Monday, June 29, 2020

Seila Law LLC v. Consumer Financial Protection Bureau (06/29/2020)

TIME cover depicts Trump dressed as a king - CNN VideoFTC's Wilson: We're Not Out to Undermine COPPA | Broadcasting+Cable
The United States Supreme Court, in a 5-4 decision has embraced the so-called unitary executive theory.  The doctrine holds that the entire executive branch is, like a ventriloquist's dummy, the voice of the president.  The decision could undermine every quasi-independent federal agency - such as the FTC, the FCC, and the Consumer Product Safety Commission. 
And it signals that the court will not stand up to any assertion of executive authority by Donald  J. Trump There will be no departure from Republican party embrace of  an autarchic president - at least until a Democrat holds that post. - gwc

Is this an autarkic action by the Court, giving the President monarchic authority, stripping from Congress the power and autonomy needed to insulate consumer protection measures from direct interference by  Presidents subject to the pressure of those who finance their elections?
Or does this decision increase popular control of the policies of an executive law enforcement agency?
Is this decision best understood as  step in the Federalist Society agenda of reversing the Roosevelt Depression era New Deal's administrative state?

Seila Law LLC v. Consumer Financial Protection Bureau (06/29/2020)
The CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers. Pp. 11–30. (a) Article II vests the entire “executive Power” in the President alone, but the Constitution presumes that lesser executive officers will assist the President in discharging his duties. The President’s executive power generally includes the power to supervise—and, if necessary, remove—those who exercise the President’s authority on his behalf. The President’s removal power has long been confirmed by history and precedent. ***

The Framers’ constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials may wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President. 
***
Free Enterprise Fund left in place only two exceptions to the President’s unrestricted removal power. First, Humphrey’s Executor (1935) permitted Congress to give for-cause removal protection to [the Federal Trade Commission] a multi-member body of experts who were balanced along partisan lines, appointed to staggered terms, performed only “quasi-legislative” and“quasi-judicial functions,” and were said not to exercise any executive power. 

Second, Morrison approved for-cause removal protection for an inferior officer—the independent counsel—who had limited duties and no policymaking or administrative authority. Pp. 11–16.
(b) Neither Humphrey’s Executor nor Morrison resolves whether the CFPB Director’s insulation from removal is constitutional. The New Deal-era FTC upheld in Humphrey’s Executor bears little resemblance to the CFPB. Unlike the multiple Commissioners of the FTC, who were balanced along partisan lines and served staggered terms to ensure the accumulation of institutional knowledge, the CFPB Director serves a five-year term that guarantees abrupt shifts in leadership and the loss of agency expertise. In addition, the Director cannot be dismissed as a mere legislative or judicial aid. Rather, the Director possesses significant administrative and enforcement authority, including the power to seek daunting monetary penalties against private parties in federal court—a quintessentially executive power not considered in Humphrey’s Executor.

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