(Slip Opinion) OCTOBER TERM, 2019 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

SEILA LAW LLC v. CONSUMER FINANCIAL 

PROTECTION BUREAU 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE NINTH CIRCUIT 

No. 19–7. Argued March 3, 2020—Decided June 29, 2020 

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. See Dodd-Frank Wall Street Reform and Consumer 

Protection Act (Dodd-Frank), 124 Stat. 1376. 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; and Congress enacted a new prohibition

on unfair and deceptive practices in the consumer-finance sector. 12 

U. S. C. §5536(a)(1)(B). In doing so, Congress gave the CFPB extensive 

rulemaking, enforcement, and adjudicatory powers, including the authority to conduct investigations, issue subpoenas and civil investigative demands, initiate administrative adjudications, prosecute civil actions in federal court, and issue binding decisions in administrative 

proceedings. The CFPB may seek restitution, disgorgement, injunctive relief, and significant civil penalties for violations of the 19 federal

statutes under its purview. So far, the agency has obtained over $11 

billion in relief for more than 25 million consumers. 

Unlike traditional independent agencies headed by multimember 

boards or commissions, the CFPB is led by a single Director, 

§5491(b)(1), who is appointed by the President with the advice and 

consent of the Senate, §5491(b)(2), for a five-year term, during which 

the President may remove the Director only for “inefficiency, neglect

of duty, or malfeasance in office,” §§5491(c)(1), (3). The CFPB receives 

its funding outside the annual appropriations process from the Federal 

Reserve, which is itself funded outside the appropriations process

through bank assessments. 
 

 

 

 

 

 

 

 

2 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Syllabus 

In 2017, the CFPB issued a civil investigative demand to Seila Law

LLC, a California-based law firm that provides debt-related legal services to clients. The civil investigative demand (essentially a subpoena) sought information and documents related to the firm’s business practices. Seila Law asked the CFPB to set aside the demand on 

the ground that the agency’s leadership by a single Director removable

only for cause violated the separation of powers. When the CFPB declined, Seila Law refused to comply with the demand, and the CFPB 

filed a petition to enforce the demand in District Court. Seila Law 

renewed its claim that the CFPB’s structure violated the separation of 

powers, but the District Court disagreed and ordered Seila Law to comply with the demand. The Ninth Circuit affirmed, concluding that 

Seila Law’s challenge was foreclosed by Humphrey’s Executor v. United 

States, 295 U. S. 602, and Morrison v. Olson, 487 U. S. 654. 

Held: The judgment is vacated and remanded. 

923 F. 3d 680, vacated and remanded. 

THE CHIEF JUSTICE delivered the opinion of the Court with respect 

to Parts I, II, and III, concluding: 

1. Appointed amicus raises three threshold arguments for why this 

Court may not or should not reach the merits of petitioner’s constitutional challenge, but they are unavailing. Pp. 8–11.

2. The CFPB’s leadership by a single individual removable only for 

inefficiency, neglect, or malfeasance violates the separation of powers.

Pp. 11–30. 

(a) Article II vests the entire “executive Power” in the President 

alone, but the Constitution presumes that lesser executive officers will 

assist the President in discharging his duties. The President’s executive power generally includes the power to supervise—and, if necessary, remove—those who exercise the President’s authority on his behalf. The President’s removal power has long been confirmed by 

history and precedent. It was recognized by the First Congress in 

1789, confirmed by this Court in Myers v. United States, 272 U. S. 52, 

and reiterated in Free Enterprise Fund v. Public Company Accounting 

Oversight Bd., 561 U. S. 477. In Free Enterprise Fund, the Court recognized that it had previously upheld certain congressional limits on 

the President’s removal power. But the Court declined to extend those 

limits to “a new situation not yet encountered by the Court.” 561 U. S., 

at 483. Free Enterprise Fund left in place only two exceptions to the

President’s unrestricted removal power. First, Humphrey’s Executor 

permitted Congress to give for-cause removal protection to a multimember body of experts who were balanced along partisan lines, appointed to staggered terms, performed only “quasi-legislative” and

“quasi-judicial functions,” and were said not to exercise any executive 

power. Second, Morrison approved for-cause removal protection for an 
 

 

 

 

 

 

Cite as: 591 U. S. ____ (2020) 3 

Syllabus 

inferior officer—the independent counsel—who had limited duties and 

no policymaking or administrative authority. Pp. 11–16. 

(b) Neither Humphrey’s Executor nor Morrison resolves whether 

the CFPB Director’s insulation from removal is constitutional. The 

New Deal-era FTC upheld in Humphrey’s Executor bears little resemblance to the CFPB. Unlike the multiple Commissioners of the FTC, 

who were balanced along partisan lines and served staggered terms to 

ensure the accumulation of institutional knowledge, the CFPB Director serves a five-year term that guarantees abrupt shifts in leadership

and the loss of agency expertise. In addition, the Director cannot be 

dismissed as a mere legislative or judicial aid. Rather, the Director 

possesses significant administrative and enforcement authority, including the power to seek daunting monetary penalties against private 

parties in federal court—a quintessentially executive power not considered in Humphrey’s Executor. 

The logic of Morrison also does not apply. The independent counsel 

approved in Morrison was an inferior officer who lacked policymaking

or administrative authority and exercised narrow authority to initiate

criminal investigations and prosecutions of Governmental actors identified by others. By contrast, the CFPB Director is a principal officer 

whose duties are far from limited. The Director promulgates binding 

rules fleshing out 19 consumer-protection statutes that cover everything from credit cards and car payments to mortgages and student 

loans. And the Director brings the coercive power of the state to bear

on millions of private citizens and businesses, imposing potentially billion-dollar penalties through administrative adjudications and civil actions. 

The question here is therefore whether to extend the Humphrey’s 

Executor and Morrison exceptions to a “new situation.” Free Enterprise 

Fund, 561 U. S., at 433. Pp. 16–18. 

(c) The Court declines to extend these precedents to an independent agency led by a single Director and vested with significant executive power. Pp. 18–30. 

(1) The CFPB’s structure has no foothold in history or tradition.

Congress has provided removal protection to principal officers who

alone wield power in only four isolated instances: the Comptroller of 

the Currency (for a one-year period during the Civil War); the Office of 

Special Counsel; the Administrator of the Social Security Administration; and the Director of the Federal Housing Finance Agency. Aside 

from the one-year blip for the Comptroller of the Currency, these examples are modern and contested; and they do not involve regulatory 

or enforcement authority comparable to that exercised by the CFPB.

Pp. 18–21. 
 

 

 

 

4 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Syllabus 

(2) The CFPB’s single-Director configuration is also incompatible with the structure of the Constitution, which—with the sole exception of the Presidency—scrupulously avoids concentrating power in the

hands of any single individual. The Framers’ 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 may

wield significant authority, but that authority remains subject to the

ongoing supervision and control of the elected President. The CFPB’s 

single-Director structure contravenes this carefully calibrated system 

by vesting significant governmental power in the hands of a single individual who is neither elected by the people nor meaningfully controlled (through the threat of removal) by someone who is. 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. And the Director may do so without even having to rely on Congress for appropriations. While the CFPB’s independent, single-Director structure is sufficient to render the agency unconstitutional, the 

Director’s five-year term and receipt of funds outside the appropriations process heighten the concern 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. Pp. 21–25. 

(3) Amicus raises three principal arguments in the agency’s defense. First, amicus challenges the textual basis for the President’s

removal power and highlights statements from individual Framers expressing divergent views on the subject. This Court’s precedents, however, make clear that the President’s removal power derives from the 

“executive Power” vested exclusively in the President by Article II.

And this Court has already discounted the founding-era statements 

cited by amicus in light of their context. Second, amicus claims that 

Humphrey’s Executor and Morrison establish a general rule that Congress may freely constrain the President’s removal power, with only

two limited exceptions not applicable here. 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. Finally, amicus submits that this Court can cure any constitutional defect in the CFPB’s structure by interpreting the language

“inefficiency, neglect of duty, or malfeasance in office,” 12 U. S. C.

§5491(c)(3), to reserve substantial discretion to the President. But 

Humphrey’s Executor implicitly rejected this position, and the CFPB’s

defenders have not advanced any workable standard derived from the 

statutory text. Nor have they explained how a lenient removal standard can be squared with the Dodd-Frank Act as a whole, which makes 
 

 

 

 

Cite as: 591 U. S. ____ (2020) 5 

Syllabus 

plain that the CFPB is an “independent bureau.” §5491(a).

The dissent advances several additional arguments in the agency’s 

defense, but they have already been expressly considered and rejected 

by the Court in Free Enterprise Fund. Pp. 25–30. 

THE CHIEF JUSTICE, joined by JUSTICE ALITO and JUSTICE KAVANAUGH, concluded in Part IV that the Director’s removal protection is 

severable from the other provisions of the Dodd-Frank Act that establish the CFPB and define its authority. Pp. 30–37. 

ROBERTS, C. J., delivered the opinion of the Court with respect to Parts

I, II, and III, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., 

joined, and an opinion with respect to Part IV, in which ALITO and KAVANAUGH, JJ., joined. THOMAS, J., filed an opinion concurring in part and

dissenting in part, in which GORSUCH, J., joined. KAGAN, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. 
 

 

 

Opinion of the Court 

_________________ 

_________________ 

Cite as: 591 U. S. ____ (2020) 1 

Opinion of ROBERTS, C. J. 

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 order that 

corrections may be made before the preliminary print goes to press. 

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 
Opinion of the Court 

2 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of ROBERTS, C. J. 

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 
Cite as: 591 U. S. ____ (2020) 3 

Opinion of the Court 

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 
 

 

4 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of the Court 

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), 124 Stat. 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 
Cite as: 591 U. S. ____ (2020) 5 

Opinion of the Court 

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 
6 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of the Court 

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 
 

 

Cite as: 591 U. S. ____ (2020) 7 

Opinion of the Court 

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. 
 

8 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of the Court 

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 

—————— 1Director Kraninger did not indicate whether she would disregard her 

statutory removal protection if the President attempted to remove her 

without cause. 
 

Cite as: 591 U. S. ____ (2020) 9 

Opinion of the Court 

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 prec-
10 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of the Court 

edents 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 
 

Cite as: 591 U. S. ____ (2020) 11 

Opinion of the Court 

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 
 

12 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of the Court 

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 determina-
Cite as: 591 U. S. ____ (2020) 13 

Opinion of the Court 

tion 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 
 

14 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of the Court 

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 

—————— 2The 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)). 
Cite as: 591 U. S. ____ (2020) 15 

Opinion of the Court 

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 

—————— 3Article 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. 
16 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of the Court 

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 
Cite as: 591 U. S. ____ (2020) 17 

Opinion of the Court 

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, 

—————— 4The 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. 
18 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of the Court 

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 
Cite as: 591 U. S. ____ (2020) 19 

Opinion of the Court 

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, 12 Stat. 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, 

—————— 5The 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, 13 Stat. 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. 6The 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. 7An Act similar to the one vetoed by President Reagan was eventually 
20 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of the Court 

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, 122 Stat. 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 

—————— 

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). 
 

Cite as: 591 U. S. ____ (2020) 21 

Opinion of the Court 

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 

—————— 8The 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 kneebuckling 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. 
 

 

22 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of the Court 

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, 
Cite as: 591 U. S. ____ (2020) 23 

Opinion of the Court 

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 
 

24 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of the Court 

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, 42 Stat. 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 
 

Cite as: 591 U. S. ____ (2020) 25 

Opinion of the Court 

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 

—————— 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 certainly 

does not render the CFPB’s independent, single-Director structure 

constitutional. 
 

 

26 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of the Court 

(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 

—————— 10The 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). 
 

 

Cite as: 591 U. S. ____ (2020) 27 

Opinion of the Court 

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 

—————— 11Building 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). 
 

28 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of the Court 

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 DoddFrank 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 
 

 

Cite as: 591 U. S. ____ (2020) 29 

Opinion of the Court 

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 
30 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of the Court 

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 DoddFrank 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 
 

Opinion of the Court 

Cite as: 591 U. S. ____ (2020) 31 

Opinion of ROBERTS, C. J. 

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 

—————— 12 JUSTICE THOMAS believes that any ratification is irrelevant. In his 
Opinion of the Court 

32 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of ROBERTS, C. J. 

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 

—————— 

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. 
Opinion of the Court 

Cite as: 591 U. S. ____ (2020) 33 

Opinion of ROBERTS, C. J. 

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-andtrue language to ensure a precise and predictable result. 
 

 

 

Opinion of the Court 

34 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of ROBERTS, C. J. 

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 DoddFrank. 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 
 

 

Opinion of the Court 

Cite as: 591 U. S. ____ (2020) 35 

Opinion of ROBERTS, C. J. 

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. 
Opinion of the Court 

36 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of ROBERTS, C. J. 

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. 
Opinion of the Court 

Cite as: 591 U. S. ____ (2020) 37 

Opinion of ROBERTS, C. J. 

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. 
_________________ 

Cite as: 591 U. S. ____ (2020) 1 

Opinion of THOMAS, J. 

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. 
 

 

2 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of THOMAS, J. 

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 
Cite as: 591 U. S. ____ (2020) 3 

Opinion of THOMAS, J. 

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 
 

4 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of THOMAS, J. 

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.” 

—————— 1For a comprehensive review of the Decision of 1789, see Prakash, New 

Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006). 
 

 

Cite as: 591 U. S. ____ (2020) 5 

Opinion of THOMAS, J. 

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 
6 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of THOMAS, J. 

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, 38 Stat. 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 
 

Cite as: 591 U. S. ____ (2020) 7 

Opinion of THOMAS, J. 

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 control-

—————— 2The 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. 
 

 

8 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of THOMAS, J. 

ling.” 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 quasijudicially.” 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 
 

Cite as: 591 U. S. ____ (2020) 9 

Opinion of THOMAS, J. 

“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 

Roosevelt3—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 

—————— 3A 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). 
10 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of THOMAS, J. 

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 quasijudicial, 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 
 

Cite as: 591 U. S. ____ (2020) 11 

Opinion of THOMAS, J. 

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 ‘quasilegislative’ 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 
12 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of THOMAS, J. 

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 Members of the Court 

who heard 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: 
 

 

 

 

Cite as: 591 U. S. ____ (2020) 13 

Opinion of THOMAS, J. 

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 

—————— 4The 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. 
14 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of THOMAS, J. 

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 
Cite as: 591 U. S. ____ (2020) 15 

Opinion of THOMAS, J. 

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 
16 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of THOMAS, J. 

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 
 

Cite as: 591 U. S. ____ (2020) 17 

Opinion of THOMAS, J. 

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 

—————— 5The dissent provides no analysis of severability, simply stating “if the 

agency’s removal provision is unconstitutional, it should be severed.” 

Post, at 37. 
 

18 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of THOMAS, J. 

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 

—————— 6The 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. 
Cite as: 591 U. S. ____ (2020) 19 

Opinion of THOMAS, J. 

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 
 

20 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of THOMAS, J. 

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 

—————— 7The 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. 
Cite as: 591 U. S. ____ (2020) 21 

Opinion of THOMAS, J. 

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 
 

22 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of THOMAS, J. 

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 

—————— 8This 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. 
 

 

Cite as: 591 U. S. ____ (2020) 23 

Opinion of THOMAS, J. 

“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 
24 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of THOMAS, J. 

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. 
KAGAN, J., dissenting 

_________________ 

_________________ 

Cite as: 591 U. S. ____ (2020) 1 

Opinion of KAGAN, J. 

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 
KAGAN, J., dissenting 

2 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of KAGAN, J. 

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 

—————— 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). 
KAGAN, J., dissenting 

Cite as: 591 U. S. ____ (2020) 3 

Opinion of KAGAN, J. 

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. 
 

KAGAN, J., dissenting 

4 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of KAGAN, J. 

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 
 

KAGAN, J., dissenting 

Cite as: 591 U. S. ____ (2020) 5 

Opinion of KAGAN, J. 

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. 

—————— 2The principle of separation of powers, Madison continued, maintained 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. 
 

KAGAN, J., dissenting 

6 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of KAGAN, J. 

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 

—————— 3Article 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— 
 

KAGAN, J., dissenting 

Cite as: 591 U. S. ____ (2020) 7 

Opinion of KAGAN, J. 

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 

—————— 

though really, inexplicable—under the majority’s idea of executive 

power. 
 

KAGAN, J., dissenting 

8 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of KAGAN, J. 

“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 
 

 

KAGAN, J., dissenting 

Cite as: 591 U. S. ____ (2020) 9 

Opinion of KAGAN, J. 

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 
KAGAN, J., dissenting 

10 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of KAGAN, J. 

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 

—————— 4The 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. 
 

KAGAN, J., dissenting 

Cite as: 591 U. S. ____ (2020) 11 

Opinion of KAGAN, J. 

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-
 

KAGAN, J., dissenting 

12 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of KAGAN, J. 

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, 1 Stat.

28; Act of Aug. 7, 1789, ch. 7, 1 Stat. 49. The law creating

the Treasury Department conspicuously avoided doing so. 

See Act of Sept. 2, 1789, ch. 12, 1 Stat. 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, 1 

Stat. 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, 1 Stat. 441–442. That decision, preventing presidential overrides, marked the Comptroller as exercising independent judgment.5 True enough, no statute shielded the 

—————— 5As 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). 
KAGAN, J., dissenting 

Cite as: 591 U. S. ____ (2020) 13 

Opinion of KAGAN, J. 

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 expertisebased 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, 
KAGAN, J., dissenting 

14 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of KAGAN, J. 

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, 3 Stat. 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, 12 Stat. 665. A year later, Congress amended 
 

 

KAGAN, J., dissenting 

Cite as: 591 U. S. ____ (2020) 15 

Opinion of KAGAN, J. 

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, 13 Stat. 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 

—————— 6The 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, 14 Stat. 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, 24 Stat. 500. In one sense, the 

two-decade-long existence of the Tenure of Office Act reveals the 19thcentury 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). 
KAGAN, J., dissenting 

16 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of KAGAN, J. 

Commerce Commission. Under that legislation, the President 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, 24 Stat. 383. More—many more—forcause 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, 38 Stat. 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 
 

KAGAN, J., dissenting 

Cite as: 591 U. S. ____ (2020) 17 

Opinion of KAGAN, J. 

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 
KAGAN, J., dissenting 

18 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of KAGAN, J. 

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 

—————— 7The 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. 
 

KAGAN, J., dissenting 

Cite as: 591 U. S. ____ (2020) 19 

Opinion of KAGAN, J. 

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 

—————— 8Expressing 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. 
 

KAGAN, J., dissenting 

20 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of KAGAN, J. 

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 

—————— 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 
 

 

 

KAGAN, J., dissenting 

Cite as: 591 U. S. ____ (2020) 21 

Opinion of KAGAN, J. 

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 

—————— 

needs the capacity to fire such advisers for disagreeing with his policy 

calls. 
 

 

KAGAN, J., dissenting 

22 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

Opinion of KAGAN, J. 

a removal provision just like the one here. In that case, the 

Court considered a “highly unusual” scheme of double forcause 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-
Cite as: 591 U. S. ____ (2020) 23 

KAGAN, J., dissenting 

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 

Opinion of KAGAN, J. 
24 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

KAGAN, J., dissenting 

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 atwill 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 

Opinion of KAGAN, J. 
Cite as: 591 U. S. ____ (2020) 25 

KAGAN, J., dissenting 

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 

Opinion of KAGAN, J. 
26 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

KAGAN, J., dissenting 

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 

Opinion of KAGAN, J. 
Cite as: 591 U. S. ____ (2020) 27 

KAGAN, J., dissenting 

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 

—————— 10The 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, 38 Stat. 

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, 38 Stat. 

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), 38 Stat. 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. 

Opinion of KAGAN, J. 
28 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

KAGAN, J., dissenting 

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 forcause 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: 

Opinion of KAGAN, J. 
Cite as: 591 U. S. ____ (2020) 29 

KAGAN, J., dissenting 

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,

—————— 11The 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.) 

Opinion of KAGAN, J. 
30 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

KAGAN, J., dissenting 

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-unheardof 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 

—————— 12The 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. 

Opinion of KAGAN, J. 
Cite as: 591 U. S. ____ (2020) 31 

KAGAN, J., dissenting 

explained why the earliest of those agencies—the CivilWar-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 

Opinion of KAGAN, J. 
32 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

KAGAN, J., dissenting 

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);

Opinion of KAGAN, J. 
Cite as: 591 U. S. ____ (2020) 33 

KAGAN, 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 

—————— 13To 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). 

Opinion of KAGAN, J. 
34 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

KAGAN, J., dissenting 

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 

—————— 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. 

Opinion of KAGAN, J. 
Cite as: 591 U. S. ____ (2020) 35 

KAGAN, J., dissenting 

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 singlehead 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 

—————— 

Frazier). 

Opinion of KAGAN, J. 
36 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

KAGAN, J., dissenting 

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 

Opinion of KAGAN, J. 
Cite as: 591 U. S. ____ (2020) 37 

KAGAN, J., dissenting 

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 

Opinion of KAGAN, J. 
38 SEILA LAW LLC v. CONSUMER FINANCIAL 

 PROTECTION BUREAU 

KAGAN, J., dissenting 

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 

Opinion of KAGAN, J. 
Cite as: 591 U. S. ____ (2020) 39 

KAGAN, J., dissenting 

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. 

Opinion of KAGAN, J.