The Federalist Society is pleased to announce its Student Blog Initiative, a project of the Practice Groups and the Student Division. An inaugural group of eight students will contribute to the Federalist Society's blog throughout this academic year. Student contributors accepted into the program are held to the same rigorous standards as the regular and guest contributors to the blog, which exists as a forum for experts to provide thoughtful, balanced commentary in an engaging, accessible manner.
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The promise of the Constitution is a separation-of-powers system in which, as James Madison wrote in Federalist No. 51, ambition is made to counteract ambition. Over the last century, the rise of independent agencies has drained much of the clarity from that system by carving out aspects of executive authority from the powers of the presidency. Beginning with its 1935 decision, Humphrey’s Executor v. United States, which upheld the constitutionality of the independent Federal Trade Commission, the Supreme Court has generally allowed Congress to place substantial authority in administrative agencies not directly answerable to the President.
The Court’s recent ruling in Seila Law v. Consumer Financial Protection Bureau, however, may have marked the transition into a new era of judicial skepticism of the constitutional position of independent agencies. In Seila Law, the Court struck down the for-cause removal provision that protected the Director of the Consumer Financial Protection Bureau (CFPB) from at-will termination by the President, finding that the protection violated Article II of the Constitution. Chief Justice John Roberts, writing for the Court, noted that “[u]nder our Constitution, the ‘executive Power’—all of it—is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully executed.’”
The Court reasoned that the single-director-led CFPB stood in contrast to other independent agencies like the Federal Trade Commission and the Federal Communications Commission, which are run by multi-member bodies that feature representatives from the two major political parties. Ultimately, it was the CFPB’s lack of “a foundation in historical practice” and concentration of “power in a unilateral actor insulated from Presidential control” that compelled the Court to find that the CFPB’s structure violated the separation of powers.
Now, with Seila Law decided, the Court is wasting no time in using this precedent to reconsider the structure of other, similar agencies. This coming term, the Court will hear the case of Collins v. Mnuchin. Coming to the Court from the U.S. Court of Appeals for the Fifth Circuit, Collins is a constitutional challenge to the structure of the Federal Housing Finance Agency (FHFA). The FHFA, like the CFPB, is led by a single director who is removable only for cause.
The Justice Department under President Trump would not defend the constitutionality of the for-cause provision at issue in the case, so the Court decided to appoint an administrative law scholar to argue in favor of the FHFA’s structure. Justice Samuel Alito – the Justice assigned to the Fifth Circuit – tapped former law clerk and current BYU law professor Aaron Nielson for the job.
Professor Nielson, a distinguished voice on separation-of-powers issues who is certain to do an excellent job here, has a tall task ahead of him. It is hard to imagine the Court upholding the constitutionality of a for-cause removal provision for the single director of an independent agency in the term immediately following Seila Law. In fact, although she wrote a blistering dissent in Seila Law, Justice Elena Kagan may be one to watch in this case. She has become the Court’s leading proponent of stare decisis. With Collins, Justice Kagan will need to contend with precedent that appears about as on-point as one can get. Seeing how Justice Kagan deals with an apparent conflict between her positions on precedent and independent agencies will be illuminating.
Two schools of thought currently dominate the independent agency debate. On one side are the “unitary executive” theorists. They argue that the text of Article II of the Constitution—vesting the executive power in a president and charging that president with taking care that the laws be faithfully executed—means that the president has the ability to remove officials who are not properly executing the laws. Moreover, they point to “The Decision of 1789,” in which the first Congress adopted this interpretation of the constitutional text and vested the removal power in the president alone. Past the text, structure, and history of the Constitution, unitary executive theorists contend that across-the-board presidential removal power is the best administrative policy for democratic accountability, as presidents are answerable to voters, while independent agency heads are not. Myers v. United States, the landmark 1920s Supreme Court case affirming strong presidential power to exert control over the executive branch, represents the unitary theory well.
On the other side are the administrative state supporters. Justice Kagan has provided intellectual depth to this view, most recently in her Seila Law dissent. Joined by three of her colleagues, Justice Kagan argued that the constitutional text is not as clear on removal as some unitary executive theorists might like to say that it is, and she pointed to early evidence that even executive power hawk Alexander Hamilton believed that presidential removal authority was more limited than what the Seila Law majority urged. Administrative state supporters also make the point that independent agencies are simply a fact of life in American government today, and dismantling this arrangement would undermine governmental stability. Furthermore, they contend that independent agencies are able to leverage scientific and other kinds of expertise free from political interference, and that they can take the best approach when there is asymmetry between a president’s short-term political interests and the country’s long-term interests. The latter point is often made in favor of an independent Federal Reserve.
As the debate goes on, the resolution of Collins promises to be wildly engrossing for administrative law enthusiasts, especially if the Justices continue to steer the jurisprudential boat away from the island of Humphrey’s Executor and back toward the unitary executive theory mainland of Myers.