Consistent with the Letter and Spirit: Seila Law V. CFPB and the Future of Presidential Removal Power

35 Pages Posted: 19 Jul 2021 Last revised: 9 Jun 2022

Date Written: July 15, 2021

Abstract

The Supreme Court recently decided Seila Law v. CFPB and Collins v. Yellen, which presented constitutional challenges to the structures of the Consumer Financial Protection Bureau and Federal Housing Finance Agency, respectively. In those cases, a majority of the Court struck down the statutory structure of both agencies, embracing the Unitary Executive Theory. This Note provides an up-to-date prospective analysis of the Court’s and the Executive Branch’s embrace of the theory, and why such an embrace is dangerous.

This Note argues that Congress has and should take the lead in structuring the administrative arm of the federal government. Congress has the institutional capacity to legislate with regard to the structure of the government, and it has historically done so effectively. Furthermore, the Supreme Court and the Executive Branch have been deferential to Congress’s exercise of its power under the Necessary and Proper Clause in carrying into execution the powers granted to the federal government. Deference to Congress allows nuanced legislation that provides institutional mechanisms for effective governance. In making this argument, I draw on relevant primary and secondary historical literature, as well as political science literature on state-building and presidential power.

Keywords: separation of powers, appointments, constitution, supreme, court, removal, president, bureaucracy, delegation

Suggested Citation

Sobkowski, Patrick, Consistent with the Letter and Spirit: Seila Law V. CFPB and the Future of Presidential Removal Power (July 15, 2021). 47 U. Dayton L. Rev. 163, Available at SSRN: https://ssrn.com/abstract=3887687

Patrick Sobkowski (Contact Author)

Marquette University ( email )

1420 W. Clybourn St.
Milwaukee, WI 53233
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
402
Abstract Views
1,112
Rank
143,248
PlumX Metrics