The U.S. Supreme Court on Monday ruled that the legal stricture preventing the president from firing the head of the Consumer Financial Protection Bureau (CFPB) was unconstitutional, reasoning that the provision violated separation of powers doctrine. While overshadowed by the release of the Court’s much-anticipated Louisiana abortion ruling, legal experts warned that the decision could have wide-reaching consequences concerning executive power that may play a significant role in the court’s pending decision concerning President Donald Trump’s tax returns.
In the wake of the 2008 financial crash, Congress in 2010 created the CFPB as an independent agency with a single Senate-confirmed director who could only be removed for cause. In a 5-4 decision made along the usual liberal/conservative lines, Chief Justice John Roberts sided with the Court’s conservatives to hold that “the CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers,” while also finding that the unconstitutional provision was severable from the rest of the law.
“Under our Constitution, the ‘executive Power’—all of it—is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully executed,’” Roberts wrote near the beginning of the majority’s opinion. Thus, he swiftly eliminated much of the agency’s political independence. “The CFPB Director’s removal protection is severable from the other statutory provisions bearing on the CFPB’s authority. The agency may therefore continue to operate, but its Director, in light of our decision, must be removable by the President at will.”
While the narrow holding in the case may not seem particularly significant, legal experts pointed out the language in Roberts’s decision, which espoused a very broad view of executive power, could have lasting repercussions for increasing presidential power.
“The Chief Justice’s CFPB opinion is not going to get nearly the attention it deserves given his far more visible concurrence in the abortion case. But it’s a very big deal for the separation of powers insofar as it makes it harder to have ‘independent’ Executive Branch agencies,” wrote University of Texas law professor Steve Vladeck. “As with the DACA and LGBT rulings, the story is not that the Chief Justice is a stealth progressive; he isn’t. It’s that he’s a careful conservative institutionalist who’s more than happy to play the long game rather than vote by default for all socially conservative positions.”
“The Chief Justice’s CFPB opinion is not going to get nearly the attention it deserves given his far more visible concurrence in the abortion case,” Vladeck continued. “But it’s a very big deal for the separation of powers insofar as it makes it harder to have “independent” Executive Branch agencies.”
Fordham Law professor and legal historian Jed Shugerman accused the Chief Justice of taking a non-textualist and overly-expansive view of executive power, calling it “a gift to future presidential abuses.”
“This fundamental textual and historical error about ‘all’ is the basis of the ‘exclusivist’ unitary executive argument against the congressional and Manhattan DA subpoenas for Trump’s tax returns. The word ‘all’ is added to the first substantive sentence in Roberts’s opinion, and it tells you that the unitary executive mythologists are not good textualists,” Shugerman wrote, noting that the Framers of Constitution specifically avoided using such terminology in Article II.
Shugerman further argued that the Chief Justice’s language could be a “bad sign” for anyone hoping to see President Trump’s tax returns. He highlighted the linguistic similarities used by Roberts with that of outgoing U.S. Solicitor General Noel Francisco when arguing that the president can limit investigations into his own conduct.
According to Shugerman, who clearly anticipates that Trump’s tax return case will result in an ideological split of the court leaving Chief Justice Roberts as the deciding vote, the underlying and language in his CFPB decision does not bode well for Congress’s chances at seeing the president’s tax returns.
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