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<\/b>
\nThe 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\u2019s 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\u2019s pending decision concerning President Donald Trump\u2019s 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\u2019s conservatives to hold that \u201cthe CFPB\u2019s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers,\u201d while also finding that the unconstitutional provision was severable from the rest of the law.
\u201cUnder our Constitution, the \u2018executive Power\u2019\u2014all of it\u2014is \u2018vested in a President,\u2019 who must \u2018take Care that the Laws be faithfully executed,\u2019\u201d Roberts wrote near the beginning of the majority\u2019s opinion. Thus, he swiftly eliminated much of the agency\u2019s political independence. \u201cThe CFPB Director\u2019s removal protection is severable from the other statutory provisions bearing on the CFPB\u2019s authority. The agency may therefore continue to operate, but its Director, in light of our decision, must be removable by the President at will.\u201d
While the narrow holding in the case may not seem particularly significant, legal experts pointed out the language in Roberts\u2019s decision, which espoused a very broad view of executive power, could have lasting repercussions for increasing presidential power.
\u201cThe Chief Justice\u2019s CFPB opinion is not going to get nearly the attention it deserves given his far more visible concurrence in the abortion case. But it\u2019s a very big deal for the separation of powers insofar as it makes it harder to have \u2018independent\u2019 Executive Branch agencies,\u201d wrote University of Texas law professor Steve Vladeck. \u201cAs with the DACA and LGBT rulings, the story is not that the Chief Justice is a stealth progressive; he isn\u2019t. It\u2019s that he\u2019s a careful conservative institutionalist who\u2019s more than happy to play the long game rather than vote by default for all socially conservative positions.\u201d
\u201cThe Chief Justice\u2019s CFPB opinion is not going to get nearly the attention it deserves given his far more visible concurrence in the abortion case,\u201d Vladeck continued. \u201cBut it\u2019s a very big deal for the separation of powers insofar as it makes it harder to have \u201cindependent\u201d Executive Branch agencies.\u201d
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 \u201ca gift to future presidential abuses.\u201d
\u201cThis fundamental textual and historical error about \u2018all\u2019 is the basis of the \u2018exclusivist\u2019 unitary executive argument against the congressional and Manhattan DA subpoenas for Trump\u2019s tax returns. The word \u2018all\u2019 is added to the first substantive sentence in Roberts\u2019s opinion, and it tells you that the unitary executive mythologists are not good textualists,\u201d Shugerman wrote, noting that the Framers of Constitution specifically avoided using such terminology in Article II.
Shugerman further argued that the Chief Justice\u2019s language could be a \u201cbad sign\u201d for anyone hoping to see President Trump\u2019s 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\u2019s 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\u2019s chances at seeing the president\u2019s tax returns.
[Photo by Leah Millis-Pool\/Getty Images]
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