Seila Law, LLC v. Consumer Financial Protection Bureau

NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–7

															_________________

															SEILA LAW LLC, PETITIONER v. CONSUMER
FINANCIAL PROTECTION BUREAU

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															[June 29, 2020]

															Chief Justice Roberts delivered the opinion of
the Court with respect to Parts I, II, and III.

															In the wake of the 2008 financial crisis,
Congress established the Consumer Financial Protection Bureau
(CFPB), an independent regulatory agency tasked with ensuring that
consumer debt products are safe and transparent. In organizing the
CFPB, Congress deviated from the structure of nearly every other
independent administrative agency in our history. Instead of
placing the agency under the leadership of a board with multiple
members, Congress provided that the CFPB would be led by a single
Director, who serves for a longer term than the President and
cannot be removed by the President except for inefficiency,
neglect, or malfeasance. The CFPB Director has no boss, peers, or
voters to report to. Yet the Director wields vast rulemaking,
enforcement, and adjudicatory authority over a significant portion
of the U. S. economy. The question before us is whether this
arrangement violates the Constitution’s separation of powers.

															Under our Constitution, the “executive
Power”—all of it—is “vested in a President,” who must “take Care
that the Laws be faithfully executed.” Art. II, §1, cl. 1; id. , §3. Because no single person could fulfill that
responsibility alone, the Framers expected that the President would
rely on subordinate officers for assistance. Ten years ago, in Free Enterprise Fund v. Public Company Accounting
Oversight Bd. , 561 U.S.
477 (2010), we reiterated that, “as a general matter,” the
Constitution gives the President “the authority to remove those who
assist him in carrying out his duties,” id. , at 513–514.
“Without such power, the President could not be held fully
accountable for discharging his own responsibilities; the buck
would stop somewhere else.” Id. , at 514.

															The President’s power to remove—and thus
supervise—those who wield executive power on his behalf follows
from the text of Article II, was settled by the First Congress, and
was confirmed in the landmark decision Myers v. United
States , 272 U.S.
52 (1926). Our precedents have recognized only two exceptions
to the President’s unrestricted removal power. In Humphrey’s
Executor v. United States , 295 U.S.
602 (1935), we held that Congress could create expert agencies
led by a group of principal officers removable by the
President only for good cause. And in United States v. Perkins , 116 U.S.
483 (1886), and Morrison v. Olson , 487 U.S.
654 (1988), we held that Congress could provide tenure
protections to certain inferior officers with narrowly
defined duties.

															We are now asked to extend these precedents to a
new configuration: an independent agency that wields significant
executive power and is run by a single individual who cannot be
removed by the President unless certain statutory criteria are met.
We decline to take that step. While we need not and do not revisit
our prior decisions allowing certain limitations on the President’s
removal power, there are compelling reasons not to extend those
precedents to the novel context of an independent agency led by a
single Director. Such an agency lacks a foundation in historical
practice and clashes with constitutional structure by concentrating
power in a unilateral actor insulated from Presidential
control.

															We therefore hold that the structure of the CFPB
violates the separation of powers. We go on to hold that the CFPB
Director’s removal protection is severable from the other statutory
provisions bearing on the CFPB’s authority. The agency may
therefore continue to operate, but its Director, in light of our
decision, must be removable by the President at will.

															I

															A

															In the summer of 2007, then-Professor
Elizabeth Warren called for the creation of a new, independent
federal agency focused on regulating consumer financial products.
Warren, Unsafe at Any Rate, Democracy (Summer 2007). Professor
Warren believed the financial products marketed to ordinary
American households—credit cards, student loans, mortgages, and the
like—had grown increasingly unsafe due to a “regulatory jumble”
that paid too much attention to banks and too little to consumers. Ibid. To remedy the lack of “coherent, consumer-oriented”
financial regulation, she proposed “concentrat[ing] the review of
financial products in a single location”—an independent agency
modeled after the multimember Consumer Product Safety Commission. Ibid. That proposal soon met its moment. Within months
of Professor Warren’s writing, the subprime mortgage market
collapsed, precipitating a financial crisis that wiped out over $10
trillion in American household wealth and cost millions of
Americans their jobs, their retirements, and their homes. In the
aftermath, the Obama administration embraced Professor Warren’s
recommendation. Through the Treasury Department, the administration
encouraged Congress to establish an agency with a mandate to ensure
that “consumer protection regulations” in the financial sector “are
written fairly and enforced vigorously.” Dept. of Treasury,
Financial Regulatory Reform: A New Foundation 55 (2009). Like
Professor Warren, the administration envisioned a traditional
independent agency, run by a multimember board with a “diverse set
of viewpoints and experiences.” Id. , at 58.

															In 2010, Congress acted on these proposals and
created the Consumer Financial Protection Bureau (CFPB) as an
independent financial regulator within the Federal Reserve System.
Dodd-Frank Wall Street Reform and Consumer Protection Act
(Dodd-Frank), 124Stat. 1376. Congress tasked the CFPB with
“implement[ing]” and “enforc[ing]” a large body of financial
consumer protection laws to “ensur[e] that all consumers have
access to markets for consumer financial products and services and
that markets for consumer financial products and services are fair,
transparent, and competitive.” 12 U. S. C. §5511(a).
Congress transferred the administration of 18 existing federal
statutes to the CFPB, including the Fair Credit Reporting Act, the
Fair Debt Collection Practices Act, and the Truth in Lending Act.
See §§5512(a), 5481(12), (14). In addition, Congress enacted a new
prohibition on “any unfair, deceptive, or abusive act or practice”
by certain participants in the consumer-finance sector.
§5536(a)(1)(B). Congress authorized the CFPB to implement that
broad standard (and the 18 pre-existing statutes placed under the
agency’s purview) through binding regulations. §§5531(a)–(b),
5581(a)(1)(A), (b).

															Congress also vested the CFPB with potent
enforcement powers. The agency has the authority to conduct
investigations, issue subpoenas and civil investigative demands,
initiate administrative adjudications, and prosecute civil actions
in federal court. §§5562, 5564(a), (f ). To remedy violations
of federal consumer financial law, the CFPB may seek restitution,
disgorgement, and injunctive relief, as well as civil penalties of
up to $1,000,000 (inflation adjusted) for each day that a violation
occurs. §§5565(a), (c)(2); 12 CFR §1083.1(a), Table (2019). Since
its inception, the CFPB has obtained over $11 billion in relief for
over 25 million consumers, including a $1 billion penalty against a
single bank in 2018. See CFPB, Financial Report of the Consumer
Financial Protection Bureau, Fiscal Year 2015, p. 3; CFPB, Bureau
of Consumer Financial Protection Announces Settlement With Wells
Fargo for Auto-Loan Administration and Mortgage Practices (Apr. 20,
2018).

															The CFPB’s rulemaking and enforcement powers are
coupled with extensive adjudicatory authority. The agency may
conduct administrative proceedings to “ensure or enforce compliance
with” the statutes and regulations it administers. 12
U. S. C. §5563(a). When the CFPB acts as an adjudicator,
it has “jurisdiction to grant any appropriate legal or equitable
relief.” §5565(a)(1). The “hearing officer” who presides over the
proceedings may issue subpoenas, order depositions, and resolve any
motions filed by the parties. 12 CFR §1081.104(b). At the close of
the proceedings, the hearing officer issues a “recommended
decision,” and the CFPB Director considers that recommendation and
“issue[s] a final decision and order.” §§1081.400(d), 1081.402(b);
see also §1081.405.

															Congress’s design for the CFPB differed from the
proposals of Professor Warren and the Obama administration in one
critical respect. Rather than create a traditional independent
agency headed by a multimember board or commission, Congress
elected to place the CFPB under the leadership of a single
Director. 12 U. S. C. §5491(b)(1). The CFPB Director is
appointed by the President with the advice and consent of the
Senate. §5491(b)(2). The Director serves for a term of five years,
during which the President may remove the Director from office only
for “inefficiency, neglect of duty, or malfeasance in office.”
§§5491(c)(1), (3).

															Unlike most other agencies, the CFPB does not
rely on the annual appropriations process for funding. Instead, the
CFPB receives funding directly from the Federal Reserve, which is
itself funded outside the appropriations process through bank
assessments. Each year, the CFPB requests an amount that the
Director deems “reasonably necessary to carry out” the agency’s
duties, and the Federal Reserve grants that request so long as it
does not exceed 12% of the total operating expenses of the Federal
Reserve (inflation adjusted). §§5497(a)(1), (2)(A)(iii), 2(B). In
recent years, the CFPB’s annual budget has exceeded half a billion
dollars. See CFPB, Fiscal Year 2019: Ann. Performance Plan and
Rep., p. 7.

															B

															Seila Law LLC is a California-based law firm
that provides debt-related legal services to clients. In 2017, the
CFPB issued a civil investigative demand to Seila Law to determine
whether the firm had “engag[ed] in unlawful acts or practices in
the advertising, marketing, or sale of debt relief services.” 2017
WL 6536586, *1 (CD Cal., Aug. 25, 2017). See also 12
U. S. C. §5562(c)(1) (authorizing the agency to issue
such demands to persons who “may have any information[ ]
relevant to a violation” of one of the laws enforced by the CFPB).
The demand (essentially a subpoena) directed Seila Law to produce
information and documents related to its business practices.

															Seila Law asked the CFPB to set aside the
demand, objecting that the agency’s leadership by a single Director
removable only for cause violated the separation of powers. The
CFPB declined to address that claim and directed Seila Law to
comply with the demand.

															When Seila Law refused, the CFPB filed a
petition to enforce the demand in the District Court. See
§5562(e)(1) (creating cause of action for that purpose). In
response, Seila Law renewed its defense that the demand was invalid
and must be set aside because the CFPB’s structure violated the
Constitution. The District Court disagreed and ordered Seila Law to
comply with the demand (with one modification not relevant
here).

															The Court of Appeals affirmed. 923 F.3d 680 (CA9
2019). The Court observed that the “arguments for and against” the
constitutionality of the CFPB’s structure had already been
“thoroughly canvassed” in majority, concurring, and dissenting
opinions by the en banc Court of Appeals for the District of
Columbia Circuit in PHH Corp. v. CFPB , 881 F.3d 75
(2018), which had rejected a challenge similar to the one presented
here. 923 F. 3d, at 682. The Court saw “no need to re-plow the
same ground.” Ibid. Instead, it provided a brief explanation
for why it agreed with the PHH Court’s core holding. The
Court took as its starting point Humphrey’s Executor , which
had approved for-cause removal protection for the Commissioners of
the Federal Trade Commission (FTC). In applying that precedent, the
Court recognized that the CFPB wields “substantially more executive
power than the FTC did back in 1935” and that the CFPB’s leadership
by a single Director (as opposed to a multimember commission)
presented a “structural difference” that some jurists had found
“dispositive.” 923 F. 3d, at 683–684. But the Court felt bound
to disregard those differences in light of our decision in Morrison , which permitted a single individual (an
independent counsel) to exercise a core executive power
(prosecuting criminal offenses) despite being insulated from
removal except for cause. Because the Court found Humphrey’s
Executor and Morrison “controlling,” it affirmed the
District Court’s order requiring compliance with the demand. 923
F. 3d, at 684.

															We granted certiorari to address the
constitutionality of the CFPB’s structure. 589 U. S. ___
(2019). We also requested argument on an additional question:
whether, if the CFPB’s structure violates the separation of powers,
the CFPB Director’s removal protection can be severed from the rest
of the Dodd-Frank Act.

															Because the Government agrees with petitioner on
the merits of the constitutional question, we appointed Paul
Clement to defend the judgment below as amicus curiae . He
has ably discharged his responsibilities.

															II

															We first consider three threshold arguments
raised by the appointed amicus for why we may not or should
not reach the merits. Each is unavailing.

															First, amicus argues that the demand
issued to petitioner is not “traceable” to the alleged
constitutional defect because two of the three Directors who have
in turn played a role in enforcing the demand were (or now consider
themselves to be) removable by the President at will. Brief for
Court-Appointed Amicus Curiae 21–24. Amicus highlights the Government’s argument below that the demand,
originally issued by former Director Richard Cordray, had been
ratified by an acting CFPB Director who, according to the
Office of Legal Counsel (OLC), was removable by the President at
will. See Brief for Appellee in No. 17–56324 (CA9), pp. 1, 10,
13–19 (citing Designating an Acting Director of the Bureau of
Consumer Financial Protection, 41 Op. OLC ___, ___ (Nov. 25,
2017)). Amicus further observes that current CFPB Director
Kathleen Kraninger, now responsible for enforcing the demand,
agrees with the Solicitor General’s position in this case that her
for-cause removal protection is unconstitutional. See Brief for
Respondent on Pet. for Cert. 20; Letter from K. Kraninger, CFPB
Director, to M. McConnell, Majority Leader, U. S. Senate, p. 2
(Sept. 17, 2019); Letter from K. Kraninger, CFPB Director, to N.
Pelosi, Speaker, U. S. House of Representatives, p. 2 (Sept.
17, 2019).[ 1 ] In amicus ’
view, these developments reveal that the demand would have been
issued—and would continue to be enforced—even in the absence of the
CFPB Director’s removal protection, making the asserted separation
of powers dispute “artificial.” Brief for Court-Appointed Amicus
Curiae 22.

															Even if that were true, it would not deprive us
of jurisdiction. Amicus ’ traceability argument appears to
challenge petitioner’s Article III standing. See Lujan v. Defenders of Wildlife , 504 U.S.
555 , 560 (1992) (explaining that the plaintiff ’s injury
must be “fairly traceable to the challenged action of the
defendant” (internal quotation marks and alterations omitted)). But amicus ’ argument does not cast any doubt on the jurisdiction
of the District Court because petitioner is the defendant and did not invoke the Court’s jurisdiction. See Bond v. United States , 564 U.S.
211 , 217 (2011) (When the plaintiff has standing, “Article III
does not restrict the opposing party’s ability to object to relief
being sought at its expense.”).

															It is true that “standing must be met by persons
seeking appellate review, just as it must be met by persons
appearing in courts of first instance.” Hollingsworth v. Perry , 570 U.S.
693 , 705 (2013) (internal quotation marks omitted). But
petitioner’s appellate standing is beyond dispute. Petitioner is
compelled to comply with the civil investigative demand and to
provide documents it would prefer to withhold, a concrete injury.
That injury is traceable to the decision below and would be fully
redressed if we were to reverse the judgment of the Court of
Appeals and remand with instructions to deny the Government’s
petition to enforce the demand.

															Without engaging with these principles, amicus contends that a litigant wishing to challenge an
executive act on the basis of the President’s removal power must
show that the challenged act would not have been taken if the
responsible official had been subject to the President’s control.
See Brief for Court-Appointed Amicus Curiae 21–24. Our
precedents say otherwise. We have held that a litigant challenging
governmental action as void on the basis of the separation of
powers is not required to prove that the Government’s course of
conduct would have been different in a “counterfactual world” in
which the Government had acted with constitutional authority. Free Enterprise Fund , 561 U. S., at 512, n. 12. In
the specific context of the President’s removal power, we have
found it sufficient that the challenger “sustain[s] injury” from an
executive act that allegedly exceeds the official’s authority. Bowsher v. Synar , 478 U.S.
714 , 721 (1986).

															Second, amicus contends that the proper
context for assessing the constitutionality of an officer’s removal
restriction is a contested removal. See Brief for Court-Appointed Amicus Curiae 24–27. While that is certainly one way to
review a removal restriction, it is not the only way. Our
precedents have long permitted private parties aggrieved by an
official’s exercise of executive power to challenge the official’s
authority to wield that power while insulated from removal by the
President. See Bowsher , 478 U. S., at 721 (lawsuit
filed by aggrieved third party in the absence of contested
removal); Free Enterprise Fund , 561 U. S., at 487
(same); Morrison , 487 U. S., at 668–669 (defense to
subpoena asserted by third party in the absence of contested
removal). Indeed, we have expressly “reject[ed]” the “argument that
consideration of the effect of a removal provision is not ‘ripe’
until that provision is actually used,” because when such a
provision violates the separation of powers it inflicts a
“here-and-now” injury on affected third parties that can be
remedied by a court. Bowsher , 478 U. S., at 727,
n. 5 (internal quotation marks omitted). The Court of Appeals
therefore correctly entertained petitioner’s constitutional defense
on the merits.

															Lastly, amicus contends that we should
dismiss the case because the parties agree on the merits of the
constitutional question and the case therefore lacks “adverseness.”
Tr. of Oral Arg. 42–43, 45–46. That contention, however, is
foreclosed by United States v. Windsor , 570 U.S.
744 (2013). There, we explained that a lower court order that
presents real-world consequences for the Government and its
adversary suffices to support Article III jurisdiction—even if “the
Executive may welcome” an adverse order that “is accompanied by the
constitutional ruling it wants.” Id. , at 758. Here,
petitioner and the Government disagree about whether petitioner
must comply with the civil investigative demand. The lower courts
sided with the Government, and the Government has not volunteered
to relinquish that victory and withdraw the demand. To the
contrary, while the Government agrees that the agency is
unconstitutionally structured, it believes it may nevertheless
enforce the demand on remand. See infra , at 30. Accordingly,
our “decision will have real meaning” for the parties. INS v. Chadha , 462 U.S.
919 , 939 (1983). And, as in Windsor , any prudential
concerns with deciding an important legal question in this posture
can be addressed by “the practice of entertaining arguments made by
an amicus when the Solicitor General confesses error with
respect to a judgment below,” which we have done. 570 U. S.,
at 760.

															We therefore turn to the merits of petitioner’s
constitutional challenge.

															III

															We hold that the CFPB’s leadership by a single
individual removable only for inefficiency, neglect, or malfeasance
violates the separation of powers.

															A

															Article II provides that “[t]he executive
Power shall be vested in a President,” who must “take Care that the
Laws be faithfully executed.” Art. II, §1, cl. 1; id. ,
§3. The entire “executive Power” belongs to the President alone.
But because it would be “impossib[le]” for “one man” to “perform
all the great business of the State,” the Constitution assumes that
lesser executive officers will “assist the supreme Magistrate in
discharging the duties of his trust.” 30 Writings of George
Washington 334 (J. Fitzpatrick ed. 1939).

															These lesser officers must remain accountable to
the President, whose authority they wield. As Madison explained,
“[I]f any power whatsoever is in its nature Executive, it is the
power of appointing, overseeing, and controlling those who execute
the laws.” 1 Annals of Cong. 463 (1789). That power, in turn,
generally includes the ability to remove executive officials, for
it is “only the authority that can remove” such officials that they
“must fear and, in the performance of [their] functions, obey.” Bowsher , 478 U. S., at 726 (internal quotation marks
omitted).

															The President’s removal power has long been
confirmed by history and precedent. It “was discussed extensively
in Congress when the first executive departments were created” in
1789. Free Enterprise Fund , 561 U. S., at 492. “The
view that ‘prevailed, as most consonant to the text of the
Constitution’ and ‘to the requisite responsibility and harmony in
the Executive Department,’ was that the executive power included a
power to oversee executive officers through removal.” Ibid. (quoting Letter from James Madison to Thomas Jefferson (June 30,
1789), 16 Documentary History of the First Federal Congress 893
(2004)). The First Congress’s recognition of the President’s
removal power in 1789 “provides contemporaneous and weighty
evidence of the Constitution’s meaning,” Bowsher , 478
U. S., at 723 (internal quotation marks omitted), and has long
been the “settled and well understood construction of the
Constitution,” Ex parte Hennen , 13 Pet. 230, 259
(1839).

															The Court recognized the President’s prerogative
to remove executive officials in Myers v. United
States , 272 U.S.
52 . Chief Justice Taft, writing for the Court, conducted an
exhaustive examination of the First Congress’s determination in
1789, the views of the Framers and their contemporaries, historical
practice, and our precedents up until that point. He concluded that
Article II “grants to the President” the “general administrative
control of those executing the laws, including the power of
appointment and removal of executive officers.” Id. ,
at 163–164 (emphasis added). Just as the President’s “selection of
administrative officers is essential to the execution of the laws
by him, so must be his power of removing those for whom he cannot
continue to be responsible.” Id. , at 117. “[T]o hold
otherwise,” the Court reasoned, “would make it impossible for the
President . . . to take care that the laws be faithfully
executed.” Id. , at 164.

															We recently reiterated the President’s general
removal power in Free Enterprise Fund . “Since 1789,” we
recapped, “the Constitution has been understood to empower the
President to keep these officers accountable—by removing them from
office, if necessary.” 561 U. S., at 483. Although we had
previously sustained congressional limits on that power in certain
circumstances, we declined to extend those limits to “a new
situation not yet encountered by the Court”—an official insulated
by two layers of for-cause removal protection. Id., at 483, 514. In the face of that novel impediment to the
President’s oversight of the Executive Branch, we adhered to the
general rule that the President possesses “the authority to remove
those who assist him in carrying out his duties.” Id., at
513–514. Free Enterprise Fund left in place two
exceptions to the President’s unrestricted removal power. First, in Humphrey’s Executor , decided less than a decade after Myers , the Court upheld a statute that protected the
Commissioners of the FTC from removal except for “inefficiency,
neglect of duty, or malfeasance in office.” 295 U. S., at 620
(quoting 15 U. S. C. §41). In reaching that conclusion,
the Court stressed that Congress’s ability to impose such removal
restrictions “will depend upon the character of the office.” 295
U. S., at 631.

															Because the Court limited its holding “to
officers of the kind here under consideration,” id., at 632,
the contours of the Humphrey’s Executor exception depend
upon the characteristics of the agency before the Court. Rightly or
wrongly, the Court viewed the FTC (as it existed in 1935) as
exercising “no part of the executive power.” Id., at 628.
Instead, it was “an administrative body” that performed “specified
duties as a legislative or as a judicial aid.” Ibid. It
acted “as a legislative agency” in “making investigations and
reports” to Congress and “as an agency of the judiciary” in making
recommendations to courts as a master in chancery. Ibid. “To
the extent that [the FTC] exercise[d] any executive function [,] as distinguished from executive power in
the constitutional sense,” it did so only in the discharge of its
“quasi-legislative or quasi-judicial powers.” Ibid. (emphasis added).[ 2 ]

															The Court identified several organizational
features that helped explain its characterization of the FTC as
non-executive. Composed of five members—no more than three from the
same political party—the Board was designed to be “non-partisan”
and to “act with entire impartiality.” Id. , at 624; see id. , at 619–620. The FTC’s duties were “neither political
nor executive,” but instead called for “the trained judgment of a
body of experts” “informed by experience.” Id. , at 624
(internal quotation marks omitted). And the Commissioners’
staggered, seven-year terms enabled the agency to accumulate
technical expertise and avoid a “complete change” in leadership “at
any one time.” Ibid .

															In short, Humphrey’s Executor permitted
Congress to give for-cause removal protections to a multimember
body of experts, balanced along partisan lines, that performed
legislative and judicial functions and was said not to exercise any
executive power. Consistent with that understanding, the Court
later applied “[t]he philosophy of Humphrey’s Executor ” to
uphold for-cause removal protections for the members of the War
Claims Commission—a three-member “adjudicatory body” tasked with
resolving claims for compensation arising from World War II. Wiener v. United States , 357
U.S. 349 , 356 (1958).

															While recognizing an exception for multimember
bodies with “quasi-judicial” or “quasi-legislative” functions, Humphrey’s Executor reaffirmed the core holding of Myers that the President has “unrestrictable power
. . . to remove purely executive officers.” 295
U. S., at 632. The Court acknowledged that between purely
executive officers on the one hand, and officers that closely
resembled the FTC Commissioners on the other, there existed “a
field of doubt” that the Court left “for future consideration.” Ibid. We have recognized a second exception for inferior officers in two cases, United States v. Perkins and Morrison v. Olson .[ 3 ] In Perkins , we upheld tenure
protections for a naval cadet-engineer. 116 U. S., at 485.
And, in Morrison , we upheld a provision granting good-cause
tenure protection to an independent counsel appointed to
investigate and prosecute particular alleged crimes by high-ranking
Government officials. 487 U. S., at 662–663, 696–697. Backing
away from the reliance in Humphrey’s Executor on the
concepts of “quasi-legislative” and “quasi-judicial” power, we
viewed the ultimate question as whether a removal restriction is of
“such a nature that [it] impede[s] the President’s ability to
perform his constitutional duty.” 487 U. S., at 691. Although
the independent counsel was a single person and performed “law
enforcement functions that typically have been undertaken by
officials within the Executive Branch,” we concluded that the
removal protections did not unduly interfere with the functioning
of the Executive Branch because “the independent counsel [was] an
inferior officer under the Appointments Clause, with limited
jurisdiction and tenure and lacking policymaking or significant
administrative authority.” Ibid. These two exceptions—one for multimember expert
agencies that do not wield substantial executive power, and one for
inferior officers with limited duties and no policymaking or
administrative authority—“represent what up to now have been the
outermost constitutional limits of permissible congressional
restrictions on the President’s removal power.” PHH , 881
F. 3d, at 196 (Kavanaugh, J., dissenting) (internal quotation
marks omitted).

															B

															Neither Humphrey’s Executor nor Morrison resolves whether the CFPB Director’s insulation
from removal is constitutional. Start with Humphrey’s
Executor. Unlike the New Deal-era FTC upheld there, the CFPB is
led by a single Director who cannot be described as a “body of
experts” and cannot be considered “non-partisan” in the same sense
as a group of officials drawn from both sides of the aisle. 295
U. S., at 624. Moreover, while the staggered terms of the FTC
Commissioners prevented complete turnovers in agency leadership and
guaranteed that there would always be some Commissioners who had
accrued significant expertise, the CFPB’s single-Director structure
and five-year term guarantee abrupt shifts in agency leadership and
with it the loss of accumulated expertise.

															In addition, the CFPB Director is hardly a mere
legislative or judicial aid. Instead of making reports and
recommendations to Congress, as the 1935 FTC did, the Director
possesses the authority to promulgate binding rules fleshing out 19
federal statutes, including a broad prohibition on unfair and
deceptive practices in a major segment of the U. S. economy.
And instead of submitting recommended dispositions to an Article
III court, the Director may unilaterally issue final decisions
awarding legal and equitable relief in administrative
adjudications. Finally, the Director’s enforcement authority
includes the power to seek daunting monetary penalties against
private parties on behalf of the United States in federal court—a
quintessentially executive power not considered in Humphrey’s
Executor .[ 4 ]

															The logic of Morrison also does not
apply. Everyone agrees the CFPB Director is not an inferior
officer, and her duties are far from limited. Unlike the
independent counsel, who lacked policymaking or administrative
authority, the Director has the sole responsibility to administer
19 separate consumer-protection statutes that cover everything from
credit cards and car payments to mortgages and student loans. It is
true that the independent counsel in Morrison was empowered
to initiate criminal investigations and prosecutions, and in that
respect wielded core executive power. But that power, while
significant, was trained inward to high-ranking Governmental actors
identified by others, and was confined to a specified matter in
which the Department of Justice had a potential conflict of
interest. By contrast, the CFPB Director has the authority to bring
the coercive power of the state to bear on millions of private
citizens and businesses, imposing even billion-dollar penalties
through administrative adjudications and civil actions.

															In light of these differences, the
constitutionality of the CFPB Director’s insulation from removal
cannot be settled by Humphrey’s Executor or Morrison alone.

															C

															The question instead is whether to extend
those precedents to the “new situation” before us, namely an
independent agency led by a single Director and vested with
significant executive power. Free Enterprise Fund , 561
U. S., at 483. We decline to do so. Such an agency has no
basis in history and no place in our constitutional structure.

															1

															“Perhaps the most telling indication of [a]
severe constitutional problem” with an executive entity “is [a]
lack of historical precedent” to support it. Id., at 505
(internal quotation marks omitted). An agency with a structure like
that of the CFPB is almost wholly unprecedented.

															After years of litigating the agency’s
constitutionality, the Courts of Appeals, parties, and amici have identified “only a handful of isolated” incidents in which
Congress has provided good-cause tenure to principal officers who
wield power alone rather than as members of a board or commission. Ibid. “[T]hese few scattered examples”—four to be exact—shed
little light. NLRB v. Noel Canning , 573 U.S.
513 , 538 (2014).

															First, the CFPB’s defenders point to the
Comptroller of the Currency, who enjoyed removal protection for one year during the Civil War. That example has rightly been
dismissed as an aberration. It was “adopted without discussion”
during the heat of the Civil War and abandoned before it could be
“tested by executive or judicial inquiry.” Myers , 272
U. S., at 165. (At the time, the Comptroller may also have
been an inferior officer, given that he labored “under the general
direction of the Secretary of the Treasury.” Ch. 58, 12Stat.
665.)[ 5 ]

															Second, the supporters of the CFPB point to the
Office of the Special Counsel (OSC), which has been headed by a
single officer since 1978.[ 6 ]
But this first enduring single-leader office, created nearly 200
years after the Constitution was ratified, drew a contemporaneous
constitutional objection from the Office of Legal Counsel under
President Carter and a subsequent veto on constitutional grounds by
President Reagan. See Memorandum Opinion for the General Counsel,
Civil Service Commission, 2 Op. OLC 120, 122 (1978); Public Papers
of the Presidents, Ronald Reagan, Vol. II, Oct. 26, 1988, pp.
1391–1392 (1991).[ 7 ] In any
event, the OSC exercises only limited jurisdiction to enforce
certain rules governing Federal Government employers and employees.
See 5 U. S. C. §1212. It does not bind private parties at
all or wield regulatory authority comparable to the CFPB.

															Third, the CFPB’s defenders note that the Social
Security Administration (SSA) has been run by a single
Administrator since 1994. That example, too, is comparatively
recent and controversial. President Clinton questioned the
constitutionality of the SSA’s new single-Director structure upon
signing it into law. See Public Papers of the Presidents, William
J. Clinton, Vol. II, Aug. 15, 1994, pp. 1471–1472 (1995) (inviting
a “corrective amendment” from Congress). In addition, unlike the
CFPB, the SSA lacks the authority to bring enforcement actions
against private parties. Its role is largely limited to
adjudicating claims for Social Security benefits.

															The only remaining example is the Federal
Housing Finance Agency (FHFA), created in 2008 to assume
responsibility for Fannie Mae and Freddie Mac. That agency is
essentially a companion of the CFPB, established in response to the
same financial crisis. See Housing and Economic Recovery Act of
2008, 122Stat. 2654. It regulates primarily Government-sponsored
enterprises, not purely private actors. And its single-Director
structure is a source of ongoing controversy. Indeed, it was
recently held unconstitutional by the Fifth Circuit, sitting en
banc. See Collins v. Mnuchin , 938 F.3d 553, 587–588
(2019).

															With the exception of the one-year blip for the
Comptroller of the Currency, these isolated examples are modern and
contested. And they do not involve regulatory or enforcement
authority remotely comparable to that exercised by the CFPB. The
CFPB’s single-Director structure is an innovation with no foothold
in history or tradition.[ 8 ]

															2

															In addition to being a historical anomaly, the
CFPB’s single-Director configuration is incompatible with our
constitutional structure. Aside from the sole exception of the
Presidency, that structure scrupulously avoids concentrating power
in the hands of any single individual.

															“The Framers recognized that, in the long term,
structural protections against abuse of power were critical to
preserving liberty.” Bowsher , 478 U. S., at 730. Their
solution to governmental power and its perils was simple: divide
it. To prevent the “gradual concentration” of power in the same
hands, they enabled “[a]mbition . . . to counteract
ambition” at every turn. The Federalist No. 51, p. 349 (J. Cooke
ed. 1961) (J. Madison). At the highest level, they “split the atom
of sovereignty” itself into one Federal Government and the States. Gamble v. United States , 587 U. S. ___, ___
(2019) (slip op., at 9) (internal quotation marks omitted). They
then divided the “powers of the new Federal Government into three
defined categories, Legislative, Executive, and Judicial.” Chadha , 462 U. S., at 951.

															They did not stop there. Most prominently, the
Framers bifurcated the federal legislative power into two Chambers:
the House of Representatives and the Senate, each composed of
multiple Members and Senators. Art. I, §§2, 3.

															The Executive Branch is a stark departure from
all this division. The Framers viewed the legislative power as a
special threat to individual liberty, so they divided that power to
ensure that “differences of opinion” and the “jarrings of parties”
would “promote deliberation and circumspection” and “check excesses
in the majority.” See The Federalist No. 70, at 475 (A. Hamilton);
see also id ., No. 51, at 350. By contrast, the Framers
thought it necessary to secure the authority of the Executive so
that he could carry out his unique responsibilities. See id ., No. 70, at 475–478. As Madison put it, while “the
weight of the legislative authority requires that it should be
. . . divided, the weakness of the executive may require,
on the other hand, that it should be fortified.” Id ., No.
51, at 350.

															The Framers deemed an energetic executive
essential to “the protection of the community against foreign
attacks,” “the steady administration of the laws,” “the protection
of property,” and “the security of liberty.” Id ., No. 70, at
471. Accordingly, they chose not to bog the Executive down with the
“habitual feebleness and dilatoriness” that comes with a “diversity
of views and opinions.” Id. , at 476. Instead, they gave the
Executive the “[d]ecision, activity, secrecy, and dispatch” that
“characterise the proceedings of one man.” Id. , at 472.

															To justify and check that authority—unique in our constitutional structure—the Framers made
the President the most democratic and politically accountable
official in Government. Only the President (along with the Vice
President) is elected by the entire Nation. And the President’s
political accountability is enhanced by the solitary nature of the
Executive Branch, which provides “a single object for the jealousy
and watchfulness of the people.” Id., at 479. The President
“cannot delegate ultimate responsibility or the active obligation
to supervise that goes with it,” because Article II “makes a single
President responsible for the actions of the Executive Branch.” Free Enterprise Fund , 561 U. S., at 496–497 (quoting Clinton v. Jones , 520 U.S.
681 , 712–713 (1997) (Breyer, J., concurring in judgment)).

															The resulting constitutional strategy is
straightforward: divide power everywhere except for the Presidency,
and render the President directly accountable to the people through
regular elections. In that scheme, individual executive officials
will still wield significant authority, but that authority remains
subject to the ongoing supervision and control of the elected
President. Through the President’s oversight, “the chain of
dependence [is] preserved,” so that “the lowest officers, the
middle grade, and the highest” all “depend, as they ought, on the
President, and the President on the community.” 1 Annals of Cong.
499 (J. Madison).

															The CFPB’s single-Director structure contravenes
this carefully calibrated system by vesting significant
governmental power in the hands of a single individual accountable
to no one. The Director is neither elected by the people nor
meaningfully controlled (through the threat of removal) by someone
who is. The Director does not even depend on Congress for annual
appropriations. See The Federalist No. 58, at 394 (J. Madison)
(describing the “power over the purse” as the “most compleat and
effectual weapon” in representing the interests of the people). Yet
the Director may unilaterally , without meaningful
supervision, issue final regulations, oversee adjudications, set
enforcement priorities, initiate prosecutions, and determine what
penalties to impose on private parties. With no colleagues to
persuade, and no boss or electorate looking over her shoulder, the
Director may dictate and enforce policy for a vital segment of the
economy affecting millions of Americans.

															The CFPB Director’s insulation from removal by
an accountable President is enough to render the agency’s structure
unconstitutional. But several other features of the CFPB combine to
make the Director’s removal protection even more problematic. In
addition to lacking the most direct method of presidential
control—removal at will—the agency’s unique structure also
forecloses certain indirect methods of Presidential control.

															Because the CFPB is headed by a single Director
with a five-year term, some Presidents may not have any opportunity
to shape its leadership and thereby influence its activities. A
President elected in 2020 would likely not appoint a CFPB Director
until 2023, and a President elected in 2028 may never appoint one. That means an unlucky President might get elected on a
consumer-protection platform and enter office only to find herself
saddled with a holdover Director from a competing political party
who is dead set against that agenda. To make matters worse,
the agency’s single-Director structure means the President will not
have the opportunity to appoint any other leaders—such as a chair
or fellow members of a Commission or Board—who can serve as a check
on the Director’s authority and help bring the agency in line with
the President’s preferred policies.

															The CFPB’s receipt of funds outside the
appropriations process further aggravates the agency’s threat to
Presidential control. The President normally has the opportunity to
recommend or veto spending bills that affect the operation of
administrative agencies. See Art. I, §7, cl. 2; Art. II, §3.
And, for the past century, the President has annually submitted a
proposed budget to Congress for approval. See Budget and Accounting
Act, 1921, ch. 18, §201, 42Stat. 20. Presidents frequently use
these budgetary tools “to influence the policies of independent
agencies.” PHH , 881 F. 3d, at 147 (Henderson, J.,
dissenting) (citing Pasachoff, The President’s Budget as a Source
of Agency Policy Control, 125 Yale L. J. 2182, 2191, 2203–2204
(2016)). But no similar opportunity exists for the President to
influence the CFPB Director. Instead, the Director receives over
$500 million per year to fund the agency’s chosen priorities. And
the Director receives that money from the Federal Reserve, which is
itself funded outside of the annual appropriations process. This
financial freedom makes it even more likely that the agency will
“slip from the Executive’s control, and thus from that of the
people.” Free Enterprise Fund , 561 U. S., at
499.[ 9 ]

															3 Amicus raises three principal arguments
in the agency’s defense. At the outset, amicus questions the
textual basis for the removal power and highlights statements from
Madison, Hamilton, and Chief Justice Marshall expressing
“heterodox” views on the subject. Brief for Court-Appointed Amicus Curiae 4–5, 28–29. But those concerns are misplaced.
It is true that “there is no ‘removal clause’ in the Constitution,” id. , at 1, but neither is there a “separation of powers
clause” or a “federalism clause.” These foundational doctrines are
instead evident from the Constitution’s vesting of certain powers
in certain bodies. As we have explained many times before, the
President’s removal power stems from Article II’s vesting of the
“executive Power” in the President. Free Enterprise Fund ,
561 U. S., at 483 (quoting Art. II, §1, cl. 1). As for the
opinions of Madison, Hamilton, and Chief Justice Marshall, we have
already considered the statements cited by amicus and
discounted them in light of their context (Madison), the fact they
reflect initial impressions later abandoned by the speaker
(Hamilton), or their subsequent rejection as ill-considered dicta
(Chief Justice Marshall). See Free Enterprise Fund , 561
U. S., at 500, n. 6 (Madison); Myers , 272 U. S., at
136–139, 142–144 (Hamilton and Chief Justice Marshall).[ 10 ]

															Next, amicus offers a grand theory of
our removal precedents that, if accepted, could leave room for an
agency like the CFPB—and many other innovative intrusions on
Article II. According to amicus , Humphrey’s Executor and Morrison establish a general rule that Congress may
impose “modest” restrictions on the President’s removal power, with
only two limited exceptions. Brief for Court-Appointed Amicus
Curiae 33–37. Congress may not reserve a role for itself in individual removal decisions (as it attempted to
do in Myers and Bowsher ) . And it may not
eliminate the President’s removal power altogether (as it
effectively did in Free Enterprise Fund ) . Outside those two situations, amicus argues, Congress is
generally free to constrain the President’s removal power. See also post , at 16–22 (Kagan, J., concurring in judgment with
respect to severability and dissenting in part) (hereinafter
dissent) (expressing similar view).

															But text, first principles, the First Congress’s
decision in 1789, Myers , and Free Enterprise Fund all
establish that the President’s removal power is the rule, not the
exception. While we do not revisit Humphrey’s Executor or
any other precedent today, we decline to elevate it into a
freestanding invitation for Congress to impose additional
restrictions on the President’s removal authority.[ 11 ]

															Finally, amicus contends that if we
identify a constitutional problem with the CFPB’s structure, we
should avoid it by broadly construing the statutory grounds for
removing the CFPB Director from office. See Brief for
Court-Appointed Amicus Curiae 50–53; Tr. of Oral Arg. 57–62.
The Dodd-Frank Act provides that the Director may be removed for
“inefficiency, neglect of duty, or malfeasance in office.” 12
U. S. C. §5491(c)(3). In amicus ’ view, that
language could be interpreted to reserve substantial discretion to
the President. Brief for Court-Appointed Amicus Curiae 51.

															We are not persuaded. For one, Humphrey’s
Executor implicitly rejected an interpretation that would leave
the President free to remove an officer based on disagreements
about agency policy. See 295 U. S., at 619, 625–626. In
addition, while both amicus and the House of Representatives
invite us to adopt whatever construction would cure the
constitutional problem, they have not advanced any workable
standard derived from the statutory language. Amicus suggests that the proper standard might permit removals based on general policy disagreements, but not specific ones;
the House suggests that the permissible bases for removal might
vary depending on the context and the Presidential power involved.
See Tr. of Oral Arg. 58–60, 76–77. They do not attempt to root
either of those standards in the statutory text. Further, although
nearly identical language governs the removal of some two-dozen
multimember independent agencies, amicus suggests that the
standard should vary from agency to agency, morphing as necessary
to avoid constitutional doubt. Tr. of Oral Arg. 55–56. We decline
to embrace such an uncertain and elastic approach to the text. Amicus and the House also fail to engage
with the Dodd-Frank Act as a whole, which makes plain that the CFPB
is an “independent bureau.” 12 U. S. C. §5491(a); see
also 44 U. S. C. §3502(5) (listing the CFPB as an
“independent regulatory agency”). Neither amicus nor the
House explains how the CFPB would be “independent” if its head were
required to implement the President’s policies upon pain of
removal. See Black’s Law Dictionary 838 (9th ed. 2009) (defining
“independent” as “[n]ot subject to the control or influence of
another”). The Constitution might of course compel the agency to be
dependent on the President notwithstanding Congress’s contrary
intent, but that result cannot fairly be inferred from the statute
Congress enacted.

															Constitutional avoidance is not a license to
rewrite Congress’s work to say whatever the Constitution needs it
to say in a given situation. Without a proffered interpretation
that is rooted in the statutory text and structure, and would avoid
the constitutional violation we have identified, we take Congress
at its word that it meant to impose a meaningful restriction on the
President’s removal authority.

															The dissent, for its part, largely reprises
points that the Court has already considered and rejected: It notes
the lack of an express removal provision, invokes Congress’s
general power to create and define executive offices, highlights
isolated statements from individual Framers, downplays the decision
of 1789, minimizes Myers , brainstorms methods of
Presidential control short of removal, touts the need for creative
congressional responses to technological and economic change, and
celebrates a pragmatic, flexible approach to American governance.
See post , at 1–25, 32–33, 38.

															If these arguments sound familiar, it’s because
they are. They were raised by the dissent in Free Enterprise
Fund . Compare post , at 1–25, 32–33, 38, with Free
Enterprise Fund , 561 U. S., at 515–524, 530 (Breyer, J.,
dissenting). The answers to these repeated concerns (beyond those
we have already covered) are the same today as they were ten years
ago. Today, as then, Congress’s “plenary control over the salary,
duties, and even existence of executive offices” makes
“Presidential oversight” more critical—not less—as the
“[o]nly” tool to “counter [Congress’s] influence.” Id. , at
500 (opinion of the Court). Today, as then, the various
“bureaucratic minutiae” a President might use to corral agency
personnel is no substitute for at will removal. Ibid. And
today, as always, the urge to meet new technological and societal
problems with novel governmental structures must be tempered by
constitutional restraints that are not known—and were not
chosen—for their efficiency or flexibility. Id., at 499.

															As we explained in Free Enterprise Fund ,
“One can have a government that functions without being ruled by
functionaries, and a government that benefits from expertise
without being ruled by experts.” Ibid. While “[n]o one
doubts Congress’s power to create a vast and varied federal
bureaucracy,” the expansion of that bureaucracy into new
territories the Framers could scarcely have imagined only sharpens
our duty to ensure that the Executive Branch is overseen by a
President accountable to the people. Ibid. IV

															Having concluded that the CFPB’s leadership by
a single independent Director violates the separation of powers, we
now turn to the appropriate remedy. We directed the parties to
brief and argue whether the Director’s removal protection was
severable from the other provisions of the Dodd-Frank Act that
establish the CFPB. If so, then the CFPB may continue to exist and
operate notwithstanding Congress’s unconstitutional attempt to
insulate the agency’s Director from removal by the President. There
is a live controversy between the parties on that question, and
resolving it is a necessary step in determining petitioner’s
entitlement to its requested relief.

															As the defendant in this action, petitioner
seeks a straightforward remedy. It asks us to deny the Government’s
petition to enforce the civil investigative demand and dismiss the
case. The Government counters that the demand, though initially
issued by a Director unconstitutionally insulated from removal, can
still be enforced on remand because it has since been ratified by
an Acting Director accountable to the President. The parties
dispute whether this alleged ratification in fact occurred and
whether, if so, it is legally sufficient to cure the constitutional
defect in the original demand. That debate turns on case-specific
factual and legal questions not addressed below and not briefed
here. A remand for the lower Courts to consider those questions in
the first instance is therefore the appropriate course—unless such
a remand would be futile.

															In petitioner’s view, it would be. Before the
Court of Appeals, petitioner contended that, regardless of any
ratification, the demand is unenforceable because the statutory
provision insulating the CFPB Director from removal cannot be
severed from the other statutory provisions that define the CFPB’s
authority. See Brief for Appellant in No. 17–56324 (CA9), pp.
27–28, 30–32. If petitioner is correct, and the offending removal
provision means the entire agency is unconstitutional and powerless
to act, then a remand would be pointless. With no agency left with
statutory authority to maintain this suit or otherwise enforce the
demand, the appropriate disposition would be to reverse with
instructions to deny the Government’s petition to enforce the
agency’s demand for documents and dismiss the case, as petitioner
requests.

															Accordingly, there is a live controversy over
the question of severability. And that controversy is essential to
our ability to provide petitioner the relief it seeks: If the
removal restriction is not severable, then we must grant the relief
requested, promptly rejecting the demand outright. If, on the other
hand, the removal restriction is severable, we must instead remand
for the Government to press its ratification arguments in further
proceedings. Unlike the lingering ratification issue, severability
presents a pure question of law that has been fully briefed and
argued by the parties. We therefore proceed to address it.[ 12 ]

															It has long been settled that “one section of a
statute may be repugnant to the Constitution without rendering the
whole act void.” Loeb v. Columbia Township Trustees , 179 U.S.
472 , 490 (1900) (quoting Treasurer of Fayette
Cty. v. People’s & Drovers’ Bank , 47 Ohio St. 503,
523, 25 N.E. 697, 702 (1890)). Because a “statute bad in part is
not necessarily void in its entirety,” “[p]rovisions within the
legislative power may stand if separable from the bad.” Dorchy v. Kansas , 264 U.S.
286 , 289–290 (1924).

															“Generally speaking, when confronting a
constitutional flaw in a statute, we try to limit the solution to
the problem, severing any problematic portions while leaving the
remainder intact.” Free Enterprise Fund , 561 U. S., at
508 (internal quotation marks omitted). Even in the absence of a
severability clause, the “traditional” rule is that “the
unconstitutional provision must be severed unless the statute
created in its absence is legislation that Congress would not have
enacted.” Alaska Airlines, Inc. v. Brock , 480 U.S.
678 , 685 (1987). When Congress has expressly provided a
severability clause, our task is simplified. We will presume “that
Congress did not intend the validity of the statute in question to
depend on the validity of the constitutionally offensive provision
. . . unless there is strong evidence that Congress
intended otherwise.” Id., at 686.

															The only constitutional defect we have
identified in the CFPB’s structure is the Director’s insulation
from removal. If the Director were removable at will by the
President, the constitutional violation would disappear. We must
therefore decide whether the removal provision can be severed from
the other statutory provisions relating to the CFPB’s powers and
responsibilities.

															In Free Enterprise Fund , we found a set
of unconstitutional removal provisions severable even in the
absence of an express severability clause because the surviving
provisions were capable of “functioning independently” and “nothing
in the statute’s text or historical context [made] it evident that
Congress, faced with the limitations imposed by the Constitution,
would have preferred no Board at all to a Board whose members are
removable at will.” 561 U. S., at 509 (internal quotation
marks omitted).

															So too here. The provisions of the Dodd-Frank
Act bearing on the CFPB’s structure and duties remain fully
operative without the offending tenure restriction. Those
provisions are capable of functioning independently, and there is
nothing in the text or history of the Dodd-Frank Act that
demonstrates Congress would have preferred no CFPB to a CFPB
supervised by the President. Quite the opposite. Unlike the
Sarbanes-Oxley Act at issue in Free Enterprise Fund , the
Dodd-Frank Act contains an express severability clause. There is no
need to wonder what Congress would have wanted if “any provision of
this Act” is “held to be unconstitutional” because it has told us:
“the remainder of this Act” should “not be affected.” 12
U. S. C. §5302.

															Petitioner urges us to disregard this plain
language for three reasons. None is persuasive. First, petitioner
dismisses the clause as non-probative “boilerplate” because it
applies “to the entire, 848-page Dodd-Frank Act” and “appears
almost 600 pages before the removal provision at issue.” Brief for
Petitioner 45. In petitioner’s view, that means we cannot be
certain that Congress really meant to apply the clause to each of
the Act’s provisions. But boilerplate is boilerplate for a
reason—because it offers tried-and-true language to ensure a
precise and predictable result. That is the case here. The language
unmistakably references “ any provision of this Act.” 12
U. S. C. §5302 (emphasis added). And it appears in a
logical and prominent place, immediately following the Act’s title
and definitions sections, reinforcing the conclusion that it
applies to the entirety of the Act. Congress was not required to
laboriously insert duplicative severability clauses, provision by
provision, to accomplish its stated objective.

															Second, petitioner points to an additional
severability clause in the Act that applies only to one of the
Act’s subtitles. See 15 U. S. C. §8232. In petitioner’s
view, that clause would be superfluous if Congress meant the
general severability clause to apply across the Act. But “our
preference for avoiding surplusage constructions is not absolute.” Lamie v. United States Trustee , 540 U.S.
526 , 536 (2004). In this instance, the redundant language
appears to reflect the fact that the subtitle to which it refers
originated as a standalone bill that was later incorporated into
Dodd-Frank. Compare 15 U. S. C. §8232 with H. R.
2571, 111th Cong., 1st Sess., §302 (2009). And petitioner does not
offer any construction that would give effect to both provisions,
making the redundancy both inescapable and unilluminating. See Microsoft Corp. v. i4i L. P. , 564 U.S.
91 , 106 (2011) (“The canon against superfluity assists only
where a competing interpretation gives effect to every clause and
word of a statute.” (internal quotation marks omitted)).

															Finally, petitioner argues more broadly that
Congress would not have wanted to give the President unbridled
control over the CFPB’s vast authority. Petitioner highlights the
references to the CFPB’s independence in the statutory text and
legislative history, as well as in Professor Warren’s and the Obama
administration’s original proposals. See Brief for Petitioner 43–44
(collecting examples). And petitioner submits that Congress might
not have exempted the CFPB from congressional oversight via the
appropriations process if it had known that the CFPB would come
under executive control.

															These observations certainly confirm that
Congress preferred an independent CFPB to a dependent one; but they
shed little light on the critical question whether Congress would
have preferred a dependent CFPB to no agency at all. That is
the only question we have the authority to decide, and the answer
seems clear. Petitioner assumes that, if we eliminate the CFPB,
regulatory and enforcement authority over the statutes it
administers would simply revert back to the handful of independent
agencies previously responsible for them. See id. , at 46.
But, as the Solicitor General and House of Representatives explain,
that shift would trigger a major regulatory disruption and would
leave appreciable damage to Congress’s work in the consumer-finance
arena. See Reply Brief for Respondent 21–22; Tr. of Oral Arg.
67–68. One of the agencies whose regulatory authority was
transferred to the CFPB no longer exists. See 12 U. S. C.
§§5412–5413 (Office of Thrift Supervision). The others do not have
the staff or appropriations to absorb the CFPB’s 1,500-employee,
500-million-dollar operations. And none has the authority to
administer the Dodd-Frank Act’s new prohibition on unfair and
deceptive practices in the consumer-finance sector. Given these
consequences, it is far from evident that Congress would have
preferred no CFPB to a CFPB led by a Director removable at will by
the President.

															Justice Thomas would have us junk our settled
severability doctrine and start afresh, even though no party has
asked us to do so. See post , at 15–16, 21–24 (opinion
concurring in part and dissenting in part). Among other things, he
objects that it is sheer “speculation” that Congress would prefer
that its consumer protection laws be enforced by a Director
accountable to the President rather than not at all. Post ,
at 23–24. We think it clear that Congress would prefer that we use
a scalpel rather than a bulldozer in curing the constitutional
defect we identify today. And such an approach by this Court can
come as no surprise to Congress, which was on notice of
constitutional objections to single-Director agencies by multiple
past Presidents from both political parties, supra , at
19–20, and enacted Dodd-Frank against the background of our
established severability doctrine.

															As in every severability case, there may be
means of remedying the defect in the CFPB’s structure that the
Court lacks the authority to provide. Our severability analysis
does not foreclose Congress from pursuing alternative responses to
the problem—for example, converting the CFPB into a multimember
agency. The Court’s only instrument, however, is a blunt one. We
have “the negative power to disregard an unconstitutional
enactment,” Massachusetts v. Mellon , 262 U.S.
447 , 488 (1923); see Marbury v. Madison , 1 Cranch
137, 178 (1803), but we cannot re-write Congress’s work by creating
offices, terms, and the like. “[S]uch editorial freedom
. . . belongs to the Legislature, not the Judiciary.” Free Enterprise Fund , 561 U. S., at 510.

															Because we find the Director’s removal
protection severable from the other provisions of Dodd-Frank that
establish the CFPB, we remand for the Court of Appeals to consider
whether the civil investigative demand was validly ratified.

															*  *  *

															A decade ago, we declined to extend Congress’s
authority to limit the President’s removal power to a new
situation, never before confronted by the Court. We do the same
today. In our constitutional system, the executive power belongs to
the President, and that power generally includes the ability to
supervise and remove the agents who wield executive power in his
stead. While we have previously upheld limits on the President’s
removal authority in certain contexts, we decline to do so when it
comes to principal officers who, acting alone, wield significant
executive power. The Constitution requires that such officials
remain dependent on the President, who in turn is accountable to
the people.

															The judgment of the United States Court of
Appeals for the Ninth Circuit is vacated, and the case is remanded
for further proceedings consistent with this opinion.

															It is so ordered. Notes 1 Director Kraninger did
not indicate whether she would disregard her statutory removal
protection if the President attempted to remove her without
cause. 2 The Court’s conclusion
that the FTC did not exercise executive power has not withstood the
test of time. As we observed in Morrison v. Olson , 487 U.S.
654 (1988), “[I]t is hard to dispute that the powers of the FTC
at the time of Humphrey’s Executor would at the present time
be considered ‘executive,’ at least to some degree.” Id., at
690, n. 28. See also Arlington v. FCC , 569 U.S.
290 , 305, n. 4 (2013) (even though the activities of
administrative agencies “take ‘legislative’ and ‘judicial’ forms,”
“they are exercises of—indeed, under our constitutional structure
they must be exercises of—the ‘executive Power’ ” (quoting
Art. II, §1, cl. 1)). 3 Article II distinguishes
between two kinds of officers—principal officers (who must be
appointed by the President with the advice and consent of the
Senate) and inferior officers (whose appointment Congress may vest
in the President, courts, or heads of Departments). §2, cl. 2.
While “[o]ur cases have not set forth an exclusive criterion for
distinguishing between principal and inferior officers,” we have in
the past examined factors such as the nature, scope, and duration
of an officer’s duties. Edmond v. United States , 520 U.S.
651 , 661 (1997). More recently, we have focused on whether the
officer’s work is “directed and supervised” by a principal officer. Id., at 663. 4 The dissent would have us
ignore the reasoning of Humphrey’s Executor and instead
apply the decision only as part of a reimagined Humphrey’s -through- Morrison framework. See post , at 18, n. 7, 19–22 (Kagan, J., concurring in
judgment with respect to severability and dissenting in part)
(hereinafter dissent). But we take the decision on its own terms,
not through gloss added by a later Court in dicta. The dissent also
criticizes us for suggesting that the 1935 FTC may have had lesser
responsibilities than the present FTC. See post , at 27,
n. 10. Perhaps the FTC possessed broader rulemaking,
enforcement, and adjudicatory powers than the Humphrey’s Court appreciated. Perhaps not. Either way, what matters is the set
of powers the Court considered as the basis for its decision, not
any latent powers that the agency may have had not alluded to by
the Court. 5 The dissent suggests that
the Comptroller still enjoyed some degree of insulation after his
removal protection was repealed because the President faced a new
requirement to “communicate[ ]” his “reasons” for terminating
the Comptroller to the Senate. Post, at 15 (quoting Act of
June 3, 1864, ch. 106, §1, 13Stat. 100). But the President could
still remove the Comptroller for any reason so long as the
President was, in the dissent’s phrase, “in a firing mood.” Post , at 15. 6 The OSC should not be
confused with the independent counsel in Morrison or the
special counsel recently appointed to investigate allegations
related to the 2016 Presidential election. Despite sharing similar
titles, those individuals have no relationship to the
OSC. 7 An Act similar to the one
vetoed by President Reagan was eventually signed by President
George H. W. Bush after extensive negotiations and compromises with
Congress. See Public Papers of the Presidents, George H. W. Bush,
Vol. I, Apr. 10, 1989, p. 391 (1990). 8 The dissent categorizes
the CFPB as one of many “financial regulators” that have
historically enjoyed some insulation from the President. See post , at 11–16. But even assuming financial institutions
like the Second Bank and the Federal Reserve can claim a special
historical status, the CFPB is in an entirely different league. It
acts as a mini legislature, prosecutor, and court, responsible for
creating substantive rules for a wide swath of industries,
prosecuting violations, and levying knee-buckling penalties against
private citizens. See supra, at 4–5. And, of course, it is
the only agency of its kind run by a single Director. 9 Amicus and the
dissent try to diminish the CFPB’s insulation from Presidential
control by observing that the CFPB’s final rules can be set aside
by a super majority of the Financial Stability and Oversight
Council (FSOC). See Brief for Court-Appointed Amicus Curiae 40; post , at 33, n. 13, 36. But the FSOC’s veto power
is statutorily reserved for extreme situations, when two-thirds of
the Council concludes that a CFPB regulation would “put the safety
and soundness of the United States banking system or the stability
of the financial system of the United States at risk.” 12
U. S. C. §§5513(a), (c)(3). That narrow escape hatch has
no impact on the CFPB’s enforcement or adjudicatory authority and
has never been used in the ten years since the agency’s creation.
It certainlydoes not render the CFPB’s independent, single-Director
structureconstitutional. 10 The
dissent likewise points to Madison’s statement in The Federalist
No. 39 that the “tenure” of “ministerial offices generally will be
a subject of legal regulation.” Post , at 10 (quoting The
Federalist No. 39, p. 253 (J. Cooke ed. 1961)). But whatever
Madison may have meant by that statement, he later led the charge
in contending, on the floor of the First Congress, that “inasmuch
as the power of removal is of an Executive nature . . .
it is beyond the reach of the Legislative body.” 1 Annals of Cong.
464 (1789); see also id. , at 462–464, 495–496. Like the
dissent in Free Enterprise Fund , the dissent goes on to
“attribute[ ] to Madison a belief that . . . the
Comptroller[ ] could be made independent of the President. But
Madison’s actual proposal, consistent with his view of the
Constitution, was that the Comptroller hold office for a term of
‘years, unless sooner removed by the President’; he would thus be
‘dependent upon the President, because he can be removed by him,’
and also ‘dependent upon the Senate, because they must consent to
his [reappointment] for every term of years.’ ” Free Enterprise
Fund v. Public Company Accounting Oversight Bd. , 561 U.S.
477 , 499, 500 n. 6 (2010) (citation omitted) (quoting 1 Annals
of Cong. 612). See post , at 10, n. 4. The dissent
further notes that, at the time of the founding, some States placed
limitations on their Governors’ removal power. See post , at
7. But the Framers hardly viewed State Governors as a reliable
guide in fashioning the Federal Executive. Indeed, they expressly
rejected the “executive council” structure favored by most States,
fearing that subjecting the President to oversight, as the States
had, would “distract and . . . enervate the whole system
of administration” and inject it with “habitual feebleness and
dilatoriness.” The Federalist No. 70, at 473, 476 (A.
Hamilton). 11 Building on amicus ’ proposal,
the dissent would endorse whatever “the times demand, so long as
the President retains the ability to carry out his constitutional
functions.” Post , at 4. But that amorphous test provides no
real limiting principle. The “clearest” (and only) “example” the
dissent can muster for what may be prohibited is a for-cause
removal restriction placed on the President’s “close military or
diplomatic advisers.” Post , at 17. But that carveout makes
no logical or constitutional sense. In the dissent’s view,
for-cause removal restrictions are permissible because they
guarantee the President “meaningful control” over his subordinates. Post , at 28 (internal quotation marks and alterations
omitted); see also post , at 8, 20, 26, 36 . If that is
the theory, then what is the harm in giving the President the same
“meaningful control” over his close advisers? The dissent claims to
see a constitutional distinction between the President’s “own
constitutional duties in foreign relations and war” and his duty to
execute laws passed by Congress. Post , at 13. But the same
Article that establishes the President’s foreign relations and war
duties expressly entrusts him to take care that the laws be
faithfully executed. And, from the perspective of the governed, it
is far from clear that the President’s core and traditional powers
present greater cause for concern than peripheral and modern ones.
If anything, “[t]he growth of the Executive Branch, which now
wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s
control, and thus from that of the people.” Free Enterprise
Fund , 561 U. S., at 499 (emphasis added). 12 Justice Thomas believes that any
ratification is irrelevant. In his view, even if the issuance of
the demand and initiation of this suit have been validly ratified,
Director Kraninger’s activities in litigating the case—after
inheriting it from an Acting Director, but before becoming
removable at will herself in light of our decision—present a
distinct constitutional injury requiring immediate dismissal. See post , at 17–19 (opinion concurring in part and dissenting in
part). But whether and when the temporary involvement of an
unconstitutionally insulated officer in an otherwise valid
prosecution requires dismissal falls outside the questions
presented, has not been fully briefed, and is best resolved by the
lower courts in the first instance. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–7

															_________________

															SEILA LAW LLC, PETITIONER v. CONSUMER
FINANCIAL PROTECTION BUREAU

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															[June 29, 2020]

															Justice Thomas, with whom Justice Gorsuch
joins, concurring in part and dissenting in part.

															The Court’s decision today takes a restrained
approach on the merits by limiting Humphrey’s Executor v. United States , 295 U.S.
602 (1935), rather than overruling it. At the same time, the
Court takes an aggressive approach on severability by severing a
provision when it is not necessary to do so. I would do the
opposite.

															Because the Court takes a step in the right
direction by limiting Humphrey’s Executor to “multimember
expert agencies that do not wield substantial executive
power ,” ante , at 16 (emphasis added), I join Parts I,
II, and III of its opinion. I respectfully dissent from the Court’s
severability analysis, however, because I do not believe that we
should address severability in this case.

															I

															The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a
result, the liberty of the American people. The Court concludes
that it is not strictly necessary for us to overrule that decision.
See ante , at 2, 13–17. But with today’s decision, the Court
has repudiated almost every aspect of Humphrey’s Executor .
In a future case, I would repudiate what is left of this erroneous
precedent.

															A

															“The Constitution does not vest the Federal
Government with an undifferentiated ‘governmental power.’ ” Department of Transportation v. Association of American
Railroads , 575 U.S. 43, 67 (2015) (Thomas, J., concurring in
judgment). It sets out three branches and vests a different form of
power in each—legislative, executive, and judicial. See Art. I, §1;
Art. II, §1, cl. 1; Art. III, §1.

															Article II of the Constitution vests “[t]he
executive Power” in the “President of the United States of
America,” §1, cl. 1, and directs that he shall “take Care that the
Laws be faithfully executed,” §3. Of course, the President cannot
fulfill his role of executing the laws without assistance. See Myers v. United States , 272 U.S.
52 , 117 (1926). He therefore must “select those who [are] to
act for him under his direction in the execution of the laws.” Ibid. While these officers assist the President in carrying
out his constitutionally assigned duties, “[t]he buck stops with
the President.” Free Enterprise Fund v. Public Company
Accounting Oversight Bd. , 561
U.S. 477 , 493 (2010). “Since 1789, the Constitution has been
understood to empower the President to keep [his] officers
accountable—by removing them from office, if necessary.” Id. , at 483. The Framers “insist[ed]” upon “unity in the
Federal Executive” to “ensure both vigor and accountability” to the
people. Printz v. United States , 521 U.S.
898 , 922 (1997); see also ante , at 22.

															Despite the defined structural limitations of
the Constitution and the clear vesting of executive power in the
President, Congress has increasingly shifted executive power to a de facto fourth branch of Government—independent
agencies. These agencies wield considerable executive power without
Presidential oversight. They are led by officers who are insulated
from the President by removal restrictions, “reduc[ing] the Chief
Magistrate to [the role of] cajoler-in-chief.” Free Enterprise
Fund , 561 U. S., at 502. But “[t]he people do not vote for
the Officers of the United States. They instead look to the
President to guide the assistants or deputies subject to his
superintendence.” Id. , at 497–498 (alterations, internal
quotation marks and citation omitted). Because independent agencies
wield substantial power with no accountability to either the
President or the people, they “pose a significant threat to
individual liberty and to the constitutional system of separation
of powers and checks and balances.” PHH Corp. v. CFPB , 881 F.3d 75, 165 (CADC 2018) (Kavanaugh, J.,
dissenting).

															Unfortunately, this Court “ha[s] not always been
vigilant about protecting the structure of our Constitution,” at
times endorsing a “more pragmatic, flexible approach” to our
Government’s design. Perez v. Mortgage Bankers Assn. ,
575 U.S. 92, 115–116 (2015) (Thomas, J., concurring in judgment)
(internal quotation marks omitted). Our tolerance of independent
agencies in Humphrey’s Executor is an unfortunate example of
the Court’s failure to apply the Constitution as written. That
decision has paved the way for an ever-expanding encroachment on
the power of the Executive, contrary to our constitutional
design.

															B

															1

															The lead up to Humphrey’s Executor begins with this Court’s decision in Myers , 272 U.S.
52 . Myers involved a federal statute that prohibited the
President from removing certain postmasters except “by and with the
advice and consent of the Senate.” Id. , at 107 (internal
quotation marks omitted). The question presented was “whether under
the Constitution the President has the exclusive power of removing
executive officers of the United States whom he has appointed by
and with the advice and consent of the Senate.” Id. , at 106.
In a 70-page opinion by Chief Justice Taft, the Court held that the
Constitution did vest such power in the President.

															The Court anchored its analysis in evidence from
the founding era. It acknowledged that the “subject [of removal]
was not discussed in the Constitutional Convention,” id. , at
109–110, but it reviewed in detail the First Congress’ vigorous
debate about the removal of executive officers in what is known as
the Decision of 1789, id. , at 111–135.[ 1 ] In the course of analyzing the Decision of
1789, the Court explained that Article II vests “the executive
power of the Government . . . in one person”—the
President—and that the executive power includes the authority to
“select those who [are] to act for him under his direction in the
execution of the laws.” Id. , at 116–117. Reiterating the
position of James Madison and other Members of the First Congress,
the Court noted that allowing limits on the President’s removal
authority would grant Congress “the means of thwarting the
Executive in the exercise of his great powers and in the bearing of
his great responsibility, by fastening upon him, as subordinate
executive officers, men who by their inefficient service under him,
by their lack of loyalty to the service, or by their different
views of policy might make his taking care that the laws be
faithfully executed most difficult or impossible.” Id. , at
131. After “devot[ing] much space to [the] discussion and decision
of the question of the Presidential power of removal in the First
Congress” as well as its understanding of the executive power, id. , at 136, the Court concluded that “the power to remove
officers appointed by the President and the Senate vested in the
President alone,” id. , at 114. It repeatedly described this
removal power as “unrestricted.” Id. , at 115, 134, 150, 172,
176.

															The Court noted that the First Congress’
understanding of the removal question was quickly “accepted as a
final decision of the question by all branches of the Government.” Id. , at 136. The decision was “affirmed by this Court in
unmistakable terms.” Id. , at 148, 152–153 (discussing Ex
parte Hennen , 13 Pet. 230, 259 (1839); Parsons v. United States , 167 U.S.
324 , 330 (1897)). Presidents had “uniform[ly]” adopted the
First Congress’ view “whenever an issue ha[d] clearly been raised.” Myers , 272 U. S., at 169. And “Congress, in a number of
acts, followed and enforced the legislative decision of 1789 for
seventy-four years.” Id. , at 145. While disputes with
President Andrew Johnson over Reconstruction led Congress to “enact
legislation to curtail the then acknowledged powers of the
President,” id. , at 165, the Myers Court declined to
give these politically charged acts any weight, id., at
175–176.

															After exhaustively analyzing the historical
evidence, the Court had “no hesitation in holding that [the First
Congress’] conclusion [was] correct.” Id. , at 176 . Accordingly, the Court held that “the provision of the law [at
issue], by which the unrestricted power of removal of first class
postmasters is denied to the President, [was] in violation of the
Constitution, and invalid.” Ibid. 2

															Nine years after Myers , the Court
decided Humphrey’s Executor . That case arose from the
attempted removal of Commissioner William Humphrey from the Federal
Trade Commission (FTC). In 1931, President Herbert Hoover appointed
Humphrey to serve a 7-year term as one of the FTC’s five
Commissioners. By all accounts, Humphrey proved to be a
controversial figure. See Crane, Debunking Humphrey’s
Executor , 83 Geo. Wash. L. Rev. 1836, 1841 (2015);
Winerman, The FTC at Ninety: History Through Headlines, 72
Antitrust L. J. 871, 878–879 (2005); Yoo, Calabresi, &
Nee, The Unitary Executive During the Third Half-Century,
1889–1945, 80 Notre Dame L. Rev. 1, 64 (2004). He reportedly “vowed
not to approve any Commission action that did not have as its goal
to help business help itself,” “threaten[ed] criminal prosecution
against other commissioners who publicly dissented,” and “called
his fellow commissioners men drunk with their own greatness” when
they voted to initiate an investigation. Crane, supra , at
1841 (internal quotation marks omitted).

															Less than two years into Humphrey’s term, newly
inaugurated President Franklin D. Roosevelt wrote Humphrey a
letter, asking for his resignation. The President explained that,
in his view, “the aims and purposes of the Administration with
respect to the work of the Commission [could] be carried out most
effectively with personnel of [his] own selection.” Humphrey’s
Executor , 295 U. S., at 618 (internal quotation marks
omitted). A little over a month after his first letter, President
Roosevelt wrote Humphrey again to ask for his resignation. The
letter stated: “You will, I know, realize that I do not feel that
your mind and my mind go along together on either the policies or
the administering of the [FTC], and, frankly, I think it is best
for the people of this country that I should have a full
confidence.” Id. , at 619 (internal quotation marks omitted).
Humphrey declined to resign. In October 1933, President Roosevelt
informed Humphrey that he was removed from his position. Humphrey
did not comply, continuing “to insist that he was still a member of
the commission, entitled to perform its duties and receive the
compensation provided by law.” Ibid. Four months later, Humphrey died. The executor
of his estate brought suit in the Court of Claims, seeking to
recover Humphrey’s salary from the date of his removal until the
date of his death. The Court of Claims certified two questions to
this Court: (1) whether §1 of the Federal Trade Commission Act
of 1914, ch. 311, 38Stat. 717, prohibited the President from
removing FTC Commissioners except for “inefficiency, neglect of
duty, or malfeasance in office,” and (2) if so, whether that
restriction was constitutional. 295 U. S., at 619 (internal
quotation marks omitted).

															The Court answered both of these questions in
favor of Humphrey’s estate. It first held that the FTC Act
“limit[ed] the executive power of removal to the causes enumerated”
therein—inefficiency, neglect of duty, or malfeasance in office. Id. , at 626. In the Court’s view, this construction of the
Act was clear from “the face of the statute” and “the character of
the commission,” id. , at 624, which the Court described as a
“body of experts” that operates “independent of executive authority
. . . and free to exercise its judgment without the leave
or hindrance of any other official,” id. , at 625–626.

															Then, notwithstanding the text of Article II of
the Constitution and the decision in Myers , the Court held
that the Act’s restriction on the President’s authority to remove
Commissioners was constitutional. The Court acknowledged that the
“recently decided” Myers decision had “fully review[ed] the
general subject of the power of executive removal” and “examine[d]
at length the historical, legislative and judicial data bearing
upon the question.” Humphrey’s Executor , 295 U. S., at
626. And it conceded that executive officers are “subject to the
exclusive and illimitable power of removal by the Chief Executive.” Id. , at 627; see also id. , at 631 (recognizing “the
President’s illimitable power of removal” over executive
officers).[ 2 ] The Court,
however, claimed that “[t]he office of a postmaster is so
essentially unlike the office [of an FTC Commissioner] that the
decision in the Myers case [could not] be accepted as
controlling.” Id. , at 627. In the Court’s view, unlike the
postmaster in Myers , FTC commissioners did not qualify as
“purely executive officers.” 295 U. S., at 632.

															The Court grounded its analysis in its assertion
that the FTC “occupies no place in the executive department and
. . . exercises no part of the executive power vested by
the Constitution in the President.” Id. , at 628. Rather, in
the Court’s view, by “filling in and administering the details
embodied by [the FTC Act’s] general standard[,] the commission
act[ed] in part quasi-legislatively and in part quasi-judicially.” Ibid. The Court stated that the FTC acted “as a legislative
agency” by “making investigations and reports thereon for the
information of Congress” and acted “as an agency of the judiciary”
when performing its role “as a master in chancery under rules
prescribed by the court.” Ibid. “Such a body,” the Court
explained, “cannot in any proper sense be characterized as an arm
or an eye of the executive.” Ibid. After distinguishing “purely executive officers”
from officers exercising “quasi-legislative or quasi-judicial
powers,” ibid. , the Court held that “[w]hether the power of
the President to remove an officer shall prevail over the authority
of Congress to condition the power by . . . precluding a
removal except for cause, will depend upon the character of the
office,” id. , at 631. “[P]urely executive officers” are
subject to the President’s “unrestrictable power . . . to
remove.” Id. , at 632 . But with regard to
“quasi-legislative” and “quasi-judicial” officers, the Court
concluded that “no removal [could] be made . . . except
for one or more of the causes named.” Ibid. 3 Humphrey’s Executor laid the foundation
for a fundamental departure from our constitutional structure with
nothing more than handwaving and obfuscating phrases such as
“quasi-legislative” and “quasi-judicial.” Unlike the thorough
analysis in Myers , the Court’s thinly reasoned decision is
completely “devoid of textual or historical precedent for the novel
principle it set forth.” Morrison v. Olson , 487
U.S. 654 , 726 (1988) (Scalia, J., dissenting). The exceptional
weakness of the reasoning could be a product of the circumstances
under which the case was decided—in the midst of a bitter standoff
between the Court and President Roosevelt[ 3 ]—or it could be just another example of this Court
departing from the strictures of the Constitution for a “more
pragmatic, flexible approach” to our government’s design. Perez , 575 U. S., at 116 (opinion of Thomas, J.)
(internal quotation marks omitted). But whatever the motivation, Humphrey’s Executor does not comport with the
Constitution. Humphrey’s Executor relies on one key
premise: the notion that there is a category of “quasi-legislative”
and “quasi-judicial” power that is not exercised by Congress or the
Judiciary, but that is also not part of “the executive power vested
by the Constitution in the President.” Humphrey’s Executor , supra , at 628. Working from that premise, the Court
distinguished the “illimitable” power of removal recognized in Myers , Humphrey’s Executor , 295 U. S., at
627–628, and upheld the FTC Act’s removal restriction, while
simultaneously acknowledging that the Constitution vests the
President with the entirety of the executive power, id. , at
628.

															The problem is that the Court’s premise was
entirely wrong. The Constitution does not permit the creation of
officers exercising “quasi-legislative” and “quasi-judicial powers”
in “quasi-legislative” and “quasi-judicial agencies.” Id., at 628–629 . No such powers or agencies exist. Congress lacks
the authority to delegate its legislative power, Whitman v. American Trucking Assns. , Inc. , 531 U.S.
457 , 472 (2001), and it cannot authorize the use of judicial
power by officers acting outside of the bounds of Article III, Stern v. Marshall , 564 U.S.
462 , 484 (2011). Nor can Congress create agencies that straddle
multiple branches of Government. The Constitution sets out three
branches of Government and provides each with a different form of
power—legislative, executive, and judicial. See Art. I, §1;
Art. II, §1, cl. 1; Art. III, §1. Free-floating
agencies simply do not comport with this constitutional structure.
“[A]gencies have been called quasi-legislative, quasi-executive or
quasi-judicial, as the occasion required, in order to validate
their functions within the separation-of-powers scheme of the
Constitution.” FTC v. Ruberoid Co. , 343 U.S.
470 , 487 (1952) (Jackson, J., dissenting). But “[t]he mere
retreat to the qualifying ‘quasi’ is implicit with confession that
all recognized classifications have broken down, and ‘quasi’ is a
smooth cover which we draw over our confusion as we might use a
counterpane to conceal a disordered bed.” Id. , at
487–488.

															That is exactly what happened in Humphrey’s
Executor . The Court upheld the FTC Act’s removal restriction by
using the “quasi” label to support its claim that the FTC
“exercise[d] no part of the executive power vested by the
Constitution in the President.” Humphrey’s Executor , supra , at 628. But “it is hard to dispute that the powers of
the FTC at the time of Humphrey’s Executor would at the
present time be considered ‘executive,’ at least to some degree.” Morrison , supra , at 690, n. 28; see ante ,
at 14, n. 2; see post , at 18, n. 7 (Kagan, J.,
concurring in judgment with respect to severability and dissenting
in part) . C

															Today’s decision constitutes the latest in a
series of cases that have significantly undermined Humphrey’s
Executor . First, in Morrison , the Court repudiated the
reasoning of the decision. 487 U. S., at 689. Then, in Free
Enterprise Fund , we returned to the principles set out in the
“landmark case of Myers .” 561 U. S., at 492. And today,
the Court rightfully limits Humphrey’s Executor to
“multimember expert agencies that do not wield substantial
executive power.” Ante , at 16. After these decisions, the
foundation for Humphrey’s Executor is not just shaky. It is
nonexistent.

															This Court’s repudiation of Humphrey’s
Executor began with its decision in Morrison . There, the
Court upheld a statute insulating an independent counsel from
removal by the Attorney General absent a showing of “good cause.” Morrison , supra , at 659–660. In doing so, the Court
set aside the reasoning of Humphrey’s Executor . It
recognized that Humphrey’s Executor “rel[ied] on the terms
‘quasi- legislative’ and ‘quasi-judicial’ to distinguish the
officials involved in Humphrey’s Executor . . .
from those in Myers .” 487 U. S., at 689. But it then
immediately stated that its “present considered view is that the
determination of whether the Constitution allows Congress to impose
a ‘good cause’-type restriction on the President’s power to remove
an official cannot be made to turn on whether or not that official
is classified as ‘purely executive.’ ” Ibid. The Court
also rejected Humphrey’s Executor ’s conclusion that the FTC
did not exercise executive power, stating that “the powers of the
FTC at the time of Humphrey’s Executor would at the present
time be considered ‘executive.’ ” Morrison , supra , at 690, n. 28. The lone dissenter, Justice
Scalia, disagreed with much of the Court’s analysis but noted that
the Court had rightfully “swept” Humphrey’s Executor “into
the dustbin of repudiated constitutional principles.” 487
U. S., at 725. Thus, all nine Members of the Court in Morrison rejected the core rationale of Humphrey’s
Executor .

															The reasoning of the Court’s decision in Free
Enterprise Fund created further tension (if not outright
conflict) with Humphrey’s Executor . In Free
Enterprise Fund , the Court concluded that a dual layer of
for-cause removal restrictions for members of the Public Company
Accounting Oversight Board violated the Constitution. In its
analysis, the Court recognized that allowing officers to “execute
the laws” beyond the President’s control “is contrary to Article
II’s vesting of the executive power in the President .” 561
U. S., at 496 (emphasis added). The Court acknowledged that
“the executive power include[s] a power to oversee executive
officers through removal.” Id. , at 492. And it explained
that, without the power of removal, the President cannot “be held
fully accountable” for the exercise of the executive power,
“ ‘greatly diminish[ing] the intended and necessary
responsibility of the chief magistrate himself.’ ” Id. ,
at 514 (quoting The Federalist No. 70, p. 478 (J. Cooke ed. 1961)
(A. Hamilton)). Accountability, the Court repeatedly emphasized,
plays a central role in our constitutional structure. See, e.g. , Free Enterprise Fund , 561 U. S. , at
498 (“[E]xecutive power without the Executive’s oversight
. . . subverts the President’s ability to ensure that the
laws are faithfully executed—as well as the public’s ability to
pass judgment on his efforts”); id. , at 513 (“The
Constitution that makes the President accountable to the people for
executing the laws also gives him the power to do so”). Humphrey’s Executor is at odds with every single one of
these principles: It ignores Article II’s Vesting Clause, sidesteps
the President’s removal power, and encourages the exercise of
executive power by unaccountable officers. The reasoning of the two
decisions simply cannot be reconciled.

															Finally, today’s decision builds upon Morrison and Free Enterprise Fund , further eroding
the foundation of Humphrey’s Executor . The Court correctly
notes that “[t]he entire ‘executive Power’ belongs to the President
alone.” Ante , at 11. The President therefore must have
“power to remove—and thus supervise—those who wield executive power
on his behalf.” Ante , at 2. As a result, the Court concludes
that Humphrey’s Executor must be limited to “multimember
expert agencies that do not wield substantial executive
power .” Ante, at 16 (emphasis added). And, at the same
time, it recognizes (as the Court did in Morrison ) that
“[t]he Court’s conclusion that the FTC did not exercise executive
power has not withstood the test of time.” Ante , at 14,
n. 2. In other words, Humphrey’s Executor does not even
satisfy its own exception.

															In light of these decisions, it is not clear
what is left of Humphrey’s Executor ’s rationale.[ 4 ] But if any remnant of that decision
is still standing, it certainly is not enough to justify the
numerous, unaccountable independent agencies that currently
exercise vast executive power outside the bounds of our
constitutional structure.

															*  *  *

															Continued reliance on Humphrey’s
Executor to justify the existence of independent agencies
creates a serious, ongoing threat to our Government’s design.
Leaving these unconstitutional agencies in place does not enhance
this Court’s legitimacy; it subverts political accountability and
threatens individual liberty. We have a “responsibility to
‘examin[e] without fear, and revis[e] without reluctance,’ any
‘hasty and crude decisions’ rather than leaving ‘the character of
[the] law impaired, and the beauty and harmony of the [American
constitutional] system destroyed by the perpetuity of
error.’ ” Gamble v. United States , 587
U. S. ___, ___ (2019) (Thomas, J., concurring) (slip op., at
7) (quoting 1 J. Kent, Commentaries on American Law 444 (1826);
some alterations in original). We simply cannot compromise when it
comes to our Government’s structure. Today, the Court does enough
to resolve this case, but in the future, we should reconsider Humphrey’s Executor in toto . And I hope that we
will have the will to do so.

															II

															While I think that the Court correctly
resolves the merits of the constitutional question, I do not agree
with its decision to sever the removal restriction in 12
U. S. C. §5491(c)(3). See ante , at 30–36; post , at 37. To resolve this case, I would simply deny the
Consumer Financial Protection Bureau (CFPB) petition to enforce the
civil investigative demand.

															A

															Article III of the Constitution vests “[t]he
judicial Power of the United States” in the “supreme Court” and the
lower federal courts established by Congress. §1. “[T]he judicial
power is, fundamentally, the power to render judgments in
individual cases” or controversies that are properly before the
court. Murphy v. National Collegiate Athletic Assn. ,
584 U. S. ___, ___–___ (2018) (Thomas, J., concurring) (slip
op., at 2–3); see also Plaut v. Spendthrift Farm , Inc. , 514 U.S.
211 , 219 (1995) (“ ‘[A] “judicial Power” is one to render
dispositive judgments’ ”); Baude, The Judgment Power, 96 Geo.
L. J. 1807, 1815–1816 (2008). “[T]he power exercised is that
of ascertaining and declaring the law applicable to the
controversy.” Massachusetts v. Mellon , 262 U.S.
447 , 488 (1923). In the context of a constitutional challenge,
“[i]t amounts to little more than the negative power to disregard
an unconstitutional enactment.” Ibid. ; see also Mitchell,
The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018). Thus,
if a party argues that a statute and the Constitution conflict,
“then courts must resolve that dispute and, . . . follow
the higher law of the Constitution.” Murphy , 584 U. S.,
at ___ (Thomas, J., concurring) (slip op., at 3).

															Consistent with this understanding, “[e]arly
American courts did not have a severability doctrine.” Id. ,
at ___ (slip op., at 2) (citing Walsh, Partial Unconstitutionality,
85 N. Y. U. L. Rev. 738, 769 (2010)). If a statute
was unconstitutional, the court would just decline to enforce the
statute in the case before it. 584 U. S., at ___ (Thomas, J.,
concurring) (slip op., at 3) . That was the end of the
matter. “[T]here was no ‘next step’ in which [a] cour[t]” severed
portions of a statute. Walsh, supra , at 777.

															Our modern severability precedents create
tension with this historic practice. Instead of declining to
enforce an unconstitutional statute in an individual case, this
Court has stated that courts must “seve[r] and excis[e]” portions
of a statute to “remedy” the constitutional problem. United
States v. Booker , 543 U.S.
220 , 245 (2005); Alaska Airlines , Inc. v. Brock , 480 U.S.
678 , 686 (1987). The Court’s rhetoric when discussing severance
implies that a court’s decision to sever a provision “formally
suspend[s] or erase[s it], when [the provision] actually remains on
the books as a law.” Mitchell, supra , at 1017. The Federal
Judiciary does not have the power to excise, erase, alter, or
otherwise strike down a statute. Murphy , supra , at
___ (Thomas, J., concurring) (slip op., at 4); Mitchell, supra , at 936. And the Court’s reference to severability as
a “remedy” is inaccurate. Traditional remedies—like injunctions,
declarations, or damages—“ ‘operate with respect to specific
parties,’ not ‘on legal rules in the abstract.’ ” Murphy , supra , at ___ (Thomas, J., concurring) (slip
op., at 3) (quoting Harrison, Severability, Remedies, and
Constitutional Adjudication, 83 Geo. Wash. L. Rev. 56, 85
(2014)).

															Because the power of judicial review does not
allow courts to revise statutes, Mitchell, supra , at 983,
the Court’s severability doctrine must be rooted in statutory
interpretation. But, even viewing severability as an interpretive
question, I remain skeptical of our doctrine. As I have previously
explained, “the severability doctrine often requires courts to
weigh in on statutory provisions that no party has standing to
challenge, bringing courts dangerously close to issuing advisory
opinions.” Murphy , 584 U. S., at ___ (concurring
opinion) (slip op., at 5). And the application of the doctrine
“does not follow basic principles of statutory interpretation.” Id. , at ___ (slip op., at 4) . Instead of determining
the meaning of a statute’s text, severability involves “nebulous
inquir[ies] into hypothetical congressional intent.” Booker , supra, at 320, n. 7 (Thomas, J., dissenting in
part).

															B

															Consistent with the traditional understanding
of the judicial power, I would deny CFPB’s petition to enforce the
civil investigative demand that it issued to Seila. See
§5562(e)(1). Seila “challenge[d] the validity of both the civil
investigative demand and the ensuing enforcement action.” Reply
Brief for Petitioner 5. Seila has not countersued or sought
affirmative relief preventing the CFPB from acting in the future;
it simply asks us to “reverse the court of appeals’ judgment.”
Brief for Petitioner 35. I would do just that. As the Court
recognizes, the enforcement of a civil investigative demand by an
official with unconstitutional removal protection injures Seila.
See ante , at 9–10. Presented with an enforcement request
from an unconstitutionally insulated Director, I would simply deny
the CFPB’s petition for an order of enforcement. This approach
would resolve the dispute before us without addressing the issue of
severability.

															The Court, however, does more. In the
plurality’s view,[ 5 ] because
the CFPB raised a ratification argument before the Court of
Appeals, we can (and should) reach the question of severability.
See ante , at 30–31. But as explained more fully below,
resolving this question is wholly unnecessary. Regardless of
whether the CFPB’s ratification theory is valid, the Court of
Appeals on remand must reach the same outcome: The CFPB’s civil
investigative demand cannot be enforced against Seila.

															The ratification argument presented by the CFPB
is quite simple. Since its creation in 2010, the CFPB has had three
Directors—first Director Richard Cordray, then Acting Director Mick
Mulvaney, and now Director Kathleen Kraninger. The CFPB’s first
Director, Director Cordray, issued a civil investigative demand to
Seila and initiated the enforcement action. The CFPB has conceded
that these actions were unconstitutional. But, in the Ninth
Circuit, the CFPB argued that the investigative demand was ratified
by Acting Director Mulvaney, who it claimed was not insulated by the removal provision. Brief for Appellee in No.
17–56324, pp. 13–19. In the CFPB’s view, the President could
remove Acting Director Mulvaney at will because the “removal
provision by its terms applies only to ‘the Director,’ not to an
Acting Director,” and the Federal Vacancy Reform Act “does not
limit the President’s ability to designate a different person as
Acting Director.” Id. , at 14. Based on this
ratification theory, the CFPB asked the Ninth Circuit to affirm the
District Court’s order granting the CFPB’s petition to enforce its
investigative demand.

															The CFPB does not ask this Court to address
ratification on the merits, but it does rely on its unresolved
ratification theory to assert that the Court should reach
severability. In doing so, the CFPB relies on the same theory that
it presented to the Ninth Circuit. Thus, the only live ratification
claim is the theory that Acting Director Mulvaney ratified the
civil investigative demand. See ante , at 30–31.[ 6 ]

															The resolution of the CFPB’s Acting-Director
ratification theory, however, has no bearing on the outcome of the
dispute before us and therefore provides no basis for addressing
severability. If the Acting Director did not ratify the
investigative demand, then there is obviously no need to address
severability. And even if he did, the Court still does not need to
address severability because the alleged ratification does not cure
the constitutional injury—enforcement of an investigative demand by
an unconstitutionally insulated Director. Seila “challenge[d] the
validity of both the civil investigative demand and the ensuing
enforcement action .” Reply Brief for Petitioner 5 (emphasis
added). Acting Director Mulvaney may (or may not) have properly
ratified the issuance of the investigative demand and the
initiation of the enforcement proceedings. But he certainly could
not ratify the continuance of the enforcement action by his
successor, Director Kraninger. Id. , at 7. Thus, even if the
CFPB’s ratification theory is valid, Seila still has an injury: It
has been (and continues to be) subjected to enforcement of an
investigative demand by Director Kraninger, who “remains
statutorily insulated from removal.” Reply Brief for Respondent 7;
see also Free Enterprise Fund , 561 U. S., at 513; ante , at 10. Thus, we should decline to enforce the civil
investigative demand against Seila. See supra, at 14–15.

															Ultimately, I cannot see how the resolution of
the severability question affects the dispute before us. And even
if severability could affect this case in some hypothetical
scenario, I would not reach out to resolve the issue given my
growing discomfort with our current severability precedents.

															C

															Confident that it can address the question of
severability, the plurality moves on to conduct its analysis. It
starts by pointing to the severability clause in the Dodd-Frank
Act. See ante , at 33. That clause states: “If any provision
of this Act, an amendment made by this Act, or the application of
such provision or amendment to any person or circumstance is held
to be unconstitutional, the remainder of this Act, the amendments
made by this Act, and the application of the provisions of such to
any person or circumstance shall not be affected thereby.” §5302.
The plurality states that “[i]f the Director were removable at will
by the President, the constitutional violation would disappear.” Ante , at 32–33. Then, relying on language in the
severability clause, it concludes that the removal provision,
§5491(c)(3), should be severed.

															The plurality suggests that its analysis is a
matter of simply enforcing the “plain language” of the severability
clause. See ante , at 33. But I am not sure it is that
simple. For one, the plurality does not actually analyze the
statutory language.[ 7 ] Second,
the analysis the plurality does provide looks nothing like
traditional statutory interpretation. Generally, when we interpret
a statute, we do not hold that the text sets out a “presum[ption]”
that can be rebutted by looking to atextual evidence of legislative
intent. Ante , at 32. A text-based interpretation does not
allow a free-ranging inquiry into what “ ‘Congress, faced with
the limitations imposed by the Constitution, would have
preferred’ ” had it known of a constitutional issue. Ante , at 33 (quoting Free Enterprise Fund , supra , at 509). Nor does it consider whether Congress would
have wanted to avoid “a major regulatory disruption.” Ante ,
at 35. Statutory interpretation focuses on the text.

															Even treating the question as a matter of pure
statutory interpretation and assuming that the plurality points to
the correct language, the text of the severability clause cannot,
in isolation, justify severance of the removal provision. In some
instances, a constitutional injury arises as a result of two or
more statutory provisions operating together. See, e.g. , Free Enterprise Fund , supra , at 509 (stating that the
convergence of “a number of statutory provisions” produce a
constitutional violation); Booker , 543 U. S., at
316–317 (opinion of Thomas, J.) (explaining that “the concerted
action of [18 U. S. C.] §3553(b)(1) and the
operative Guidelines and the relevant Rule of Criminal
Procedure resulted in unconstitutional judicial factfinding”); Lea,
Situation Severability, 103 Va. L. Rev. 735, 778–780 (2017)
(discussing statutory convergences). That is precisely the
situation we have in this case. As in Free Enterprise Fund ,
the provision requiring “good-cause removal is only one of [the]
statutory provisions that, working together, produce a
constitutional violation.” 561 U. S., at 509. The
constitutional violation results from, at a minimum, the
combination of the removal provision, 12 U. S. C.
§5491(c)(3), and the provision allowing the CFPB to seek
enforcement of a civil investigative demand, §5562(e)(1). When
confronted with two provisions that operate together to violate the
Constitution, the text of the severability clause provides no
guidance as to which provision should be severed. Thus, we
must choose, based on something other than the severability clause,
which provision to sever.

															Without text to guide us, the severability
inquiry moves away from statutory interpretation and falls back on
this Court’s questionable precedents. See Murphy , 584
U. S., at ___–___ (Thomas, J., concurring) (slip op., at 4–6).
An analysis of the Court’s decisions in Booker and Free
Enterprise Fund illustrates the Court’s approach to determining
which provision to sever when confronting an injury caused by an
unconstitutional convergence of multiple statutory provisions.

															In Booker , a Rule of Criminal Procedure,
a subset of provisions in the Sentencing Guidelines, and a
statutory provision operated together to require unconstitutional
judicial factfinding. To determine which aspect of the sentencing
scheme to sever, the Court sought to divine “what Congress would
have intended in light of the Court’s constitutional holding.” Booker , 543 U. S., at 246 (internal quotation marks
omitted). The Court “recognize[d] that sometimes severability
questions . . . can arise [in the context of] a
legislatively unforeseen constitutional problem.” Id. , at
247. But it nonetheless felt qualified to craft a remedy that would
“move sentencing in Congress’ preferred direction.” Id. , at
264. Surprisingly, that “move” did not involve enforcing the
constitutional aspects of Congress’ sentencing scheme. The Court
stated that “we cannot assume that Congress, if faced with the
statute’s invalidity in key applications, would have preferred to
apply the statute in as many other instances as possible.” Id. , at 248.[ 8 ] Despite
the fact that there were a plethora of cases in which mandatory
Sentencing Guidelines would have posed no constitutional problem,
the Court decided to “sever and excise . . . the
provision that requires sentencing courts to impose a sentence
within the applicable Guidelines range,” along with another
provision which was not even at issue in the case. Id. , at
259. In essence, the Court crafted a new sentencing scheme,
transforming the Sentencing Guidelines into an entirely
discretionary system based on its estimation that Congress would
have wanted that result.

															The Court in Free Enterprise Fund declined to explicitly engage in Booker ’s free-wheeling
inquiry into Congress’ hypothetical preferences, but it did not
replace that inquiry with a clear standard. In that case, the Court
held that a “number of statutory provisions . . . ,
working together, produce[d] a constitutional violation” similar to
the violation at issue here. Free Enterprise Fund , 561
U. S., at 509. The Court decided to sever the Board’s removal
restriction. It explicitly recognized that there were multiple ways
to address the constitutional injury, stating that the Court could,
for example, “blue-pencil a sufficient number of the Board’s
responsibilities,” or “restrict the Board’s enforcement powers.” Ibid. But it described these alternative options as
involving “editorial freedom—far more extensive than [the] holding
today—[that] belongs to the Legislature, not the Judiciary.” Id. , at 510. The Court did not explain, however, why the
option that it chose was not also “editorial freedom” that belongs
to the Legislature or why the alternatives involved “more
extensive” “editorial freedom” than its preferred option. Ibid. The most that the Court provided was a suggestion that
fewer provisions would have to be severed under its approach. Id. , at 509–510.

															Today’s plurality opinion provides no further
guidance. In fact, the plurality does not even recognize that it
has made a choice between the provisions that cause the
constitutional injury. It merely states that “[i]f the Director
were removable at will by the President, the constitutional
violation would disappear.” Ante , at 32–33. Fair enough. But
if the Director lacked executive authority under the statute to
seek enforcement of a civil investigative demand, §5562(e)(1), the
constitutional violation in this case would also disappear. The
plurality thus chooses which of the provisions to sever.

															In short, when multiple provisions of law
combine to cause a constitutional injury, the Court’s current
approach allows the Court to decide which provision to sever. The
text of a severability clause does not guide that choice. Nor does
the practice of early American courts. See supra , at 14–15.
The Court is thus left to choose based on nothing more than
speculation as to what the Legislature would have preferred. And
the result of its choice can have a dramatic effect on the
governing statutory scheme. See Booker , supra , at 259
(converting the entirety of the Sentencing Guidelines from a
mandatory to a discretionary system). This is not a simple matter
of following the “plain language” of a statute. Ante , at 33.
It is incumbent on us to take a close look at our precedents to
make sure that we are not exceeding the scope of the judicial
power.

															*  *  *

															Given my concerns about our modern
severability doctrine and the fact that severability makes no
difference to the dispute before us, I would resolve this case by
simply denying the CFPB’s petition to enforce the civil
investigative demand. Notes 1 For a comprehensive
review of the Decision of 1789, see Prakash, New Light on the
Decision of 1789, 91 Cornell L. Rev. 1021 (2006). 2 The explicit and repeated
recognition of the President’s “illimitable power” in Humphrey’s
Executor highlights the dissent’s error in claiming that Humphrey’s Executor “abandoned [the] view” set out in Myers v. United States , 272 U.S.
52 (1926). Post , at 17 (Kagan, J., concurring in
judgment with respect to severability and dissenting in part)
(hereinafter dissent). Humphrey’s Executor did not abandon Myers ; it distinguished Myers based on the flawed
premise that the FTC exercised “quasi-legislative” and
“quasi-judicial” power that is not part of “the executive power
vested by the Constitution in the President.” Humphrey’s
Executor , 295 U. S., at 628; see also infra , at
9–11. 3 A number of historical
sources indicate that President Roosevelt saw Humphrey’s
Executor v. United States , 295 U.S.
602 (1935), as an attack on his administration. Given the
Court’s recent decision in Myers , the Roosevelt
administration was reportedly “stunned” by the Court’s decision in Humphrey’s Executor , and the President was particularly
annoyed that the decision “ma[de] it appear that he had been
willfully violating the Constitution.” See W. Leuchtenberg, The
Supreme Court Reborn 78 (1995). Justice Jackson, who was serving in
the Roosevelt administration at the time, stated in an interview
that “ ‘the decision that made Roosevelt madder at the Court
than any other decision was that . . . little case of Humphrey’s Executor v. United States . The President
thought they went out of their way to spite him personally.’ ”
E. Gerhart, America’s Advocate: Robert H. Jackson 99 (1958)
(quoting 1949 interview with Justice Jackson). 4 The dissent, while
vigorously defending the holding of Humphrey's Executor , can
muster no defense for the reasoning of the decision. The dissent
does not defend the notion of “quasi” powers or “quasi” agencies,
recognizing that the power exercised by the FTC was executive
power. See post , at 18, n. 7. And, in 39 pages, it
cannot explain how any aspect of Humphrey’s Executor (other
than its holding) survived Morrison v. Olson , 487 U.S.
654 (1988), and Free Enterprise Fund v. Public
Company Accounting Oversight Bd. , 561 U.S.
477 (2010). Instead, the dissent simply claims that Humphrey’s Executor was “extended” and “clarified” in Morrison , post , at 19, attempting to breathe validity
into Humphrey’s Executor through the Court’s Morrison decision. But the dissent’s reading of Morrison as
“extend[ing] Humphrey’s domain” is baffling. Post , at
19. Morrison expressly repudiated the substantive reasoning
of Humphrey’s Executor . See supra , at
11–12. 5 The dissent provides no
analysis of severability, simply stating “ if the agency’s
removal provision is unconstitutional, it should be severed.” Post, at 37. 6 The Court-appointed amicus suggests that the CFPB’s current Director, Director
Kraninger, ratified the enforcement proceeding by maintaining the
suit after she stated her belief that the removal provision is
unconstitutional. But the CFPB expressly disclaimed the notion that
Director Kraninger had the power to ratify the civil investigative
demand, stating that she “remains statutorily insulated from
removal, regardless whether she believes the law is invalid.” Reply
Brief for Respondent 7. 7 The severability clause
refers to three alternative scenarios: (1) a “provision of [the]
Act . . . is held to be unconstitutional”; (2) “an
amendment made by [the] Act . . . is held
unconstitutional”; and (3) “the application of [a] provision or
amendment [of the Act] to any person or circumstance is held to be
unconstitutional.” 12 U. S. C. §5302. The plurality
assumes, with no analysis, that this case falls in the first
scenario, calling for a provision to be severed from the Dodd-Frank
Act. See ante , at 33. But, as discussed below, there is no
single “provision” of the Act that has led to the constitutional
injury in this case. See infra , at 20–21. It is the
attempted enforcement of a civil investigative demand under
§5562(e)(1) by an unconstitutionally insulated Director that causes
the constitutional injury in this case. There is at least a
nonfrivolous argument that this case implicates the third scenario
contemplated by the severability clause— i.e., “the
application of [a] provision” in a certain “circumstance.” §5302.
If that were so, the text of the severability clause would not
require any “provision” to be severed; the unconstitutional
application of §5562(e)(1) simply would not affect other provisions
of the Dodd-Frank Act. Such a reading would be consistent with the
traditional limits on the judicial power. See supra , at
14–15. 8 This statement in Booker is irreconcilable with the plurality’s assertion here
that “Congress would prefer that we use a scalpel rather than a
bulldozer in curing the constitutional defect.” Ante, at 35.
Thus, it appears that the plurality either sub silentio “junk[s] our settled severability doctrine,” ibid. , or
invokes, without explanation, different assumptions for different
cases. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–7

															_________________

															SEILA LAW LLC, PETITIONER v. CONSUMER
FINANCIAL PROTECTION BUREAU

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															[June 29, 2020]

															Justice Kagan, with whom Justice Ginsburg,
Justice Breyer, and Justice Sotomayor join, concurring in the
judgment with respect to severability and dissenting in part.

															Throughout the Nation’s history, this Court has
left most decisions about how to structure the Executive Branch to
Congress and the President, acting through legislation they both
agree to. In particular, the Court has commonly allowed those two
branches to create zones of administrative independence by limiting
the President’s power to remove agency heads. The Federal Reserve
Board. The Federal Trade Commission (FTC). The National Labor
Relations Board. Statute after statute establishing such entities
instructs the President that he may not discharge their directors
except for cause—most often phrased as inefficiency, neglect of
duty, or malfeasance in office. Those statutes, whose language the
Court has repeatedly approved, provide the model for the removal
restriction before us today. If precedent were any guide, that
provision would have survived its encounter with this Court—and so
would the intended independence of the Consumer Financial
Protection Bureau (CFPB).

															Our Constitution and history demand that result.
The text of the Constitution allows these common for-cause removal
limits. Nothing in it speaks of removal. And it grants Congress
authority to organize all the institutions of American governance,
provided only that those arrangements allow the President to
perform his own constitutionally assigned duties. Still more, the
Framers’ choice to give the political branches wide discretion over
administrative offices has played out through American history in
ways that have settled the constitutional meaning. From the first,
Congress debated and enacted measures to create spheres of
administration—especially of financial affairs—detached from direct
presidential control. As the years passed, and governance became
ever more complicated, Congress continued to adopt and adapt such
measures—confident it had latitude to do so under a Constitution
meant to “endure for ages to come.” McCulloch v. Maryland , 4 Wheat. 316, 415 (1819) (approving the Second
Bank of the United States). Not every innovation in governance—not
every experiment in administrative independence—has proved
successful. And debates about the prudence of limiting the
President’s control over regulatory agencies, including through his
removal power, have never abated.[ 1 ] But the Constitution—both as originally drafted and as
practiced—mostly leaves disagreements about administrative
structure to Congress and the President, who have the knowledge and
experience needed to address them. Within broad bounds, it keeps
the courts—who do not—out of the picture.

															The Court today fails to respect its proper
role. It recognizes that this Court has approved limits on the
President’s removal power over heads of agencies much like the
CFPB. Agencies possessing similar powers, agencies charged with
similar missions, agencies created for similar reasons. The
majority’s explanation is that the heads of those agencies fall
within an “exception”—one for multimember bodies and another for
inferior officers—to a “general rule” of unrestricted presidential
removal power. Ante, at 13. And the majority says the CFPB
Director does not. That account, though, is wrong in every respect.
The majority’s general rule does not exist. Its exceptions,
likewise, are made up for the occasion—gerrymandered so the CFPB
falls outside them. And the distinction doing most of the
majority’s work—between multimember bodies and single
directors—does not respond to the constitutional values at stake.
If a removal provision violates the separation of powers, it is
because the measure so deprives the President of control over an
official as to impede his own constitutional functions. But with or
without a for-cause removal provision, the President has at least
as much control over an individual as over a commission—and
possibly more. That means the constitutional concern is, if
anything, ameliorated when the agency has a single head.
Unwittingly, the majority shows why courts should stay their hand
in these matters. “Compared to Congress and the President, the
Judiciary possesses an inferior understanding of the realities of
administration” and the way “political power[ ] operates.” Free Enterprise Fund v. Public Company Accounting
Oversight Bd. , 561 U.S.
477 , 523 (2010) (Breyer, J., dissenting).

															In second-guessing the political branches, the
majority second-guesses as well the wisdom of the Framers and the
judgment of history. It writes in rules to the Constitution that
the drafters knew well enough not to put there. It repudiates the
lessons of American experience, from the 18th century to the
present day. And it commits the Nation to a static version of
governance, incapable of responding to new conditions and
challenges. Congress and the President established the CFPB to
address financial practices that had brought on a devastating
recession, and could do so again. Today’s decision wipes out a
feature of that agency its creators thought fundamental to its
mission—a measure of independence from political pressure. I
respectfully dissent.

															I

															The text of the Constitution, the history of
the country, the precedents of this Court, and the need for sound
and adaptable governance—all stand against the majority’s opinion.
They point not to the majority’s “general rule” of “unrestricted
removal power” with two grudgingly applied “exceptions.” Ante, at 13, 16. Rather, they bestow discretion on the
legislature to structure administrative institutions as the times
demand, so long as the President retains the ability to carry out
his constitutional duties. And most relevant here, they give
Congress wide leeway to limit the President’s removal power in the
interest of enhancing independence from politics in regulatory
bodies like the CFPB.

															A

															What does the Constitution say about the
separation of powers—and particularly about the President’s removal
authority? (Spoiler alert: about the latter, nothing at all.)

															The majority offers the civics class version of
separation of powers—call it the Schoolhouse Rock definition of the
phrase. See Schoolhouse Rock! Three Ring Government (Mar. 13,
1979), http://www.youtube.com/watch?v= pKSGyiT-o3o (“Ring one,
Executive. Two is Legislative, that’s Congress. Ring three,
Judiciary”). The Constitution’s first three articles, the majority
recounts, “split the atom of sovereignty” among Congress, the
President, and the courts. Ante, at 21 (internal quotation
marks omitted). And by that mechanism, the Framers provided a
“simple” fix “to governmental power and its perils.” Ibid. There is nothing wrong with that as a beginning
(except the adjective “simple”). It is of course true that the
Framers lodged three different kinds of power in three different
entities. And that they did so for a crucial purpose—because, as
James Madison wrote, “there can be no liberty where the legislative
and executive powers are united in the same person[ ] or body”
or where “the power of judging [is] not separated from the
legislative and executive powers.” The Federalist No. 47, p. 325
(J. Cooke ed. 1961) (quoting Baron de Montesquieu).

															The problem lies in treating the beginning as an
ending too—in failing to recognize that the separation of powers
is, by design, neither rigid nor complete. Blackstone, whose work
influenced the Framers on this subject as on others, observed that
“every branch” of government “supports and is supported, regulates
and is regulated, by the rest.” 1 W. Blackstone, Commentaries on
the Laws of England 151 (1765). So as James Madison stated, the
creation of distinct branches “did not mean that these departments
ought to have no partial agency in, or no controul over the acts of
each other.” The Federalist No. 47 , at 325 (emphasis
deleted).[ 2 ] To the contrary,
Madison explained, the drafters of the Constitution—like those of
then-existing state constitutions—opted against keeping the
branches of government “absolutely separate and distinct.” Id., at 327. Or as Justice Story reiterated a half-century
later: “[W]hen we speak of a separation of the three great
departments of government,” it is “not meant to affirm, that they
must be kept wholly and entirely separate.” 2 J. Story,
Commentaries on the Constitution of the United States §524, p. 8
(1833). Instead, the branches have—as they must for the whole
arrangement to work—“common link[s] of connexion [and] dependence.” Ibid. One way the Constitution reflects that vision is
by giving Congress broad authority to establish and organize the
Executive Branch. Article II presumes the existence of “Officer[s]”
in “executive Departments.” §2, cl. 1. But it does not, as you
might think from reading the majority opinion, give the President
authority to decide what kinds of officers—in what departments,
with what responsibilities—the Executive Branch requires. See ante, at 11 (“The entire ‘executive Power’ belongs to the
President alone”). Instead, Article I’s Necessary and Proper Clause
puts those decisions in the legislature’s hands. Congress has the
power “[t]o make all Laws which shall be necessary and proper for
carrying into Execution” not just its own enumerated powers but
also “all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer
thereof.” §8, cl. 18. Similarly, the Appointments Clause reflects
Congress’s central role in structuring the Executive Branch. Yes,
the President can appoint principal officers, but only as the
legislature “shall . . . establish[ ] by Law” (and
of course subject to the Senate’s advice and consent). Art. II, §2,
cl. 2. And Congress has plenary power to decide not only what
inferior officers will exist but also who (the President or a head
of department) will appoint them. So as Madison told the first
Congress, the legislature gets to “create[ ] the office,
define[ ] the powers, [and] limit[ ] its duration.” 1
Annals of Cong. 582 (1789). The President, as to the construction
of his own branch of government, can only try to work his will
through the legislative process.[ 3 ]

															The majority relies for its contrary vision on
Article II’s Vesting Clause, see ante, at 11–12, 25, but the
provision can’t carry all that weight. Or as Chief Justice
Rehnquist wrote of a similar claim in Morrison v. Olson , 487 U.S.
654 (1988), “extrapolat[ing]” an unrestricted removal power
from such “general constitutional language”—which says only that
“[t]he executive Power shall be vested in a President”—is “more
than the text will bear.” Id., at 690, n. 29. Dean John
Manning has well explained why, even were it not obvious from the
Clause’s “open-ended language.” Separation of Powers as Ordinary
Interpretation, 124 Harv. L. Rev. 1939, 1971 (2011). The
Necessary and Proper Clause, he writes, makes it impossible to
“establish a constitutional violation simply by showing that
Congress has constrained the way ‘[t]he executive Power’ is
implemented”; that is exactly what the Clause gives Congress the
power to do. Id., at 1967. Only “a specific historical understanding” can bar Congress from enacting a given
constraint. Id., at 2024. And nothing of that sort broadly
prevents Congress from limiting the President’s removal power. I’ll
turn soon to the Decision of 1789 and other evidence of
Post-Convention thought. See infra , at 9–13. For now, note
two points about practice before the Constitution’s drafting.
First, in that era, Parliament often restricted the King’s power to
remove royal officers—and the President, needless to say, wasn’t
supposed to be a king. See Birk, Interrogating the Historical Basis
for a Unitary Executive, 73 Stan. L. Rev. (forthcoming 2021).
Second, many States at the time allowed limits on gubernatorial
removal power even though their constitutions had similar vesting
clauses. See Shane, The Originalist Myth of the Unitary Executive,
19 U. Pa. J. Const. L. 323, 334–344 (2016). Historical
understandings thus belie the majority’s “general rule.”

															Nor can the Take Care Clause come to the
majority’s rescue. That Clause cannot properly serve as a
“placeholder for broad judicial judgments” about presidential
control. Goldsmith & Manning, The Protean Take Care Clause, 164
U. Pa. L. Rev. 1835, 1867 (2016); but see ante, at
11–12, 27–28, n. 11 (using it that way). To begin with, the
provision—“he shall take Care that the Laws be faithfully
executed”—speaks of duty, not power. Art. II, §3. New
scholarship suggests the language came from English and colonial
oaths taken by, and placing fiduciary obligations on, all manner
and rank of executive officers. See Kent, Leib, & Shugerman,
Faithful Execution and Article II, 132 Harv. L. Rev. 2111,
2121–2178 (2019). To be sure, the imposition of a duty may imply a
grant of power sufficient to carry it out. But again, the
majority’s view of that power ill comports with founding-era
practice, in which removal limits were common. See, e.g., Corwin, Tenure of Office and the Removal Power Under the
Constitution, 27 Colum. L. Rev. 353, 385 (1927) (noting that
New York’s Constitution of 1777 had nearly the same clause, though
the State’s executive had “very little voice” in removals). And yet
more important, the text of the Take Care Clause requires only
enough authority to make sure “the laws [are] faithfully
executed”—meaning with fidelity to the law itself, not to every
presidential policy preference. As this Court has held, a President
can ensure “ ‘faithful execution’ of the laws”—thereby
satisfying his “take care” obligation—with a removal provision like
the one here. Morrison , 487 U. S., at 692. A for-cause
standard gives him “ample authority to assure that [an official] is
competently performing [his] statutory responsibilities in a manner
that comports with the [relevant legislation’s] provisions.” Ibid. Finally, recall the Constitution’s telltale
silence: Nowhere does the text say anything about the President’s
power to remove subordinate officials at will. The majority
professes unconcern. After all, it says, “neither is there a
‘separation of powers clause’ or a ‘federalism clause.’ ” Ante, at 25. But those concepts are carved into the
Constitution’s text—the former in its first three articles
separating powers, the latter in its enumeration of federal powers
and its reservation of all else to the States. And anyway, at-will
removal is hardly such a “foundational doctrine[ ],” ibid. : You won’t find it on a civics class syllabus. That’s
because removal is a tool —one means among many, even if
sometimes an important one, for a President to control executive
officials. See generally Free Enterprise Fund, 561
U. S., at 524 (Breyer, J., dissenting). To find that authority
hidden in the Constitution as a “general rule” is to discover what
is nowhere there.

															B

															History no better serves the majority’s cause.
As Madison wrote, “a regular course of practice” can “liquidate
& settle the meaning of ” disputed or indeterminate
constitutional provisions. Letter to Spencer Roane (Sept. 2, 1819),
in 8 Writings of James Madison 450 (G. Hunt ed. 1908); see NLRB v. Noel Canning , 573 U.S.
513 , 525 (2014). The majority lays claim to that kind of
record, asserting that its muscular view of “[t]he President’s
removal power has long been confirmed by history.” Ante , at
12. But that is not so. The early history—including the fabled
Decision of 1789—shows mostly debate and division about removal
authority. And when a “settle[ment of] meaning” at last occurred,
it was not on the majority’s terms. Instead, it supports wide
latitude for Congress to create spheres of administrative
independence.

															1

															Begin with evidence from the Constitution’s
ratification. And note that this moment is indeed the beginning:
Delegates to the Constitutional Convention never discussed whether
or to what extent the President would have power to remove
executive officials. As a result, the Framers advocating
ratification had no single view of the matter. In Federalist No.
77, Hamilton presumed that under the new Constitution “[t]he
consent of [the Senate] would be necessary to displace as well as
to appoint” officers of the United States. Id., at 515. He
thought that scheme would promote “steady administration”: “Where a
man in any station had given satisfactory evidence of his fitness
for it, a new president would be restrained” from substituting “a
person more agreeable to him.” Ibid. By contrast, Madison
thought the Constitution allowed Congress to decide how any
executive official could be removed. He explained in Federalist No.
39: “The tenure of the ministerial offices generally will be a
subject of legal regulation, conformably to the reason of the case,
and the example of the State Constitutions.” Id., at 253.
Neither view, of course, at all supports the majority’s
story.[ 4 ]

															The second chapter is the Decision of 1789, when
Congress addressed the removal power while considering the bill
creating the Department of Foreign Affairs. Speaking through Chief
Justice Taft—a judicial presidentialist if ever there was one—this
Court in Myers v. United States , 272 U.S.
52 (1926), read that debate as expressing Congress’s judgment
that the Constitution gave the President illimitable power to
remove executive officials. The majority rests its own historical
claim on that analysis (though somehow also finding room for its
two exceptions). See ante, at 12–13. But Taft’s historical
research has held up even worse than Myers ’ holding (which
was mostly reversed, see infra , at 17–18). As Dean Manning
has concluded after reviewing decades’ worth of scholarship on the
issue, “the implications of the debate, properly understood, [are]
highly ambiguous and prone to overreading.” Manning, 124 Harv.
L. Rev., at 1965, n. 135; see id., at 2030–2031.

															The best view is that the First Congress was
“deeply divided” on the President’s removal power, and “never
squarely addressed” the central issue here. Id., at 1965, n.
135; Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev.
1021, 1072 (2006). The congressional debates revealed three main
positions. See Corwin, 27 Colum. L. Rev., at 361. Some shared
Hamilton’s Federalist No. 77 view: The Constitution required Senate
consent for removal. At the opposite extreme, others claimed that
the Constitution gave absolute removal power to the President. And
a third faction maintained that the Constitution placed Congress in
the driver’s seat: The legislature could regulate, if it so chose,
the President’s authority to remove. In the end, Congress passed a
bill saying nothing about removal, leaving the President free to
fire the Secretary of Foreign Affairs at will. But the only one of
the three views definitively rejected was Hamilton’s theory of
necessary Senate consent. As even strong proponents of executive
power have shown, Congress never “endorse[d] the view that [it]
lacked authority to modify” the President’s removal authority when
it wished to. Prakash, supra, at 1073; see Manning, supra, at 1965, n. 135, 2030–2031. The summer of 1789 thus
ended without resolution of the critical question: Was the removal
power “beyond the reach of congressional regulation?” Prakash, supra, at 1072.

															At the same time, the First Congress gave
officials han- dling financial affairs—as compared to diplomatic
and military ones—some independence from the President. The title
and first section of the statutes creating the Departments of
Foreign Affairs and War designated them “executive departments.”
Act of July 27, 1789, ch. 4, 1Stat. 28; Act of Aug. 7, 1789, ch. 7,
1Stat. 49. The law creating the Treasury Department conspicuously
avoided doing so. See Act of Sept. 2, 1789, ch. 12, 1Stat. 65. That
difference in nomenclature signaled others of substance. Congress
left the organization of the Departments of Foreign Affairs and War
skeletal, enabling the President to decide how he wanted to staff
them. See Casper, An Essay in Separation of Powers, 30 Wm. &
Mary L. Rev. 211, 239–241 (1989). By contrast, Congress listed
each of the offices within the Treasury Department, along with
their functions. See ibid. Of the three initial Secretaries,
only the Treasury’s had an obligation to report to Congress when
requested. See §2, 1Stat. 65–66. And perhaps most notable, Congress
soon deemed the Comptroller of the Treasury’s settlements of public
accounts “final and conclusive.” Act of Mar. 3, 1795, ch. 48, §4,
1Stat. 441–442. That decision, preventing presidential overrides,
marked the Comptroller as exercising independent judgment.[ 5 ] True enough, no statute shielded the
Comptroller from discharge. But even James Madison, who at this
point opposed most removal limits, told Congress that “there may be
strong reasons why an officer of this kind should not hold his
office at the pleasure” of the Secretary or President. 1 Annals of
Cong. 612. At the least, as Professor Prakash writes, “Madison
maintained that Congress had the [constitutional] authority to
modify [the Comptroller’s] tenure.” Prakash, supra , at
1071.

															Contrary to the majority’s view, then, the
founding era closed without any agreement that Congress lacked the
power to curb the President’s removal authority. And as it kept
that question open, Congress took the first steps—which would
launch a tradition—of distinguishing financial regulators from
diplomatic and military officers. The latter mainly helped the
President carry out his own constitutional duties in foreign
relations and war. The former chiefly carried out statutory duties,
fulfilling functions Congress had assigned to their offices. In
addressing the new Nation’s finances, Congress had begun to use its
powers under the Necessary and Proper Clause to design effective
administrative institutions. And that included taking steps to
insulate certain officers from political influence.

															2

															As the decades and centuries passed, those
efforts picked up steam. Confronting new economic, technological,
and social conditions, Congress—and often the President—saw new
needs for pockets of independence within the federal bureaucracy.
And that was especially so, again, when it came to financial
regulation. I mention just a few highlights here—times when
Congress decided that effective governance depended on shielding
technical or expertise-based functions relating to the financial
system from political pressure (or the moneyed interests that might
lie behind it). Enacted under the Necessary and Proper Clause,
those measures—creating some of the Nation’s most enduring
institutions—themselves helped settle the extent of Congress’s
power. “[A] regular course of practice,” to use Madison’s phrase,
has “liquidate[d]” constitutional meaning about the permissibility
of independent agencies. See supra, at 9.

															Take first Congress’s decision in 1816 to create
the Second Bank of the United States—“the first truly independent
agency in the republic’s history.” Lessig & Sunstein, The
President and the Administration, 94 Colum. L. Rev. 1, 30
(1994). Of the twenty-five directors who led the Bank, the
President could appoint and remove only five. See Act of Apr. 10,
1816, §8, 3Stat. 269. Yet the Bank had a greater impact on the
Nation than any but a few institutions, regulating the Nation’s
money supply in ways anticipating what the Federal Reserve does
today. Of course, the Bank was controversial—in large part because
of its freedom from presidential control. Andrew Jackson chafed at
the Bank’s independence and eventually fired his Treasury Secretary
for keeping public moneys there (a dismissal that itself provoked a
political storm). No matter. Innovations in governance always have
opponents; administrative independence predictably (though by no
means invariably) provokes presidential ire. The point is that by
the early 19th century, Congress established a body wielding
enormous financial power mostly outside the President’s
dominion.

															The Civil War brought yet further encroachments
on presidential control over financial regulators. In response to
wartime economic pressures, President Lincoln (not known for his
modest view of executive power) asked Congress to establish an
office called the Comptroller of the Currency. The statute he
signed made the Comptroller removable only with the Senate’s
consent—a version of the old Hamiltonian idea, though this time
required not by the Constitution itself but by Congress. See Act of
Feb. 25, 1863, ch. 58, 12Stat. 665. A year later, Congress amended
the statute to permit removal by the President alone, but only upon
“reasons to be communicated by him to the Senate.” Act of June 3,
1864, §1, 13Stat. 100. The majority dismisses the original version
of the statute as an “aberration.” Ante, at 19. But in the
wake of the independence given first to the Comptroller of the
Treasury and then to the national Bank, it’s hard to conceive of
this newest Comptroller position as so great a departure. And even
the second iteration of the statute preserved a constraint on the
removal power, requiring a President in a firing mood to explain
himself to Congress—a demand likely to make him sleep on the
subject. In both versions of the law, Congress responded to new
financial challenges with new regulatory institutions, alert to the
perils in this area of political interference.[ 6 ]

															And then, nearly a century and a half ago, the
floodgates opened. In 1887, the growing power of the railroads over
the American economy led Congress to create the Interstate

															Commerce Commission. Under that legislation, the
Presi- dent could remove the five Commissioners only “for
inefficiency, neglect of duty, or malfeasance in office”—the same
standard Congress applied to the CFPB Director. Act of Feb. 4,
1887, §11, 24Stat. 383. More—many more—for-cause removal provisions
followed. In 1913, Congress gave the Governors of the Federal
Reserve Board for-cause protection to ensure the agency would
resist political pressure and promote economic stability. See Act
of Dec. 23, 1913, ch. 6, 38Stat. 251. The next year, Congress
provided similar protection to the FTC in the interest of ensuring
“a continuous policy” “free from the effect” of “changing [White
House] incumbency.” 51 Cong. Rec. 10376 (1914). The Federal Deposit
Insurance Corporation (FDIC), the Securities and Exchange
Commission (SEC), the Commodity Futures Trading Commission. In the
financial realm, “independent agencies have remained the bedrock of
the institutional framework governing U. S. markets.” Gadinis, From
Independence to Politics in Financial Regulation, 101 Cal.
L. Rev. 327, 331 (2013). By one count, across all subject
matter areas, 48 agencies have heads (and below them hundreds more
inferior officials) removable only for cause. See Free
Enterprise Fund , 561 U. S., at 541 (Breyer, J.,
dissenting). So year by year by year, the broad sweep of history
has spoken to the constitutional question before us: Independent
agencies are everywhere.

															C

															What is more, the Court’s precedents before
today have accepted the role of independent agencies in our
governmental system. To be sure, the line of our decisions has not
run altogether straight. But we have repeatedly upheld provisions
that prevent the President from firing regulatory officials except
for such matters as neglect or malfeasance. In those decisions, we
sounded a caution, insisting that Congress could not impede through
removal restrictions the President’s performance of his own
constitutional duties. (So, to take the clearest example, Congress
could not curb the President’s power to remove his close military
or diplomatic advisers.) But within that broad limit, this Court
held, Congress could protect from at-will removal the officials it
deemed to need some independence from political pressures. Nowhere
do those precedents suggest what the majority announces today: that
the President has an “unrestricted removal power” subject to two
bounded exceptions. Ante , at 2.

															The majority grounds its new approach in Myers , ignoring the way this Court has cabined that
decision. Myers , the majority tells us, found an
unrestrained removal power “essential to the [President’s]
execution of the laws.” Ante, at 13 (quoting Myers, 272 U. S., at 117). What the majority does not say is that
within a decade the Court abandoned that view (much as later
scholars rejected Taft’s one-sided history, see supra, at
10–11). In Humphrey’s Executor v. United States , 295 U.S.
602 (1935), the Court unceremoniously—and unanimously—confined Myers to its facts. “[T]he narrow point actually decided”
there, Humphrey’s stated, was that the President could
“remove a postmaster of the first class, without the advice and
consent of the Senate.” 295 U. S. , at 626. Nothing else
in Chief Justice Taft’s prolix opinion “c[a]me within the rule of stare decisis .” Ibid. (Indeed, the Court went on,
everything in Myers “out of harmony” with Humphrey’s was expressly “disapproved.” 295 U. S., at 626 . ) Half a
century later, the Court was more generous. Two decisions read Myers as standing for the principle that Congress’s own
“participation in the removal of executive officers is
unconstitutional.” Bowsher v. Synar , 478 U.S.
714 , 725 (1986); see Morrison , 487 U. S., at 686
(“As we observed in Bowsher , the essence” of “ Myers was the judgment that the Constitution prevents Congress from
draw[ing] to itself ” the power to remove (internal quotation
marks omitted)). Bowsher made clear that Myers had
nothing to say about Congress’s power to enact a provision merely
“limit[ing] the President’s powers of removal” through a for-cause
provision. 478 U. S., at 724. That issue, the Court stated,
was “not presented” in “the Myers case.” Ibid. Instead, the relevant cite was Humphrey’s .

															And Humphrey’s found constitutional a
statute identical to the one here, providing that the President
could remove FTC Commissioners for “inefficiency, neglect of duty,
or malfeasance in office.” 295 U. S., at 619. The Humphrey’s Court, as the majority notes, relied in
substantial part on what kind of work the Commissioners performed.
See id., at 628, 631; ante, at 14. (By contrast,
nothing in the decision turned—as the majority suggests, see ante, at 14–15—on any of the agency’s organizational
features. See infra , at 30.) According to Humphrey’s ,
the Commissioners’ primary work was to “carry into effect
legislative policies”—“filling in and administering the details
embodied by [a statute’s] general standard.” 295 U. S., at
627–628. In addition, the Court noted, the Commissioners
recommended dispositions in court cases, much as a special master
does. Given those “quasi-legislative” and “quasi-judicial”—as
opposed to “purely executive”—functions, Congress could limit the
President’s removal authority. Id., at 628.[ 7 ] Or said another way, Congress could give
the FTC some “independen[ce from] executive control.” Id., at 629.

															About two decades later, an again-unanimous
Court in Wiener v. United States , 357 U.S.
349 (1958), reaffirmed Humphrey’s . The question in Wiener was whether the President could dismiss without cause
members of the War Claims Commission, an entity charged with
compensating injuries arising from World War II. Disdaining Myers and relying on Humphrey’s , the Court said he
could not. The Court described as “short-lived” Myers ’ view
that the President had “inherent constitutional power to remove
officials, no matter what the relation of the executive to the
discharge of their duties.” 357 U. S. , at 352.[ 8 ] Here, the Commissioners were not
close agents of the President, who needed to be responsive to his
preferences. Rather, they exercised adjudicatory responsibilities
over legal claims. Congress, the Court found, had wanted the
Commissioners to do so “free from [political] control or coercive
influence.” Id., at 355 (quoting Humphrey’s , 295
U. S., at 629). And that choice, as Humphrey’s had
held, was within Congress’s power. The Constitution enabled
Congress to take down “the Damocles’ sword of removal” hanging over
the Commissioners’ heads. 357 U. S., at 356.

															Another three decades on, Morrison both
extended Humphrey’s domain and clarified the standard for
addressing removal issues. The Morrison Court, over a
one-Justice dissent, upheld for-cause protections afforded to an
independent counsel with power to investigate and prosecute crimes
committed by high-ranking officials. The Court well understood that
those law enforcement functions differed from the rulemaking and
adjudicatory duties highlighted in Humphrey’s and Wiener . But that difference did not resolve the issue. An
official’s functions, Morrison held, were relevant to but
not dispositive of a removal limit’s constitutionality. The key
question in all the cases, Morrison saw, was whether such a
restriction would “impede the President’s ability to perform his
constitutional duty.” 487 U. S., at 691. Only if it did so
would it fall outside Congress’s power. And the protection for the
independent counsel, the Court found, did not. Even though the
counsel’s functions were “purely executive,” the President’s “need
to control the exercise of [her] discretion” was not “so central to
the functioning of the Executive Branch as to require” unrestricted
removal authority. Id., at 690–691. True enough, the Court
acknowledged, that the for-cause standard prevented the President
from firing the counsel for discretionary decisions or judgment
calls. But it preserved “ample authority” in the President “to
assure that the counsel is competently performing” her
“responsibilities in a manner that comports with” all legal
requirements. Id., at 692. That meant the President could
meet his own constitutional obligation “to ensure ‘the faithful
execution’ of the laws.” Ibid. ; see supra, at
8.[ 9 ]

															The majority’s description of Morrison ,
see ante, at 15–16, is not true to the decision. (Mostly, it
seems, the majority just wishes the case would go away. See ante, at 17, n. 4.) First, Morrison is no
“exception” to a broader rule from Myers . Morrison echoed all of Humphrey’s criticism of the by-then infamous Myers “dicta.” 487 U. S ., at 687. It again
rejected the notion of an “all-inclusive” removal power. Ibid. It yet further confined Myers ’ reach, making
clear that Congress could restrict the President’s removal of
officials carrying out even the most traditional executive
functions. And the decision, with care, set out the governing
rule—again, that removal restrictions are permissible so long as
they do not impede the President’s performance of his own
constitutionally assigned duties. Second, as all that suggests, Morrison is not limited to inferior officers. In the eight
pages addressing the removal issue, the Court constantly spoke of
“officers” and “officials” in general. 487 U. S., at 685–693.
By contrast, the Court there used the word “inferior” in just one
sentence (which of course the majority quotes), when applying its
general standard to the case’s facts. Id., at 691. Indeed,
Justice Scalia’s dissent emphasized that the counsel’s
inferior-office status played no role in the Court’s decision. See id., at 724 (“The Court could have resolved the removal
power issue in this case by simply relying” on that status, but did
not). As Justice Scalia noted, the Court in United States v. Perkins , 116 U.S.
483 , 484–485 (1886), had a century earlier allowed Congress to
restrict the President’s removal power over inferior officers. See Morrison , 487 U. S., at 723–724. Were that Morrison ’s basis, a simple citation would have sufficed.

															Even Free Enterprise Fund , in which the
Court recently held a removal provision invalid, operated within
the framework of this precedent—and in so doing, left in place a
removal provision just like the one here. In that case, the Court
considered a “highly unusual” scheme of double for-cause
protection. 561 U. S., at 505. Members of an accounting board
were protected from removal by SEC Commissioners, who in turn were
protected from removal by the President. The Court found that the
two-layer structure deprived the President of “adequate control”
over the Board members. Id., at 508. The scheme “impaired”
the President’s “ability to execute the laws,” the Court explained,
because neither he nor any fully dependent agent could decide
“whether[ ] good cause exists” for a discharge. Id., at
495–496. That holding cast no doubt on ordinary for-cause
protections, of the kind in the Court’s prior cases (and here as
well). Quite the opposite. The Court observed that it did not “take
issue with for-cause limitations in general”—which do enable
the President to determine whether good cause for discharge exists
(because, say, an official has violated the law). Id., at
501. And the Court’s solution to the constitutional problem it saw
was merely to strike one level of insulation, making the Board
removable by the SEC at will. That remedy left the SEC’s own
for-cause protection in place. The President could thus remove
Commissioners for malfeasance or neglect, but not for policy
disagreements. See ante, at 28.

															So caselaw joins text and history in
establishing the general permissibility of for-cause provisions
giving some independence to agencies. Contrary to the majority’s
view, those laws do not represent a suspicious departure from
illimitable presidential control over administration. For almost a
century, this Court has made clear that Congress has broad
discretion to enact for-cause protections in pursuit of good
governance.

															D

															The deferential approach this Court has taken
gives Con-

															gress the flexibility it needs to craft
administrative agencies. Diverse problems of government demand
diverse solutions. They call for varied measures and mixtures of
democratic accountability and technical expertise, energy and
efficiency. Sometimes, the arguments push toward tight presidential
control of agencies. The President’s engagement, some people say,
can disrupt bureaucratic stagnation, counter industry capture, and
make agencies more responsive to public interests. See, well,
Kagan, Presidential Administration, 114 Harv. L. Rev. 2245,
2331–2346 (2001). At other times, the arguments favor greater
independence from presidential involvement. Insulation from
political pressure helps ensure impartial adjudications. It places
technical issues in the hands of those most capable of addressing
them. It promotes continuity, and prevents short-term electoral
interests from distorting policy. (Consider, for example, how the
Federal Reserve’s independence stops a President trying to win a
second term from manipulating interest rates.) Of course, the right
balance between presidential control and independence is often
uncertain, contested, and value-laden. No mathematical formula
governs institutional design; trade-offs are endemic to the
enterprise. But that is precisely why the issue is one for the
political branches to debate—and then debate again as times change.
And it’s why courts should stay (mostly) out of the way. Rather
than impose rigid rules like the majority’s, they should let
Congress and the President figure out what blend of independence
and political control will best enable an agency to perform its
intended functions.

															Judicial intrusion into this field usually
reveals only how little courts know about governance. Even
everything I just said is an over-simplification. It suggests that
agencies can easily be arranged on a spectrum, from the most to the
least presidentially controlled. But that is not so. A given
agency’s independence (or lack of it) depends on a wealth of
features, relating not just to removal standards, but also to
appointments practices, procedural rules, internal organization,
oversight regimes, historical traditions, cultural norms, and
(inevitably) personal relationships. It is hard to pinpoint how
those factors work individually, much less in concert, to influence
the distance between an agency and a President. In that light, even
the judicial opinions’ perennial focus on removal standards is a
bit of a puzzle. Removal is only the most obvious, not necessarily
the most potent, means of control. See generally Free Enterprise
Fund , 561 U. S., at 524 (Breyer, J., dissenting). That is
because informal restraints can prevent Presidents from firing
at-will officers—and because other devices can keep officers with
for-cause protection under control. Of course no court, as Free
Enterprise Fund noted, can accurately assess the “bureaucratic
minutiae” affecting a President’s influence over an agency. Id. , at 500 (majority opinion); ante, at 30
(reprising the point). But that is yet more reason for courts to
defer to the branches charged with fashioning administrative
structures, and to hesitate before ruling out agency design specs
like for-cause removal standards.

															Our Constitution, as shown earlier, entrusts
such decisions to more accountable and knowledgeable actors. See supra, at 4–9. The document—with great good sense—sets out
almost no rules about the administrative sphere. As Chief Justice
Marshall wrote when he upheld the first independent financial
agency: “To have prescribed the means by which government should,
in all future time, execute its powers, would have been to change,
entirely, the character of the instrument.” McCulloch , 4
Wheat., at 415. That would have been, he continued, “an unwise
attempt to provide, by immutable rules, for exigencies which, if
foreseen at all, must have been seen dimly.” Ibid. And if
the Constitution, for those reasons, does not lay out immutable
rules, then neither should judges. This Court has usually respected
that injunction. It has declined to second-guess the work of the
political branches in creating independent agencies like the CFPB.
In reversing course today—in spurning a “pragmatic, flexible
approach to American governance” in favor of a dogmatic, inflexible
one, ante, at 29—the majority makes a serious error.

															II

															As the majority explains, the CFPB emerged out
of disaster. The collapse of the subprime mortgage market
“precipitat[ed] a financial crisis that wiped out over $10 trillion
in American household wealth and cost millions of Americans their
jobs, their retirements, and their homes.” Ante, at 3. In
that moment of economic ruin, the President proposed and Congress
enacted legislation to address the causes of the collapse and
prevent a recurrence. An important part of that statute created an
agency to protect consumers from exploitative financial practices.
The agency would take over enforcement of almost 20 existing
federal laws. See 12 U. S. C. §5581. And it would
administer a new prohibition on “unfair, deceptive, or abusive
act[s] or practice[s]” in the consumer-finance sector.
§5536(a)(1)(B).

															No one had a doubt that the new agency should be
independent. As explained already, Congress has historically
given—with this Court’s permission—a measure of independence to
financial regulators like the Federal Reserve Board and the FTC.
See supra, at 11–16. And agencies of that kind had
administered most of the legislation whose enforcement the new
statute transferred to the CFPB. The law thus included an ordinary
for-cause provision—once again, that the President could fire the
CFPB’s Director only for “inefficiency, neglect of duty, or
malfeasance in office.” §5491(c)(3). That standard would allow the
President to discharge the Director for a failure to “faithfully
execute[ ]” the law, as well as for basic incompetence.
U. S. Const., Art. II, §3; see supra, at 8, 20.
But it would not permit removal for policy differences.

															The question here, which by now you’re well
equipped to answer, is whether including that for-cause standard in
the statute creating the CFPB violates the Constitution.

															A

															Applying our longstanding precedent, the
answer is clear: It does not. This Court, as the majority
acknowledges, has sustained the constitutionality of the FTC and
similar independent agencies. See ante, at 2, 13–16. The
for-cause protections for the heads of those agencies, the Court
has found, do not impede the President’s ability to perform his own
constitutional duties, and so do not breach the separation of
powers. See supra, at 18–22. There is nothing different
here. The CFPB wields the same kind of power as the FTC and similar
agencies. And all of their heads receive the same kind of removal
protection. No less than those other entities—by now part of the
fabric of government—the CFPB is thus a permissible exercise of
Congress’s power under the Necessary and Proper Clause to structure
administration.

															First, the CFPB’s powers are nothing unusual in
the universe of independent agencies. The CFPB, as the majority
notes, can issue regulations, conduct its own adjudications, and
bring civil enforcement actions in court—all backed by the threat
of penalties. See ante, at 1; 12 U. S. C. §§5512,
5562–5565. But then again, so too can (among others) the FTC and
SEC, two agencies whose regulatory missions parallel the CFPB’s.
See 15 U. S. C. §§45, 53, 57a, 57b–3, 78u, 78v, 78w. Just
for a comparison, the CFPB now has 19 enforcement actions pending,
while the SEC brought 862 such actions last year alone. See Brief
for Petitioner 7; SEC, Div. of Enforcement 2019 Ann. Rep. 14.
And although the majority bemoans that the CFPB can “bring the
coercive power of the state to bear on millions of private
citizens,” ante, at 18, that scary-sounding description
applies to most independent agencies. Forget that the more relevant
factoid for those many citizens might be that the CFPB has
recovered over $11 billion for banking consumers. See ante, at 5. The key point here is that the CFPB got the mass of its
regulatory authority from other independent agencies that had
brought the same “coercive power to bear.” See 12
U. S. C. §5581 (transferring power from, among others,
the Federal Reserve, FTC, and FDIC). Congress, to be sure, gave the
CFPB new authority over “unfair, deceptive, or abusive act[s] or
practice[s]” in transactions involving a “consumer financial
product or service.” §§5517(a)(1), 5536(a)(1). But again, the FTC
has power to go after “unfair or deceptive acts or practices in or
affecting commerce”—a portfolio spanning a far wider swath of the
economy. 15 U. S. C. §45(a)(1).[ 10 ] And if influence on economic life is the measure,
consider the Federal Reserve, whose every act has global
consequence. The CFPB, gauged by that comparison, is a piker.

															Second, the removal protection given the CFPB’s
Director is standard fare. The removal power rests with the
President alone; Congress has no role to play, as it did in the
laws struck down in Myers and Bowsher . See supra, at 17–18. The statute provides only one layer of
protection, unlike the law in Free Enterprise Fund . See supra, at 21–22. And the clincher, which you have heard
before: The for-cause standard used for the CFPB is identical to
the one the Court upheld in Humphrey’s . Both enable the
President to fire an agency head for “inefficiency, neglect of
duty, or malfeasance in office.” See 12 U. S. C.
§5491(c)(3); 15 U. S. C. §41; supra, at 18. A
removal provision of that kind applied to a financial agency head,
this Court has held, does not “unduly trammel[ ] on executive
authority,” even though it prevents the President from dismissing
the official for a discretionary policy judgment. Morrison ,
487 U. S., at 691. Once again: The removal power has not been
“completely stripped from the President,” providing him with no
means to “ensure the ‘faithful execution’ of the laws.” Id., at 692; see supra, at 20. Rather, this Court has explained,
the for-cause standard gives the President “ample authority to
assure that [the official] is competently performing his or her
statutory responsibilities in a manner that comports with” all
legal obligations. 487 U. S., at 692; see supra, at 20.
In other words—and contra today’s majority—the President’s removal
power, though not absolute, gives him the “meaningful[ ]
control[ ]” of the Director that the Constitution requires. Ante, at 23.

															The analysis is as simple as simple can be. The
CFPB Director exercises the same powers, and receives the same
removal protections, as the heads of other, constitutionally
permissible independent agencies. How could it be that this opinion
is a dissent?

															B

															The majority focuses on one (it says
sufficient) reason: The CFPB Director is singular, not plural.
“Instead of placing the agency under the leadership of a board with
multiple members,” the majority protests, “Congress provided that
the CFPB would be led by a single Director.” Ante, at
1.[ 11 ] And a solo CFPB
Director does not fit within either of the majority’s supposed
exceptions. He is not an inferior officer, so (the majority says) Morrison does not apply; and he is not a multimember board,
so (the majority says) neither does Humphrey’s . Further, the
majority argues, “[a]n agency with a [unitary] structure like that
of the CFPB” is “novel”—or, if not quite that, “almost wholly
unprecedented.” Ante, at 2, 18. Finally, the CFPB’s
organizational form violates the “constitutional structure” because
it vests power in a “single individual” who is “insulated from
Presidential control.” Ante, at 2–3, 23.

															I’m tempted at this point just to say: No. All
I’ve explained about constitutional text, history, and precedent
invalidates the majority’s thesis. But I’ll set out here some more
targeted points, taking step by step the majority’s reasoning.

															First, as I’m afraid you’ve heard before, the
majority’s “exceptions” (like its general rule) are made up. See supra, at 16–22. To begin with, our precedents reject the
very idea of such exceptions. “The analysis contained in our
removal cases,” Morrison stated, shuns any attempt “to
define rigid categories” of officials who may (or may not) have job
protection. 487 U. S., at 689. Still more, the contours of the
majority’s exceptions don’t connect to our decisions’ reasoning.
The analysis in Morrison , as I’ve shown, extended far beyond
inferior officers. See supra, at 20–21. And of course that
analysis had to apply to individual officers: The
independent counsel was very much a person, not a committee. So the
idea that Morrison is in a separate box from this case
doesn’t hold up.[ 12 ]
Similarly, Humphrey’s and later precedents give no support
to the majority’s view that the number of people at the apex of an
agency matters to the constitutional issue. Those opinions mention
the “groupness” of the agency head only in their background
sections. The majority picks out that until-now-irrelevant fact to
distinguish the CFPB, and constructs around it an
until-now-unheard-of exception. So if the majority really wants to
see something “novel,” ante, at 2, it need only look to its
opinion.

															By contrast, the CFPB’s single-director
structure has a fair bit of precedent behind it. The Comptroller of
the Currency. The Office of the Special Counsel (OSC). The Social
Security Administration (SSA). The Federal Housing Finance Agency
(FHFA). Maybe four prior agencies is in the eye of the beholder,
but it’s hardly nothing. I’ve already explained why the earliest of
those agencies—the Civil-War-era Comptroller—is not the blip the
majority describes. See supra, at 14–15. The office is one
in a long line, starting with the founding-era Comptroller of the
Treasury (also one person), of financial regulators designed to do
their jobs with some independence. As for the other three, the
majority objects: too powerless and too contested. See ante, at 18–21. I think not. On power, the SSA runs the Nation’s largest
government program—among other things, deciding all claims brought
by its 64 million beneficiaries; the FHFA plays a crucial role in
overseeing the mortgage market, on which millions of Americans
annually rely; and the OSC prosecutes misconduct in the
two-million-person federal workforce. All different from the CFPB,
no doubt; but the majority can’t think those matters beneath a
President’s notice. (Consider: Would the President lose more votes
from a malfunctioning SSA or CFPB?) And controversial? Well, yes,
they are. Almost all independent agencies are controversial,
no matter how many directors they have. Or at least controversial
among Presidents and their lawyers. That’s because whatever might
be said in their favor, those agencies divest the President of some
removal power. If signing statements and veto threats made
independent agencies unconstitutional, quite a few wouldn’t pass
muster. Maybe that’s what the majority really wants (I wouldn’t
know)—but it can’t pretend the disputes surrounding these agencies
had anything to do with whether their heads are singular or
plural.

															Still more important, novelty is not the test of
constitutionality when it comes to structuring agencies. See Mistretta v. United States , 488
U.S. 361 , 385 (1989) (“[M]ere anomaly or innovation” does not
violate the separation of powers). Congress regulates in that
sphere under the Necessary and Proper Clause, not (as the majority
seems to think) a Rinse and Repeat Clause. See supra, at 6.
The Framers understood that new times would often require new
measures, and exigencies often demand innovation. See McCulloch , 4 Wheat., at 415; supra, at 24. In line
with that belief, the history of the administrative sphere—its
rules, its practices, its institutions—is replete with experiment
and change. See supra, at 9–16. Indeed, each of the agencies
the majority says now fits within its “exceptions” was once new;
there is, as the saying goes, “a first time for everything.” National Federation of Independent Business v. Sebelius , 567 U.S.
519 , 549 (2012). So even if the CFPB differs from its forebears
in having a single director, that departure is not itself “telling”
of a “constitutional problem.” Ante, at 18. In deciding what this moment demanded, Congress had no obligation to make a
carbon copy of a design from a bygone era.

															And Congress’s choice to put a single director,
rather than a multimember commission, at the CFPB’s head violates
no principle of separation of powers. The purported constitutional
problem here is that an official has “slip[ped] from the
Executive’s control” and “supervision”—that he has become
unaccountable to the President. Ante, at 23, 25 (internal
quotation marks omitted). So to make sense on the majority’s own
terms, the distinction between singular and plural agency heads
must rest on a theory about why the former more easily “slip” from
the President’s grasp. But the majority has nothing to offer. In
fact, the opposite is more likely to be true: To the extent that
such matters are measurable, individuals are easier than groups to
supervise.

															To begin with, trying to generalize about these
matters is something of a fool’s errand. Presidential control, as
noted earlier, can operate through many means—removal to be sure,
but also appointments, oversight devices ( e.g., centralized
review of rulemaking or litigating positions), budgetary processes,
personal outreach, and more. See Free Enterprise Fund , 561
U. S., at 524 (Breyer, J., dissenting); supra, at
23–24.[ 13 ] The effectiveness
of each of those control mechanisms, when present, can then depend
on a multitude of agency-specific practices, norms, rules, and
organizational features. In that complex stew, the difference
between a singular and plural agency head will often make not a
whit of difference. Or to make the point more concrete, a
multimember commission may be harder to control than an individual
director for a host of reasons unrelated to its plural character.
That may be so when the two are subject to the same removal
standard, or even when the individual director has greater formal
job protection. Indeed, the very category of multimember
commissions breaks apart under inspection, spoiling the majority’s
essential dichotomy. See generally Brief for Rachel E. Barkow et
al. as Amici Curiae . Some of those commissions have chairs
appointed by the President; others do not. Some of those chairs are
quite powerful; others are not. Partisan balance requirements, term
length, voting rules, and more—all vary widely, in ways that make a
significant difference to the ease of presidential control. Why,
then, would anyone distinguish along a simple
commission/single-director axis when deciding whether the
Constitution requires at-will removal?

															But if the demand is for generalization, then
the majority’s distinction cuts the opposite way: More powerful
control mechanisms are needed (if anything) for commissions.
Holding everything else equal, those are the agencies more likely
to “slip from the Executive’s control.” Ante, at 25. Just
consider your everyday experience: It’s easier to get one person to
do what you want than a gaggle. So too, you know exactly whom to
blame when an individual—but not when a group—does a job badly. The
same is true in bureaucracies. A multimember structure reduces
accountability to the President because it’s harder for him to
oversee, to influence—or to remove, if necessary—a group of five or
more commissioners than a single director. Indeed, that is why Congress so often resorts to hydra-headed agencies.
“[M]ultiple membership,” an influential Senate Report concluded, is
“a buffer against Presidential control” (especially when combined,
as it often is, with partisan-balance requirements). Senate
Committee on Governmental Affairs, Study on Federal Regulation, S.
Doc. No. 95–91, vol. 5, p. 75 (1977). So, for example, Congress
constructed the Federal Reserve as it did because it is “easier to
protect a board from political control than to protect a single
appointed official.” R. Cushman, The Independent Regulatory
Commissions 153 (1941).[ 14 ]
It is hard to know why Congress did not take the same tack when
creating the CFPB. But its choice brought the agency only closer to
the President—more exposed to his view, more subject to his sway.
In short, the majority gets the matter backward: Where presidential
control is the object, better to have one than many.

															Because it has no answer on that score, the
majority slides to a different question: Assuming presidential
control of any independent agency is vanishingly slim, is a
single-head or a multi-head agency more capable of exercising
power, and so of endangering liberty? See ante, at 21–23.
The majority says a single head is the greater threat because he
may wield power “ unilaterally ” and “[w]ith no colleagues to
persuade.” Ante, at 23 (emphasis in original). So the CFPB
falls victim to what the majority sees as a constitutional
anti-power-concentration principle (with an exception for the
President).

															If you’ve never heard of a statute being struck
down on that ground, you’re not alone. It is bad enough to
“extrapolat[e]” from the “general constitutional language” of
Article II’s Vesting Clause an unrestricted removal power
constraining Congress’s ability to legislate under the Necessary
and Proper Clause. Morrison , 487 U. S., at 690, n. 29;
see supra, at 7. It is still worse to extrapolate from the
Constitution’s general structure (division of powers) and implicit
values (liberty) a limit on Congress’s express power to create
administrative bodies. And more: to extrapolate from such sources a
distinction as prosaic as that between the SEC and the
CFPB— i.e., between a multi-headed and single-headed agency.
That is, to adapt a phrase (or two) from our precedent, “more than”
the emanations of “the text will bear.” Morrison , 487
U. S., at 690, n. 29. By using abstract separation-of-powers
arguments for such purposes, the Court “appropriate[s]” the “power
delegated to Congress by the Necessary and Proper Clause” to
compose the government. Manning, Foreword: The Means of
Constitutional Power, 128 Harv. L. Rev. 1, 78 (2014). In
deciding for itself what is “proper,” the Court goes beyond its own
proper bounds.

															And in doing so, the majority again reveals its
lack of interest in how agencies work. First, the premise of the
majority’s argument—that the CFPB head is a mini-dictator, not
subject to meaningful presidential control, see ante , at
23—is wrong. As this Court has seen in the past, independent
agencies are not fully independent. A for-cause removal provision,
as noted earlier, leaves “ample” control over agency heads in the
hands of the President. Morrison , 487 U. S., at 692;
see supra , at 20. He can discharge them for failing to
perform their duties competently or in accordance with law, and so
ensure that the laws are “faithfully executed.” U. S. Const., Art.
II, §3; see supra, at 8, 20. And he can use the many other
tools attached to the Office of the Presidency—including in the
CFPB’s case, rulemaking review—to exert influence over
discretionary policy calls. See supra , at 33, and n. 13.
Second, the majority has nothing but intuition to back up its
essentially functionalist claim that the CFPB would be less capable
of exercising power if it had more than one Director (even
supposing that were a suitable issue for a court to address). Ante , at 21, 23. Maybe the CFPB would be. Or maybe not.
Although a multimember format tends to frustrate the President’s
control over an agency, see supra , at 34–35, it may not
lessen the agency’s own ability to act with decision and dispatch.
(Consider, for a recent example, the Federal Reserve Board.) That
effect presumably would depend on the agency’s internal
organization, voting rules, and similar matters. At the least: If
the Court is going to invalidate statutes based on empirical
assertions like this one, it should offer some empirical support.
It should not pretend that its assessment that the CFPB wields more
power more dangerously than the SEC comes from someplace in the
Constitution. But today the majority fails to accord even that
minimal respect to Congress.

															III

															Recall again how this dispute got started. In
the midst of the Great Recession, Congress and the President came
together to create an agency with an important mission. It would
protect consumers from the reckless financial practices that had
caused the then-ongoing economic collapse. Not only Congress but
also the President thought that the new agency, to fulfill its
mandate, needed a measure of independence. So the two political
branches, acting together, gave the CFPB Director the same job
protection that innumerable other agency heads possess. All in all,
those branches must have thought, they had done a good day’s work.
Relying on their experience and knowledge of administration, they
had built an agency in the way best suited to carry out its
functions. They had protected the public from financial chicanery
and crisis. They had governed.

															And now consider how the dispute ends—with five
unelected judges rejecting the result of that democratic process.
The outcome today will not shut down the CFPB: A different majority
of this Court, including all those who join this opinion, believes
that if the agency’s removal provision is unconstitutional,
it should be severed. But the majority on constitutionality
jettisons a measure Congress and the President viewed as integral
to the way the agency should operate. The majority does so even
though the Constitution grants to Congress, acting with the
President’s approval, the authority to create and shape
administrative bodies. And even though those branches, as compared
to courts, have far greater understanding of political control
mechanisms and agency design.

															Nothing in the Constitution requires that
outcome; to the contrary. “While the Constitution diffuses power
the better to secure liberty, it also contemplates that practice
will integrate the dispersed powers into a workable government.” Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S.
579 , 635 (1952) (Jackson, J., concurring). The Framers took
pains to craft a document that would allow the structures of
governance to change, as times and needs change. The Constitution
says only a few words about administration. As Chief Justice
Marshall wrote: Rather than prescribing “immutable rules,” it
enables Congress to choose “the means by which government should,
in all future time, execute its powers.” McCulloch , 4
Wheat., at 415. It authorizes Congress to meet new exigencies with
new devices. So Article II does not generally prohibit independent
agencies. Nor do any supposed structural principles. Nor do any
odors wafting from the document. Save for when those agencies
impede the President’s performance of his own constitutional
duties, the matter is left up to Congress.

															Our history has stayed true to the Framers’
vision. Congress has accepted their invitation to experiment with
administrative forms—nowhere more so than in the field of financial
regulation. And this Court has mostly allowed it to do so. The
result is a broad array of independent agencies, no two exactly
alike but all with a measure of insulation from the President’s
removal power. The Federal Reserve Board; the FTC; the SEC; maybe
some you’ve never heard of. As to each, Congress thought that
formal job protection for policymaking would produce regulatory
outcomes in greater accord with the long-term public interest.
Congress may have been right; or it may have been wrong; or maybe
it was some of both. No matter—the branches accountable to the
people have decided how the people should be governed.

															The CFPB should have joined the ranks. Maybe it
will still do so, even under today’s opinion: The majority tells
Congress that it may “pursu[e] alternative responses” to the
identified constitutional defect—“for example, converting the CFPB
into a multimember agency.” Ante , at 36. But there was no
need to send Congress back to the drawing board. The Constitution
does not distinguish between single-director and multimember
independent agencies. It instructs Congress, not this Court, to
decide on agency design. Because this Court ignores that
sensible—indeed, that obvious—division of tasks, I respectfully
dissent. Notes 1 In the academic
literature, compare, e.g., Kagan, Presidential
Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001)
(generally favoring presidential control over agencies), with, e.g., Strauss, Overseer, or “The Decider”? The President in
Administrative Law, 75 Geo. Wash. L. Rev. 696, 704, 713–715
(2007) (generally favoring administrative
independence). 2 The principle of
separation of powers, Madison continued, main-tained only that
“where the whole power of one department is exercised by the
same hands which possess the whole power of another
department, the fundamental principles of a free
constitution[ ] are subverted.” The Federalist No. 47, at
325–326. 3 Article II’s Opinions
Clause also demonstrates the possibility of limits on the
President’s control over the Executive Branch. Under that Clause,
the President “may require the Opinion, in writing, of the
principal Officer in each of the executive Departments, upon any
Subject relating to the Duties of their respective Offices.” §2,
cl. 1. For those in the majority’s camp, that Clause presents a
puzzle: If the President must always have the direct supervisory
control they posit, including by threat of removal, why would he
ever need a constitutional warrant to demand agency heads’
opinions? The Clause becomes at least redundant—though really,
inexplicable—under the majority’s idea of executive
power. 4 The majority dismisses
Federalist Nos. 77 and 39 as “reflect[ing] initial impressions
later abandoned.” Ante, at 26, and n. 10. But even
Hamilton’s and Madison’s later impressions are less helpful to the
majority than it suggests. Assuming Hamilton gave up on the
Senate’s direct participation in removal (the evidence is sketchy
but plausible), there is no evidence to show he accepted the
majority’s view. And while Madison opposed the first Congress’s
enactment of removal limits (as the majority highlights), he also
maintained that the legislature had constitutional power to protect
the Comptroller of the Treasury from at-will firing. See infra , at 12–13. In any event, such changing minds and
inconstant opinions don’t usually prove the existence of
constitutional rules. 5 As President Jefferson
explained: “[W]ith the settlement of the accounts at the Treasury I
have no right to interfere in the least,” because the Comptroller
of the Treasury “is the sole & supreme judge for all claims of
money against the US. and would no more receive a direction from
me” than would “one of the judges of the supreme court.” Letter
from T. Jefferson to B. Latrobe (June 2, 1808), in Thomas Jefferson
and the National Capital 429, 431 (S. Padover ed. 1946). A couple
of decades later, Attorney General William Wirt reached the same
conclusion, stating that “the President has no right to interpose
in the settling of accounts” because Congress had “separated” the
Comptroller from the President’s authority. 1 Op. Atty. Gen. 636,
637 (1824); 1 Op. Atty. Gen. 678, 680 (1824). And indeed, Wirt
believed that Congress could restrict the President’s authority to
remove such officials, at least so long as it “express[ed] that
intention clearly.” 1 Op. Atty. Gen. 212, 213 (1818). 6 The Comptroller
legislation of the Civil War provided a key precedent for what does appear a historical “aberration”—the Tenure of Office
Act of 1867. See ch. 154, 14Stat. 430. Anxious to prevent President
Andrew Johnson from interfering with reconstruction
policies—including through his command of the military—Congress
barred presidential removal of any Senate-confirmed officials
without the Senate’s consent. The law thus severed the President’s
removal authority over even officials like the Secretaries of War
and State. The statute became the basis for the Nation’s first
presidential impeachment, but was repealed in 1887. See Act of Mar.
3, 1887, ch. 353, 24Stat. 500. In one sense, the two-decade-long
existence of the Tenure of Office Act reveals the 19th-century
political system’s comfort with expansive restrictions on
presidential removal. But the ultimate repudiation of the law, and
the broad historical consensus that it went too far, just as
strongly shows the limits that system later accepted on legislative
power—that Congress may not impose removal restrictions preventing
the President from carrying out his own constitutionally assigned
functions in areas like war or foreign affairs. See Morrison v. Olson , 487 U.S.
654 , 689–691 (1988) (recognizing that limit as the
constitutional standard). 7 The majority is quite
right that today we view all the activities of
administrative agencies as exercises of “the ‘executive
Power.’ ” Arlington v. FCC , 569 U.S.
290 , 305, n. 4 (2013) (quoting Art. II, §1, cl.1);
see ante, at 14, n. 2. But we well understand, just as
the Humphrey’s Court did, that those activities may “take
‘legislative’ and ‘judicial’ forms.” Arlington , 569
U. S., at 305, n. 4 . The classic examples are agency
rulemakings and adjudications, endemic in agencies like the FTC and
CFPB. In any event, the Court would soon make clear that Congress
can also constrain the President’s removal authority over officials
performing even the most “executive” of functions. See infra , at 19–20. 8 Expressing veiled
contempt as only he could, Justice Frankfurter wrote for the Court
that Chief Justice Taft’s opinion had “laboriously traversed”
American history and that it had failed to “restrict itself to the
immediate issue before it.” 357 U. S., at 351. No wonder Humphrey’s had “narrowly confined the scope of the Myers decision.” 357 U. S. , at 352. Justice
Frankfurter implied that the “Chief Justice who himself had been
President” was lucky his handiwork had not been altogether
reversed. Id., at 351. 9 Pretending this analysis is
mine rather than Morrison ’s, the majority registers its
disagreement. See ante, at 27–28, n. 11. In its view, a
test asking whether a for-cause provision impedes the President’s
ability to carry out his constitutional functions has “no real
limiting principle.” Ibid. If the provision leaves the
President with constitutionally sufficient control over some
subordinates (like the independent counsel), the majority asks, why
not over even his close military or diplomatic advisers? See ibid. But the Constitution itself supplies the answer. If
the only presidential duty at issue is the one to ensure faithful
execution of the laws, a for-cause provision does not stand in the
way: As Morrison recognized, it preserves authority in the
President to ensure (just as the Take Care Clause requires) that an
official is abiding by law. See 487 U. S., at 692. But now
suppose an additional constitutional duty is implicated—relating,
say, to the conduct of foreign affairs or war. To carry out those
duties, the President needs advisers who will (beyond complying
with law) help him devise and implement policy. And that means he
needs the capacity to fire such advisers for disagreeing with his
policy calls. 10 The
majority suggests that the FTC was a different animal when this
Court upheld its independent status in Humphrey’s . See ante, at 17. But then, as now, the FTC’s organic statute
broadly “empowered and directed” the agency “to prevent persons” or
businesses “from using unfair methods of competition in commerce.”
Act of Sept. 26, 1914, §5, 38Stat. 719. To fulfill that mandate,
the agency could and did run investigations, bring administrative
charges, and conduct adjudications. See ibid. ; §6(a), id. , at 721; FTC Ann. Rep. (1935) (describing the FTC’s
extensive enforcement activities in the year before Humphrey’s ). And if any person refused to comply with an
order, the agency could seek its enforcement in federal court under
a highly deferential standard. See §5, 38Stat. 720; FTC v. Pacific States Paper Trade Assn. , 273 U.S.
52 , 63 (1927). Still more, the FTC has always had statutory
rulemaking authority, even though (like several other agencies) it
relied on adjudications until the 1960s. See §6(g), 38Stat. 722; National Petroleum Refiners Assn. v. FTC , 482 F.2d
672, 686 (CADC 1973). (The majority’s reply that a court including
Charles Evans Hughes, Louis Brandeis, Benjamin Cardozo, and Harlan
Stone somehow misunderstood these powers, see ante, at 17,
n. 4, lacks all plausibility.) And in any case, the relevant
point of comparison is the present-day FTC, which remains
independent even if it now has some expanded powers—and which
remains constitutional under not only Humphrey’s but also Morrison . See supra, at 18–20. 11 The
majority briefly mentions, but understandably does not rely on, two
other features of Congress’s scheme. First, the majority notes that
the CFPB receives its funding outside the normal appropriations
process. See ante , at 24–25. But so too do other financial
regulators, including the Federal Reserve Board and the FDIC. See
12 U. S. C. §§243, 1815(d), 1820(e). And budgetary
independence comes mostly at the expense of Congress’s control over
the agency, not the President’s. (Because that is so, it actually
works to the President’s advantage.) Second, the majority complains
that the Director’s five-year term may prevent a President from
“shap[ing the agency’s] leadership” through appointments. Ante , at 24. But again that is true, to one degree or
another, of quite a few longstanding independent agencies,
including the Federal Reserve, the FTC, the Merit Systems
Protection Board, and the Postal Service Board of Governors. See, e.g. , §§241, 242; 15 U. S. C. §41; 5
U. S. C. §§1201, 1202; 39 U. S. C. §202. (If
you think the last is unimportant, just ask the current President
whether he agrees.) 12 The
majority, seeking some other way to distinguish Morrison ,
asserts that the independent counsel’s “duties” were more “limited”
than the CFPB Director’s. Ante , at 17–18. That’s true in a
sense: All (all?) the special counsel had to do was decide whether
the President and his top advisers had broken the law. But I doubt
(and I suspect Presidents would too) whether the need to control
those duties was any less “central to the functioning of the
Executive Branch” than the need to control the CFPB’s. Morrison , 487 U. S., at 691–692. And in any event, as
I’ve shown, Morrison did much more than approve a specific
removal provision; it created a standard to govern all removal
cases that is at complete odds with the majority’s reasoning. See supra, at 19–21. 13 To
use one important example, Congress provided for executive
oversight of all the CFPB’s rulemaking. The Financial Stability
Oversight Council can veto by a two-thirds vote any CFPB regulation
it deems a threat to the “safety and soundness” of the financial
system. 12 U. S. C. §5513(a). The FSOC is chaired by the
Treasury Secretary, and most of its members are under the direct
supervision of the President. See §5321. So the majority is wrong
in saying that the CFPB’s Director can “ unilaterally ” issue
final regulations. Ante , at 23 (emphasis in original).
Indeed, the President has more control over rulemaking at the CFPB
than at any similar independent agency. And the majority is
similarly wrong to think that because the FSOC has not yet issued a
formal veto, its review authority makes no practical difference.
See ante, at 25, n. 9. Regulatory review, whether by
the Office of Management and Budget or the FSOC, usually relies
more on the threat of vetoes than on their execution. OMB casts a
long shadow over rulemaking in the Executive Branch, but rarely
uses its veto pen. See Sunstein, The Office of Information and
Regulatory Affairs: Myths and Realities, 126 Harv. L. Rev.
1838, 1846–1847, n. 37 (2013). 14 I
could go on. A recent study prepared for the Administrative
Conference of the United States noted that “[g]overnance by
multiple members limits the President’s influence.” J. Selin &
D. Lewis, Sourcebook of United States Executive Agencies 89 (2d ed.
2018). And the General Accounting Office has recognized that the
desire for “greater independence” is what “most likely explains why
the Congress in the past has opted to head independent regulatory
bodies with multimember commissions rather than single
administrators.” Hearing before the Senate Subcommittee on the
Consumer of the Committee on Commerce, Science, and Transportation,
100th Cong., 1st Sess., 135 (1987) (Statement of F.
Frazier).

Summary:
The Supreme Court ruled that the Consumer Financial Protection Bureau's leadership by a single director, serving a longer term than the President and removable only for cause, violates the Constitution's separation of powers. The Court found that the President's power to remove executive officers follows from Article II of the Constitution and was confirmed in Myers v. United States.

The Court recognized only two exceptions to the President's unrestricted removal power, neither applicable in this case. The Court concluded that the CFPB's structure was unconstitutional and that the appropriate remedy was to sever the provision restricting the President's removal power, leaving the rest of the CFPB's authorities intact.