The Political Economy of the Removal Power
58 Pages Posted: 6 Jan 2021 Last revised: 27 Apr 2021
Date Written: September 26, 2020
This is a case comment for the Harvard Law Review’s annual Supreme Court issue on Seila Law LLC v. Consumer Financial Protection Bureau. My aim is to offer something of a Rashomon of Seila to try to explain why Seila was so hotly contested, why it is a marquee case, and why it might be considered a “political” decision — in spite of the symmetrical first-order effects and limited consequences for the Consumer Financial Protection Bureau.
The first story is of how Seila itself came to be, outlining the origins of the CFPB and the decade-long fight over its existence. This context shows how the financial industry, political leaders, and others deployed a variety of tactics and arguments to try to kill or weaken the consumer agency. Seila must be understood in this context. It did not simply arise from novel legislative design. It was the culmination of a relentless antiregulatory oppositional campaign that eventually turned into a constitutional battle.
The second story places Seila within the context of the rise of the unitary executive theory starting in the 1970s. The unitary executive theory gained steam through the initiative of conservative presidential administrations (Ronald Reagan and George W. Bush) and a systematic effort to articulate and defend the theory in legal scholarship. Chief Justice Roberts’s straightforward, briefly reasoned opinion in Seila reflects the success of the conservative legal movement in making the theory plausible. Justice Kagan’s piercing dissent lays bare how contested this reasoning is. Taken together, the conservative push for a unitary executive and the battle between Chief Justice Roberts and Justice Kagan should leave readers with the sense that the case is “political” in a different sense.
The third story is one of values and consequences rather than historical context. Given that the first-order consequences of Seila and of a presidential removal power are symmetrical for presidents of both political parties, are there “political” reasons why conservatives are so interested in the presidential removal power? And conversely, are there “political” reasons why liberals and progressives have been so opposed to it? The opinion in Seila leaves traces of possible normative views of how the separation of powers should be enforced, which in turn point to some potentially larger ideological stakes. In addition, scholars often reference the rise of the removal power as a danger to the administrative state, but it is unclear precisely through what mechanism this operates, given the first-order symmetry of the rule itself. The third account canvasses these normative views and the mechanisms that might produce asymmetric consequences. It is admittedly a speculative enterprise, but to the extent any of these normative views or policy consequences ring true, they further indicate why Seila and the removal power should be considered deeply “political.”
Keywords: Seila, Removal, presidential power, CFPB, consumer financial protection bureau, unitary executive, appointments, Humphrey's, Morrison, Myers, agency independence
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