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

11 Pages Posted: 19 Oct 2020 Last revised: 16 Dec 2020

See all articles by Richard L. Revesz

Richard L. Revesz

New York University School of Law

Timothy G. Duncheon

U.S. Court of Appeals for the Ninth Circuit

Date Written: August 27, 2020

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

Suggested Citation

Revesz, Richard L. and Duncheon, Timothy, Seila Law as an Ex Post, Static Conception of Separation of Powers (August 27, 2020). University of Chicago Law Review Online, (August 2020), NYU Law and Economics Research Paper No. 20-42, Available at SSRN: https://ssrn.com/abstract=3682658

Richard L. Revesz

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6185 (Phone)
212-995-4590 (Fax)

Timothy Duncheon (Contact Author)

U.S. Court of Appeals for the Ninth Circuit ( email )

United States

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