Seila Law and the Roberts Court

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Essay
Introduction
Deborah Malamud
Kenyon College, B.A. 2017; The University of Chicago Law School, J.D. 2021.

She thanks the authors for their contributions to the series.

Speaking on Chevron deference at Duke University School of Law in 1989, Justice Antonin Scalia told the audience to “lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture.” Perhaps he would have withheld his cynicism if he could have seen the Supreme Court’s administrative-law rulings in the past year.

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October Term 2019 in Review: Blue June
Josh Blackman
Professor of Law, South Texas College of Law Houston.

This Essay is inspired by Dave Barry’s satirical year-in-review columns. I hope to make it an annual tradition.

Over the past 225 years, the Supreme Court witnessed two presidential impeachment trials and two pathogenic shutdowns. This term had it all: guns, abortion, DACA, Little Sisters, LGBT discrimination, Trump’s tax returns, and more.

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Essay
Of Angels, Pins, and For-Cause Removal: A Requiem for the Passive Virtues
Jerry L. Mashaw
Jerry L. Mashaw is Sterling Professor Emeritus and Professorial Lecturer at the Yale Law School.

This Essay concerns a constitutional puzzle, the puzzle of for-cause removal. For a century the Supreme Court has been attempting to answer a simple question: when is it constitutional for Congress to provide that an agency head or lower official can be removed only for cause?

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Essay
Conservative Minimalism and the Consumer Financial Protection Bureau
Jonathan H. Adler
Jonathan H. Adler is the Johan Verheij Memorial Professor of Law and the Director of the Coleman P. Burke Center for Environmental Law at Case Western Reserve University School of Law.

Chief Justice John Roberts mystified and frustrated court watchers with his opinions in the closing weeks of the Supreme Court’s October 2019 term.

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Essay
What Seila Law Says About Chief Justice Roberts’ View of the Administrative State
Lisa Schultz Bressman
Lisa Schultz Bressman is the David Daniels Allen Distinguished Chair in Law at Vanderbilt Law School.

She thanks Kevin Stack and Michael Bressman for very helpful comments, and Peter Byrne for excellent research assistance.

In Seila Law LLC v. Consumer Financial Protection Board, the Supreme Court invalidated a statutory provision that protected the director of the Consumer Finance Protection Board (CFPB) from removal by the president except for “inefficiency, neglect of duty, or malfeasance in office.” Writing for the Court, Chief Justice John Roberts announced a new test for evaluating the constitutionality of “for cause” restrictions on presidential removal of high-level agency officials.

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Essay
Non-Judicial Precedent and the Removal Power
David A. Strauss
David A. Strauss is the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago.

The majority and dissenting opinions in Seila Law LLC v. Consumer Financial Protection Bureau disagreed about the interpretation of previous Supreme Court decisions that considered the president’s power to remove executive branch officials. But in many ways the more important disagreement was about historical practice.

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Essay
Out of the Separation-of-Powers Frying Pan and Into the Nondelegation Fire: How the Court’s Decision in Seila Law Makes CFPB’s Unlawful Structure Even Worse
Markham S. Chenoweth
Michael P. DeGrandis
Markham S. Chenoweth & Michael P. DeGrandis are General Counsel and Senior Litigation Counsel, respectively, at the New Civil Liberties Alliance.

NCLA filed an amicus curiae brief on the prevailing side in Seila Law.

The U.S. Supreme Court’s June 29, 2020 decision in Seila Law LLC v. Consumer Financial Protection Bureau fixed a glaring constitutional defect in the way Congress structured the Consumer Financial Protection Bureau (CFPB or Bureau).

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Essay
Constitutionalizing Financial Instability
Patricia A. McCoy
Patricia A. McCoy is the Liberty Mutual Insurance Professor at Boston College Law School. Professor McCoy previously was a senior official at the Consumer Financial Protection Bureau.

In the last Supreme Court term, the Court ruled in Seila Law LLC v. Consumer Financial Protection Bureau that Article II of the U.S. Constitution and separation of powers prohibit Congress from shielding the Bureau’s director from termination except for cause. More troubling, Seila Law could open up the financial system to destabilization by paving the path for a full-scale assault on the traditional independence of federal financial regulators and presidential manipulation of the economy.

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Essay
Seila Law and the Law of Judicial Review
John Harrison
John Harrison is the James Madison Distinguished Professor of Law and Thomas F. Bergin Teaching Professor at the University of Virginia.

Professor Caleb Nelson provided helpful comments.

The Court in Seila Law LLC v. Consumer Financial Protection Bureau did not hold that the restriction on presidential removal of the Consumer Financial Protection Bureau (CFPB) director was unconstitutional. At least, it did not do so according to standard principles of stare decisis and the orthodox account of the law of judicial review—the legal principles under which courts implement the hierarchical superiority of the Constitution to all other legal norms.

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Essay
Seila Law: Is There a There There?
Jack M. Beermann
Jack M. Beermann is Professor of Law and Harry Elwood Warren Scholar at Boston University School of Law and a 1983 graduate of the University of Chicago Law School.

In Seila Law LLC v. Consumer Financial Protection Bureau, the Supreme Court, in an opinion by Chief Justice John Roberts, invalidated the provision of the Dodd-Frank Act restricting the president’s removal of the director of the Consumer Financial Protection Bureau (CFPB) to cases of “inefficiency, neglect of duty, or malfeasance in office.” The Court’s decision leaves the director subject to removal by the president for any reason or no reason at all.