Brief of Amici Curiae Separation of Powers Scholars in No. 18-60302 (CFPB Removal Power Litigation)

39 Pages Posted: 26 Jul 2018  

Ilan Wurman

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: July 5, 2018

Abstract

Amici separation of powers scholars seek to alert this Court to important points of constitutional text, structure, and history that support appellants’ constitutional arguments respecting the Consumer Financial Protection Bureau. Amici in particular respond to points raised by amici separation of powers scholars in PHH Corp., et al. v. Consumer Financial Protection Bureau, 881 F.3d 75 (D.C. Cir. 2018) (en banc), and on which the en banc court in that case relied. The exact same issues are present here, and amici believe this Court should reach the opposite conclusion.

As discussed below, insulating a principal officer serving as the single director of an administrative agency from the President’s removal power violates the Constitution’s provisions for executive power. Although the amici separation of powers scholars and the D.C. Circuit in PHH Corp. relied on the revisionist argument of recent decades that there is a difference between “Article I” agencies created pursuant to Congress’s Article I, § 8 powers and “Article II” agencies that assist the President in exercising inherent executive powers, there is simply no evidence that the Founding generation ever conceived of such a distinction.

In Humphrey’s Executor v. United States, 295 U.S. 602 (1935), the Supreme Court created a different sort of exception, one grounded in the structure of the Federal Trade Commission (FTC). As the Court explained, the FTC was “nonpartisan,” composed of a multimember, bipartisan commission that was to deploy administrative expertise in a particular field. To consider a principal officer who alone directs an entire department of government as “nonpartisan” would be to defy all human political experience. The exception of Humphrey’s Executor should not extend to this case.

Amici are law professors who teach and write about executive power, administrative law, constitutional law, and the separation of powers. They are interested in the sound development of these fields. Each amici is listed below. Institutional affiliations are included for identification purposes only.

Steven G. Calabresi Clayton J. & Henry R. Barber Professor, Northwestern Pritzker School of Law

Michael W. McConnell Richard and Frances Mallery Professor of Law Director, Constitutional Law Center Stanford Law School

Saikrishna Prakash James Monroe Distinguished Professor of Law Paul G. Mahoney Research Professor of Law University of Virginia School of Law

Jeremy A. Rabkin Professor of Law Antonin Scalia Law School George Mason University

Michael Ramsey Professor of Law University of San Diego School of Law

Michael Rappaport Hugh & Hazel Darling Foundation Professor of Law Director, Center for the Study of Constitutional Originalism University of San Diego School of Law

Keywords: CFPB, Consumer Financial Protection Bureau, Removal Power, Removal, Decision of 1789, Executive Power, Separation of Powers, Myers v. United States, Humphrey's Executor v. United States, Humphrey's Executor, Take Care Clause, PHH Corp

Suggested Citation

Wurman, Ilan, Brief of Amici Curiae Separation of Powers Scholars in No. 18-60302 (CFPB Removal Power Litigation) (July 5, 2018). Available at SSRN: https://ssrn.com/abstract=3208736 or http://dx.doi.org/10.2139/ssrn.3208736

Ilan Wurman (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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