It won’t get as much attention as the opinion of Chief Justice John Roberts in another 5-4 decision handed down today (in the case of June Medical Services v. Russo) that represented a major setback for the anti-abortion cause. But Roberts gave the Trump administration a significant if limited victory in holding that he can fire the director of the Consumer Financial Protection Bureau without meeting specified conditions created by Congress when it set up that independent agency.
The five-justice majority in Seila Law v. CFPB, consisting of Roberts plus the Supreme Court’s four other conservatives, held that the single-director structure of the Consumer Financial Protection Bureau means that Congress cannot restrict the president’s power to fire the head of the agency Republicans and their business allies love to hate. (Congress, with the Supreme Court’s concurrence, has been able to keep the president from dismissing the leaders of multiheaded agencies like the Federal Communications Commission or even the Federal Reserve Board). Because it chose to invalidate the CFPB’s structure rather than its basic legitimacy, the Court limited its ruling to maintaining the president’s power to fire the director at will, as NPR observed:
[T]he court did not go as far as the challengers had wanted, limiting the decision to the single-director structure of the CFPB. Roberts wrote “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.”
In a concurring opinion, Justices Clarence Thomas and Neil Gorsuch agreed with striking down firing protections for the CFPB director, but went on to present the long-standing conservative case that congressionally created independent agencies insulated from presidential oversight are all unconstitutional. This in turn is the legal theory relied upon by opponents of the so-called “administrative state,” a favorite conservative target. In Thomas’s own estimation, the majority decision represented a mere baby step in the right direction.
The Court’s four liberals concurred in a dissent (as to the main holding) written by Justice Elena Kagan, arguing that the CFPB was really no different from other agencies in terms of Congress’s power to protect their independence from arbitrary presidential interference. The dissenters did, of course, agree with Roberts in refusing to dismantle CFPB altogether.
In many respects this was a glass-half-full, glass-half-empty decision, depending on your perspective. The person most responsible for CFPB’s structure, mission and very existence chose to regard it as an important vindication of her work:
For those unhappy with the Trump administration getting a win here, it’s worth remembering that this decision means that if Joe Biden wins in November, he can dismiss Trump’s CFPB director, Kathy Kraninger, long before her five-year term expires in 2023. Perhaps in that circumstance, the CFPB could actually perform its original function of fighting predatory-lending practices.