never before in american history has congress given so much executive power to a single individual who does not answer to the president by significantly limiting the president's ability to remove the c f p b s director congress violated the core presidential prerogatives to exercise the executive power and to take care that the laws be faithfully executed this court has recognized and reaffirmed the principle that the constitution empowers the president to keep principle officers accountable by removing them at will while the court created a narrow exception in humphrey's executor in the context of a multi member commission it has since distanced itself from the reasoning of that decision and there's no valid basis for extending it to the c f p be the court should also reject amicus as proposed test seemingly based on morrison versus olson which would extend morrison to principal officers and permits significant limitations on the president's ability to remove even his closest advisors now as to the question of remedy the solicitor general contends that the court should rewrite the dodd frank act to give the president the power to remove the director but the constitutional question in this case arises in the context of a defense to an enforcement proceeding and not official challenge the court can provide complete relief by invalidating the civil investigative demand and reversing the judgment below in any event the text and context of the dodd frank act ma clear that congress wanted to create an agency that was independent to the fullest extent possible and not to vast vast power in an agency that was subject to presidential control without any congressional control over its fun mcgann this case as it kind of an academic quality to it the demand in question was ratified by acting head who was subject to the president's removal power without qualification i don't see how  composition of the bureau affects the climate since your client was the adverse action is now attributable to someone who the president could remove at will and i don't see how differently would be affected if the same thing occurred with the president having the power ratification we don't believe that there is a live issue on ratification not least because when the government raised this issue below it presented no evidence no factual evidence that the acting director in fact ratified the civil investigative demand but where we agree with the government is that at most that would be an issue that would be live on remand and the issue of ratification was raised at the search rory stage and both we and the government agree that that is not a live issue before the court where we disagree is that the government is trying to resuscitate that as a potential argument that it could make henri mad but in terms of this court's traditional jurists diction all doctrines there is a wife dispute and therefore there is no mootne here and we plainly have standing including standing to appeal because our injury is the fact that my client is subject today to a civil investigative demand that even today the government is seeking still to enforce removable director sought to enforce a civil investigative demand against us then sure we would no longer have the argument that we are making now but this court time and again has said that where an action has been taken by an unaccountable executive official that creates a here and now injury and an injury that a private individual can vent a case where the separation of powers has been violated a private individual no less than an aggrieved removed official has the ability to raise that issue my problem is more someone like justice ginsburg's but you started by saying an unprecedented agency well there is at least two others the office of special counsel and the social security administration which have single head it's subject to some limitations on removal can see the social security administration being as powerful if not more powerful than this agency who social security administration affects virtually every american this agency is limited to the financial market and with respect to the amount of money that it distributes or can see restitution on it's comparable to the social security administration so i don't think this is so unprecedented as you claim i would differ with you just a sort of i r only and that i do think that the level of executive power wielded by the c f p b is unprecedented precisely because it takes and horsemen action the social security administration unquestionably affects millions of americans but one thing it doesn't do is to take enforcement action there it poses no threat to individual liberty and as you are aware the social security administration was turned into a single director agency with only four cars removal relatively recent indeed independent agencies with more cars removal restrictions more generally are of comparatively recent vintage and these sorts of single director agencies are even more re that your client is not the president seems to me that the person who should be complaining is the president not your client shouldn't we address the separate realty question and leave for another day the issue that would cause harm shouldn't we address separate billett he st if we find this separable then it's academic whether the person president has power and should we do what we've done for over two hundred years of this country and wait until there's an actual dispute between the president and a director that he or she that he or she wants to fire court in the modern era has not required there to be a contested removal there was no such contested removal in morrison or a ballot for free enterprise fund and that is because as this court stated in bond the separation of powers creates an injury that a private party can vindicate because and so my plea my point is isn't it moot it's here if we find the severed no and i want to address that directly because that is a suggestion that is made in the amicus brief filed by professor harrison and the fundamental problem with the suggestion that the court can somehow resolve the question by addressing severability st is that in that would in no way validate the civil investigative demand in this case even if there is severability there is still a civil investigative demand that was issued by a director who at the time was unaccountable and this court's cases belsher lucia and others make clear that when you have an action taken by an unaccountable official or an official who is you know either improperly import appointed or is subject to an improper removal restriction that action is void full stop and that is why we submit that on the question of remedy the appropriate remedy here is simply to invalidate the civil investigative demand and to stop that is the more modest remedy here than proceeding to the question of severability speaking about  this is a very modest restraint and inefficiency now and it stops the president from whim removing someone replacing someone with someone who is loyal to the president rather than to the consumers that the bureau set up to serve  you talked about liberty you know who's liberty we're speaking of what about the consumers who try was passed this law so that the consumers would be better protected against financial or and you're talking about i suppose the liberty of your client but what about the people that come with was concerned about that is consumers who were not well protected by the way they see the hand so two points in response to that justice ginsburg the st is that the four cause removal restriction here the inefficiency neglect of duty and malfeasance standard has never been understood to be a modest standard and certainly cannot be read to permit what we think the constitution requires namely that the president be able to remove  a subordinate not just because of policy disagreements but because the president has lost faith in the officials judgment or because the president wants someone of his or her own choosing but i think nd to the extent that we're talking about congress's goal here there is of bundling evidence that what congress was trying to do was to create an agency that precisely because of its desire to protect consumers was insulated from political control to the fullest extent possible as elizabeth warren who was really the prevented her of the c f p be said at the time if congress did not create an agency with functional independence quote my nd choice is no agency at all and plenty of blood and teeth left on the floor and so if this court is considering what the hypothetical congress what congress would have hypothetically wanted at the time of the dodd frank act i don't think that what congress would have wanted was the creation of an agency that was fully subject to the president's control and i i think justice ginsburg's point included what the standard would be like the inefficiency melfi eason's would have been i don't think we've done this in prior cases but wouldn't the normal principles of constitutional avoidance suggest that we might want to scrutinize a little bit how rigorous a limitation that is before we get to the point of striking down the statute i mean to just take in efficiency i mean the president might determine that a particular approach of the agency to consumer protection was not as efficient as another approach and i don't know why you couldn't say that that's ground of the fish and see that it would act upon and theoretically i don't know that the courts would be terribly suited to nd guess the church mr chief justice i don't think that that term has ever been understood that probably and of course this court has a long history of dealing with the end efficiency neglect and malfeasance standard dating back to humphreys executor and i would refer the court to judge wilkinson concurring opinion in the d c circuit in  think walks through each of the terms and explains why what those terms really require is something closer to outright incompetence and not surprisingly presidents have only very rarely invoked their authority at all to move officers under that standard but  if this court were to somehow convert that standard into what we think it constitutionally would need to be which is effectively an at will standard then sure that would have essentially the same of fact as overruling humphrey's executor because it would permit presidents where they disagree with the policy priorities of these officials to remove them on severa on severability what do you do with the text of the suburb build a clause you mentioned we would be rewriting the dodd frank act but when we be rewriting it by ignoring the text of the severability clause i don't think so justice calvin on mindful of your opinion when you were on the d c circuit on this issue i would say two things the st is that i think that the text of the boilerplate severability cause in the dodd frank act can be read to say an essence only that if you strike an invalid constitutional provision the entirety of the remainder of the actual not fall in part of the reason why you may want to give the boilerplate provision that interpretation is because of the more specific severability provision in title five which i think by the government's own concession would be rendered superfluous if you don't adopt our proposed meaning but if you disagree with me on that i do have a nd point which is that this court has consistently made clear severability causes create only a presumption after all they are as this court has indicated and aid in determining the intent of a hypothetical congress and here i would respectfully submit that the presumption is a weak one because on the one hand you have a boilerplate severability clause which covers the entirety of the dodd frank act and on the other hand you have very specific and disha in title ten itself with a very clear it said that back in an era when we didn't pay as much attention to the text of the quite like ordinary statutory interpretation and here i am not just relying on statements in the legislative history i'm relying on the text of title ten itself and in the very provision creating the c congress describes it as an independent bureau there or the other provisions of the c f b be with which very unusually insulate the c f p be from the appropriations process and so to the extent that this is an inquiry into congressional intent this court should have serious pause about going so far as to render this agency subject to complete presidential control when we know that that's not what the sponsors wanted your argument rest mostly on this distinction between multi member and single member agencies and i think most people who have been in these agencies or have studied these agencies have observed these agencies might say that distinction is that it's  it's it's kind of simplistic that it all depends that there are so many contingencies involved as to which kind of agency a president might have more effective influence over than one simply can't make a general statement of that kind you know there are voting rules there are rules about whether there's a weak chair or a strong chair there are rules about holdover commissioners there are a one thousand things that go into whether a president has influence over any particular agency of which the question is that one or multiple members is not so important if you please spend a couple of sentences gray thank you i'm happy to turn to the merits for a minute on humphrey's executor which is really the primary case on which because realize i think we're all here trying to make sense of humphrey's executor knowing that in morrison this court essentially  reasoning of that case and i think that it is at least in humphrey's executor that the court was focused on the fact that the f t c was a multi member commission and as we explain ex ante recognizing that there are v ons in how multi member commissions are structured we believe that multi member commissions pose a much lower threat to individual liberty and give presidents a somewhat greater degree of control and so our fundamental submission on the constitutional merits here the court can plausibly limit humphrey's executor to that context if the court does not accept that distinction then i think it is squarely presented with the question of whether to overrule humphrey's executor we don't believe that the court it's reached that question thank you counsel general francisco mr chief justice and may it please the court as a general rule the president has the unrestricted authority to remove principal officers humphrey's executor recognize an exception for multi member commissions but that shouldn't be extended to single headed agencies for two reasons st there would be no coherent limiting principle the only difference between the f t c and most cabinet agencies is the multi member structure if that's irrelevant then congress could presumably impose for cause removal restrictions on almost the entire cabinet from treasury to the e p a nd to that in turn would sever executive power from political accountability the president stands for election the director of the c f p b does not so if the director is insulated from presidential oversight then her exercises of executive power are insulated from democratic decision adopted by congress your honor i don't have the precise number but the general rule is that we defend the acts of congress unless it infringes upon the president's own executive power and here we believe that we have a statute that infringes upon the president's own executive power has that been the position of the department of justice or is th position i believe that that is the longstanding position of the department of justice that the general presumption that we will defend acts of congress has an exception built in when the act of congress infringes upon the president's own executive that question i believe although i'd want to double check on this that in balance sure the executive branch did not defend the removal restriction that was that issue i believe in free enterprise fund they did defend the removal restriction at issue i cannot recall what their position was in humphrey's executor in miers i don't believe they defended the removal restriction that congress had enacted jan was that true that the department of justice has refused to defend the constitutionality of other federal statutes even when the president's removal power is not at issue but yes you're right absolutely sense of marriage act all i'm simply saying is that our general rule is that there is a presumption that we will defend acts of congress when arguments can reasonably made in their in their defense and there's obviously room to in the joints there but there is an exception to even that presumption when the president's own powers are seeking mr chief justice as to the scope of the for cause removal restriction we think that the one thing that it cannot be interpreted to allow is the president to remove a principle officer simply because he has lost faith in their judgment or simply because even though the current principle officer perfectly good he thinks he can do better and we think that's critical because the president cannot personally exercise all executive power so the way that he does it if he puts in place people who have his implicit trust and then he is fully accountable for their decisions precisely because he can remove them for any reason and the problem with these four cause removal restrictions is that they vest executive power in an individual who is not evil but i've always thought and i don't of what i've always thought and these cases are hard to put in boxes but look the reason taft could could remove the postmaster is because at that time the postmaster was a political ploy and the president is a politician and therefore there is no good reason to stop him from controlling political plumbs the reason they couldn't humphrey's executor is because this is meant to be an independent board and frankfurter explains it well in miers he says if you have an agency that has something of an adjudicated function you need to keep them insulated now once we depart from that kind of thing trying to figure out what works a workable government says the constitution certainly by implication it's impossible what about the failed what about the f the only thing you can say about those is there are very strong reasons for giving them some independence in terms of the workability of their function so that notion case by case look at it i haven't been able to find another another standard you obviously think there's another standard while i'd offer you two responses to that your honor st of all i think you can leave humphreys executor exactly where it is applying to multi member commissions and you don't call into question any of the current multi member commissions but the nd to more critical point is once you make that leap away from multi member commissions there's no real clear limiting principle since there's no good reason why should it make a difference the theme the president is him didn't even more if for every one of those people he can't remove them at whim and i don't understand why it doesn't go the other way so there's one head but with the multi member that each time every one of them the president can't do what he was right in for for two reasons your honor the st is the point that i was just making to justice prior once you make that leap to single headed agencies then congress could impose a four cause removal restriction just like the one in humphrey's executor and most of the cabinet and that would be a wholesale revolution in separation of powers independent of both government and your honor that goes to my nd point this court has made clear that separation of powers principles requires high walls and clear distinctions precisely because distinctions are there actually are going now i don't know that you can say anything additionally but it's a very basic question you have a document and the document house to work and different judges in this court have taken somewhat different approaches but the approach of of workability in terms of what congress wanted in the other provisions does not lead you to a clear standard you are offering a clear standard but my problem is why that one i mean how long will that last and it's i don't know if there's anything you can add but you see you see where i would like to add something you're not because i do think that we're offering a very clear standard and at the same time i would like to finish responding to justice ginsburg point because the cabinet is nowhere defined the cabinet is simply a matter of tradition the reason why particular agencies are in the cabinet is typically because the removeable at will but once you say that you can impose at   or cause removal restrictions on agencies that are functionally no different than the f t c other van in their multi member structure you really no longer have defined a limit on when congress can impose a similar restriction and if you go down that you're on or you can effectively saddle every new president with his predecessors cabinet much like this administration and we're not out of it with this predecessors head of the c a p b i'm not sure general that you responded to the part of justice ginsburg's question which again focused on this principle argument that you're making which is the multi member versus the single member and i think she was saying that even if you could make a generalization which i think that there are problems with but even if you can make a generalization it cuts the other way than a multi member commission just because it defuses power is much much more difficult to influence you know if a president can get one person on the phone that's a lot easier than if he has to worry about seven people who are all doing their own thing and and so in just the basic understandings of one person easy to influence more accountable even if you can't influence him you can point at him why isn't a single member agency better so my st answer to that is even if i assumed for the sake of argument that what you were saying was right i don't agree with it i don't think it would matter because the rationale humphrey's executor is that the for cause removal restriction was allowed because the agency was quasi legislative required by judicial and by that i think what the court meant was that it was a mall time member body that acted through deliberation and consensus and that rationale simply doesn't apply to single headed agencies even if you thought it was the same diminution of power if i could give you an example to help illustrate the point based on marson against olson i doubt very much doubt this court would uphold an independent coun statute that was trained in on the investigation of private individuals even if it were a very small number of private individuals and even if this court thought it resulted in less of a diminution of executive power than the independent counsel statute issue and morrison precisely because the rationale for morse and wouldn't apply there wouldn't be the need to prevent the perceived conflict of interest when the executive branch regular investigates itself so even if you thought it w diminution of executive power because the rationale of humphrey's executor doesn't apply it wouldn't justify the extension of humphrey's but now i'd like to address also why i disagree with your fundamental point the st is the limiting princip point i'm not going to go further into that because i've already said it the nd is multi member commissions actually in my view represent less of a threat to liberty precisely because they are multimember bodies that act through  liberation and consensus and that restrains the exercise of their power for a single headed agency often the only restraint on the exercise of power is a political or democratic accountability restraint and once you remove that you've now vested enormous executive power in somebody who is not subject to the procedural constraints that multi member commissions have and are not subject to the political constraints that everyone else and what strikes me about a lot of these arguments in the brief and here and you're saying this is the better way to promote liberty to protect liberty i mean traditionally there's been a long history of saying that it's actually the political branches decision as to which is the best way to promote liberty that there is a key institution that does not say anything about removal it does not say anything about for cause or at will or anything else indeed it doesn't say anything very much about the structure organization of the government in general it essentially allows it to congress with the president the president has to sign these laws to decide which institutions of governance and which modes of governance are best to promote liberty and to serve the public interest and i don't know how to make these decisions they're contested there contestable as to what independence and what form of accountability and what form of presidential control is appropriate why don't we just leave it to the political branches who actually know about these things for a couple of reasons your honor in the st thing i'd say is i do think the constitution specifically addresses this question though not in so many words and what i'd point you to is exactly what this court said in the free enterprise one case the view that prevailed talking about the decision of seven hundred and eighty nine dollars as most consonant to the text of the constitution was that the executive power included a power to oversee executive officers through removal now as to your liberty point the reason why i don't think that the courts leave this just to the executive branches is because the purpose of separation of powers is not to protect the president from congress or to protect congress from the president but to protect the liberty of the people by him forcing the structural constraints of our constitution and the key structural constraint issue here is the one set forth an article two that the executive power shall be vested in a president and that take care that the laws be faithfully executed the only way he can do that is if he's fully accountable for the decisions of his principal officers and the problem with these four cause removal restrictions is that they vest executive power in individuals who are not alternately accountable to the people through their elected president is your argument stronger or weaker when you look at the budgetary constraints i mean does the independence of the agency from the budgetary process  further weaken the democratic accountability through the president or does it give him at least some say in the agency's functioning while you're on a respectively i think that that gives the president less control but that's not the focus of our argument alternately it's the president's duty to oversee the executive branch through the removal power not congress's duty to oversee the executive branch through the appropriations power so i think it marginally that additional insulation marginally helps us but i wouldn't rely how much on that how much does it matter that the tenure of the single director continues into the next president's trip because i think that's when the problem really reveals itself that the next president is going to have to deal for his or her whole term potentially with a c f p p director appointed by this president and will not be able to supervise or direct that person even if that president has a wildly different conception of consumer financial protection i think that helps illustrate the fundamental nature of the problem in that and it doesn't just have to do with timing if you've got a president and the senate of the same political party they i think that illustrates the nature of the problem your honor even if you didn't have that i still think this for cause removal restriction but i mean just leon as usual raises a really interesting point here because the court has been so focused on other cases on removal but removal is really not the thing that if you wanted to pick one thing you would pick appointments as as as reflective of whether a president will have control or not control over a particular person so you know its appointments its length of term there are so many things that go into the question of presidential control removal has historically been very difficult for presidents to exercise as a way of controlling people because the people you want to remove the most there are all kinds of political constraints about why you shouldn't remove them so removal is like a nuclear bomb there are all kinds of things that actually figure in how much control a president has over an individual that have nothing to do with removal why is it that we've picked this one thing as the sin acquire known of article two because respectfully yawner i would very much disagree with the entire premise of your point and i point you to the court's decision in boucher where the court wrote that once an officer is appointed it is only if the authority it can remove him and not the authority that appointed him that he must fear and in the performance of his duties obey and is this court made clear in the free enterprise fund case the removal power is the principal power that the president uses not only to supervise the executive branch but to ultimately be held accountable to the people which is after all the whole point i would like to address the severability issue which is very important to the government of the court doesn't address the severability clause as my friend has suggested and then there really is a cloud hanging over everything that the c f p does if as we contend the removal restriction is unconstitutional and if it is several from the remainder of the statute then everything that c f p be does invalid and they don't even have the authority to ratify the c idea here so we think it's critical that the court address that question and i would also respectfully submit that it is a d very easy question in this case in view of the clear and unambiguous severability clause there is no need to engage in this navel gazing what would congress have done had it considered the specific one in a general one on the specific one he points to a provision that simply refers to the c f p be as an independent bureau all that really means is that while it's housed under the umbrella of the federal reserve it is independent of the federal it is a separate independent agency just like you know the department of education is a separate and independent agency but in any event there is nothing that they point to that can overcome the clear and unambiguous  says if any vision is found unconstitutional then the remainder the statute shall remain intact while i take your point about the severability clause but if what you say is true then what would be the justification for this court's statements in other cases that a severability clause like this is not necessarily dispositive well your honor st of all i point to what justice kavanagh was alluding to that those cases are often from an earlier era but i will put that wholly to the side because at the very least it is a strong presumption and it's a presumption can that can be overcome only if there is an internal statutory conflict if for example severing a provision would render the statutory scheme incoherent here one of congress's principle purposes was to take the consumer protection function that was spread out across multiple agencies and concentrate it into a single agency because it thought that would lead to better and more effective enforcement may have one more sentence one more and by severing the for cause removal restriction you leave fully intact that concentrated in force and mechanism thank you general clement mr chief justice and may it please the court text st principles and precedent all support the validity of the removal provision at issue here none the less the parties are in violent agreement that the provision is unconstitutional moreover they are eager indeed hungary to borrow a phrase from justice scalia as windsor opinion to have this court decide the constitutional issue on which they agree but if they agree it's reasonable to ask why doesn't the government give petitioner what it wants and drop the c i d ah but there's the rub the president and the executive branch acting through the president does not want to see id dropped which is why the acting director when he was removable will ratified the investigatory demand here and told the th circuit that that  independent non constitutional basis to resolve the entire case the solicitor general of page twenty two of his reply brief continues to argue that the ratification precludes any relief for the petition that this court should decide the constitutional question because the parties somehow agreed at the search stage that ratification would be saved for the th circuit thus this is a case unlike windsor for example where the lack of between the parties is fundamentally distorting this court's ability to do its job and its general preference to decide cases on non constitutional grounds where rather than were wading into difficult constitutional questions there is a phrase that aptly describes what the solicitor general once from this court and it's an advisory opinion and this court lacks jurisdiction to issue it but if this court were to reach the merits it should affirm the decision below in the constitutionality of removal provision that uses the same familiar phrase that this court has approved on other occasions and leaves the removal power with the president which avoids the principal defect in this court's cases my friends want to describe this court's precedents as providing a general rule of illimitable presidential removal power subject only to a narrow exception for multi member commissions with all due respect that is wishful thinking the general rule that describes all of this court's cases is that the congress cannot assign the president's removal with the word elsewhere as to whether or not congress i understand your point about ratification i think if if the other side were to have an opportunity to respond it might say something like this that we don't normally decide questions in the st instance that haven't yet been  i'd say if the choices are dig the case or st argue or decide well it's not strictly a dig argument where i would think about it is this court in windsor over a strong dissent by these three justices said that it could decide that case jurisdictionally even though there was a lack of it versus between the parties but even the majority was concerned with that lack of it versus between the parties and it suggested there was a prevention test and you look for whether there was a preventable reason to decide the case or not to decide the case here i think there is with respect the mother of all prudential to reasons not to decide this case which i think the answer the question is yes right you did the case the majority and it's not a dig it's a jurisdictional opinion and it says st this is vitally important to article three and it's vitally important especially when the lack of adverse in this could cause this court to unnecessarily decide a constitutional question boy that sounds a lot like a dick but ok fine let on the merits what do we do with the fact that i'm sure you've given this great thought that if we were to approve single  member agencies without any presidential removal power let's just suppose that we would run into questions about the cabinet for example which are just agencies right so how would you have the court right opinion to distinguish this case from so i want to be response but i want to point out that i don't think rate the but just to point out that starters you don't avoid drawing a line by adopting because i understand that ok because i don't know if you can is from my question or so i would draw it the same place i think she would draw it so i don't think he said i would say that you can eliminate the state department by creating a multimeter commission on foreign affair ok but something else that looks a lot like that would that be a problem with the constitution absolutely ok then then how do we distinguish this case from that one so i think there's i offer you two limiting principles which i think i two more than the solicitor general's offered you but here's the st the st is going disparaging our colleagues and just answer my question i would be grateful st there is a structural limitation so they can't put somebody essentially in the cabinet or in the white house staff and then have that person subject to you for cause removal nd there's a constitutional backstop an absolute constitutional back which is those authorities that the constitution assigns directly to the president so the state department the defense department pardon power there's a few others those can not be subject under any circumstances to anything other than at will removal how about i wouldn't need to disparage my colleague i was just saying the same limiting principle ultimately has to be in place for multi member commissions how about the e p a or our homeland security so i think e p a is something that they probably could make subject to for cause removal i think homeland security in its current form they couldn't because some of the powers that were given to the homeland security secretary by congress were powers that were borrowed from the defense department and i think if any of the authorities that are being exercised by a cabinet secretary  authorities that the constitution assigns directly to the president you probably can't make that subject was what is your definition of a cabinet secretary i would take the definition for these purposes directly from five u s c one hundred and one that's where congress defines the fifteen executive departments they are the fifteen executive departments that are in the line of succession i that's why that would be my place and i suppose change from time to time right relatively rarely in the last time we had one and it was the department of homeland  security and my point is a structural one that works with a constitutional backstop the point is congress can't sort of try to have it both ways and say we don't really want this person to be independent we just want to sort of hamstring the president but ultimately there is a constitutional back p and i think it's the same backstop that you would have to eventually put in place for multi member commissions and that's when you began by saying that was a narrow exception that the solicitor general dops why is that i mean most of these agencies are multimember commissions and they seem most of the more significant ones are multi member commission agencies or commissions i would have thought that's a fairly significant exception well  general described it as a narrow exception it's however broad it is i don't think though it's a coherent place to draw the line and that's because if you think of what the agencies are doing as exercising executive power and i don't think there's any other way to think about them and this is how cheap justice rehnquist's thought about them and more thing if they are exercising executive power then this court has held for nearly a century that you can have principle officers exercising executive power subject to inefficiency neglect of duty and malfeasance removal provisions so there isn't some absolute sort of prohibition on that then the question is there something sacrosanct about a multi member commission and the answer i would think for purposes of this argument is absolutely not and actually that the constitutional problem is that somebody is exercising the executive power with a for cause removal restriction i think it's fund decision said there is no canning said in a different context recess appointments justice briar's opinion that historical practice at some point becomes an important aspect of how we define or draw the line so what do we do with that historical practice here well i think what you do is you take the historical practice is a given so you don't overrule humphrey's executor despite the invitation to do so but then you think ok now we confront something that's different not completely unprecedented we've had four of them it's been about thirty years but you confront something new and then you say is this different in kind and here's the different in kind just how this will play out if you were to win it's really the next president who's going to face the issue because the head of this agency will go it leaves three or four years into the next president's term and the next president might have a completely different conception of consumer financial regulatory issues yet will be able to do nothing about it and this director and that's different from the f c c and the f t c in the n l r b and you name the rest because the chair is designated by the new president when the president comes in that happens with all of the or almost all of the multi member agencies so how do we deal with that real world consequences seems different and troubl so two points just as kavanagh st i don't know that's different with respect to many of the important agencies and i point for example to the fed i don't think the president has the ability to just change who's the chair of the fed as soon as they walk into office and they may not even be able to make an appointment to the fed for a couple of years and so i think it's just as cabin kagan and alluded to there is a number of different forms of multi member agency but nd i think that gets to the question that the chief justice asked earlier in the argument which is it depends a little bit about what inefficient what inefficiency neglect of duty and malfeasance mean i mean if that's something that basically means that you have to have a very high standard before you can remove somebody then maybe there is more of a constraint in that situation if it means something slightly less there maybe less of a constraint and you're not drawing on a blank slate in that regard my friends on the other side act as if this is starting to rot but if we if we watered down the standard as you're suggesting of what it takes to remove an independent agency had that would apply across the board and actually would be a broad whole holding that would make the necessarily follows that those same terms would be watered down in the context of what you but what about the us to go what about the budgetary consequences i mean you your friend on the other side refers to this individual the head is sort of like in you know the defect of president over the significant swath of the economy but with the budgetary things it's actually more powerful than that i mean they don't even have to go to congress to get to get their money isn't that something that we should factor in to the substantive question on his remove ability well mr chief justice i think that actually cuts in our favor because that means that the officer is less responsive to congress and therefore however responsive they would otherwise be to the president they don't have to dilute that by trying to worry about what they're going to say to the appropriators when they go up and talk to the appropriators and i think that the solicitor general referred to the boucher opinion i think the basher opinion is helpful for us for two reasons st it interprets inefficiency neglect of duty and malfeasance in a way that i think if applied to the statute would make it constitutional but nd it also points out that the critical principle is that an officer is drawn kind of in a magnetic way to the individual that has the ability to remove them and here unlike pausch or unlike miers and even unlike free enterprise the person that gets to remove the director is the president so the director has to be to some degree even when there's a change of administration responsive to the president and you're on your definition of how we should  apply the standard or watered down as what i've said would be enough for the president to say i don't feel that your mind in my mind go along together on the policies or admit that ministry of the agency i don't know that that would be enough your honor but i do think if the president said look i think it's an important priority for consumer finance protection that we deal with let's just say payday lenders or some problem that's out there and the director said absolutely not i think you could but you upheld the constitutionality of the statute yes but what's the difference if we water it down to something approaching at will what's the difference between that and overruling humphrey and being honest about what we're doing mr clement well two things  and every other context i'm aware of if you have one path that says we interpret the concept this statute to avoid the constitutional problem where we could strike it down you favor the non conscious what you're doing is equating the two if it winds up being at will then that is humphrey with all due respect i think that there is still a difference whatever the standard is maybe it maybe it allows something like sort of a broad standing policy disagreement but not disagreeing with individual agreement versus a policy disagreement in a particular case i'm sorry i'm not sure what the difference would be well one is i want you to go after payday lending the other is i don't like what you did in that particular judy cation i do think there's worse than that's worse than  to happen is that there will be litigation over winter and not the standard has been matter not met i mean we begin with the idea of a serious conflict between the president and the agency director and if then we're saying well the standard is more flexible  sounds to me like that's a dispute that's going to be presented to the courts which would be the worst of all possible worlds no i think would be the worst possible possible world because it be a concrete live dispute and of course as you suggested you could provide a degree of deference but i do think it's important i would still be a big difference between a restriction that applied however you interpret it in at will and let me ask you know in concrete terms so let's say that the the director is appointed by a prior president and the new president says i want to remove you because i think you are too pro consumer and you're hurting the economy or you are not sufficiently protecting consumer interests would that be permissible i don't know for sure because i don't have a concrete controversy here and that's maybe just yet another reason to not decide this case in its current artificial posture but i guess if you told all that's exactly that's all we know that's all we know about it there's just a policy disagreement about the way interests are balanced would that be sufficient to to remove that person if the only alternative is to strike the statute down i would say that sufficient now i will confess i don't think that's what congress had in mind when it put those words in this particular statute and i think as written it still perfectly constitutional i'm just saying in every other context the rule this court applies is we interpret the statute to make it more constitutional not less constitutional just so we can strike it down mr coleman can you say or explain what your counter is to the book stops here argument there seems to be an overriding assumption that somehow the president needs unfettered discretion to execute the laws why is the answer that argument so i don't think that that's true as a constitutional matter with respect to every power the president exercises i think congress has the power to say there are certain things where we want the president to have a role but we also want it somewhat insulated from politics so take the fed for example we don't want the president to juice up interest rates right before a presidential election so we're going to give that to somebody who is insulated how insulated it depends on what's constitutionally permissible but not every statutory responsibility needs to be conducted by the president himself in the current situation you see people are trying to make it political football out of dealing with a pandemic disease so maybe congress decides you know it makes sense let's have the head of c d c be protected by for cause for mood because that will make sure people get good advice and it doesn't become political that is the kind of sensible decision that congress has been making for over one hundred years now it gave that responsibility that important responsibility to the fed protected by for cause removal one hundred years ago now it happened to be a multi member board of governors but i don't think anything turned on that is the house makes clear in their amicus brief at no point did congress ever put multi member restrictions in there or work or bipartisan requirements in there to give the president greater control although the reality is diverse as a general matter if you add multi member requirements and partisan balance requirements to for cause removal requirements you make the officers more insulated not less insulated or in boxtops the buck stops here quote was quoted in a recent decision in free enterprise  think that that should that recent precedent should be binding binding effect on how the court addresses this case may i answer no ye chief justice we think free enterprise fund helps us in two ways one it made crystal clear that the defect there is that the removal power was taken away from the president and what you found to be sufficient to give the president control there was the ability to remove the f c c commissioners for cause the nd thing you said later in the opinion is that the f c c itself the whole multi member commission could actually function as a head of the department so that's an appointments clause context it's a way of saying the difference between a single member and a multimeter doesn't make it constitutional difference thank you counsel  a time when the acting director was in charge an at will removable by the president told the th circuit that the acting director had ratified the decision to issue the c idea in that context i would take that as in any other context is all the evidence you need thank you counsel this your letter mr chief justice and may police accord let me begin by saying the speaker of the house thanks the court for its courtesy in agreeing to let the house be heard here today i'd like to start out if i could b responding to just discourse such as question to my friend mr comment about or do we want the court to dig the case no we think that the court should affirm on alternative grounds because have pointed out there are two reasons why this court's venerable doctrine with which the house completely agrees about of void and of constitutional issues one is the ratification point that we've been  discussing and two is the severability point which this court in cases like matthews and chaka has indicated you can look at st initially and severability point we think is absolutely clear because of the several believe severability clause but in addition there's and there's another point that i wanted to make that hasn't yet been said if this is if there is no severability here i want to make sure that that you all understand this is not a simple situation of well we'll just have these functions go back to the other agencies that where they came from they came from seven different ages the office of thrift supervision no longer exists the other agencies don't have either slots or appropriations to enforce what the the c of  does so if you say this is non severable we strike down the whole statute in this instance that would be a very very major action to mr letter are you quite concerned about the agency taking away your client's authority over the budget with respect to this very significant part of the economy we are not your honor because this is something that congress has done with several agencies in the financial regulatory sectors for example the fed in particular the national credit union ministration so this is a function that i'm sorry the c this is a this is something that congress has done and the president so the political branches have done in in different in different agencies within this financial regulatory sector  as far as one of the things i'd like to pick up on also is just this kagan's point or question about is it really so so simple about agencies with multi members or individual situation here is if the president were to try to buy removals influence the kinds of functions that the c f p did does it have to make r possibly from several different agencies any number of individuals and then the point that was made up about well there haven't been many removals it's a big deal it is a big deal and that's why there have been almost no removals in fact what we know from history is presidents have all sorts of ways that they influence agencies and they influence agency commissioners or heads just as for example sometimes you might have a situation where a president convinces a supreme court justice to leave that post what do you have you want to add anything on what i think is quite basic and people disagree on the one hand you have people speak good walls make good neighbors let's look for a law in the multipolar versus single or some of the law and the other is  approach there is something about me that doesn't like a wall and before i want to have a wall want to know what i'm walling in and rolling out and that's looks to function what did congress have in mind how does it wall in the president what is it exactly the agency is doing the difficulty of that of course is there is no strict line and the courts have to approach it without knowing too much about it case by case do you have anything you want to say on what i'd call that basic difference of approach in these cases yes your honor and you're absolutely right this is a basic difference here the the point is that we we do not agree i do not agree the house with mr clements argument that we should water down the standard but we definitely agree the house believes and notice the house has not tried to have cabinet members  be anything other than at will and i think my friend mr kamen hit on a very key provision one is the succession of the cabinet members who are in the succession not all cabinet members are succession to the president but to the basic independent powers that the president has because of the constitution so it's not just the defense department has as much so i'm sure which you draw the line mr letter than  impediments to presidential removal powers of of members of the cabinet and other exactly what we think of traditionally as executive agencies and you are i'm going to start with the nd one i don't know the answer of how far congress could could you've decided all of those cases and you've said that removal protections are constitutional without answering that question i searched in vain in none of those decisions have you know fair enough but you're at the podium so take a shot at it they are going to pick up on a word that that i believe this court has used which is they should be modest i think the test is your honor what again this court has said i believe it's in morrison but you said it in various situations is it does it so interfere with the executives ability to carry out his constitutional responsibilities i think that's the mr coon went into forces a lot of times this is going to depend on context so for example and again this court hasn't defined what it means so i don't have a great answer yet from you will you tell us what you client wrote it so i'm i'm just wondering what your client's view is and you say you disagreed with mr clement on this and now you say you agree so i'm really quite confused i disagree with mr comment about watering it down we don't think that it should be made basically  agree with mr coleman it does depend on the circumstances for example if a president says i'm i'm firing you because you are investigating one of my big political donors and i don't like that so your gone i don't think that anybody would feel that that fits within the i and standards so what if the president just says we don't agree on policy would that be permitted i don't believe i think in free enterprise i believe you said no so so i think you've already answered that so if so we we don't always think about the future implications of these things but that's one of the things term without being able to give in your answers justice alito being able to do anything about that difference in policy you comfortable with our results as i give you any concern should we be concerned about that it does give me concerns but and i'm i'm very glad you brought that up because you've asked set and it's a very key question your honor what i would say though is let's compare it to for example afghanistan sure if you compare it to for instance the fed that his seven members who fourteen year terms a president who serves a four year term is therefore very likely have almost no influence over the fed they won't i've not i'm not a good mathematician but i don't think that means that they get to come anywhere close to appointing a majority of the fed members so this is a problem that you have already decided to to recognize mr letter i think just discourse which is st question is still on the table as i said to what we think it means will be fact dependent it will depend as i say if it is sim it's it can't just be paul we have a policy difference you've already you've told me that you've already told me that it can't simply be i don't like you we know that but for example if it's a situation where the the president says you are doing something that undermines national security one of my core functions or undermines foreign relations and i want and i direct you to stop and agency that says no i believe that that would be your honor defend the judgment the law now seems primarily to be arguing that this court made a mistake in granting because of the existence of the ratification question as a ploy mary a matter that was flagged by both sides of the search stage and this court nevertheless granted review and i would respect submit for good reason ratification goes at most to the remedy for the constitutional violation here and that issue is obviously not brief before this court it was raised by the government in the th circuit but notably unlike in the other cases involving funding if the court has questions about that and ratification wouldn't solve the constitutional problem because even if the c idea itself had been ratified the continued prosecution of this enforcement action would still present exactly the same constitutional concern now on the merits amicus disparages the notion that the rule of power is a limit of all ironically the court used exactly that adjective and humphries executor at least for agencies are performing executive functions no one defends the rationale of humphrey's executor distinguishing between executive functions and quasi legislative or quasi judicial functions and our approach gives meaning to humphrey's executor and allows the court to leave it in place by limiting it to the multi member context amicus is proposed approach by contrast would really create an exception without limit and the exception cannot be limited to cabinet officers because for those cabinet officers who exercise a numerated constitute no responsibilities that's only to the secretary of state and the secretary of defense all thirteen of the other cabinet officers as the cabinet is currently constituted would be removable the judgment of the court of appeal should be reversed thank you counsel mr command this court appointed you to brief and argue this case as an amicus curi support of the judgment below you have ably discharged that responsibility for which we are grateful because this is submitted