SCOTUS guest blog reviews 1935 case that may have precedent in today’s debate over the constitutionality of the CFPB’s leadership structure.
2/18/2020 11:00
A U.S. Supreme Court case focused on the constitutionality of the Consumer Financial Protection Bureau’s leadership structure could provide understanding of “agency independence” for the first time—or at least for the first time in many years—writes Adam White, a resident scholar at the American Enterprise Institute assistant professor at George Mason University’s Antonin Scalia Law School,” in one of a series of blogs focused on the case.
Representatives with varying positions and backgrounds on the matter are weighing in through a series of articles on the Supreme Court of the United States Blog leading up to the March 3 oral arguments in Seila Law v. Consumer Financial Protection Bureau.
“Nearly a century after the Supreme Court decided Humphrey’s Executor v. United States, we find ourselves back to debating the first principles of agency independence and the Constitution, in terms so different from—really, at odds with—those that justified agency independence in the first place. Maybe we never really understood agency independence at all; maybe now we will,” according to White’s post titled “When Agency Independence Becomes an Answer in Search of a Question.”
“If the court affirms the CFPB’s novel combination of single-leader structure, for-cause removal protection and immense substantive policymaking power, then its affirmance will mark the final repudiation of Humphrey’s Executor. The justifications proffered for CFPB independence are squarely at odds with Humphrey’s Executor’s justifications for agency independence in the first place,” White continues.
In Humphrey’s Executor, the FTC was protected from at-will removal by the president because the FTC was not an “executive agency.”
White delves into the reasoning and commentary on Humphrey’s Executor, noting how arguments from 1935 are surfacing again today.
“How ironic that arguments offered by Roosevelt to collapse the distinction between executive agencies and independent commissions, though unsuccessful in 1935, are now being offered once again to collapse those distinctions, though for the opposite reason. Roosevelt would have made independent commissions more like executive agencies; the CFPB’s advocates would make executive agencies more like independent ones,” White writes.
There also remains the question, according to White, whether the court can decide about the constitutionality of the CFPB’s leadership structure without deciding first “whether the CFPB’s for-cause removal statute allows the president to remove the CFPB director over policy disagreement? Or, stated another way, can the court adjudicate the CFPB’s independence without first determining how independent the CFPB actually is?”
Hear more insights on the case on a recent episode of ACA Cast: Legal Review: Understanding the Challenge to the Constitutionality of CFPB’s Leadership Structure.
Related Content from ACA International:
From the Web: Weighing the Merits of Case Challenging the Constitutionality of the CFPB’s Structure