Chief Justice Roberts Pruned, Not Felled the Administrative State

In curating a lawn, a landscaper often must choose between removing foliage and manicuring it. These decisions stem from the kind of yard the owner desires; to conform to the plan, does that shrub or tree merely require being paring back or is it so contrary that it be cut down?

In Seila Law v. Consumer Financial Protection Bureau, the Supreme Court faced a similar choice. The case pertained to the structure of the Consumer Financial Protection Bureau (CFPB), which Congress established to regulate financial products such as credit cards, mortgages, or student loans. Created in response to the 2008 financial crisis, Congress intended the CFPB to provide greater “transparency” as well as better protections for consumers within financial markets.

Whatever the merits of this endeavor, the CFPB’s structure must accord with the “plan” ratified by “We the People” as found in the U.S. Constitution. Moreover, if found to contradict the Constitution, the Court faced the additional question of whether to manicure or remove it.

In this instance, the Court needed an ax. Chief Justice Roberts, however, used pruning shears. Roberts’s opinion stated that the CFPB ran afoul of the Constitution’s separation of powers. He rightly articulated that, under the Constitution, “[t]he entire “executive Power” belongs to the President alone.” This possession of the executive power included the capacity to control federal officers who exercised law enforcement functions, including the authority to remove them at-will.

 

The CFPB violated this principle because it operated as an agency, run by a single director, exercising significant executive power apart from full presidential control. The President nominated and the Senate confirmed such appointees for five-year terms. But during that term, the President only may remove said director for “inefficiency, neglect of duty, or malfeasance in office.” Absent extreme circumstances, this language leaves the Director wide berth to execute laws as he or she sees fit, regardless of what the president thinks.

The Court rightly concluded that the CFPB’s executive functions must come under presidential control. It thus declared that the President must have the authority to fire CFPB’s Director for any reason. But, while trimming back the growth, the Court left standing an unconstitutional forest. For the CFPB comprised only part of a vast bureaucratic system infected with the same kind of Constitutional violations.

Roberts left this forest basically intact by refusing to touch Court precedents. Those precedents included Humphrey’s Executor v. United States, which allowed independent agencies to exist so long as they were run by a multi-person board and exercised amorphous quasi-legislative or quasi-judicial power. Morrison permitted independence to those exercising core executive power in limited cases of investigating executive branch wrongdoing. None of these precedents applied here and Roberts refused to extend them.

However, these exceptions should fall, too. For one, these precedents violate his own, clear articulation of the Constitution’s intention for national executive power. Roberts rightly said that the entire law-enforcement power resides in and flows from the presidency. By that means the executive is made more effective in giving the protection of the laws and more responsible in being held to account for weak or oppressive enforcement. Exceptions like Morrison undermine this principle and often create, in effect, multiple executive branches all claiming autonomy in carrying out law.

For another, the CFPB violated separation of powers in other ways. The Court admitted that the CFPB did more than exercise executive power. The CFPB also possessed extensive authority to create regulations and to adjudicate disputes regarding their content as well as their enforcement. In other words, the CFPB exercised legislative and judicial power in addition to executive.

Such conglomeration of lawmaking, law enforcing, and law adjudicating contradicted our Constitution’s text and the principles underlying it. It went against the text in that the national government’s distinct types of power are given to discrete institutions — Congress the legislative, the president the executive, and the judiciary the judicial. It thereby went against the Constitution’s purpose of protecting liberty. In Federalist 47, James Madison declared that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands…may justly be pronounced the very definition of tyranny.” When the same persons can exercise all three powers, they can manipulate the law to fit their own desires.

In doing so, Roberts upheld the effect of Humphrey’s Executor without attempting its linguistic gymnastics. That case tried to define agency functions into “quasi” categories the Constitution did not recognize. Roberts admitted the real powers exercised but left their combination untouched.

Roberts likely refrained from addressing these issues because of the extent of the ramifications. He could claim the particulars of the CFBP made it a singular Constitutional violation. These other problems infect much of the administrative apparatus of our national government. Justice Thomas’s concurrence correctly pointed out the problem, calling for consistency of decision to accompany the Chief Justice’s Constitutional reasoning.

Therefore, in Seila Law, we see the Court engaged in necessary but inadequate Constitutional landscaping. It kept the unconstitutional growth of the bureaucracy at bay. Let us hope in the future that it trades its Constitutional pruning shears and takes an ax to the Administrative State.

Adam Carrington is associate professor of politics at Hillsdale College.