Policy Letter

Amicus Brief: Precedent Shows Removal Protections Aren’t Unconstitutional

From the earliest days of the Republic, Congress has consistently placed conditions on the president’s ability to remove the heads of agencies and other officers of the United States, most commonly a “for-cause” clause. Such clauses require that the president have a reason other than personal dislike or a desire to keep his or her own appointee in order to remove an officer. The goal of these clauses is to provide a layer of independence for the officers so that they can do their jobs without having to worry that they will be removed improperly. In Seila Law, LLC v. Consumer Financial Protection Bureau, POGO and Constitutional Fellow Mort Rosenberg have filed an amicus brief to defend this historic power.

In 2017, the Consumer Financial Protection Bureau (CFPB) opened an investigation into whether Seila Law, LLC’s (petitioner) marketing methods had violated federal consumer finance law. In response, petitioner argued that the fundamental structure of the CFPB violated Constitutionally-mandated separation of powers by preventing the president from removing the director at will. In doing so, petitioner ignores a vast sweep of American and British history in which Congress and Parliament regularly placed conditions on the removal of officers.

The First Congress, for example, placed multiple officers entirely beyond the removal powers of the president, and in other instances required by law that the president exercise the removal power when officers failed to fulfill their duties. Both of these exercises of congressional power are far more sweeping in their scope and implications than the fairly modest clause restricting the removal of the CFPB director, which restricts the president to removing the director for “inefficiency, neglect of duty, or malfeasance in office.” This clause, which has been used to restrict the removal of other officers, has been interpreted incredibly broadly by the courts, allowing the executive a great deal of discretion in the removal of the director.

Even in its weakest interpretation, petitioner’s arguments would render unconstitutional critical elements of the federal government, including the Social Security Administration, the Office of Special Counsel and the Federal Housing Finance Agency. If petitioner’s arguments were accepted in their entirety, they would destroy the structure of an enormous portion of the federal government, including the FDIC, SEC, and many other agencies. Further, it would overturn Humphrey’s Executor, a nearly 85 year old precedent upon which Congress has relied for the better part of a century in constructing the federal government as we know it today. It would fly against both the Court’s stare decisis respect for its own precedent and Congress’ well-established historic power to determine how the Executive carries out its will.

Our brief argues that the Supreme Court should uphold the historic powers of Congress and preserve its own precedent and the government which Congress has built over the course of a century.

We are grateful to the assistance of Morton Rosenberg, Stephen Migala, and Carl Cecere for their assistance in the creation and filing of the brief. The briefs of petitioner Seila Law, LLC and respondent CFPB are available here.