On Tuesday, the Trump administration called on the Supreme Court to file a lawsuit against the leadership structure of the Consumer Financial Protection Bureau (CFPB) – on the same page as the people who are suing the government in a major constitutional dispute.
The government essentially threw in the towel in the challenge to consumer protection initiated by Senator and Presidential Candidate Elizabeth Warren. The Ministry of Justice is usually required to defend federal laws challenged in court. However, the administration has decided not to defend the law at issue in the present case.
With the Justice Department asking the Tribunal to weigh up, it is now very likely that judges will do so. The political implications of this lawsuit, Seila Law v. CFPB are unclear. In the strictest sense, Seila Law is concerned with whether a federal agency can be run by a single director, whom the president can not dismiss at will. In a broader sense, however, it is the recent skirmish in a war on the nature of government allowed by our constitution.
Most likely, the Supreme Court will decide that the President can recall the CFPB Director. In the short term, this could give a great boost to a future Democratic president ̵
However, the court could go much further. There is a chance – albeit very small – that the Supreme Court will reject the CFPB as a whole. There is a slightly greater chance that the Supreme Court will ban "independent" agencies that protect the leaders of these agencies from being removed by the president.
In other words, President Trump could be empowered to dismiss members of the Federal Reserve Board who refuse to inject steroids into the economy while Trump stands for reelection.
To challenge all this, an ideological struggle is the "unified executive," the theory that all executive power in the United States government must be left to the president, and the legacy of the late Justice Minister Antonin Scalia.
The dispute over the possibility of dismissing the CFPB Director.
Most federal agencies are headed by a Cabinet Secretary or another high-ranking official who can be dismissed by the President. By contrast, independent agencies such as the Federal Trade Commission (FTC) or the Federal Communications Commission (FCC) are often led by bipartisan boards whose members have staggered terms. Often, members of such bodies may only be dismissed by the president "for good cause," which normally prevents a president from dismissing a panel member simply because they disagree with the political views of that panel member.
The CFPB is unusual. It is headed by a single director, not by a board. However, this director is also protected from a president who wants to dismiss her. By law, the President can only dismiss the CFPB Director "if he is inefficient, disregarded his duty or has not performed his duties properly."
This unusual ruling angered many Conservatives. In fact, a particularly conservative federal judge argued that "the consent of the governed is a deception" if the structure of the CFPB is preserved.
To understand why this case provokes such intense emotions, turn the clock back three decades before the Supreme Court decision of 1988 in Morrison v. Chr. Olson . Morrison dealt with a federal law expired in 1999, which provided for "independent lawyers" – a kind of special prosecutor who could only be dismissed by the president on important grounds.
The Supreme Court upheld the Statute of the Independent Public Prosecutor's Office with a unilateral 7 to 1 vote, with Justice Antonin Scalia representing the only dissenting vote.
Scalia's motto: The constitution states that "the executive power will be transferred to a president of the United States. "For Scalia, this does not mean part of executive power, but the entire executive power Invested in the executive branch of the government, there can be no prosecutor who is neither the president nor a lower official who responsible to the President.
This is the theory of the unified executive. The executive has a single organizational chart. And the president has to stand above all others in this table.
Scalia's dissent is pretty broad. It does not simply attack the statute of the independent lawyer. It also taunts the Court's Opinion of 1935 in Humphrey's Executor Against the United States which enabled the creation of independent agencies under the direction of multi-member supervisory boards.
If a majority of the Tribunal recognizes the full implications of Scalia's dissent, the President may be empowered to dismiss FCC Commissioners or destroy the independence of the Federal Reserve.
But at least the structure of the CFPB – with a single director who can not be removed by the president – is anathema to supporters of the unified executive. Like the statute in issue in Morrison the statute challenged in Seila Law confers the kind of power traditionally held by the executive in one person. In fact, it's even more than what the single command over an entire federal agency gives.
Many powerful conservatives now worship Scalia's dissenting opinion with the same reverence that is usually associated with a religious text. One of them is Judge Brett Kavanaugh, who stated in 2016 that he wanted to put the "last nail" in the coffin of the Morrison majority.
How far should the Supreme Court go?
A handful of judges have claimed that the entire CFPB needs to be eliminated for this alleged constitutional shortage in its governance structure. That's unlikely. Kavanaugh heard a very similar complaint as a judge in the lower court, raising the same question as to whether the CFPB could have a single director who could not easily be dismissed by the president. Although Kavanuagh agreed that the director must be accountable to the president, he wrote that the CFPB could continue to work with the president, who "can replace the director at will at any time."
And without Kavanuagh's voice it's hard to see How litigants demanding the death of CFPB can get five votes in this Supreme Court.
At least in the short term, a ruling embracing Kavanaugh's view could possibly be a blessing for the Democrats, as it would allow a Democratic president to replace the presidency CFPB director on the first day of her presidency. Kavanaugh's position, which shares the Trump administration, would effectively turn the CFPB into an ordinary agency whose leadership changes as partisan control of the White House changes eliminates the possibility of independent agencies run by multi-member organizations.
So far, Roberts Court has progressively taken steps towards a unified executive, but it has left Humphrey's Executor largely in place. For example, in its decision of 2010 in Free Enterprise Fund v. Public Company Accounting Oversight Board the Supreme Court has removed a provision for the protection of members of a particular government council for "dual cause".
] Members of the Public Company Accounting Oversight Board were removed by the Securities and Exchange Commission (SEC), but only for "good cause." In the meantime, the SEC commissioners themselves could only be removed by the president for "inefficiency, neglect of" duty or abuse of office. "This double layer of isolation with the president was one shift too much for the majority of the Supreme Court.
Roberts & # 39; Majority opinion in Free Enterprise Fund but pay attention not to do so go much further. "It's not about generally dealing with constraints for important reasons," he wrote, stressing that "we're not doing that."
But the Supreme Court is now much more conservative than 2010, and that too. It's an open question whether Roberts will be willing to consider a broader stake in Seila Law . If so, Trump could suddenly become much more powerful.