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Making The Executive Unitary For the First Time

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Supreme Court Associate Justice Antonin Scalia poses with his family in his chambers before court ceremonies on Friday September 26, 1986 in Washington, D.C. Pictured are, front row, from left: Margaret Jane; Justice Scalia, Christopher and Mary. In the back are, from left: Mrs. Scalia, Ann Forrest, Elizabeth, Matthew, Eugene, John and Paul. (AP Photo/Bob Daugherty)

There’s a possibility that Scalia’s solo dissent in Morrison v. Olson might be about to become law:

The CFPB is unusual. It is led by a single director, not by a board. But that director also is protected from a president who wants to fire them. By law, the president may only remove the CFPB Director “for inefficiency, neglect of duty, or malfeasance in office.”

This unusual arrangement enrages many conservatives. Indeed, one particularly conservative federal judge claimed that “consent of the governed is a sham” if the CFPB’s structure is allowed to stand.

To understand why this case inspires such intense feelings, turn back the clock about three decades to the Supreme Court’s 1988 decision in Morrison v. OlsonMorrison involved a federal law, which expired in 1999, that provided for “independent counsels” — a form of special prosecutor that could only be fired by the president for cause. 

The Supreme Court upheld the independent prosecutor statute by a lopsided 7 to 1 vote, with Justice Antonin Scalia providing the sole dissenting vote.

The thrust of Scalia’s opinion: The Constitution provides that “the executive Power shall be vested in a President of the United States.” For Scalia, “this does not mean some of the executive power, but all of the executive power.” And because the power to bring prosecutions is invested in the executive branch of government, there cannot be a prosecutor who is neither answerable to the president or answerable to some lower official who is answerable to the president.

This is the theory of the unitary executive. The executive branch has a single org chart. And the president must be above everyone else in that chart.

Scalia’s dissent is quite broad. It does not simply attack the independent counsel statute. It also mocks the Court’s 1935 opinion in Humphrey’s Executor v. United States, which permitted the creation of independent agencies led by multimember boards. 

If a majority of the Court embraced the full implications of Scalia’s dissent, the president could potentially gain the power to fire FCC Commissioners or destroy the independence of the Federal Reserve.

At the very least, however, the CFPB’s structure — with a single director who can’t be removed by the president — is anathema to proponents of the unitary executive. Like the statute at issue in Morrison, the statute challenged in Seila Law vests the kind of power traditionally held by the Executive Branch in a single person. Indeed, it does even more than that, giving that single individual command over an entire federal agency.

Many powerful conservatives now revere Scalia’s dissenting opinion the same reverence commonly associated with a religious text. One of them is Justice Brett Kavanaugh, who said in 2016 that he wanted to “put the final nail” in the Morrison majority opinion’s coffin.

I think Morrison was correctly decided, and I think formalistic attempts to draw bright lines between the powers of the branches misunderstands the Constitution’s separation of powers in both theory and practice (as Neustadt said, the American system is one of separate branches sharing powers, not separate branches with wholly independent powers), and generally the evolution of these powers is best worked out politically. Having said that, I have a piece coming out in the Prospect about the various bad legal doctrines that the Roberts Court will use to hamstring the federal government going forward, and the unitary executive strikes me as less damaging than, say, exhuming non-delegation doctrine. The attempt to make the CFPB more independent hasn’t really worked, and as Ian says what little independence is has maintained cuts both ways (if Scalia’s Olson dissent becomes good law, President Warren could immediately hire her own director.) Elites tend to take the value of keeping the Federal Reserve independent as self-evidently good, but it’s not; setting interest rates isn’t a purely technical question but involves values tradeoffs, and whether the independent fed makes better judgments is highly questionable: essentially it means that the Fed is more risk-averse about inflation than about unemployment, a tradeoff that is (to put it mildly) not incontestable. It’s true that Trump could use new leverage to juice the economy in an election year, but then had the Fed been under political control in 2016 it’s possible he may never have become president.

So I don’t think Morrison should be overruled, but the prospect of it happening worries me a lot less than a lot of what Roberts Court is going to do.

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