University of Chicago Law School
In Seila Law LLC v. Consumer Financial Protection Bureau, the Supreme Court, in an opinion by Chief Justice John Roberts, invalidated the provision of the Dodd-Frank Act restricting the president's removal of the director of the Consumer Financial Protection Bureau (CFPB) to cases of "inefficiency, neglect of duty, or malfeasance in office." The Court's decision leaves the director subject to removal by the president for any reason or no reason at all.
This Essay on the Seila Law decision makes three points. First, because there is no legal or historical support for the Court's distinction between independent agencies headed by multiple members and independent agencies headed by single officials, Seila Law creates a novel constitutional prohibition: Congress may not create an independent agency with significant regulatory power headed by a single director. Second, when rejecting the argument that it could interpret "inefficiency, neglect of duty or malfeasance in office" to include the director's refusal to execute lawful presidential commands, the Court declined an opportunity to take a major step toward presidential control of independent agencies. Third, the dissent's argument that multimember independent agencies may actually be more difficult for the president to control than independent agencies headed by single officials provides the Court with a possible basis to invalidate the entire independent agency form. Whether this will actually happen, only time will tell.
Jack M. Beermann,
Seila Law: Is There a There There?
University of Chicago Law Review Online
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3553