Constructing a more constitutional administrative state
Last week, the Supreme Court concluded that the Consumer Financial Protection Bureau’s novel structure and independence is unconstitutional. The agency generally remains intact, wielding powers barely limited by statutes or Congress’s power of the purse, but at least its director is now fully accountable to the president, whom the Constitution vests singularly with “the executive Power” and with a constitutional duty to “take Care that the Laws be faithfully executed.” Seila Law v. CFPB represents an important step in re-grounding the modern administrative state on firmer constitutional footing; the question remains what steps the Court might take next.
The Court saw its task in Seila as no more than straightforward application of constitutional principles and modern precedents—not the making of new law or the overturning of old precedents, but rather applying clear rules long on the books. From the very beginning—the Constitution’s ratification and its implementation by the first Congress—James Madison and the other Founding Fathers recognized that the Constitution’s express vesting of “executive power” in the president, with a duty of faithful execution, necessarily required presidential control of the executive branch. Departures from this basic rule—such as the Tenure of Office Act, enacted to restrain the unelected President Andrew Johnson after Abraham Lincoln’s assassination, or the post-Watergate Independent Counsel statute—have been short-lived, and for good reason.
Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State
Antonin Scalia Law School