This originally appeared in Just Security.
Yesterday’s Supreme Court rulings holding that the president is not immune from subpoenas issued by Congress and local law enforcement were a relief to many. But even as the Court yesterday reaffirmed that the president is not above the law, we should not lose sight of another major decision from just last week suggesting a possible trend that could undercut the ability of Congress to check abuses of presidential power over the long-term.
In Seila Law v. Consumer Financial Protection Bureau, the Court ruled that the president has absolute authority to remove the director of the Consumer Financial Protection Bureau (CFPB), striking down a key provision of the law that created the agency in 2010. While narrow, the logic of this troubling decision could undermine the longtime practice of structuring executive branch agencies in ways that insulate certain federal officials from undue political control or pressure from the White House. This type of independence is essential to government integrity and the rule of law, and it has been under constant assault by President Trump.
For more than a century, Congress has created numerous executive branch positions insulated either expressly or by implication from complete presidential control. Protections against removal for members of the Board of Governors of the Federal Reserve, for example, help ensure that presidents do not manipulate monetary policy for short-term political gain at the expense of long-term economic health. Other agencies, like the Federal Election Commission (FEC) — the main enforcer of campaign finance laws — are similarly insulated to prevent either party from using control of the FEC to weaponize the agency against political opponents. Congress has also put limits on the president’s power to remove officials who conduct internal oversight within the executive branch, such as inspectors general.
Congress created the CFPB in 2010 in the wake of the financial crisis that was triggered by abuses in mortgage lending. It’s one of several federal agencies charged with overseeing federal financial laws that protect consumers. Financial regulators are notoriously susceptible to pressure from politically influential corporations and industry; insulating agency leadership to some degree from presidential control has been a well-recognized way of helping them rebuff pressure on behalf of industry from both Republican and Democratic White Houses. In the CFPB’s case, its director serves for a fixed term and (until the decision last week) could be removed only for “inefficiency, neglect of duty, or malfeasance in office.”
Seila Law struck down the limits on removal as inconsistent with Article II of the Constitution, which says that “[t]he executive power shall be vested in a President.” The Court doubled down on the principle (articulated in past cases but applied flexibly) that this executive power “belongs to the president alone,” and that it is unconstitutional to limit the president’s ability to fire an executive branch official with authority as broad as the CFPB director’s. As a result, the president can now remove the CFPB director without cause.
This logic takes the Court another step closer to a more absolutist vision of the so-called “unitary executive theory,” which tolerates no checks on the president’s power within the executive branch. In its most extreme form (championed by the late Antonin Scalia and espoused by at least two of the sitting justices), the philosophy would not permit any statutory limits on the president’s ability to fire even those officials investigating his own conduct or that of his immediate subordinates.
In an era when so many other constraints on the abuse of presidential power are already buckling, this is an alarming prospect. From White House interference in the Robert Mueller investigation, to the favorable treatment the Department of Justice has accorded to Trump allies like Michael Flynn and Roger Stone, to the recent firing of the U.S. attorney for the Southern District of New York — who was overseeing investigations of the president’s associates — we are witnessing unprecedented politicization of law enforcement.
Watchdogs charged with performing independent oversight in the executive branch are also under attack. The former director of the Office of Government Ethics — the executive branch’s ethics watchdog — resigned from his post after efforts by the Trump administration to limit his authority, as well as baseless accusations against him of misconduct.
More recently, the president removed several inspectors general, apparently in retaliation for their scrutiny of alleged misconduct by himself and other senior government officials, and to thwart oversight of his administration’s response to the Covid-19 pandemic.
The president has even tried to harness the regulatory authority of independent agencies to pursue political vendettas, as in his recent executive order seeking to have the Federal Communications Commission (FCC) and Federal Trade Commission (FTC) reconsider whether Twitter and other online platforms that he deems (without evidence) biased against conservatives should be made liable for statements made by users of their websites.
These actions may be motivated by the president’s political and personal whims, but they also serve the long-term ideological aim of aggrandizing presidential power even in the most extreme cases. That, as Brennan Center Senior Fellow Caroline Fredrickson wrote, happens to be one of the most cherished goals of current Attorney General Bill Barr. He has been involved in many of these instances and “has made his legal career in government defending [the unitary executive] theory,” she notes.
For now, the Supreme Court’s jurisprudence appears to leave significant room for Congress to check such abuses of power by insulating some parts of the executive from the president’s absolute control. Among other things, the decision takes pains to preserve two limited “exceptions” from the broad unitary executive theory it articulates. The first, for so-called “expert” agencies led by a group of officeholders “balanced on partisan lines,” is plainly intended to cover the many long-standing multi-member commissions to which Congress has given significant power and autonomy over the years, including the FCC, FTC and FEC. The second, for so-called “inferior officers” who need not be subject to Senate confirmation, covers the civil service, plus certain officials with high-profile but “limited” roles like prosecutors.
In fact, the majority’s opinion is not even clear on how the Court would approach other independent agencies with a single head. There are several of these, including the Office of Special Counsel (which administers whistleblower protections) and the Social Security Administration. The Court describes their design as “recent and controversial,” but also suggests that neither wields the same degree of power as the CFPB.
The problem, as Justice Elena Kagan noted in dissent, is that the various distinctions drawn by the Court — especially between agencies with a single director like the CFPB and powerful multi-member commissions like the FCC — appear utterly contrived relative to the principle of absolute presidential control the majority claims to be vindicating. The dissent would have afforded Congress’s choice to limit removal of the CFPB director significantly more deference, consistent with the Court’s past precedents.
Whether last week’s departure from those precedents is an anomaly or harbinger of the future remains to be seen. At least two justices in the majority, Clarence Thomas and Neil Gorsuch, would clearly like to go much farther. This is by now a familiar story — from campaign finance, to voting rights, to the role of labor unions — narrow opinions from the Roberts Court are often precursors to much more sweeping ones.
Repeating the pattern here would be a profound mistake. It is not that checks on presidential power are an unalloyed good. The majority is correct that principles of democratic accountability require the president to have significant control over most executive branch operations. But there are other values at stake, including the evenhanded application of the law free from political favoritism and self-dealing and respect for nonpartisan professionalism and expertise. In particular, the requirement that Congress justify its own investigatory efforts in reference to a specific legislative purpose established yesterday in Trump v. Mazars underscores the need to have effective independent regulators within the executive branch who can hold everyone, up to and including the president, accountable for misconduct that violates existing laws.
The Constitution assigns primary responsibility for weighing such competing considerations to Congress, which for all its flaws is far more attuned than the judiciary to the practical realities of governing. Yet all too often, the Roberts Court has been willing to set aside legislative judgments on such matters in service to various long-term goals of the conservative legal movement, of which the unitary executive is one. The case for a more nuanced approach, one that affords much greater deference to congressional efforts to check presidential power, has never been better.