SUPREME COURT OF THE UNITED STATES
SEILA LAW LLC, PETITIONER v.
CONSUMER FINANCIAL PROTECTION BUREAU
on writ of certiorari to the united states court of appeals for the ninth circuit
[June 29, 2020]
Justice Kagan, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, concurring in the judgment with respect to severability and dissenting in part.
Throughout the Nation’s history, this Court has left most decisions about how to structure the Executive Branch to Congress and the President, acting through legislation they both agree to. In particular, the Court has commonly allowed those two branches to create zones of administrative independence by limiting the President’s power to remove agency heads. The Federal Reserve Board. The Federal Trade Commission (FTC). The National Labor Relations Board. Statute after statute establishing such entities instructs the President that he may not discharge their directors except for cause—most often phrased as inefficiency, neglect of duty, or malfeasance in office. Those statutes, whose language the Court has repeatedly approved, provide the model for the removal restriction before us today. If precedent were any guide, that provision would have survived its encounter with this Court—and so would the intended independence of the Consumer Financial Protection Bureau (CFPB).
Our Constitution and history demand that result. The text of the Constitution allows these common for-cause removal limits. Nothing in it speaks of removal. And it grants Congress authority to organize all the institutions of American governance, provided only that those arrangements allow the President to perform his own constitutionally assigned duties. Still more, the Framers’ choice to give the political branches wide discretion over administrative offices has played out through American history in ways that have settled the constitutional meaning. From the first, Congress debated and enacted measures to create spheres of administration—especially of financial affairs—detached from direct presidential control. As the years passed, and governance became ever more complicated, Congress continued to adopt and adapt such measures—confident it had latitude to do so under a Constitution meant to “endure for ages to come.” McCulloch
, 4 Wheat. 316, 415 (1819) (approving the Second Bank of the United States). Not every innovation in governance—not every experiment in administrative independence—has proved successful. And debates about the prudence of limiting the President’s control over regulatory agencies, including through his removal power, have never abated.[1
] But the Constitution—both as originally drafted and as practiced—mostly leaves disagreements about administrative structure to Congress and the President, who have the knowledge and experience needed to address them. Within broad bounds, it keeps the courts—who do not—out of the picture.
The Court today fails to respect its proper role. It recognizes that this Court has approved limits on the President’s removal power over heads of agencies much like the CFPB. Agencies possessing similar powers, agencies charged with similar missions, agencies created for similar reasons. The majority’s explanation is that the heads of those agencies fall within an “exception”—one for multimember bodies and another for inferior officers—to a “general rule” of unrestricted presidential removal power. Ante,
at 13. And the majority says the CFPB Director does not. That account, though, is wrong in every respect. The majority’s general rule does not exist. Its exceptions, likewise, are made up for the occasion—gerrymandered so the CFPB falls outside them. And the distinction doing most of the majority’s work—between multimember bodies and single directors—does not respond to the constitutional values at stake. If a removal provision violates the separation of powers, it is because the measure so deprives the President of control over an official as to impede his own constitutional functions. But with or without a for-cause removal provision, the President has at least as much control over an individual as over a commission—and possibly more. That means the constitutional concern is, if anything, ameliorated when the agency has a single head. Unwittingly, the majority shows why courts should stay their hand in these matters. “Compared to Congress and the President, the Judiciary possesses an inferior understanding of the realities of administration” and the way “political power[ ] operates.” Free Enterprise Fund
v. Public Company Accounting Oversight Bd.
561 U.S. 477
, 523 (2010) (Breyer, J., dissenting).
In second-guessing the political branches, the majority second-guesses as well the wisdom of the Framers and the judgment of history. It writes in rules to the Constitution that the drafters knew well enough not to put there. It repudiates the lessons of American experience, from the 18th century to the present day. And it commits the Nation to a static version of governance, incapable of responding to new conditions and challenges. Congress and the President established the CFPB to address financial practices that had brought on a devastating recession, and could do so again. Today’s decision wipes out a feature of that agency its creators thought fundamental to its mission—a measure of independence from political pressure. I respectfully dissent.
The text of the Constitution, the history of the country, the precedents of this Court, and the need for sound and adaptable governance—all stand against the majority’s opinion. They point not to the majority’s “general rule” of “unrestricted removal power” with two grudgingly applied “exceptions.” Ante,
at 13, 16. Rather, they bestow discretion on the legislature to structure administrative institutions as the times demand, so long as the President retains the ability to carry out his constitutional duties. And most relevant here, they give Congress wide leeway to limit the President’s removal power in the interest of enhancing independence from politics in regulatory bodies like the CFPB.
What does the Constitution say about the separation of powers—and particularly about the President’s removal authority? (Spoiler alert: about the latter, nothing at all.)
The majority offers the civics class version of separation of powers—call it the Schoolhouse Rock definition of the phrase. See Schoolhouse Rock! Three Ring Government (Mar. 13, 1979), http://www.youtube.com/watch?v= pKSGyiT-o3o (“Ring one, Executive. Two is Legislative, that’s Congress. Ring three, Judiciary”). The Constitution’s first three articles, the majority recounts, “split the atom of sovereignty” among Congress, the President, and the courts. Ante,
at 21 (internal quotation marks omitted). And by that mechanism, the Framers provided a “simple” fix “to governmental power and its perils.” Ibid.
There is nothing wrong with that as a beginning (except the adjective “simple”). It is of course true that the Framers lodged three different kinds of power in three different entities. And that they did so for a crucial purpose—because, as James Madison wrote, “there can be no liberty where the legislative and executive powers are united in the same person[ ] or body” or where “the power of judging [is] not separated from the legislative and executive powers.” The Federalist No. 47, p. 325 (J. Cooke ed. 1961) (quoting Baron de Montesquieu).
The problem lies in treating the beginning as an ending too—in failing to recognize that the separation of powers is, by design, neither rigid nor complete. Blackstone, whose work influenced the Framers on this subject as on others, observed that “every branch” of government “supports and is supported, regulates and is regulated, by the rest.” 1 W. Blackstone, Commentaries on the Laws of England 151 (1765). So as James Madison stated, the creation of distinct branches “did not mean that these departments ought to have no partial agency in, or no controul over the acts of each other.” The Federalist No. 47,
at 325 (emphasis deleted).[2
] To the contrary, Madison explained, the drafters of the Constitution—like those of then-existing state constitutions—opted against keeping the branches of government “absolutely separate and distinct.” Id.,
at 327. Or as Justice Story reiterated a half-century later: “[W]hen we speak of a separation of the three great departments of government,” it is “not meant to affirm, that they must be kept wholly and entirely separate.” 2 J. Story, Commentaries on the Constitution of the United States §524, p. 8 (1833). Instead, the branches have—as they must for the whole arrangement to work—“common link[s] of connexion [and] dependence.” Ibid.
One way the Constitution reflects that vision is by giving Congress broad authority to establish and organize the Executive Branch. Article II presumes the existence of “Officer[s]” in “executive Departments.” §2, cl. 1. But it does not, as you might think from reading the majority opinion, give the President authority to decide what kinds of officers—in what departments, with what responsibilities—the Executive Branch requires. See ante,
at 11 (“The entire ‘executive Power’ belongs to the President alone”). Instead, Article I’s Necessary and Proper Clause puts those decisions in the legislature’s hands. Congress has the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution” not just its own enumerated powers but also “all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” §8, cl. 18. Similarly, the Appointments Clause reflects Congress’s central role in structuring the Executive Branch. Yes, the President can appoint principal officers, but only as the legislature “shall . . . establish[ ] by Law” (and of course subject to the Senate’s advice and consent). Art. II, §2, cl. 2. And Congress has plenary power to decide not only what inferior officers will exist but also who (the President or a head of department) will appoint them. So as Madison told the first Congress,
the legislature gets to “create[ ] the office, define[ ] the powers, [and]
limit[ ] its duration.” 1 Annals of Cong. 582 (1789). The President, as to the construction of his own branch of government, can only try to work his will through the legislative process.[3
The majority relies for its contrary vision on Article II’s Vesting Clause, see ante,
at 11–12, 25, but the provision can’t carry all that weight. Or as Chief Justice Rehnquist wrote of a similar claim in Morrison
487 U.S. 654
(1988), “extrapolat[ing]” an unrestricted removal power from such “general constitutional language”—which says only that “[t]he executive Power shall be vested in a President”—is “more than the text will bear.” Id.,
at 690, n. 29. Dean John Manning has well explained why, even were it not obvious from the Clause’s “open-ended language.” Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1971 (2011). The Necessary and Proper Clause, he writes, makes it impossible to “establish a constitutional violation simply by showing that Congress has constrained the way ‘[t]he executive Power’ is implemented”; that is exactly what the Clause gives Congress the power to do. Id.,
at 1967. Only “a specific
historical understanding” can bar Congress from enacting a given constraint. Id.,
at 2024. And nothing of that sort broadly prevents Congress from limiting the President’s removal power. I’ll turn soon to the Decision of 1789 and other evidence of Post-Convention thought. See infra
, at 9–13. For now, note two points about practice before the Constitution’s drafting. First, in that era, Parliament often restricted the King’s power to remove royal officers—and the President, needless to say, wasn’t supposed to be a king. See Birk, Interrogating the Historical Basis for a Unitary Executive, 73 Stan. L. Rev. (forthcoming 2021). Second, many States at the time allowed limits on gubernatorial removal power even though their constitutions had similar vesting clauses. See Shane, The Originalist Myth of the Unitary Executive, 19 U. Pa. J. Const. L. 323, 334–344 (2016). Historical understandings thus belie the majority’s “general rule.”
Nor can the Take Care Clause come to the majority’s rescue. That Clause cannot properly serve as a “placeholder for broad judicial judgments” about presidential control. Goldsmith & Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1867 (2016); but see ante,
at 11–12, 27–28, n. 11 (using it that way). To begin with, the provision—“he shall take Care that the Laws be faithfully executed”—speaks of duty, not power. Art. II, §3. New scholarship suggests the language came from English and colonial oaths taken by, and placing fiduciary obligations on, all manner and rank of executive officers. See Kent, Leib, & Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev. 2111, 2121–2178 (2019). To be sure, the imposition of a duty may imply a grant of power sufficient to carry it out. But again, the majority’s view of that power ill comports with founding-era practice, in which removal limits were common. See, e.g.,
Corwin, Tenure of Office and the Removal Power Under the Constitution, 27 Colum. L. Rev. 353, 385 (1927) (noting that New York’s Constitution of 1777 had nearly the same clause, though the State’s executive had “very little voice” in removals). And yet more important, the text of the Take Care Clause requires only enough authority to make sure “the laws [are] faithfully executed”—meaning with fidelity to the law itself, not to every presidential policy preference. As this Court has held, a President can ensure “ ‘faithful execution’ of the laws”—thereby satisfying his “take care” obligation—with a removal provision like the one here. Morrison
, 487 U. S., at 692. A for-cause standard gives him “ample authority to assure that [an official] is competently performing [his] statutory responsibilities in a manner that comports with the [relevant legislation’s] provisions.” Ibid.
Finally, recall the Constitution’s telltale silence: Nowhere does the text say anything about the President’s power to remove subordinate officials at will. The majority professes unconcern. After all, it says, “neither is there a ‘separation of powers clause’ or a ‘federalism clause.’ ” Ante,
at 25. But those concepts are carved into the Constitution’s text—the former in its first three articles separating powers, the latter in its enumeration of federal powers and its reservation of all else to the States. And anyway, at-will removal is hardly such a “foundational doctrine[ ],” ibid.
: You won’t find it on a civics class syllabus. That’s because removal is a tool
—one means among many, even if sometimes an important one, for a President to control executive officials. See generally Free Enterprise Fund,
561 U. S., at 524 (Breyer, J., dissenting). To find that authority hidden in the Constitution as a “general rule” is to discover what is nowhere there.
History no better serves the majority’s cause. As Madison wrote, “a regular course of practice” can “liquidate & settle the meaning of ” disputed or indeterminate constitutional provisions. Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908); see NLRB
v. Noel Canning
573 U.S. 513
, 525 (2014). The majority lays claim to that kind of record, asserting that its muscular view of “[t]he President’s removal power has long been confirmed by history.” Ante
, at 12. But that is not so. The early history—including the fabled Decision of 1789—shows mostly debate and division about removal authority. And when a “settle[ment of] meaning” at last occurred, it was not on the majority’s terms. Instead, it supports wide latitude for Congress to create spheres of administrative independence.
Begin with evidence from the Constitution’s ratification. And note that this moment is indeed the beginning: Delegates to the Constitutional Convention never discussed whether or to what extent the President would have power to remove executive officials. As a result, the Framers advocating ratification had no single view of the matter. In Federalist No. 77, Hamilton presumed that under the new Constitution “[t]he consent of [the Senate] would be necessary to displace as well as to appoint” officers of the United States. Id.,
at 515. He thought that scheme would promote “steady administration”: “Where a man in any station had given satisfactory evidence of his fitness for it, a new president would be restrained” from substituting “a person more agreeable to him.” Ibid.
By contrast, Madison thought the Constitution allowed Congress to decide how any executive official could be removed. He explained in Federalist No. 39: “The tenure of the ministerial offices generally will be a subject of legal regulation, conformably to the reason of the case, and the example of the State Constitutions.” Id.,
at 253. Neither view, of course, at all supports the majority’s story.[4
The second chapter is the Decision of 1789, when Congress addressed the removal power while considering the bill creating the Department of Foreign Affairs. Speaking through Chief Justice Taft—a judicial presidentialist if ever there was one—this Court in Myers
v. United States
272 U.S. 52
(1926), read that debate as expressing Congress’s judgment that the Constitution gave the President illimitable power to remove executive officials. The majority rests its own historical claim on that analysis (though somehow also finding room for its two exceptions). See ante,
at 12–13. But Taft’s historical research has held up even worse than Myers
’ holding (which was mostly reversed, see infra
, at 17–18). As Dean Manning has concluded after reviewing decades’ worth of scholarship on the issue, “the implications of the debate, properly understood, [are] highly ambiguous and prone to overreading.” Manning, 124 Harv. L. Rev., at 1965, n. 135; see id.,
The best view is that the First Congress was “deeply divided” on the President’s removal power, and “never squarely addressed” the central issue here. Id.,
at 1965, n. 135; Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021, 1072 (2006). The congressional debates revealed three main positions. See Corwin, 27 Colum. L. Rev., at 361. Some shared Hamilton’s Federalist No. 77 view: The Constitution required Senate consent for removal. At the opposite extreme, others claimed that the Constitution gave absolute removal power to the President. And a third faction maintained that the Constitution placed Congress in the driver’s seat: The legislature could regulate, if it so chose, the President’s authority to remove. In the end, Congress passed a bill saying nothing about removal, leaving the President free to fire the Secretary of Foreign Affairs at will. But the only one of the three views definitively rejected was Hamilton’s theory of necessary Senate consent. As even strong proponents of executive power have shown, Congress never “endorse[d] the view that [it] lacked authority to modify” the President’s removal authority when it wished to. Prakash, supra,
at 1073; see Manning, supra,
at 1965, n. 135, 2030–2031. The summer of 1789 thus ended without resolution of the critical question: Was the removal power “beyond the reach of congressional regulation?” Prakash, supra,
At the same time, the First Congress gave officials han- dling financial affairs—as compared to diplomatic and military ones—some independence from the President. The title and first section of the statutes creating the Departments of Foreign Affairs and War designated them “executive departments.” Act of July 27, 1789, ch. 4,
28; Act of Aug. 7, 1789, ch. 7,
49. The law creating the Treasury Department conspicuously avoided doing so. See Act of Sept. 2, 1789, ch. 12,
65. That difference in nomenclature signaled others of substance. Congress left the organization of the Departments of Foreign Affairs and War skeletal, enabling the President to decide how he wanted to staff them. See Casper, An Essay in Separation of Powers, 30 Wm. & Mary L. Rev. 211, 239–241 (1989). By contrast, Congress listed each of the offices within the Treasury Department, along with their functions. See ibid.
Of the three initial Secretaries, only the Treasury’s had an obligation to report to Congress when requested. See §2,
65–66. And perhaps most notable, Congress soon deemed the Comptroller of the Treasury’s settlements of public accounts “final and conclusive.” Act of Mar. 3, 1795, ch. 48, §4,
441–442. That decision, preventing presidential overrides, marked the Comptroller as exercising independent judgment.[5
] True enough, no statute shielded the Comptroller from discharge. But even James Madison, who at this point opposed most removal limits, told Congress that “there may be strong reasons why an officer of this kind should not hold his office at the pleasure” of the Secretary or President. 1 Annals of Cong. 612. At the least, as Professor Prakash writes, “Madison maintained that Congress had the [constitutional] authority to modify [the Comptroller’s] tenure.” Prakash, supra
, at 1071.
Contrary to the majority’s view, then, the founding era closed without any agreement that Congress lacked the power to curb the President’s removal authority. And as it kept that question open, Congress took the first steps—which would launch a tradition—of distinguishing financial regulators from diplomatic and military officers. The latter mainly helped the President carry out his own constitutional duties in foreign relations and war. The former chiefly carried out statutory duties, fulfilling functions Congress had assigned to their offices. In addressing the new Nation’s finances, Congress had begun to use its powers under the Necessary and Proper Clause to design effective administrative institutions. And that included taking steps to insulate certain officers from political influence.
As the decades and centuries passed, those efforts picked up steam. Confronting new economic, technological, and social conditions, Congress—and often the President—saw new needs for pockets of independence within the federal bureaucracy. And that was especially so, again, when it came to financial regulation. I mention just a few highlights here—times when Congress decided that effective governance depended on shielding technical or expertise-based functions relating to the financial system from political pressure (or the moneyed interests that might lie behind it). Enacted under the Necessary and Proper Clause, those measures—creating some of the Nation’s most enduring institutions—themselves helped settle the extent of Congress’s power. “[A] regular course of practice,” to use Madison’s phrase, has “liquidate[d]” constitutional meaning about the permissibility of independent agencies. See supra,
Take first Congress’s decision in 1816 to create the Second Bank of the United States—“the first truly independent agency in the republic’s history.” Lessig & Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 30 (1994). Of the twenty-five directors who led the Bank, the President could appoint and remove only five. See Act of Apr. 10, 1816, §8,
269. Yet the Bank had a greater impact on the Nation than any but a few institutions, regulating the Nation’s money supply in ways anticipating what the Federal Reserve does today. Of course, the Bank was controversial—in large part because of its freedom from presidential control. Andrew Jackson chafed at the Bank’s independence and eventually fired his Treasury Secretary for keeping public moneys there (a dismissal that itself provoked a political storm). No matter. Innovations in governance always have opponents; administrative independence predictably (though by no means invariably) provokes presidential ire. The point is that by the early 19th century, Congress established a body wielding enormous financial power mostly outside the President’s dominion.
The Civil War brought yet further encroachments on presidential control over financial regulators. In response to wartime economic pressures, President Lincoln (not known for his modest view of executive power) asked Congress to establish an office called the Comptroller of the Currency. The statute he signed made the Comptroller removable only with the Senate’s consent—a version of the old Hamiltonian idea, though this time required not by the Constitution itself but by Congress. See Act of Feb. 25, 1863, ch. 58,
665. A year later, Congress amended the statute to permit removal by the President alone, but only upon “reasons to be communicated by him to the Senate.” Act of June 3, 1864, §1,
100. The majority dismisses the original version of the statute as an “aberration.” Ante,
at 19. But in the wake of the independence given first to the Comptroller of the Treasury and then to the national Bank, it’s hard to conceive of this newest Comptroller position as so great a departure. And even the second iteration of the statute preserved a constraint on the removal power, requiring a President in a firing mood to explain himself to Congress—a demand likely to make him sleep on the subject. In both versions of the law, Congress responded to new financial challenges with new regulatory institutions, alert to the perils in this area of political interference.[6
And then, nearly a century and a half ago, the floodgates opened. In 1887, the growing power of the railroads over the American economy led Congress to create the Interstate
Commerce Commission. Under that legislation, the Presi- dent could remove the five Commissioners only “for inefficiency, neglect of duty, or malfeasance in office”—the same standard Congress applied to the CFPB Director. Act of Feb. 4, 1887, §11,
383. More—many more—for-cause removal provisions followed. In 1913, Congress gave the Governors of the Federal Reserve Board for-cause protection to ensure the agency would resist political pressure and promote economic stability. See Act of Dec. 23, 1913, ch. 6,
251. The next year, Congress provided similar protection to the FTC in the interest of ensuring “a continuous policy” “free from the effect” of “changing [White House] incumbency.” 51 Cong. Rec. 10376 (1914). The Federal Deposit Insurance Corporation (FDIC), the Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission. In the financial realm, “independent agencies have remained the bedrock of the institutional framework governing U. S. markets.” Gadinis, From Independence to Politics in Financial Regulation, 101 Cal. L. Rev. 327, 331 (2013). By one count, across all subject matter areas, 48 agencies have heads (and below them hundreds more inferior officials) removable only for cause. See Free Enterprise Fund
, 561 U. S., at 541 (Breyer, J., dissenting). So year by year by year, the broad sweep of history has spoken to the constitutional question before us: Independent agencies are everywhere.
What is more, the Court’s precedents before today have accepted the role of independent agencies in our governmental system. To be sure, the line of our decisions has not run altogether straight. But we have repeatedly upheld provisions that prevent the President from firing regulatory officials except for such matters as neglect or malfeasance. In those decisions, we sounded a caution, insisting that Congress could not impede through removal restrictions the President’s performance of his own constitutional duties. (So, to take the clearest example, Congress could not curb the President’s power to remove his close military or diplomatic advisers.) But within that broad limit, this Court held, Congress could protect from at-will removal the officials it deemed to need some independence from political pressures. Nowhere do those precedents suggest what the majority announces today: that the President has an “unrestricted removal power” subject to two bounded exceptions. Ante
, at 2.
The majority grounds its new approach in Myers
, ignoring the way this Court has cabined that decision. Myers
, the majority tells us, found an unrestrained removal power “essential to the [President’s] execution of the laws.” Ante,
at 13 (quoting Myers,
272 U. S., at 117). What the majority does not say is that within a decade the Court abandoned that view (much as later scholars rejected Taft’s one-sided history, see supra,
at 10–11). In Humphrey’s Executor
v. United States
295 U.S. 602
(1935), the Court unceremoniously—and unanimously—confined Myers
to its facts. “[T]he narrow point actually decided” there, Humphrey’s
stated, was that the President could “remove a postmaster of the first class, without the advice and consent of the Senate.” 295 U. S.,
at 626. Nothing else in Chief Justice Taft’s prolix opinion “c[a]me within the rule of stare decisis
(Indeed, the Court
went on, everything in Myers
“out of harmony” with Humphrey’s
was expressly “disapproved.” 295 U. S., at 626.
) Half a century later, the Court was more generous. Two decisions read Myers
as standing for the principle that Congress’s own “participation in the removal of executive officers is unconstitutional.” Bowsher
478 U.S. 714
, 725 (1986); see Morrison
, 487 U. S., at 686 (“As we observed in Bowsher
, the essence” of “Myers
was the judgment that the Constitution prevents Congress from draw[ing] to itself ” the power to remove (internal quotation marks omitted)). Bowsher
made clear that Myers
had nothing to say about Congress’s power to enact a provision merely “limit[ing] the President’s powers of removal” through a for-cause provision. 478 U. S., at 724. That issue, the Court stated, was “not presented” in “the Myers
Instead, the relevant cite was Humphrey’s
found constitutional a statute identical to the one here, providing that the President could remove FTC Commissioners for “inefficiency, neglect of duty, or malfeasance in office.” 295 U. S., at 619. The Humphrey’s
Court, as the majority notes, relied in substantial part on what kind of work the Commissioners performed. See id.,
at 628, 631; ante,
at 14. (By contrast, nothing in the decision turned—as the majority suggests, see ante,
at 14–15—on any of the agency’s organizational features. See infra
, at 30.) According to Humphrey’s
, the Commissioners’ primary work was to “carry into effect legislative policies”—“filling in and administering the details embodied by [a statute’s] general standard.” 295 U. S., at 627–628. In addition, the Court noted, the Commissioners recommended dispositions in court cases, much as a special master does. Given those “quasi-legislative” and “quasi-judicial”—as opposed to “purely executive”—functions, Congress could limit the President’s removal authority. Id.,
] Or said another way, Congress could give the FTC some “independen[ce from] executive control.” Id.,
About two decades later, an again-unanimous Court in Wiener
v. United States
357 U.S. 349
(1958), reaffirmed Humphrey’s
. The question in Wiener
was whether the President could dismiss without cause members of the War Claims Commission, an entity charged with compensating injuries arising from World War II. Disdaining Myers
and relying on Humphrey’s
, the Court said he could not. The Court described as “short-lived” Myers
’ view that the President had “inherent constitutional power to remove officials, no matter what the relation of the executive to the discharge of their duties.” 357 U. S.,
] Here, the Commissioners were not close agents of the President, who needed to be responsive to his preferences. Rather, they exercised adjudicatory responsibilities over legal claims. Congress, the Court found, had wanted the Commissioners to do so “free from [political] control or coercive influence.” Id.,
at 355 (quoting Humphrey’s
, 295 U. S., at 629). And that choice, as Humphrey’s
had held, was within Congress’s power. The Constitution enabled Congress to take down “the Damocles’ sword of removal” hanging over the Commissioners’ heads. 357 U. S., at 356.
Another three decades on, Morrison
both extended Humphrey’s
domain and clarified the standard for addressing removal issues. The Morrison
Court, over a one-Justice dissent, upheld for-cause protections afforded to an independent counsel with power to investigate and prosecute crimes committed by high-ranking officials. The Court well understood that those law enforcement functions differed from the rulemaking and adjudicatory duties highlighted in Humphrey’s
. But that difference did not resolve the issue. An official’s functions, Morrison
held, were relevant to but not dispositive of a removal limit’s constitutionality. The key question in all the cases, Morrison
saw, was whether such a restriction would “impede the President’s ability to perform his constitutional duty.” 487 U. S., at 691. Only if it did so would it fall outside Congress’s power. And the protection for the independent counsel, the Court found, did not. Even though the counsel’s functions were “purely executive,” the President’s “need to control the exercise of [her] discretion” was not “so central to the functioning of the Executive Branch as to require” unrestricted removal authority. Id.,
at 690–691. True enough, the Court acknowledged, that the for-cause standard prevented the President from firing the counsel for discretionary decisions or judgment calls. But it preserved “ample authority” in the President “to assure that the counsel is competently performing” her “responsibilities in a manner that comports with” all legal requirements. Id.,
at 692. That meant the President could meet his own constitutional obligation “to ensure ‘the faithful execution’ of the laws.” Ibid.
The majority’s description of Morrison
, see ante,
is not true to the decision. (Mostly, it seems, the majority just wishes the case would go away. See ante,
at 17, n. 4.) First, Morrison
is no “exception” to a broader rule from Myers
echoed all of Humphrey’s
criticism of the by-then infamous Myers
“dicta.” 487 U. S.,
at 687. It again rejected the notion of an “all-inclusive” removal power. Ibid.
It yet further confined Myers
’ reach, making clear that Congress could restrict the President’s removal of officials carrying out even the most traditional executive functions. And the decision, with care, set out the governing rule—again, that removal restrictions are permissible so long as they do not impede the President’s performance of his own constitutionally assigned duties. Second, as all that suggests, Morrison
is not limited to inferior officers. In the eight pages addressing the removal issue, the Court constantly spoke of “officers” and “officials” in general. 487 U. S., at 685–693. By contrast, the Court there used the word “inferior” in just one sentence (which of course the majority quotes), when applying its general standard to the case’s facts. Id.,
at 691. Indeed, Justice Scalia’s dissent emphasized that the counsel’s inferior-office status played no role in the Court’s decision. See id.,
at 724 (“The Court could have resolved the removal power issue in this case by simply relying” on that status, but did not). As Justice Scalia noted, the Court in United States
116 U.S. 483
, 484–485 (1886), had a century earlier allowed Congress to restrict the President’s removal power over inferior officers. See Morrison
, 487 U. S., at 723–724. Were that Morrison
’s basis, a simple citation would have sufficed.
Even Free Enterprise Fund
, in which the Court recently held a removal provision invalid, operated within the framework of this precedent—and in so doing, left in place a removal provision just like the one here. In that case, the Court considered a “highly unusual” scheme of double for-cause protection. 561 U. S., at 505. Members of an accounting board were protected from removal by SEC Commissioners, who in turn were protected from removal by the President. The Court found that the two-layer structure deprived the President of “adequate control” over the Board members. Id.,
at 508. The scheme “impaired” the President’s “ability to execute the laws,” the Court explained, because neither he nor any fully dependent agent could decide “whether[ ] good cause exists” for a discharge. Id.,
at 495–496. That holding cast no doubt on ordinary for-cause protections, of the kind in the Court’s prior cases (and here as well). Quite the opposite. The Court observed that it did not “take issue with for-cause limitations in general”—which do
enable the President to determine whether good cause for discharge exists (because, say, an official has violated the law). Id.,
at 501. And the Court’s solution to the constitutional problem it saw was merely to strike one level of insulation, making the Board removable by the SEC at will. That remedy left the SEC’s own for-cause protection in place. The President could thus remove Commissioners for malfeasance or neglect, but not for policy disagreements. See ante,
So caselaw joins text and history in establishing the general permissibility of for-cause provisions giving some independence to agencies. Contrary to the majority’s view, those laws do not represent a suspicious departure from illimitable presidential control over administration. For almost a century, this Court has made clear that Congress has broad discretion to enact for-cause protections in pursuit of good governance.
The deferential approach this Court has taken gives Con-
gress the flexibility it needs to craft administrative agencies. Diverse problems of government demand diverse solutions. They call for varied measures and mixtures of democratic accountability and technical expertise, energy and efficiency. Sometimes, the arguments push toward tight presidential control of agencies. The President’s engagement, some people say, can disrupt bureaucratic stagnation, counter industry capture, and make agencies more responsive to public interests. See, well, Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001). At other times, the arguments favor greater independence from presidential involvement. Insulation from political pressure helps ensure impartial adjudications. It places technical issues in the hands of those most capable of addressing them. It promotes continuity, and prevents short-term electoral interests from distorting policy. (Consider, for example, how the Federal Reserve’s independence stops a President trying to win a second term from manipulating interest rates.) Of course, the right balance between presidential control and independence is often uncertain, contested, and value-laden. No mathematical formula governs institutional design; trade-offs are endemic to the enterprise. But that is precisely why the issue is one for the political branches to debate—and then debate again as times change. And it’s why courts should stay (mostly) out of the way. Rather than impose rigid rules like the majority’s, they should let Congress and the President figure out what blend of independence and political control will best enable an agency to perform its intended functions.
Judicial intrusion into this field usually reveals only how little courts know about governance. Even everything I just said is an over-simplification. It suggests that agencies can easily be arranged on a spectrum, from the most to the least presidentially controlled. But that is not so. A given agency’s independence (or lack of it) depends on a wealth of features, relating not just to removal standards, but also to appointments practices, procedural rules, internal organization, oversight regimes, historical traditions, cultural norms, and (inevitably) personal relationships. It is hard to pinpoint how those factors work individually, much less in concert, to influence the distance between an agency and a President. In that light, even the judicial opinions’ perennial focus on removal standards is a bit of a puzzle. Removal is only the most obvious, not necessarily the most potent, means of control. See generally Free Enterprise Fund
, 561 U. S., at 524 (Breyer, J., dissenting). That is because informal restraints can prevent Presidents from firing at-will officers—and because other devices can keep officers with for-cause protection under control. Of course no court, as Free Enterprise Fund
noted, can accurately assess the “bureaucratic minutiae” affecting a President’s influence over an agency. Id.
, at 500 (majority opinion); ante,
at 30 (reprising the point). But that is yet more reason for courts to defer to the branches charged with fashioning administrative structures, and to hesitate before ruling out agency design specs like for-cause removal standards.
Our Constitution, as shown earlier, entrusts such decisions to more accountable and knowledgeable actors. See supra,
at 4–9. The document—with great good sense—sets out almost no rules about the administrative sphere. As Chief Justice Marshall wrote when he upheld the first independent financial agency: “To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument.” McCulloch
, 4 Wheat., at 415. That would have been, he continued, “an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly.” Ibid.
And if the Constitution, for those reasons, does not lay out immutable rules, then neither should judges. This Court has usually respected that injunction. It has declined to second-guess the work of the political branches in creating independent agencies like the CFPB. In reversing course today—in spurning a “pragmatic, flexible approach to American governance” in favor of a dogmatic, inflexible one, ante,
at 29—the majority makes a serious error.
As the majority explains, the CFPB emerged out of disaster. The collapse of the subprime mortgage market “precipitat[ed] a financial crisis that wiped out over $10 trillion in American household wealth and cost millions of Americans their jobs, their retirements, and their homes.” Ante,
at 3. In that moment of economic ruin, the President proposed and Congress enacted legislation to address the causes of the collapse and prevent a recurrence. An important part of that statute created an agency to protect consumers from exploitative financial practices. The agency would take over enforcement of almost 20 existing federal laws. See
12 U. S. C. §5581. And it would administer a new prohibition on “unfair, deceptive, or abusive act[s] or practice[s]” in the consumer-finance sector. §5536(a)(1)(B).
No one had a doubt that the new agency should be independent. As explained already, Congress has historically given—with this Court’s permission—a measure of independence to financial regulators like the Federal Reserve Board and the FTC. See supra,
at 11–16. And agencies of that kind had administered most of the legislation whose enforcement the new statute transferred to the CFPB. The law thus included an ordinary for-cause provision—once again, that the President could fire the CFPB’s Director only for “inefficiency, neglect of duty, or malfeasance in office.” §5491(c)(3). That standard would allow the President to discharge the Director for a failure to “faithfully execute[ ]” the law, as well as for basic incompetence. U. S. Const., Art. II, §3; see supra,
at 8, 20. But it would not permit removal for policy differences.
The question here, which by now you’re well equipped to answer, is whether including that for-cause standard in the statute creating the CFPB violates the Constitution.
Applying our longstanding precedent, the answer is clear: It does not. This Court, as the majority acknowledges, has sustained the constitutionality of the FTC and similar independent agencies. See ante,
at 2, 13–16. The for-cause protections for the heads of those agencies, the Court has found, do not impede the President’s ability to perform his own constitutional duties, and so do not breach the separation of powers. See supra,
at 18–22. There is nothing different here. The CFPB wields the same kind of power as the FTC and similar agencies. And all of their heads receive the same kind of removal protection. No less than those other entities—by now part of the fabric of government—the CFPB is thus a permissible exercise of Congress’s power under the Necessary and Proper Clause to structure administration.
First, the CFPB’s powers are nothing unusual in the universe of independent agencies. The CFPB, as the majority notes, can issue regulations, conduct its own adjudications, and bring civil enforcement actions in court—all backed by the threat of penalties. See ante,
at 1; 12 U. S. C. §§5512, 5562–5565. But then again, so too can (among others) the FTC and SEC, two agencies whose regulatory missions parallel the CFPB’s. See 15 U. S. C. §§45, 53, 57a, 57b–3, 78u, 78v, 78w. Just for a comparison, the CFPB now has 19 enforcement actions pending, while the SEC brought 862 such actions last year alone. See Brief for Petitioner 7; SEC, Div. of Enforcement 2019 Ann. Rep. 14. And although the majority bemoans that the CFPB can “bring the coercive power of the state to bear on millions of private citizens,” ante,
at 18, that scary-sounding description applies to most independent agencies. Forget that the more relevant factoid for those many citizens might be that the CFPB has recovered over $11 billion for banking consumers. See ante,
at 5. The key point here is that the CFPB got the mass of its regulatory authority from other independent agencies that had brought the same “coercive power to bear.” See
12 U. S. C. §5581 (transferring power from, among others, the Federal Reserve, FTC, and FDIC). Congress, to be sure, gave the CFPB new authority over “unfair, deceptive, or abusive act[s] or practice[s]” in transactions involving a “consumer financial product or service.” §§5517(a)(1), 5536(a)(1). But again, the FTC has power to go after “unfair or deceptive acts or practices in or affecting commerce”—a portfolio spanning a far wider swath of the economy.
15 U. S. C. §45(a)(1).[10
] And if influence on economic life is the measure, consider the Federal Reserve, whose every act has global consequence. The CFPB, gauged by that comparison, is a piker.
Second, the removal protection given the CFPB’s Director is standard fare. The removal power rests with the President alone; Congress has no role to play, as it did in the laws struck down in Myers
. See supra,
at 17–18. The statute provides only one layer of protection, unlike the law in Free Enterprise Fund
. See supra,
at 21–22. And the clincher, which you have heard before: The for-cause standard used for the CFPB is identical to the one the Court upheld in Humphrey’s
. Both enable the President to fire an agency head for “inefficiency, neglect of duty, or malfeasance in office.” See
12 U. S. C. §5491(c)(3);
15 U. S. C. §41; supra,
at 18. A removal provision of that kind applied to a financial agency head, this Court has held, does not “unduly trammel[ ] on executive authority,” even though it prevents the President from dismissing the official for a discretionary policy judgment. Morrison
, 487 U. S., at 691. Once again: The removal power has not been “completely stripped from the President,” providing him with no means to “ensure the ‘faithful execution’ of the laws.” Id.,
at 692; see supra,
at 20. Rather, this Court has explained, the for-cause standard gives the President “ample authority to assure that [the official] is competently performing his or her statutory responsibilities in a manner that comports with” all legal obligations. 487 U. S., at 692; see supra,
In other words—and contra today’s majority—the President’s removal power, though not absolute, gives him the “meaningful[ ] control[ ]” of the Director that the Constitution requires. Ante,
The analysis is as simple as simple can be. The CFPB Director exercises the same powers, and receives the same removal protections, as the heads of other, constitutionally permissible independent agencies. How could it be that this opinion is a dissent?
The majority focuses on one (it says sufficient) reason: The CFPB Director is singular, not plural. “Instead of placing the agency under the leadership of a board with multiple members,” the majority protests, “Congress provided that the CFPB would be led by a single Director.” Ante,
] And a solo CFPB Director does not fit within either of the majority’s supposed exceptions. He is not an inferior officer, so (the majority says) Morrison
does not apply; and he is not a multimember board, so (the majority says) neither does Humphrey’s
. Further, the majority argues, “[a]n agency with a [unitary] structure like that of the CFPB” is “novel”—or, if not quite that, “almost wholly unprecedented.” Ante,
at 2, 18. Finally, the CFPB’s organizational form violates the “constitutional structure” because it vests power in a “single individual” who is “insulated from Presidential control.” Ante,
at 2–3, 23.
I’m tempted at this point just to say: No. All I’ve explained about constitutional text, history, and precedent invalidates the majority’s thesis. But I’ll set out here some more targeted points, taking step by step the majority’s reasoning.
First, as I’m afraid you’ve heard before, the majority’s “exceptions” (like its general rule) are made up. See supra,
at 16–22. To begin with, our precedents reject the very idea of such exceptions. “The analysis contained in our removal cases,” Morrison
stated, shuns any attempt “to define rigid categories” of officials who may (or may not) have job protection. 487 U. S., at 689. Still more, the contours of the majority’s exceptions don’t connect to our decisions’ reasoning. The analysis in Morrison
, as I’ve shown, extended far beyond inferior officers. See supra,
at 20–21. And of course that analysis had to apply to individual
officers: The independent counsel was very much a person, not a committee. So the idea that Morrison
is in a separate box from this case doesn’t hold up.[12
] Similarly, Humphrey’s
and later precedents give no support to the majority’s view that the number of people at the apex of an agency matters to the constitutional issue. Those opinions mention the “groupness” of the agency head only in their background sections. The majority picks out that until-now-irrelevant fact to distinguish the CFPB, and constructs around it an until-now-unheard-of exception. So if the majority really wants to see something “novel,” ante,
at 2, it need only look to its opinion.
By contrast, the CFPB’s single-director structure has a fair bit of precedent behind it. The Comptroller of the Currency. The Office of the Special Counsel (OSC). The Social Security Administration (SSA). The Federal Housing Finance Agency (FHFA). Maybe four prior agencies is in the eye of the beholder, but it’s hardly nothing. I’ve already explained why the earliest of those agencies—the Civil-War-era Comptroller—is not the blip the majority describes. See supra,
at 14–15. The office is one in a long line, starting with the founding-era Comptroller of the Treasury (also one person), of financial regulators designed to do their jobs with some independence. As for the other three, the majority objects: too powerless and too contested. See ante,
at 18–21. I think not. On power, the SSA runs the Nation’s largest government program—among other things, deciding all claims brought by its 64 million beneficiaries; the FHFA plays a crucial role in overseeing the mortgage market, on which millions of Americans annually rely; and the OSC prosecutes misconduct in the two-million-person federal workforce. All different from the CFPB, no doubt; but the majority can’t think those matters beneath a President’s notice. (Consider: Would the President lose more votes from a malfunctioning SSA or CFPB?) And controversial? Well, yes, they are. Almost all
independent agencies are controversial, no matter how many directors they have. Or at least controversial among Presidents and their lawyers. That’s because whatever might be said in their favor, those agencies divest the President of some removal power. If signing statements and veto threats made independent agencies unconstitutional, quite a few wouldn’t pass muster. Maybe that’s what the majority really wants (I wouldn’t know)—but it can’t pretend the disputes surrounding these agencies had anything to do with whether their heads are singular or plural.
Still more important, novelty is not the test of constitutionality when it comes to structuring agencies. See Mistretta
v. United States
488 U.S. 361
, 385 (1989) (“[M]ere anomaly or innovation” does not violate the separation of powers). Congress regulates in that sphere under the Necessary and Proper Clause, not (as the majority seems to think) a Rinse and Repeat Clause. See supra,
at 6. The Framers understood that new times would often require new measures, and exigencies often demand innovation. See McCulloch
, 4 Wheat., at 415; supra,
at 24. In line with that belief, the history of the administrative sphere—its rules, its practices, its institutions—is replete with experiment and change. See supra,
at 9–16. Indeed, each of the agencies the majority says now fits within its “exceptions” was once new; there is, as the saying goes, “a first time for everything.” National Federation of Independent Business
567 U.S. 519
, 549 (2012). So even if the CFPB differs from its forebears in having a single director, that departure is not itself “telling” of a “constitutional problem.” Ante,
at 18. In deciding what this
moment demanded, Congress had no obligation to make a carbon copy of a design from a bygone era.
And Congress’s choice to put a single director, rather than a multimember commission, at the CFPB’s head violates no principle of separation of powers. The purported constitutional problem here is that an official has “slip[ped] from the Executive’s control” and “supervision”—that he has become unaccountable to the President. Ante,
at 23, 25 (internal quotation marks omitted). So to make sense on the majority’s own terms, the distinction between singular and plural agency heads must rest on a theory about why the former more easily “slip” from the President’s grasp. But the majority has nothing to offer. In fact, the opposite is more likely to be true: To the extent that such matters are measurable, individuals are easier than groups to supervise.
To begin with, trying to generalize about these matters is something of a fool’s errand. Presidential control, as noted earlier, can operate through many means—removal to be sure, but also appointments, oversight devices (e.g.,
centralized review of rulemaking or litigating positions), budgetary processes, personal outreach, and more. See Free Enterprise Fund
, 561 U. S., at 524 (Breyer, J., dissenting); supra,
] The effectiveness of each of those control mechanisms, when present, can then depend on a multitude of agency-specific practices, norms, rules, and organizational features. In that complex stew, the difference between a singular and plural agency head will often make not a whit of difference. Or to make the point more concrete, a multimember commission may be harder to control than an individual director for a host of reasons unrelated to its plural character. That may be so when the two are subject to the same removal standard, or even when the individual director has greater formal job protection. Indeed, the very category of multimember commissions breaks apart under inspection, spoiling the majority’s essential dichotomy. See generally Brief for Rachel E. Barkow et al. as Amici Curiae
. Some of those commissions have chairs appointed by the President; others do not. Some of those chairs are quite powerful; others are not. Partisan balance requirements, term length, voting rules, and more—all vary widely, in ways that make a significant difference to the ease of presidential control. Why, then, would anyone distinguish along a simple commission/single-director axis when deciding whether the Constitution requires at-will removal?
But if the demand is for generalization, then the majority’s distinction cuts the opposite way: More powerful control mechanisms are needed (if anything) for commissions. Holding everything else equal, those are the agencies more likely to “slip from the Executive’s control.” Ante,
at 25. Just consider your everyday experience: It’s easier to get one person to do what you want than a gaggle. So too, you know exactly whom to blame when an individual—but not when a group—does a job badly. The same is true in bureaucracies. A multimember structure reduces accountability to the President because it’s harder for him to oversee, to influence—or to remove, if necessary—a group of five or more commissioners than a single director. Indeed, that is why
Congress so often resorts to hydra-headed agencies. “[M]ultiple membership,” an influential Senate Report concluded, is “a buffer against Presidential control” (especially when combined, as it often is, with partisan-balance requirements). Senate Committee on Governmental Affairs, Study on Federal Regulation, S. Doc. No. 95–91, vol. 5, p. 75 (1977). So, for example, Congress constructed the Federal Reserve as it did because it is “easier to protect a board from political control than to protect a single appointed official.” R. Cushman, The Independent Regulatory Commissions 153 (1941).[14
] It is hard to know why Congress did not take the same tack when creating the CFPB. But its choice brought the agency only closer to the President—more exposed to his view, more subject to his sway. In short, the majority gets the matter backward: Where presidential control is the object, better to have one than many.
Because it has no answer on that score, the majority slides to a different question: Assuming presidential control of any independent agency is vanishingly slim, is a single-head or a multi-head agency more capable of exercising power, and so of endangering liberty? See ante,
at 21–23. The majority says a single head is the greater threat because he may wield power “unilaterally
” and “[w]ith no colleagues to persuade.” Ante,
(emphasis in original). So the CFPB falls victim to what the majority sees as a constitutional anti-power-concentration principle (with an exception for the President).
If you’ve never heard of a statute being struck down on that ground, you’re not alone. It is bad enough to “extrapolat[e]” from the “general constitutional language” of Article II’s Vesting Clause an unrestricted removal power constraining Congress’s ability to legislate under the Necessary and Proper Clause. Morrison
, 487 U. S., at 690, n. 29; see supra,
at 7. It is still worse to extrapolate from the Constitution’s general structure (division of powers) and implicit values (liberty) a limit on Congress’s express power to create administrative bodies. And more: to extrapolate from such sources a distinction as prosaic as that between the SEC and the CFPB—i.e.,
between a multi-headed and single-headed agency. That is, to adapt a phrase (or two) from our precedent, “more than” the emanations of “the text will bear.” Morrison
, 487 U. S., at 690, n. 29. By using abstract separation-of-powers arguments for such purposes, the Court “appropriate[s]” the “power delegated to Congress by the Necessary and Proper Clause” to compose the government. Manning, Foreword: The Means of Constitutional Power, 128 Harv. L. Rev. 1, 78 (2014). In deciding for itself what is “proper,” the Court goes beyond its own proper bounds.
And in doing so, the majority again reveals its lack of interest in how agencies work. First, the premise of the majority’s argument—that the CFPB head is a mini-dictator, not subject to meaningful presidential control, see ante
, at 23—is wrong. As this Court has seen in the past, independent agencies are not fully independent. A for-cause removal provision, as noted earlier, leaves “ample” control over agency heads in the hands of the President. Morrison
, 487 U. S., at 692; see supra
, at 20. He can discharge them for failing to perform their duties competently or in accordance with law, and so ensure that the laws are “faithfully executed.” U. S. Const., Art. II, §3; see supra,
at 8, 20. And he can use the many other tools attached to the Office of the Presidency—including in the CFPB’s case, rulemaking review—to exert influence over discretionary policy calls. See supra
, at 33, and n. 13. Second, the majority has nothing but intuition to back up its essentially functionalist claim that the CFPB would be less capable of exercising power if it had more than one Director (even supposing that were a suitable issue for a court to address). Ante
, at 21, 23. Maybe the CFPB would be. Or maybe not. Although a multimember format tends to frustrate the President’s control over an agency, see supra
, at 34–35, it may not lessen the agency’s own ability to act with decision and dispatch. (Consider, for a recent example, the Federal Reserve Board.) That effect presumably would depend on the agency’s internal organization, voting rules, and similar matters. At the least: If the Court is going to invalidate statutes based on empirical assertions like this one, it should offer some empirical support. It should not pretend that its assessment that the CFPB wields more power more dangerously than the SEC comes from someplace in the Constitution. But today the majority fails to accord even that minimal respect to Congress.
Recall again how this dispute got started. In the midst of the Great Recession, Congress and the President came together to create an agency with an important mission. It would protect consumers from the reckless financial practices that had caused the then-ongoing economic collapse. Not only Congress but also the President thought that the new agency, to fulfill its mandate, needed a measure of independence. So the two political branches, acting together, gave the CFPB Director the same job protection that innumerable other agency heads possess. All in all, those branches must have thought, they had done a good day’s work. Relying on their experience and knowledge of administration, they had built an agency in the way best suited to carry out its functions. They had protected the public from financial chicanery and crisis. They had governed.
And now consider how the dispute ends—with five unelected judges rejecting the result of that democratic process. The outcome today will not shut down the CFPB: A different majority of this Court, including all those who join this opinion, believes that if
the agency’s removal provision is unconstitutional, it should be severed. But the majority on constitutionality jettisons a measure Congress and the President viewed as integral to the way the agency should operate. The majority does so even though the Constitution grants to Congress, acting with the President’s approval, the authority to create and shape administrative bodies. And even though those branches, as compared to courts, have far greater understanding of political control mechanisms and agency design.
Nothing in the Constitution requires that outcome; to the contrary. “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.” Youngstown Sheet & Tube Co.
343 U.S. 579
, 635 (1952) (Jackson, J., concurring). The Framers took pains to craft a document that would allow the structures of governance to change, as times and needs change. The Constitution says only a few words about administration. As Chief Justice Marshall wrote: Rather than prescribing “immutable rules,” it enables Congress to choose “the means by which government should, in all future time, execute its powers.” McCulloch
, 4 Wheat., at 415. It authorizes Congress to meet new exigencies with new devices. So Article II does not generally prohibit independent agencies. Nor do any supposed structural principles. Nor do any odors wafting from the document. Save for when those agencies impede the President’s performance of his own constitutional duties, the matter is left up to Congress.
Our history has stayed true to the Framers’ vision. Congress has accepted their invitation to experiment with administrative forms—nowhere more so than in the field of financial regulation. And this Court has mostly allowed it to do so. The result is a broad array of independent agencies, no two exactly alike but all with a measure of insulation from the President’s removal power. The Federal Reserve Board; the FTC; the SEC; maybe some you’ve never heard of. As to each, Congress thought that formal job protection for policymaking would produce regulatory outcomes in greater accord with the long-term public interest. Congress may have been right; or it may have been wrong; or maybe it was some of both. No matter—the branches accountable to the people have decided how the people should be governed.
The CFPB should have joined the ranks. Maybe it will still do so, even under today’s opinion: The majority tells Congress that it may “pursu[e] alternative responses” to the identified constitutional defect—“for example, converting the CFPB into a multimember agency.” Ante
, at 36. But there was no need to send Congress back to the drawing board. The Constitution does not distinguish between single-director and multimember independent agencies. It instructs Congress, not this Court, to decide on agency design. Because this Court ignores that sensible—indeed, that obvious—division of tasks, I respectfully dissent.