The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today I taught Seila Law v. CFPB for the first time. Teaching a case helps bring the opinion's reasoning into focus. In class, I am less concerned with whether the case is correct as an original matter. Rather, my focus is on helping my students understand the decision. This was a tough case to teach. The Chief rewrote modern removal power jurisprudence. Indeed, he surgically sliced it into four categories. And he didn't even admit what he was going. (Kagan's dissent is devastating on this point). As a normative matter, I like Roberts's framework. But he did not acknowledge, even for a moment, how he was departing from precedent.
There are four relevant precedents that concern Congress's power to impose tenure protections: U.S. v. Meyers, Humphrey's Executor v. U.S., Morrison v. Olson, and Seila Law v. CFPB. I think modern doctrine now follows these four categories:
- For tenure protections of "purely executive" principal officers, follow Chief Justice Taft's framework from Meyers. In this category, for-cause tenure protections are unconstitutional. The President has an "unrestrictable power . . . to remove purely executive officers."
- For tenure protections of "quasi-legislative" and "qausi-judicial" principal officers on multi-member boards, follow Humphrey's Executor. In this category, for-cause tenure protections are constitutional. The FTC commissioners fall into this category.
- For tenure protections of inferior officers, follow Morrison v. Olson. In this category, for-cause tenure protections are constitutional, unless they "unduly interfere with the functioning of the Executive Branch." Morrison itself did not limit this test to inferior officers. But the Chief added this restriction.
- For tenure protections of "quasi-legislative"/"quasi-judicial" principal officers who are not on multi-member boards, do not follow Humphrey's Executor. Rather, under Seila Law, you follow the Meyers standard–even though Humphrey's limited Meyers to "purely executive" principal officers. In other words, Seila Law overruled Humphrey's limitation on Meyers. But don't tell the Chief! Roberts wrote that "Humphrey's Executor reaffirmed the core holding of Myers." The single CFPB director falls into this fourth category.
Does this sound right? Please email me with any corrections.