Notice & Comment

How Two Concurring Opinions in PHH Corp. v. CFPB Could Help the Chief Justice Avoid a Major, Politically Fraught Ruling in Seila Law v. CFPB, by William R. Weaver

The fate of the CFPB, and potentially of agency independence writ large, hinges on the Supreme Court’s decision in Seila Law v. CFPB, which was argued before the Supreme Court last week. Most of the commentary has focused on how the Court might distinguish the CFPB from other independent agencies like the SEC and FTC, whether the Court will overrule Humphrey’s Executor, and whether the Court might sever the for-cause removal provision rather than strike down the CFPB’s entire enacting statute. One largely overlooked possibility is that the Court might actually interpret the statutory language at issue in the case—“inefficiency, neglect of duty, or malfeasance in office.” If it decides that interpreting the statutory language is important, the Court could avoid deciding a major constitutional separation-of-powers issue during a fraught political moment.

Most arguments against the constitutionality of for-cause removal provisions (and the Court’s past decisions on the topic) make little if any effort to interpret the statutory language at issue—“inefficiency, neglect of duty, or malfeasance in office.” (Some scholars have identified this issue and written about the meaning of the statutory language, including this Notice and Comment essay by Professors Bamzai and Duffy.) Based on the logic of these arguments, the “for-cause” removal language violates constitutional separation-of-powers principles because, whatever those words mean, the language is an impermissible restraint on the President’s authority to remove executive branch officials. The Petitioner in Seila, like so many others, assumes it is sufficient to say what “inefficiency, neglect of duty, or malfeasance” doesn’t mean. The Petitioner asserts that the phrase “prohibits the President from removing the Director based on ‘disagreement with [her] policies or priorities,’ or simply replacing the Director with a person ‘of [the President’s] own choosing.’” Petitioner’s Br. 19. But if one holds the view that there are constitutionally permissible removal restraints that would prohibit the President from removing an officer for a mere policy disagreement or on a whim without reason, then it might be worthwhile to subject the statutory language to closer scrutiny.

It seems unlikely that five members of the Court are ready enshrine into law the novel view that any removal restriction that prohibits the President from removing an officer for a policy disagreement or on a whim is unconstitutional, thereby overruling Humphrey’s Executor. After all, in his opinion for the majority in Free Enterprise Fund v. PCAOB (another removal-restrictions case), Chief Justice Roberts recognized the Court’s longstanding view that the President’s authority to remove officers “is not without limit,” explaining the Court’s various caveats to the Myers v. United States standard of at-will removal for heads of executive agencies—exceptions that include greater protection for heads of independent agencies and for officers (like ALJs) who exercise adjudicatory powers.

If Chief Justice Roberts is not ready to say that anything less than at-will removal is unconstitutional, then he can either distinguish the structure of the CFPB as beyond the holding of Humphrey’s Executor (this is the Petitioner’s primary argument and the most likely common ground for the Court’s five Republican-appointed Justices), or some work needs to be done to assess either the constitutional threshold at which removal restrictions go too far, the meaning of “inefficiency, neglect of duty, or malfeasance in office,” or both. Addressing only the constitutional standard and then holding that “inefficiency, neglect of duty, or malfeasance in office” violates that standard would be a strange analytical move; as the Court pointed out in Morrison v. Olson and many times since, “it is the duty of federal courts to construe a statute in order to save it from constitutional infirmities.”

While the Court seems poised to invalidate the CFPB’s removal protections as an unwarranted extension of Humphrey’s Executor (and avoid overruling the earlier case), a question raised by the Chief at oral argument raises the specter that he might try to look for another way to resolve the case. Picking up on a line of questioning from Justice Ginsburg, Chief Justice Roberts asked Kannon Shanmugam, counsel for Seila Law, “[W]ouldn’t the normal principles of constitutional avoidance suggest that we might want to scrutinize a little bit how rigorous a limitation that is before we get to the point of striking down the statute?” Tr. 14:14–19.

It’s a good question. And whether the Chief takes the Court down this path may ultimately depend on whether he can find common interpretive ground with the four Justices to his left. If the Court considers this route, two concurring opinions in the D.C. Circuit’s en banc decision in PHH Corp. v. CFPB could provide a framework for those negotiations.

In PHH, the D.C. Circuit upheld the for-cause removal restriction for the CFPB Director as constitutionally permissible. Judge Henderson and then-Judge Kavanaugh penned lengthy dissents, attempting to draw meaningful distinctions between the CFPB’s structure and the agency-structures for which the Court has approved of for-cause removal restrictions in the past. Judge Wilkins, joined by Judge Rogers, drafted a separate concurrence, as did Judge Griffith.

Judge Wilkins concurred fully in the majority opinion, while Judge Griffith concurred only in the result. But both concurring opinions did something novel for separation-of-powers cases focused on removal restrictions—they began to grapple with the meaning of the statutory language “inefficiency, neglect of duty, or malfeasance in office” and what constraints that phrase actually places on the President’s removal power.

After detailing the flaws in the dissenting opinions’ analysis of the CFPB’s structure and the extent of the CFPB Director’s power, Judge Wilkins pointed out that “inefficiency, neglect of duty, or malfeasance in office” provides courts with a “workable standard” that is “meaningful as a bulwark against undue political influence,” but which “does not afford officers who head independent agencies unlimited discretion or untrammeled power.”  Wilkins Concurring Op. at 16.  The opinion then described various ways the President can hold the CFPB Director accountable under the standard. For example, the CFPB Director could “neglect” her duty by ignoring the myriad statutory requirements of Dodd-Frank, thereby subjecting the CFPB Director to removal. Wilkins Op. 16. To define “inefficiency,” the opinion traced the history of the standard back through nineteenth- and early-twentieth-century statutes, and explained how courts could interpret “inefficiency” by looking at the context of challenges to the removal of officers and employees under civil-service statutes using a similar standard. Wilkins Op. 16-17. In Judge Wilkins’s analysis, the meaning of “inefficiency” has varied depending on the context, but it essentially means “incompetence or deficient performance.” Wilkins Op. 17. Considering the language, precedent, and Congress’s clear intent throughout the enacting statute to make the CFPB an independent agency, Judge Wilkins concluded that “inefficiency” provides ample grounds for the President to hold the CFPB Director accountable, but that the term does not extend to mere policy disagreements. Wilkins Op. 19-21.

Judge Griffith forcefully argued that interpreting the statutory language was a necessary first step, noting that “[a] faithful application of Morrison requires [the court] to determine the extent to which the CFPB’s removal standard actually prevents the President from removing the Director.” Griffith Concurring Op. at 6. His opinion took a narrower view of Humphrey’s, opining that Humphrey’s did not preclude the President from removing an officer for mere policy disagreements under the “inefficiency, neglect of duty, or malfeasance” standard. Griffith Op. at 8. Instead, in Judge Griffith’s view, the Humphrey’s holding is rightly understood to preclude only removal “for no cause at all.”  Id. (emphasis in original). Judge Griffith pointed out that the Court in Bowsher v. Synar had “recognized the general breadth” of the standard, and turned to the “traditional tools of construction” to interpret the text. Griffith Op. 11. And after analyzing the text, Judge Griffith concluded that the “inefficiency” was broad enough to “allow the President to remove the Director based on policy decisions that amounted to inefficiency.” Griffith Op. at 22.

Although Judge Wilkins agreed with Judge Griffith’s “overall sentiment . . . that the broad removal authority gives the President adequate authority to supervise the CFPB director,” Judge Wilkins parted ways with Judge Griffith’s analysis on the issue of whether a “mere policy disagreement[]” would be a sufficient ground for removal under the standard. Wilkins Op. 19. Judge Wilkins rejected that “capacious construction” that would “remove the concept of ‘independence’ from ‘independent agencies.’” Id.

Chief Justice Roberts could attempt to resolve Seila by trying to find some common ground with Justices Ginsburg, Breyer, Kagan, and Sotomayor on the meaning of “inefficiency, neglect of duty, or malfeasance in office.” Judge Wilkins’ and Judge Griffith’s concurring opinions offer a good starting point. But the Court would not even need to definitively resolve the meaning of “inefficiency, neglect of duty, or malfeasance in office” in order to resolve the dispute in Seila. They would merely need to agree with Judges Wilkins and Griffith that interpreting the statutory language is necessary before the Court addresses the constitutional separation-of-powers issue. And the Court could then remand the case to allow the parties and lower courts to develop a record on the statutory language through briefing, argument, and lower-court opinions. This result also has the virtue of putting off the hard questions until there is actually a live dispute over a President’s removal of a CFPB Director.

The smart money is probably still on the Chief Justice joining with the Court’s Republican-appointed Justices to rule that the removal restrictions on the CFPB Director go too far because of the CFPB’s structure, and invalidate the for-cause provision at issue without disturbing Humphrey’s Executor. But the political context of 2020 looms large. Donald Trump repeatedly and publicly demands that Federal Reserve Chairman fall in line with his policy priorities by cutting interest rates. Trump has taken unprecedented actions threatening reprisals against civil servants in the State Department, FBI, NOAA, and other agencies (both independent and executive), when those civil servants view their constitutional and statutory responsibilities as diverging from his interests. And he has famously used the policymaking apparatus of the executive branch to advance his personal interests.

Chief Justice Roberts saw some of this up close when he presided over the impeachment trial earlier this year, and he may be reluctant to hand down a politically salient decision that expands executive power if there is an easy off-ramp. At a time when norms of independence and professionalism for independent agencies, and for the civil service more broadly, are being tested like never before, Chief Justice Roberts might decide it would be better to save the core constitutional issue for a later date. If he can find common ground with the four Justices to his left by focusing on the statutory language “inefficiency, neglect of duty, or malfeasance in office,” the Court could put off a major ruling on this important separation-of-powers issue until the meaning of the statutory language is more fully briefed and litigated in the lower courts. That kind of pressure valve might be just what the Chief is looking for later this summer.

Will Weaver is a trial and appellate litigator at Boies Schiller Flexner LLP in Washington, DC. The views expressed in this essay are solely those of the author and do not reflect the views of the law firm with which he is affiliated.

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