What "Seila Law" Says About Chief Justice Roberts' View of the Administrative State

Abstract

In Sella Law LLC .. Consumer Financial Protection Board, the Supreme Court invalidated a statutory provision that protected the director of the Consumer Finance Protection Board (CFPB) from removal by the president except for "inefficiency, neglect of duty, or malfeasance in office." Writing for the Court, Chief Justice John Roberts announced a new test for evaluating the constitutionality of "for cause" restrictions on presidential removal of high-level agency officials. Under this test, the Court asks whether the removal restriction applies to an official who is the head of a "single-head agency" or to the officials who collectively lead a "multimember expert agency," prohibiting the former and permitting the latter. This test is remarkable both because it changes the law and because of how it changes the law: it lets the structure of the agency determine the degree of presidential control over its principal officers.

But Seila Law is remarkable in another way. To develop the new test, Chief Justice Roberts offered a vision of separation of powers that finally allows us to see fully how he views the administrative state. That vision helps to explain the real problem with the CFPB's structure. It also helps to explain puzzling or shocking decisions that predate Seila Law. We can now understand what Roberts did a decade ago in Free Enterprise Fund v. Public Company Accounting Oversight Board, a removal decision that to this day seems to defy logic and put at risk important agency officials. We can also understand what he did a week before "Seila Law in Department of Homeland Security versus regents of the University of California (the DACA case), an administrative law decision that surprised most everyone and seemed to many like a betrayal of his conservative principles. Despite their differences, all these cases can be explained by the same concern for preventing abuse of power and protecting individual liberty in the administrative state, which Roberts traces to our constitutional structure.