Seila Law as an Ex Post, Static Conception of Separation of Powers

Abstract

In Seila Law v. CFPB, the majority of the Supreme Court held that a for-cause removal restriction on a single-headed agency unconstitutionally limits the president’s power. To arrive at this conclusion, the Court relied upon an ex post, static conception of interbranch dynamics. The conception is ex post because it does not ask whether, going forward, presidential power will in fact be expanded. It is static because it assumes that other institutional relationships will continue unchanged. But Congress and the president adjust dynamically to Supreme Court decisions. When the Court lays down a formal rule that upsets an institutional arrangement—as it did in INS v. Chadha, which struck down the legislative veto—the branches reach a new equilibrium. An unanticipated equilibrium may pose serious governance problems and even undermine the Court’s original goals. When deciding major separation of powers cases like Seila Law, the Court should not ignore the dynamic nature of interbranch relations.

Keywords: executive powers, judicial powers, separation of powers, Supreme Court

JEL Classification: K2, K20, K23