D.C. Circuit Review – Reviewed: “The Most Important Separation-of-Powers Case in a Generation”

by Aaron Nielson — Friday, Nov. 25, 2016@Aaron_L_Nielson

There are no D.C. Circuit opinions this week, but even so, we live in interesting times — especially in the world of administrative law. Right now, President-elect Trump is putting together his slate of cabinet nominees, Congress is paying close attention to the Congressional Review Act, and Chief Judge Garland is preparing to return to the D.C Circuit. Oh yeah, and a district court just enjoined the Department of Labor’s “overtime” rule. Plus this is a holiday week, and even lawyers celebrate Thanksgiving (I hope). With all of these goings-on, perhaps you have missed “what may be the most important separation-of-powers case in a generation.”

That quote comes from the petition for rehearing en banc filed last week in PHH Corp. v. CFPB. As you recall, the case concerns whether Congress has the constitutional power to provide the Director of the Consumer Financial Protection Bureau with “for cause” removal protection. The D.C. Circuit held that Congress does not have this power — that such a removal protection violates Article II of the Constitution (which, in the words of Judge Kavanaugh’s opinion, “assigns the President alone the authority and responsibility to ‘take Care that the Laws be faithfully executed'”). Because President Trump presumably will prefer to have someone other than Richard Cordray direct the CFPB, there is good reason to think that if the D.C. Circuit’s reasoning ultimately stands (and maybe even before), Cordray will be removed.

As expected, the CFPB has now sought rehearing. This is how the en banc petition begins:

A panel of this Court has rendered a dramatic and unprecedented ruling that purports to override Congress’s explicit determination to create “an independent bureau” to exercise regulatory and law enforcement authority in a particular segment of the economy. 12 U.S.C. 5491(a). It thus sets up what may be the most important separation-of-powers case in a generation, since the independent counsel statute was challenged in Morrison v. Olson, 487 U.S. 654 (1988).

The panel held that the structure of the Consumer Financial Protection Bureau is unconstitutional because it is headed by a single director who may be removed by the President only for cause. Panel Opinion (Op.) at 10; see 12 U.S.C. 5491(c)(3). This decision conflicts with Humphrey’s Executor v. United States, 295 U.S. 602 (1935), which has long been understood to “bless[] Congress’s creation of the so-called ‘independent’ agencies where at least one individual is appointed by the President to a full-time, fixed-term position with the advice and consent of the Senate and has protection against summary removal by some form of ‘for cause’ restriction on the President’s authority.” Free Enter. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 695 (D.C. Cir. 2008) (Kavanaugh, J., dissenting, internal quotation marks omitted), rev’d 561 U.S. 477 (2010). In addition, the decision conflicts with Morrison v. Olson, where the Court stated that “we cannot say that the imposition of a ‘good cause’ standard for removal itself unduly trammels on executive authority.” 487 U.S. at 691.

This decision also presents an issue of exceptional importance because it unduly limits Congress’s flexibility to respond to “the various crises of human affairs,” McCulloch v. Maryland, 17 U.S. 316, 415 (1819), by creating independent administrative agencies headed by a single director. And it may affect not only the Bureau but also other agencies headed by a single director removable only for cause (Social Security Administration, 42 U.S.C. 902(a); Federal Housing Finance Agency, 12 U.S.C. 4512(b)(2); Office of Special Counsel, 5 U.S.C. 1211(b)).

The petition is interesting in a number of respects. For instance, no one from the Department of Justice signed it. (This is unsurprising, but if the D.C. Circuit’s decision is upheld, will it change in future litigation?) Likewise, the petition was filed in the D.C. Circuit rather than the Supreme Court. (That also is not surprising, but it is noteworthy.)

For purposes of this post, however, I want to focus on the claim that this “may be the most important separation-of-powers case in a generation.” I agree that this is a very important case. And to be sure, the CFPB hedges a bit — it says “may be” rather than “is.”* But let’s leave “may” aside; is this decision “the most important separation-of-powers case” since the mid-1980s? I suppose there is no objective answer to that question. But I can think of a lot of other cases in the running. Here are ten off the top of my head, in chronological order.

(1) Mistretta v. United States, 488 U.S. 361 (1989): This case upheld the U.S. Sentencing Commission against a nondelegation challenge, explaining that “[i]n light of our approval of these broad delegations [in the past], we harbor no doubt that Congress’ delegation of authority to the Sentencing Commission is sufficiently specific and detailed to meet constitutional requirements.” But note footnote 7: “In recent years, our application of the nondelegation doctrine principally has been limited to the interpretation of statutory texts, and, more particularly, to giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.”

(2) Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995): This case held that Congress cannot reopen a judicial judgment. Usually when we think of separation-of-powers conflicts, we have “Congress v. President” in mind. But sometimes the conflict is “Congress v. Courts” (or “President v. Courts,” or “President & Congress v. Courts”). Here, the Supreme Court sided with the judiciary: “The Framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers, which had been prevalent in the colonies long before the Revolution, and which after the Revolution had produced factional strife and partisan oppression.”

(3) City of Boerne v. Flores, 521 U.S. 507 (1997): This case is both a vertical and horizontal separation of powers case; vertical in the sense that it involves Congress’s power over the States, and horizontal in the sense that it involves the political branches’ relationship with the Supreme Court. Here is Justice Kennedy’s conclusion: “It is for Congress in the first instance to ‘determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,’ and its conclusions are entitled to much deference. Congress’ discretion is not unlimited, however, and the courts retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded its authority under the Constitution. Broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.” (For purposes of this list, I suppose I also could have included cases like United States v. Lopez and Boumediene v. Bush.)

(4) Clinton v. City of New York, 524 U.S. 417 (1998). Imagine how different today’s political dynamics would be if there was a line-item veto. Even the Supreme Court acknowledged the “profound importance” of the decision.

(5) Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001): Here is another nondelegation case, and one the D.C. Circuit surely remembers. The Supreme Court explicitly rejected the D.C. Circuit’s new approach to nondelegation challenges: “The idea that an agency can cure an unconstitutionally standardless delegation of power by declining to exercise some of that power seems to us internally contradictory. The very choice of which portion of the power to exercise — that is to say, the prescription of the standard that Congress had omitted — would itself be an exercise of the forbidden legislative authority. Whether the statute delegates legislative power is a question for the courts, and an agency’s voluntary self-denial has no bearing upon the answer.”

(6) Medellín v. Texas, 552 U.S. 491 (2008): This is a very important case about presidential power. Here is Chief Justice Robert’s conclusion: “Medellín argues that the President’s Memorandum is a valid exercise of his ‘Take Care’ power. The United States, however, does not rely upon the President’s responsibility to ‘take Care that the Laws be faithfully executed.’ U.S. Const., Art. II, § 3. We think this a wise concession. This authority allows the President to execute the laws, not make them. For the reasons we have stated, the Avena judgment is not domestic law; accordingly, the President cannot rely on his Take Care powers here.”

(7) Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010): In the past, I have listed this case as one that well captures Chief Justice Roberts’ views on administrative law; Free Enterprise also has many similarities to PHH Corp. (Free Enterprise confronted double “for cause” removal, i.e., two levels of separation from the president, while PHH Corp. concerns a single director rather than a commission). The Chief Justice explained: “The President cannot ‘take Care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly. That judgment is instead committed to another officer, who may or may not agree with the President’s determination, and whom the President cannot remove simply because that officer disagrees with him. This contravenes the President’s ‘constitutional obligation to ensure the faithful execution of the laws.'”

(8) Stern v. Marshall, 564 U.S. 462 (2011): A federal judge has told me on more than one occasion that this case — addressing bankruptcy courts — may be the most important decision on the separation-of-powers role of the federal judiciary in decades. Again, let me quote the Chief Justice: “Article III protects liberty not only through its role in implementing the separation of powers, but also by specifying the defining characteristics of Article III judges. The colonists had been subjected to judicial abuses at the hand of the Crown, and the Framers knew the main reasons why: because the King of Great Britain ‘made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.’ The Declaration of Independence ¶ 11. The Framers undertook in Article III to protect citizens subject to the judicial power of the new Federal Government from a repeat of those abuses. By appointing judges to serve without term limits, and restricting the ability of the other branches to remove judges or diminish their salaries, the Framers sought to ensure that each judicial decision would be rendered, not with an eye toward currying favor with Congress or the Executive, but rather with the ‘[c]lear heads … and honest hearts’ deemed ‘essential to good judges.’ Article III could neither serve its purpose in the system of checks and balances nor preserve the integrity of judicial decisionmaking if the other branches of the Federal Government could confer the Government’s ‘judicial Power’ on entities outside Article III.”

(9) NLRB v. Noel Canning, 134 S. Ct. 2550 (2014): This case, about the President’s Recess Appointment power, will lay down the law for a very long time. Indeed, in our age of political polarization, it is hard to overstate its importance. (What would today’s Supreme Court look like without Noel Canning?)

(10) Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015): This case (along with its political question doctrine precedessor) addresses the division of the nation’s foreign affairs powers. Per Justice Kennedy: “It was an improper act for Congress to ‘aggrandiz[e] its power at the expense of another branch’ by requiring the President to contradict an earlier recognition determination in an official document issued by the Executive Branch. Freytag v. Commissioner, 501 U.S. 868, 878 (1991). To allow Congress to control the President’s communication in the context of a formal recognition determination is to allow Congress to exercise that exclusive power itself.” (You know, I should put Freytag on this list too.)

This list does not include United States v. Texas. And I’m sure I’ve skipped others. But I think it is safe to say that although PHH Corp. is important, there is a lot of competition for the title of “most important separation-of-powers case in a generation.” So will the D.C. Circuit grant en banc review? It is hard to say — the Court denied en banc review in Amtrak. Speculation is precarious. But it is safe to observe that we live in interesting times, especially in the world of administrative law.

 

* “May” is a funny word.

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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