The Supreme Court will decide if Trump can fire the head of the CFPB. The implications are enormous.
S E E D E D C O N T E N T
Next Tuesday, the Supreme Court will hear Seila Law v. CFPB , which asks whether the president is allowed to fire the head of the Consumer Financial Protection Bureau (CFPB) at will. That question may seem minor and esoteric, but the stakes underlying Seila Law are enormous .
There is an off chance that the Court could use this lawsuit to strike down the entire CFPB — a decision that would dismantle much of the infrastructure Congress built in response to the 2008 financial crisis. Meanwhile, there’s a much greater chance that the Court will use this case to fundamentally alter the balance of power between the president and the federal government’s “independent” agencies.
The “Seila Law” in the Seila Law case is a law firm that is being investigated by the CFPB for allegedly engaging “in unlawful acts or practices in the advertising, marketing, or sale of debt relief services.” This lawsuit is its Hail Mary attempt to end that investigation by having the entire agency conducting the investigation struck down. Yet, while that outcome is unlikely, the Court’s decision in Seila Law is likely to fundamentally rework the balance of power between the president and various “independent agencies.”
Various federal officials, ranging from the CFPB director, to Federal Reserve governors, to members of the Federal Trade Commission, serve in independent agencies. That means that the agency’s leaders enjoy a certain amount of job security. They can be fired by the president, but only “ for cause ” or for “ inefficiency, neglect of duty, or malfeasance in office .”
The legal theory animating Seila Law is that the CFPB director, at least, may not be given this kind of job security. As a constitutional matter, the lawyers behind Seila Law argue, the president has the authority to oversee the CFPB — and that includes the power to fire its director if the president objects to how the CFPB is being run.
In the short term , a decision allowing the CFPB director to be fired at will by the president could benefit Democrats — the current director, Kathy Kraninger, is a Trump appointee whom a Democratic president would probably prefer to replace as soon as possible. But there are also very good reasons why the heads of independent agencies are protected from being fired. And, if the Supreme Court strips these agency heads of their protection, President Trump could easily find new ways to abuse his power.
If the president had the power to fire Federal Reserve governors at will, for example, he could remove Fed governors unless they goose the economy by keeping interest rates low during a presidential election year — potentially changing the outcome of that election.
The “unitary executive,” explained
Seila Law could be the culmination of a conservative crusade that began more than three decades ago, with Justice Antonin Scalia’s dissenting opinion in Morrison v. Olson (1988).
Morrison involved a federal law, which expired in 1999 , that provided for “independent counsels” — a kind of special prosecutor who could only be fired for cause. The Court upheld this law in a 7-to-1 decision, with Scalia the only voice in dissent.
As Scalia argued, the Constitution provides that “the executive Power shall be vested in a President of the United States .” This provision, according to Scalia, “does not mean some of the executive power, but all of the executive power.” Thus, because the power to bring prosecutions is vested in the executive branch, there cannot be a prosecutor who is “independent” of the president. Under Scalia’s view, federal officers must either serve at the pleasure of the president, or be responsible to an official who serves at the will of the president.
Scalia’s Morrison dissent laid out the “unitary executive” theory of the presidency. Under this theory, the president sits at the top of the executive branch’s org chart — and everyone beneath him must be accountable to that president.
Justice Scalia’s Morrison dissent, it should be noted, is a dissent . Scalia’s idea of a unitary executive lost out in 1988 — he couldn’t even convince a single one of his colleagues to join his jeremiad against agency officials who act independently from the president.
But Scalia’s dissent has also garnered a cult following among conservatives in the more than three decades since it was written, and many of its most loyal fans are now in very powerful jobs. One of them is Justice Brett Kavanaugh, who said in 2016 that he wanted to “ put the final nail ” in the Morrison majority opinion’s coffin.
Significantly, the Trump Justice Department also filed a brief arguing that the CFPB director’s job protections are unconstitutional. The unitary executive may not be the law of the land, yet, but it is the dominant viewpoint in conservative legal circles.
Two big questions at the heart of Seila Law
Though it is likely that five members of the Supreme Court will agree that the president should be allowed to fire the CFPB director, it is less clear whether the Court’s decision will have significant implications beyond the CFPB.
In Humphrey’s Executor v. United States (1935), the Supreme Court held that Congress could create independent agencies led by multi-person, bipartisan boards — and that the members of these boards could be given job security protections. But the CFPB is not led by such a board. It is led by a single director.
According to the Trump administration, this unusual arrangement, a single director shielded from accountability to the president, is different in kind from a multi-member board. “A single-headed independent agency presents a greater risk than a multimember independent agency of taking actions or adopting policies inconsistent with the President’s executive policy,” the Trump administration argues in its Seila Law brief .
Thus, it’s possible that the Supreme Court could preserve the core holding of Humphrey’s Executor — that independent agencies are fine so long as they are led by a multi-member board — while also striking down the CFPB’s single-director structure.
Another open question is whether the Court will hand down a sweeping invalidation of the CFPB, or merely change the rules governing when its director may be fired.
The lawyers challenging the CFPB’s single-director structure suggest that the agency should cease to exist . “Congress’s foremost goal in structuring the CFPB was to create an agency independent from outside influence,” they claim. So if the agency cannot be independent, it should be struck down in it entirety (or, at least, it should be prevented from bringing enforcement actions).
Realistically, there are unlikely to be five votes for such a radical outcome. Even the Trump administration rejects the argument that the entire agency should be struck down — it argues in its brief that there is “no basis to conclude that Congress would have preferred to have no Bureau at all rather than a Bureau headed by a Director who would be removable.” Similarly, though Kavanaugh is one of the Court’s most outspoken defenders of the unitary executive theory, he also heard a very similar lawsuit to Seila Law when he was a lower court judge — and his opinion in that case was relatively measured.
Although Kavanaugh agreed that the president should have the power to fire the CFPB director, he also wrote that the CFPB may continue to operate with the president able “to remove the Director at will at any time.” Thus, Kavanaugh would keep the agency largely intact.
Without Kavanaugh’s vote, it’s difficult to see how litigants hoping to kill the CFPB in its entirety will find a majority on this Supreme Court.
The short term effect of Seila Law , in other words, could potentially be very good for Democrats. As a practical matter, the Court may simply allow the next Democratic president to fire Trump’s CFPB director on day one of the new administration.
But the Court could also give Trump broad new powers to intimidate members of the Federal Reserve board and other key agencies. And there is, at least, a small chance that it will strike down the CFPB in its entirety.
Photo:President Donald Trump greets Supreme Court Justice Brett Kavanaugh, with Justices Elena Kagan and Neil Gorsuch looking on. Alex Wong/Getty Images
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More power ! More power !
Why would Trump ever care about protecting consumers? He is a life long crook, con man and cheat whose own company defrauded consumers when he and his children misled customers who wanted to buy condos in his buildings about what the rate of sales of units in the buildings was.
It's like expecting a mugger to care about the pickpocket rate.
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Bottom line: Conservatism does not believe in consumer protections---or any protections for anyone except the rich and powerful.
Gorsuch and Kavanaugh are in place. And of course, Thomas and Alito are already there.
Why do some liberals profess to know what conservatives think when it is clear that they simply don't even have a clue?
Why do some conservatives (Texan) profess to know what liberals think?
bernie all the way! - ring a bell?
Sorry, woefully inadequate response.
I didn't claim to know what liberals think (?) but expressed my desire for Bernie to win the Democratic nomination.
So what?
[Deleted. Texan is not the topic.]
Can you see the 'outrage' in living color now?!!! Whatever may happen this fall, do not forget if we lose the selection for the high court for another 'season' or so —we're done! We're be done in the federal and local court systems too. In our lifetimes in anyway. Because this is precisely what conservatives mean to do. That is, ram conservative "thought" and 'policies" down liberal throats through their own form of court activism. In other words, conservatives think the constitution is wholly designed and committed to a conservative form of governance. They are the "righteous" defenders and spokespeople for what is rule of law.
If you still don't get my drift, I mean, conservatives believe just like back in the old days, what they SAY is rule is law!
Some of us, many of us, will die in a stupid, ass-backward, "suspension-state" like our whole lives have been prior to achieving a proper thinking and reasoning jurisprudence. We will all die in a Trump 'fhit-hole.'
Democrats and independents and some of you republicans remember what matters this fall. Trump must go back out into the private sector, where that freak of nature belongs. And, the law can get to him properly!
The conservative mantra use to be not to legislate from the bench yet that is exactly what they are doing.
With court stacking and pushing agendas in front of the courts. And now them just letting donald grab more and more power, idiots don't even realize they are diminishing their own.
The Conservative 'Movement' is a fraud, a 'theft,' and has never been a proper friend to liberals or the Rule of Law! They always think they know better. That they are the 'tools of righteousness' used by God. The song goes, "Beware of the handshake that hides the snake."
Smiling Faces Sometimes - The Undisputed Truth.
It is time for democratic party unity. We need to come together right now or we shall fall together. We have enough to catch up with as it is. And unless we want to fall back to the era before the 1900's when the rich lived in palatial homes modeled off of European palaces and the less fortunate go around in patches owning nothing and eating grubs from the fields, unions are 'flat' or not at all: Unity now!
Democrats, Independents, and relevant Republicans and Conservatives the time has come to hop down off the fence; speak up, and vote like you mean it! Pick up your load! Stop expecting "the few others" to defend your 'space' in the lineup!
It is high-time for the fhits and giggles to end in the DNC! Stop the dumbness and get it all together. Get focused on picking a winner in the Electoral College! Forget the 'cutesy' crap. If democrats lose this election. Get ready not to recognize this country in two years time. Why? Because conservative think-tanks will be pushing every conservative policy through their own "activist" courts.
You see how "activism" can work both ways now? Conservatives and republicans have been bullfhitting the republican for a long time. They are Trump. He is the fake, mockery, of freedom and patriotism they have been waiting for over 40 years! They intend to take liberals back to the 'stone-age' of rule of law. And in its stead, put some ridiculous "theocratic" mockery of a Right-wing ideology (with its accompaniment of lies, deceptions, and alternatives to reality) we have been sampling of recent.
Wow! What a speech!
Put me in coach .... i'm ready to play!
You pitch for the other side. Nobody is confused about that. That freak of nature President you support has no problem having his minions call the private homes of judges and officials to browbeat each one into deceptively believing a lying talking point or intimidating each one into not standing up for the laws on the books!
accept his catcher
?
Funny ..... when i volunteered to serve in the USMC i didn't know there was "sides." Still don't think there is and i'm not confused about it.
There is only people too rigid and extreme in their views to ever compromise on anything.
Trump would be his catcher he would hope you could accept, as i can't ever accept their exception
I am a veteran, and I know better than to exploit my status. So, . . . . Moving forward.
Is this right and proper Or wrong and deceptive ?
South Carolina, Joe Biden Can't Be Trusted - Committee For The President [Trump]
Sparty On , here is a proper chance for you to defend truth from error. Please proceed. . . .
Damned Russians. Stay out of SC......................hahahahahaha
No distractions. This is not a laughing matter. Defend truth from error. Please proceed. . . .
Yeah well, I’m proud of my service and have zero problem talking about it whenever I please.
I suggest you learn to deal with that or simply move along.
Oh and “I” have nothing to defend. My comment stands on its own.
Just how the fuck is Sparty exploiting his status? I guess you exploited your status by claiming to be a veteran?
I am proud of my service, too. It does not follow that when I state:
A good answer is to mention military service, nevertheless.
I note your deflection, also. @5.1.6 do you care to proceed with it or not? Your or my military service is not at stake or issue in this political exchange.
Do not make vain attempts at outrage. If you want to be outraged about something. Try that republican lying video/ad above. It's a perfect opportunity for you to defend truth from error too!
I never said you weren’t. You’re the one making value judgements about others service not me.
Any deflection you perceived from me on this is entirely made up in your mind. Not very clever at all ....
oh and thanks for your service.
@ 5.1.6 do you care to proceed with it or not? Your or my military service is not at stake or issue in this political exchange .
There is nothing to debate. It changes nothing related to my comments.
Their was no mention of Democrat or Republican, black or white, straight or gay, etc, etc in the oath I took. There is no sides, only the US Constitution. Which again means ALL Americans. Perhaps you took a different oath than I.
You could have thanked me for my service as well but you just want to argue endlessly about a unrelated narrative of your choice. Find someone else for that. I’m not interested In the least.
So, no words of critique for Trump or republicans when properly deserved? Yet fully engaged in dumping on anybody who is not Trump or republican? Got it. Blow smoke and mirrors all day long—I see. It's transparent to me and others who care to look closely.
Walk away. Take Trump. I will call it as I see it-nothing more or less!
[Deleted] ..... my comment had nothing to do with Trump or Republicans, or Obama and Democrats or etc, etc. [Deleted] if it’s important to you to claim a false victory have at her.
I could care less.
My whole comment is about politics. And yours? Well, you see it properly there.