On Monday, in Seila Law LLC v. Consumer Financial Protection Bureau, the Supreme Court scored a major victory for constitutionalism by holding that the structure of the Consumer Financial Protection Bureau violates our governmental separation of powers. The vote was 5–4, and Chief Justice John Roberts wrote the court’s opinion.
We all learned in high school civics class about the separation of powers, under which executive power is vested in the president. Roberts’s opinion reminds us that under the Constitution, granting executive power to an unelected, unaccountable bureaucrat is anathema to our system of checks and balances.
The Dodd-Frank Act created the CFPB, the brainchild of Elizabeth Warren, as an independent agency under a single director who possesses vast executive power to enforce consumer protection laws and is removable by the president only for cause. The director serves for a term of five years (longer than the president), which can stymie a chief executive’s consumer protection agenda; in fact, the president elected in 2028 can expect to go a full term without being able to make the appointment. The director has authority to promulgate rules pursuant to 19 federal statutes, oversee adjudications, initiate prosecutions, and impose enormous monetary penalties on private entities. The agency isn’t even subject to normal congressional oversight because it is independently funded by the Federal Reserve system. As Roberts asserted, “such an agency” under a single director and independent of real oversight by the elected branches “has no basis in history and no place in our constitutional structure.”
The Supreme Court applied the longstanding principle that the Constitution allows the president to remove principal officers in the executive branch at will. Therefore, the CFPB director must also be removable at will. That detail might not seem important at first glance, but the constitutional framers believed that separation of powers was the bulwark of liberty in the Constitution. To respect this is to vindicate a principle of democratic accountability necessary to prevent government tyranny.
The court’s decision is a reminder that our vote for president matters. So, in another sense, is the Supreme Court’s narrow margin. The four liberal justices in dissent would allow the federal bureaucracy to be molded to a greater degree than ever before into what Justice Clarence Thomas in a concurrence called “a de facto fourth branch of Government” that is alien to the Constitution.
The Supreme Court’s decision affirms that our government does not just keep running on its own. It is our elected representatives who get to decide the direction of the country.
Carrie Severino (@JCNSeverino) is president of the Judicial Crisis Network. She is also a former law clerk to U.S. Supreme Court Justice Clarence Thomas and a graduate of Harvard Law School.
