Court, which will hear oral arguments on March 3 in a constitutional challenge to the unusual structure of the Consumer Financial Protection Bureau, the CFPB has found an unlikely champion. The Trump administration believes that the bureau's lone director is unconstitutionally shielded from accountability to the president, yet the Justice Department’s final brief before oral argument urged the Supreme Court not to issue a ruling that will halt the CFPB’s “critical work." ... [The case is Seila Law v. CFPB .]
Seila’s lawyers ... had asked the Supreme Court to decide whether the provision that shields the CFPB director from being removed without good cause runs afoul of the separation of powers doctrine. The Justice Department and the CFPB, repudiating the CFPB’s longtime defense of its structure, backed Seila’s petition, arguing that the provision was an unconstitutional restraint on the president....
DOJ and Seila also agreed that Clement’s attempt to fit the CFPB’s structure within the penumbra of 1935’s Humphrey’s Executor v. U.S. falls short. In that case, the Supreme Court upheld the constitutionality of the Federal Trade Commission, but Seila and DOJ said the court’s analysis applies only to “quasi-judicial” agencies headed by several commissions, not to the CFPB’s lone director. They also hinted that if Humphrey’s Executor controls this case, then the Supreme Court should consider overruling its precedent, which Seila described as “erroneous and already repudiated.” ...The Social Security Administration is also headed by a lone director who can only be removed "... pursuant to a finding by the President of neglect of duty or malfeasance in office." If, as this Administration is arguing, the position of head of the CFPB is unconstitutional, I see no way that the position of Commissioner of Social Security isn't also unconstitutional.
If the position of Commissioner of Social Security is unconstitutional are regulations adopted by unconstitutional Commissioners valid? What about decisions made under a delegation of authority from an unconstitutional Commissioner such as those made by Administrative Law Judges and Appeals Council members? This isn't a problem that can be easily solved in the same way that the problem with how ALJs are appointed was solved.
If the Supreme Court rules that positions such as that of the Commissioner of Social Security are unconstitutional, the Social Security Administration can no longer be an independent agency, at least not without a multi-member board heading it and maybe not then.
This could put a real crimp in Andrew Saul's plans for a batch of far reaching regulations.
I'm probably missing something. The appointment process (advise and consent) is clearly laid out in Art. 2, sec. 2. So both the executive and legislative branches have a say in the appointment process. But as to the opposite, the removal of someone who has been appointed, that seems less clear. I get it's sort of taken for granted that the president can remove someone once appointed, and certainly statutorily he can in regard to the CFPB, SSA, and quite a few other agency heads, for cause. But the argument is that only permitting the president to remove for cause is an unconstitutional restriction on the executive's power which is not limited. It certainly appears not limited, because the constitution doesn't outright say the removal power even exists one way or another.
ReplyDeleteAs best as I can tell, the removal power is based on Art. 2, sec. 3, which grants the president the power to take care that the laws are faithfully executed, yet isn't that basically a limited power in itself? What if the officer is faithfully executing the laws? Then wouldn't the president being precluded from removing them even under that theory. Might not be justicable, but on a strictly textual basis I'm confused by the argument.
Great!
ReplyDeleteThat means 42 USC 406(a)(2) is controlling and all attorney fees authorized under fee agreement must revert to $4,000 and not $6,000 as an unconstitutional Commissioner cannot authorize increases beyond what Congress prescribed in the law.
I am so glad you have seen the light and hope you will immediately stop requesting any fees above $4,000.
Anon 7:22 Pretty slick. Not a horrible argument.
ReplyDeleteBut this was talking about the removal of heads of agencies appointed and confirmed by the President. This seems all kind of legalese jargon. Trump is horrible but almost all former Presidents, including Obama, appointed some of their buddies into positions most notably starting with Andrew Jackson. So presumably they should have power to remove them. However, this does not shield them from public criticism if this is done without cause such as when Trump recently removed Vindman in a despicable manner.
For the SSA, I believe it is too late on Better Call Saul. Congress confirmed this individual. We are stuck with him unless he decides to leave or retire.