1 (Slip Opinion) OCTOBER TERM, 2019

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 Con

sumer Financial Protection Bureau (CFPB), an independent regula

tory agency tasked with ensuring th at 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 Lendin g Act; and Congress enacted a new prohibition on unfair and deceptiv e practices in the cons umer-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 au

thority to conduct investigations, issue subpoenas an d civil investiga

tive demands, initiate administrative adjudications, prosecute civil ac

tions in federal court, and issue binding decisions in administrative proceedings. The CFPB may seek re stitution, disgorgement, injunc

tive relief, and significant civil pena lties 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 Direct or only for “ine fficiency, neglect of duty, or malfeasance in office,” §§5491(c)(1), (3). The CFPB receives its funding outside the annual approp riations 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 ser

vices to clients. The civil inve stigative demand (essentially a sub

poena) sought information and documents related to the firm’s busi

ness 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 separati on of powers. When the CFPB de

clined, 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 st ructure violated the separation of powers, but the District Court disagreed and ordered Seila Law to com

ply 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. T HE C HIEF J USTICE 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 th e merits of petitioner’s constitu

tional 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 execu

tive power generally includes the power to supervise—and, if neces

sary, remove—those who exercise th e President’s authority on his be

half. The President’s removal power has long been confirmed by history and precedent. It was re cognized 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 rec

ognized 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 Executorpermitted Congress to give for-cause removal protection to a multimember body of experts who were balanced along partisan lines, ap

pointed 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 remo val protection for an3 Cite as: 591 U. S. ____ (2020)

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 resem

blance to the CFPB. Unlike the mu ltiple Commissioners of the FTC, who were balanced along partisan lines and served staggered terms to ensure the accumulation of instit utional knowledge, the CFPB Direc

tor 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 ju dicial aid. Rather, the Director possesses significant administrative and enforcement authority, in

cluding the power to seek daunting monetary penalties against private parties in federal court—a quintessentially executive power not con

sidered 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 prosecutio ns of Governmental actors iden

tified 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-prote ction statutes that cover every

thing 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 bil

lion-dollar penalties through administ rative adjudications and civil ac

tions.

The question here is ther efore 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 independ

ent agency led by a single Director and vested with significant execu

tive power. Pp. 18–30. (1) The CFPB’s structure has no foothold in history or tradition. Congress has provided removal protec tion 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 Administra

tion; and the Director of the Fede ral Housing Finance Agency. Aside from the one-year blip for the Comp troller of the Currency, these ex

amples are modern and contested; an d 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-Directo r configuration is also incompati

ble with the structure of the Consti tution, which—with the sole excep

tion of the Presidency—scrupulously avoids concentrating power in the hands of any single individual. The Framers’ constitutional strategy is straightforward: divide power ev erywhere 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 th e elected President. The CFPB’s single-Director structure contravenes this carefully calibrated system by vesting significant governmental power in the hands of a single in

dividual who is neither elected by the people nor meaningfully con

trolled (through the threat of remo val) by someone who is. The Direc

tor may unilaterally , without meaningful su pervision, issue final regulations, oversee adju dications, set enforcement priorities, initiate prosecutions, and determine what pe nalties to impose on private par

ties. And the Director may do so wi thout even having to rely on Con

gress for appropriations. While the CFPB’s independent, single-Direc

tor structure is sufficient to render the agency unconstitutional, the Director’s five-year term and rece ipt of funds outside the appropria

tions process heighten th e concern that the agen cy 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 argu ments in the agency’s de

fense. First, amicus challenges the textual bas is for the President’s removal power and highlights statemen ts from individual Framers ex

pressing divergent views on the subject. This Court’s precedents, how

ever, make clear that the Presiden t’s removal power derives from the “executive Power” vested exclusivel y 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 Con

gress may freely constrain the Presid ent’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 con

stitutional defect in the CFPB’s stru cture by interpreting the language “inefficiency, neglect of duty, or ma lfeasance 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 stand

ard can be squared with the Dodd-Frank Act as a whole, which makes5 Cite as: 591 U. S. ____ (2020)

Syllabus

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

The dissent advances several addi tional 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.

T HE C HIEF J USTICE , joined by J USTICE A LITO and J USTICE K AV

ANAUGH , concluded in Part IV that the Director’s removal protection is severable from the other provisions of the Dodd-Frank Act that estab

lish the CFPB and define its authority. Pp. 30–37.

R OBERTS , C. J., delivered the opinion of the Court with respect to Parts I, II, and III, in which T HOMAS , A LITO , G ORSUCH , and K AVANAUGH , JJ., joined, and an opinion with re spect to Part IV, in which A LITO and K AV

ANAUGH , JJ., joined. T HOMAS , J., filed an opinion concurring in part and dissenting in part, in which G ORSUCH , J., joined. K AGAN , J., filed an opin

ion concurring in the judgment with respect to severability and dissent

ing in part, in which G INSBURG , B REYER , and S OTOMAYOR , JJ., joined.Opinion of the Court

_________________

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

Opinion of R OBERTS , 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, Wash

ington, D. C. 20543, of any typographical or other form al 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]

C HIEF J USTICE R OBERTS delivered the opinion of the Court with respect to Parts I, II, and III. In the wake of the 2008 financial crisis, Congress estab

lished 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 lead

ership of a board with multiple members, Congress pro

vided 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 vot

ers 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 sepa

ration of powers. Under our Constitution, the “executive Power”—all of it—is “vested in a President,” who must “take Care that theOpinion of the Court 2 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of R OBERTS , C. J. Laws be faithfully executed.” Art. II, §1, cl. 1; id. , §3. Be

cause no single person could fulfill that responsibility alone, the Framers expected that the President would rely on sub

ordinate officers for assistance. Ten years ago, in Free En

terprise Fund v. Public Company Accounting Oversight Bd.

, 561 U. S. 477 (2010), we reiterated that, “as a general mat

ter,” the Constitution gives th e 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 responsi

bilities; 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 agen

cies led by a group of principal officers removable by the President only for good cause. And in United States v. Per

kins , 116 U. S. 483 (1886), and Morrison v. Olson , 487 U. S. 654 (1988), we held that Congress could provide tenure pro

tections 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 signifi

cant executive power and is run by a single individual who cannot be removed by the President unless certain statu

tory criteria are met. We decline to take that step. While we need not and do not revisi t our prior decisions allowing certain limitations on the Pres ident’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 historical3 Cite as: 591 U. S. ____ (2020)

Opinion of the Court
practice and clashes with cons titutional structure by con

centrating power in a unilateral actor insulated from Pres

idential 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. War

ren, Unsafe at Any Rate, Democracy (Summer 2007). Pro

fessor Warren believed the financial products marketed to ordinary American households—credit cards, student loans, mortgages, and the like—had grown increasingly un

safe due to a “regulatory jumble” that paid too much atten

tion to banks and too little to consumers. Ibid. To remedy the lack of “coherent, consumer-oriented” financial regula

tion, she proposed “concentrat[ing] the review of financial products in a single location”—an independent agency mod

eled after the multimember Consumer Product Safety Com

mission. 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 ensure4 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of the Court that “consumer protection regulations” in the financial sec

tor “are written fairly and en forced vigorously.” Dept. of Treasury, Financial Regulatory Reform: A New Foundation 55 (2009). Like Professor Warren, the administration envi

sioned a traditional independent agency, run by a multimember board with a “diverse set of viewpoints and experi

ences.” 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 “en

sur[e] that all consumers have access to markets for con

sumer financial products and services and that markets for consumer financial products and services are fair, transpar

ent, and competitive.” 12 U. S. C. §5511(a). Congress transferred the administration of 18 existing federal stat

utes 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, decep

tive, or abusive act or practice” by certain participants in the consumer-finance sector. §5536(a)(1)(B). Congress au

thorized the CFPB to implem ent that broad standard (and the 18 pre-existing statutes pl aced under the agency’s pur

view) through binding regulations. §§5531(a)–(b), 5581(a)(1)(A), (b). Congress also vested the C FPB with potent enforcement powers. The agency has the authority to conduct investiga

tions, issue subpoenas and civil investigative demands, in

itiate administrative adjudications, and prosecute civil ac

tions in federal court. §§5562, 5564(a), (f ). To remedy violations of federal consumer financial law, the CFPB may seek restitution, disgorgement, and injunctive relief, as5 Cite as: 591 U. S. ____ (2020)

Opinion of the Court well as civil penalties of up to $1,000,000 (inflation ad

justed) 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 bi llion 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 An

nounces Settlement With Wells Fargo for Auto-Loan Ad

ministration and Mortgage Practices (Apr. 20, 2018). The CFPB’s rulemaking and enforcement powers are cou

pled with extensive adjudicatory authority. The agency may conduct administrative proceedings to “ensure or en

force compliance with” the statutes and regulations it ad

ministers. 12 U. S. C. §5563(a). When the CFPB acts as an adjudicator, it has “jurisdiction to grant any appropriate le

gal or equitable relief.” §5565(a)(1). The “hearing officer” who presides over the proceedings may issue subpoenas, or

der depositions, and resolve any motions filed by the par

ties. 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 “is

sue[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 pro

posals of Professor Warren and the Obama administration in one critical respect. Rather than create a traditional in

dependent agency headed by a multimember board or com

mission, 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 ad

vice 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 on6 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of the Court the annual appropriations process for funding. Instead, the CFPB receives funding directl y from the Federal Reserve, which is itself funded outsid e 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 dol

lars. See CFPB, Fiscal Year 2019: Ann. Performance Plan and Rep., p. 7.

B Seila Law LLC is a California-based law firm that pro

vides 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 sub

poena) directed Seila Law to produce information and doc

uments related to its business practices. Seila Law asked the CFPB to set aside the demand, ob

jecting that the agency’s leadership by a single Director re

movable 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 en

force the demand in the Distri ct Court. See §5562(e)(1) (cre

ating 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 the7 Cite as: 591 U. S. ____ (2020)

Opinion of the Court Constitution. The District Court disagreed and ordered Seila Law to comply with the demand (with one modifica

tion 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 pro

vided 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 re

moval 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 si ngle Director (as opposed to a multimember commission) presented a “structural differ

ence” 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 per

mitted a single individual (an independent counsel) to exer

cise a core executive power (p rosecuting criminal offenses) despite being insulated from removal except for cause. Be

cause the Court found Humphrey’s Executor and Morrison “controlling,” it affirmed the District Court’s order requir

ing 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 re

quested argument on an additional question: whether, if the CFPB’s structure violates the separation of powers, the CFPB Director’s removal prote ction 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 alle ged constitutional defect be

cause two of the three Directors who have in turn played a role in enforcing the demand were (or now consider them

selves 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, origi

nally 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 Pres

ident 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 cur

rent CFPB Director Kathleen Kraninger, now responsible for enforcing the demand, agrees with the Solicitor Gen

eral’s position in this case that her for-cause removal pro

tection 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

——————

1 Director Kraninger did not indicate whether she would disregard her statutory removal protection if the President attempted to remove her without cause.9 Cite as: 591 U. S. ____ (2020)

Opinion of the Court

to be enforced—even in the absence of the CFPB Director’s removal protection, making the asserted separation of pow

ers dispute “artificial.” Brief for Court-Appointed Amicus Curiae 22. Even if that were true, it would not deprive us of jurisdic

tion. 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 al

terations 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 be

ing 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 appear

ing in courts of first instance.” Hollingsworth v. Perry , 570 U. S. 693, 705 (2013) (internal quotation marks omitted). But petitioner’s appellate standin g is beyond dispute. Peti

tioner is compelled to comply with the civil investigative de

mand and to provide documents it would prefer to withhold, a concrete injury. That injury is traceable to the decision below and would be fully redresse d if we were to reverse the judgment of the Court of Appeals and remand with instruc

tions 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 remova l 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 hav e held that a litigant chal

lenging governmental action as void on the basis of the sep

aration of powers is not requi red to prove that the Govern

ment’s course of conduct woul d 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 sp ecific context of the President’s removal power, we have found it sufficient that the chal

lenger “sustain[s] injury” from an executive act that alleg

edly exceeds the official’s authority. Bowsher v. Synar , 478 U. S. 714, 721 (1986). Second, amicus contends that the proper context for as

sessing the constitutionality of an officer’s removal re

striction is a contested remova l. See Brief for Court-Ap

pointed Amicus Curiae 24–27. While that is certainly one way to review a removal restricti on, it is not the only way. Our precedents have long permitted private parties ag

grieved by an official’s exercise of executive power to chal

lenge the official’s authority to wield that power while insu

lated 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 (de

fense 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 con

stitutional 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. of11 Cite as: 591 U. S. ____ (2020)

Opinion of the Court Oral Arg. 42–43, 45–46. That contention, however, is fore

closed by United States v. Windsor , 570 U. S. 744 (2013). There, we explained that a lo wer court order that presents real-world consequences for the Government and its adver

sary suffices to support Articl e III jurisdiction—even if “the Executive may welcome” an adverse order that “is accom

panied 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 si ded with the Government, and the Government has not volunteered to relinquish that vic

tory and withdraw the demand. To the contrary, while the Government agrees that the agency is unconstitutionally structured, it believes it ma y nevertheless enforce the de

mand on remand. See infra , at 30. Accordingly, our “deci

sion 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 ques

tion in this posture can be ad dressed by “the practice of en

tertaining arguments made by an amicus when the Solici

tor General confesses error wi th respect to a judgment below,” which we have done. 570 U. S., at 760. We therefore turn to the merits of petitioner’s constitu

tional challenge.

III We hold that the CFPB’s leadership by a single individual removable only for inefficiency , neglect, or malfeasance vi

olates the separation of powers.

A Article II provides that “[t] he executive Power shall be vested in a President,” who mu st “take Care that the Laws be faithfully executed.” Art. II, §1, cl. 1; id. , §3. The entire “executive Power” belongs to th e President alone. But be

cause it would be “impossib[le]” for “one man” to “perform12 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of the Court all the great business of the State,” the Constitution as

sumes that lesser executive offi cers will “assist the supreme Magistrate in discharging the duties of his trust.” 30 Writ

ings of George Washington 334 (J. Fitzpatrick ed. 1939). These lesser officers must remain accountable to the President, whose authority they wield. As Madison ex

plained, “[I]f any power whats oever is in its nature Execu

tive, it is the power of appointing, overseeing, and control

ling 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 cre

ated” 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 requi site responsibility and har

mony in the Executive Departm ent,’ was that the executive power included a power to oversee executive officers through removal.” Ibid. (quoting Letter from James Madi

son 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 (in

ternal quotation marks omitted), and has long been the “settled and well understood construction of the Constitu

tion,” Ex parte Hennen , 13 Pet. 230, 259 (1839). The Court recognized the President’s prerogative to re

move 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

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

Opinion of the Court tion in 1789, the views of the Framers and their contempo

raries, 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 es

sential to the execution of the laws by him, so must be his power of removing those for wh om 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 re

moval 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 Humph

rey’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 re

strictions “will depend upon the character of the office.” 29514 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 char

acteristics of the agency befo re 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 legislat ive or as a judicial aid.” Ibid. It acted “as a legislative agen cy” in “making investigations and reports” to Congress and “as an agency of the judiciary” in making recommendations to courts as a master in chan

cery. 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. (em

phasis added). 2 The Court identified several organizational features that helped explain its characterization of the FTC as non-exec

utive. Composed of five members—no more than three from the same political party—the Board was designed to be “non-partisan” and to “act wi th 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

——————

2 The 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 consid

ered ‘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 activ

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

Opinion of the Court agency to accumulate technical expertise and avoid a “com

plete 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 exer

cise any executive power. Co nsistent with that understand

ing, 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 com

pensation 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 pure ly executive officers on the one hand, and officers that closely resembled the FTC Com

missioners 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 offic

ers in two cases, United States v. Perkins and Morrison v. Olson

. 3 In Perkins , we upheld tenure protections for a na

val cadet-engineer. 116 U. S., at 485. And, in Morrison , we upheld a provision granting g ood-cause tenure protection to

——————

3 Article II distinguishes between two kinds of officers—principal offic

ers (who must be appointed by the Pr esident with the advice and consent of the Senate) and inferior office rs (whose appointment Congress may vest in the President, courts, or head s 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, an d duration of an officer’s duties. Ed

mond 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 pros

ecute particular alleged crimes by high-ranking Govern

ment officials. 487 U. S., at 662–663, 696–697. Backing away from the reliance in Humphrey’s Executor on the con

cepts of “quasi-legislative” and “quasi-judicial” power, we viewed the ultimate question as whether a removal re

striction is of “such a nature that [it] impede[s] the Presi

dent’s ability to perform his constitutional duty.” 487 U. S., at 691. Although the independent counsel was a single per

son and performed “law enforcement functions that typi

cally have been undertaken by officials within the Execu

tive Branch,” we concluded t hat 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 juris

diction and tenure and lacking policymaking or significant administrative authority.” Ibid. These two exceptions—one for multimember expert agen

cies that do not wield substantial executive power, and one for inferior officers with limit ed duties and no policymaking or administrative authority—“ represent what up to now have been the outermost constitutional limits of permissi

ble 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 ex

perts” 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 staggered17 Cite as: 591 U. S. ____ (2020)

Opinion of the Court terms of the FTC Commissioners prevented complete turn

overs in agency leadership and guaranteed that there would always be some Commissioners who had accrued sig

nificant 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 Dire ctor is hardly a mere legisla

tive or judicial aid. Instead of making reports and recom

mendations to Congress, as the 1935 FTC did, the Director possesses the authority to promulgate binding rules flesh

ing 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 unilat

erally issue final decisions aw arding legal and equitable re

lief 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 co urt—a quintessentially execu

tive 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 coun

sel, who lacked policymaking or administrative authority,

——————

4 The dissent would have us ignore the reasoning of Humphrey’s Exec

utor and instead apply the decision on ly as part of a reimagined Humphrey’s -through- Morrison framework. See post , at 18, n. 7, 19–22 (K AGAN , J., concurring in judgme nt with respect to seve rability and dissenting in part) (hereinafter dissent). But we take the decision on its own terms, not through gloss added by a later Cour t in dicta. The dissent also criti

cizes us for suggesting that the 1935 FTC may have had lesser responsi

bilities than the present FTC. See post , at 27, n. 10. Perhaps the FTC possessed broader rulemaking, enfo rcement, and adjudicatory powers than the Humphrey’s Court appreciated. Perhaps not. Either way, what matters is the set of powers the Cour t considered as the basis for its de

cision, 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 every

thing 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 in

ward 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 penal

ties 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 prece

dents to the “new situation” before us, namely an independ

ent agency led by a single Di rector and vested with signifi

cant 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 ou r constitutional structure.

1 “Perhaps the most telling indication of [a] severe consti

tutional problem” with an executive entity “is [a] lack of his

torical precedent” to support it. Id., at 505 (internal quota

tion 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 wield19 Cite as: 591 U. S. ____ (2020)

Opinion of the Court power alone rather than as members of a board or commis

sion. 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 dis

missed as an aberration. It was “adopted without discus

sion” during the heat of the Civil War and abandoned before it could be “tested by execut ive 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 sin

gle 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 Presi

dent 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,

——————

5 The dissent suggests that the Comp troller still enjoyed some degree of insulation after his removal protection was repealed because the Pres

ident faced a new requirement to “communicate[ ]” his “reasons” for ter

minating 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 dis

sent’s phrase, “in a firing mood.” Post , at 15.

6 The OSC should not be confused with the independent counsel in Morrison or the special counsel recently appointed to investigate allega

tions related to the 2016 Presidential election. Despite sharing similar titles, those individuals have no relationship to the OSC.

7 An Act similar to the one vetoed by President Reagan was eventually20 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of the Court the OSC exercises only limited jurisdiction to enforce cer

tain 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 no te that the Social Security Administration (SSA) has been run by a single Administra

tor since 1994. That example, too, is comparatively recent and controversial. President Clinton questioned the consti

tutionality 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 Fi

nance Agency (FHFA), created in 2008 to assume responsi

bility for Fannie Mae and Freddie Mac. That agency is es

sentially a companion of the CFPB, established in response to the same financial crisis. See Housing and Economic Re

covery Act of 2008, 122 Stat. 2654. It regulates primarily Government-sponsored enterpri ses, not purely private ac

tors. And its single-Director s tructure 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 Comptrol

ler of the Currency, these isolated examples are modern and contested. And they do not involve regulatory or enforce

ment authority remotely compar able to that exercised by

—————— signed by President George H. W. Bu sh 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).21 Cite as: 591 U. S. ____ (2020)

Opinion of the Court the CFPB. The CFPB’s single-Director structure is an in

novation with no foothold in history or tradition. 8

2In addition to being a historical anomaly, the CFPB’s single-Director configuration is in compatible with our consti

tutional structure. Aside from the sole exception of the Presidency, that structure scrupulously avoids concentrat

ing power in the hands of any single individual. “The Framers recognized that, in the long term, struc

tural protections against abuse of power were critical to preserving liberty.” Bowsher , 478 U. S., at 730. Their solu

tion to governmental power and its perils was simple: di

vide 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 Gov

ernment 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, Ex

ecutive, 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 com

posed of multiple Members and Senators. Art. I, §§2, 3. The Executive Branch is a stark departure from all this

——————

8 The dissent categorizes the CFPB as one of many “financial regula

tors” that have historically enjoyed so me 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 sta

tus, the CFPB is in an entirely different league. It acts as a mini legis

lature, prosecutor, and court, respon sible for creating substantive rules for a wide swath of industries, pros ecuting 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 “jar

rings of parties” would “promote deliberation and circum

spection” 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 au

thority 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 energe tic executive essential to “the protection of the communi ty 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 con

stitutional structure—the Framers made the President the most democratic and politically accountable official in Gov

ernment. Only the President (along with the Vice Presi

dent) 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 ac

tions of the Executive Branch.” Free Enterprise Fund , 561 U. S., at 496–497 (quoting Clinton v. Jones , 520 U. S. 681,23 Cite as: 591 U. S. ____ (2020)

Opinion of the Court 712–713 (1997) (B REYER , J., concurring in judgment)). The resulting constitutional strategy is straightforward: divide power everywhere exce pt for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual exec

utive 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 govern

mental power in the hands of a single individual accounta

ble 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 rep

resenting the interests of the people). Yet the Director may unilaterally , without meaningful supervision, issue final regulations, oversee adjudicati ons, set enforcement priori

ties, 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 Di

rector may dictate and enforce po licy for a vital segment of the economy affecting millions of Americans. The CFPB Director’s insulation from removal by an ac

countable President is enough to render the agency’s struc

ture 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 di

rect method of presidential control—removal at will—the agency’s unique structure also forecloses certain indirect24 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 Presid ents may not have any oppor

tunity to shape its leadership and thereby influence its ac

tivities. A President elected in 2020 would likely not ap

point 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 plat

form 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 structu re 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 author

ity 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 Presiden

tial 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 sub

mitted 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 influ

ence 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 simi

lar 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 mone y from the Federal Reserve, which is itself funded outside of the annual appropriations process. This financial freedom makes it even more likely25 Cite as: 591 U. S. ____ (2020)

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 Mad

ison, Hamilton, and Chief Justi ce Marshall expressing “het

erodox” views on the subject. Brief for Court-Appointed Amicus Curiae 4–5, 28–29. But those concerns are mis

placed. 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 vest

ing of certain powers in certain bodies. As we have ex

plained many times before, th e 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 con

sidered 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 (Hamil

ton), 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 Fi nancial Stability an d Oversight Coun

cil (FSOC). See Brie f for Court-Appointed Amicus Curiae 40; post , at 33,

n. 13, 36. But the FSOC’s veto powe r is statutorily reserved for extreme situations, when two-thirds of the Council concludes that a CFPB regu

lation would “put the safety and sound ness of the United States banking system or the stability of the financ ial 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 creati on. It certainly does not render the CFPB’s indepe ndent, 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 prece

dents that, if accepted, could leave room for an agency like the CFPB—and many other innovative intrusions on Arti

cle II. According to amicus

, Humphrey’s Executor and Mor

rison 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 Pres

ident’s removal power altogether (as it effectively did in

——————

10 The dissent likewise points to Madi son’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 state

ment, he later led the charge in cont ending, on the floor of the First Con

gress, that “inasmuch as the power of removal is of an Executive nature . . . it is beyond the reach of the Legi slative body.” 1 Annals of Cong. 464 (1789); see also id. , at 462–464, 495–496. Like the dissent in Free Enter

prise 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 Presi

dent, 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 Over

sight 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 Ex

ecutive. Indeed, they expressly reje cted the “executive council” structure favored by most States, fearing that subjecting the Pr esident to over

sight, as the States had, would “dis tract and . . . enervate the whole sys

tem of administration” and inject it with “habitual feebleness and dilato

riness.” The Federalist No. 70, at 473, 476 (A. Hamilton).27 Cite as: 591 U. S. ____ (2020)

Opinion of the Court
Free Enterprise Fund )

. Outside those two situations, ami

cus argues, Congress is generally free to constrain the Pres

ident’s removal power. See also post , at 16–22 (K AGAN , J., concurring in judgment with respect to severability and dis

senting in part) (hereinafter dissent) (expressing similar view). But text, first principles, th e 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 impo se additional restrictions on the President’s removal authority. 11 Finally, amicus contends that if we identify a constitu

tional problem with the CFPB’s structure, we should avoid

——————

11 Building on amicus ’ proposal, the dissent would endorse whatever “the times demand, so long as the Pr esident 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 advis

ers.” Post , at 17. But that carveout make s no logical or constitutional sense. In the dissent’s view, for-cause removal restrictions are permissi

ble because they guarant ee 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 th eory, 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 “o wn constitutional duties in foreign relations and war” and his duty to exec ute laws passed by Congress. Post , at 13. But the same Article that establishe s the President’s foreign relations and war duties expressly entrusts him to take care that the laws be faith

fully executed. And, from the perspect ive 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-Ap

pointed 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 im

plicitly 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 Representa

tives invite us to adopt what ever 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 re

movals based on general policy disagreements, but not spe

cific ones; the House suggests that the permissible bases for removal might vary depending on the context and the Pres

idential 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 inde

pendent 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 reg

ulatory agency”). Neither amicus nor the House explains how the CFPB would be “independent” if its head were re

quired to implement the President’s policies upon pain of29 Cite as: 591 U. S. ____ (2020)

Opinion of the Court removal. See Black’s Law Dictionary 838 (9th ed. 2009) (de

fining “independent” as “[n]ot subject to the control or influ

ence of another”). The Constitution might of course compel the agency to be dependent on the President notwithstand

ing Congress’s contrary intent, but that result cannot fairly be inferred from the statute Congress enacted. Constitutional avoidance is not a license to rewrite Con

gress’s work to say whatever the Constitution needs it to say in a given situation. With out 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 mean

ingful 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 iso

lated statements from individual Framers, downplays the decision of 1789, minimizes Myers , brainstorms methods of Presidential control short of removal, touts the need for cre

ative 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 (B REYER , J., dissenting). The answers to these repeated concerns (beyond those we have already covered) are the sa me today as they were ten years ago. Today, as then, Congress’s “plenary control over the salary, duties, and even ex istence 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 “bu

reaucratic minutiae” a President might use to corral agency personnel is no substitute for at will removal. Ibid. And30 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 flexi

bility. Id., at 499. As we explained in Free Enterprise Fund , “One can have a government that functions without being ruled by func

tionaries, and a government t hat 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 th e separation of powers, we now turn to the appropriate remedy. We directed the par

ties to brief and argue whet her the Director’s removal pro

tection 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 Con

gress’s unconstitutional attempt to insulate the agency’s Director from removal by the President. There is a live con

troversy between the parties on that question, and resolv

ing it is a necessary step in determining petitioner’s entitle

ment to its requested relief. As the defendant in this action, petitioner seeks a straightforward remedy. It asks us to deny the Govern

ment’s petition to enforce th e civil investigative demand and dismiss the case. The Government counters that the demand, though initially issued by a Director unconstitu

tionally insulated from removal, can still be enforced on re

mand because it has since been ratified by an Acting Direc

tor accountable to the President. The parties disputeOpinion of the Court 31 Cite as: 591 U. S. ____ (2020)

Opinion of R OBERTS , C. J. whether this alleged ratifi cation in fact occurred and whether, if so, it is legally sufficient to cure the constitu

tional defect in the original demand. That debate turns on case-specific factual and lega l questions not addressed be

low and not briefed here. A re mand 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 Ap

peals, petitioner contended t hat, regardless of any ratifica

tion, the demand is unenforceable because the statutory provision insulating the CFPB Director from removal can

not be severed from the other statutory provisions that de

fine 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 re

mand would be pointless. With no agency left with statu

tory 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 en

force 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 re

moval restriction is not severable, then we must grant the relief requested, promptly reje cting 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 J USTICE T HOMAS believes that any ratification is irrelevant. In hisOpinion of the Court 32 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of R OBERTS , 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 neces

sarily void in its entirety,” “[p]rovisions within the legisla

tive 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 lim it the solution to the problem, severing any problematic portions while leaving the re

mainder 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 un

constitutional 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 sev

erability 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 of

fensive 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 dema nd and initiation of this suit have been validly ratified, Director Kran inger’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 con

stitutional injury requiring immediate dismissal. See post , at 17–19 (opinion concurring in part and dissenting in pa rt). But whether and when the temporary involvement of an unconstitutionally insulated of

ficer in an otherwise valid prosecut ion requires dismissal falls outside the questions presented, ha s not been fully briefed, and is best resolved by the lower courts in the first instance.Opinion of the Court 33 Cite as: 591 U. S. ____ (2020)

Opinion of R OBERTS , C. J. constitutional violation would disappear. We must there

fore decide whether the remo val 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 unconstitu

tional removal provisions severable even in the absence of an express severability clause because the surviving provi

sions 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 bear

ing on the CFPB’s structure and duties remain fully opera

tive without the offending tenure restriction. Those provi

sions 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. Un

like 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 un

constitutional” because it has to ld 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 dis

misses the clause as non-probative “boilerplate” because it applies “to the entire, 848-page Dodd-Frank Act” and “ap

pears almost 600 pages before the removal provision at is

sue.” Brief for Petitioner 45. In petitioner’s view, that means we cannot be certain t hat Congress really meant to apply the clause to each of the Act’s provisions. But boiler

plate is boilerplate for a reason—because it offers tried-and

true language to ensure a precise and predictable result.Opinion of the Court 34 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of R OBERTS , C. J. That is the case here. The language unmistakably refer

ences “ any provision of this Act.” 12 U. S. C. §5302 (empha

sis added). And it appears in a logical and prominent place, immediately following the Act’s title and definitions sec

tions, reinforcing the conclusion that it applies to the en

tirety of the Act. Congress was not required to laboriously insert duplicative severability clauses, provision by provi

sion, to accomplish its stated objective. Second, petitioner points to an additional severability clause in the Act that applies on ly to one of the Act’s subti

tles. See 15 U. S. C. §8232. In petitioner’s view, that clausewould 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 astandalone 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 unilluminat

ing. See Microsoft Corp. v. i4i L. P. , 564 U. S. 91, 106 (2011) (“The canon against superfluity assists only where a com

peting interpretation gives e ffect 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 con

trol 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 (colle cting examples). And peti

tioner submits that Congress might not have exempted the CFPB from congressional over sight via the appropriations process if it had known that the CFPB would come underOpinion of the Court 35 Cite as: 591 U. S. ____ (2020)

Opinion of R OBERTS , C. J.

executive control. These observations certainly confirm that Congress pre

ferred 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 admini sters would simply revert back to the handful of independent agencies previously responsi

ble for them. See id. , at 46. But, as the Solicitor General and House of Representatives explain, that shift would trig

ger a major regulatory disruption and would leave appre

ciable 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. J USTICE T HOMAS would have us junk our settled severa

bility doctrine and start afresh, even though no party has asked us to do so. See post , at 15–16, 21–24 (opinion con

curring in part and dissenting in part). Among other things, he objects that it is sheer “speculation” that Con

gress would prefer that its consumer protection laws be en

forced by a Director accountable to the President rather than not at all. Post , at 23–24. We think it clear that Con

gress would prefer that we use a scalpel rather than a bull

dozer in curing the constitutio nal defect we identify today.Opinion of the Court 36 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of R OBERTS , C. J. And such an approach by this Court can come as no surprise to Congress, which was on noti ce of constitutional objec

tions to single-Director agencies by multiple past Presi

dents from both political parties, supra , at 19–20, and en

acted Dodd-Frank against the background of our established severability doctrine. As in every severability case, there may be means of rem

edying 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 re

sponses 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. Madi

son , 1 Cranch 137, 178 (1803), but we cannot re-write Con

gress’s work by creating offices, terms, and the like. “[S]uch editorial freedom . . . belongs to the Legislature, not the Ju

diciary.” 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 Co urt 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 remova l power to a new situation, never before confronted by the Court. We do the same to

day. In our constitutional system, the executive power be

longs 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 up

held limits on the President’s removal authority in certain contexts, we decline to do so when it comes to principal of

ficers who, acting alone, wield significant executive power.Opinion of the Court 37 Cite as: 591 U. S. ____ (2020)

Opinion of R OBERTS , C. J. The Constitution requires that such officials remain depend

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

Opinion of T HOMAS , 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]

J USTICE T HOMAS , with whom J USTICE G ORSUCH 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 errone

ous precedent.2 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of T HOMAS , J.

A
“The Constitution does not vest the Federal Government with an undifferentiated ‘governmental power.’ ” Depart

ment of Transportation v. Association of American Rail

roads , 575 U. S. 43, 67 (2015) (T HOMAS , 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 there

fore 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 constitution

ally assigned duties, “[t]he buck stops with the President.” Free Enterprise Fund v. Public Company Accounting Over

sight Bd. , 561 U. S. 477, 493 (2010). “Since 1789, the Con

stitution has been understood to empower the President to keep [his] officers accountable—by removing them from of

fice, if necessary.” Id. , at 483. The Framers “insist[ed]” upon “unity in the Federal Executive” to “ensure both vigor and accountability” to the people. Printzv. United States

, 521 U. S. 898, 922 (1997); see also ante , at 22. Despite the defined structural limitations of the Consti

tution and the clear vesting of executive power in the Pres

ident, 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 of

ficers who are insulated from the President by removal re

strictions, “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 United3 Cite as: 591 U. S. ____ (2020)

Opinion of T HOMAS , J. States. They instead look to the President to guide the as

sistants 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 syst em 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 Gov

ernment’s design. Perez v. Mortgage Bankers Assn. , 575 U. S. 92, 115–116 (2015) (T HOMAS , J., concurring in judg

ment) (internal quotation marks omitted). Our tolerance of independent agencies in Humphrey’s Executor is an unfor

tunate example of the Court’s failure to apply the Constitu

tion as written. That decision has paved the way for an ever-expanding encroachment on the power of the Execu

tive, 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 con

sent 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 re

moving executive officers of the United States whom he has appointed by and with the advice and consent of the Sen

ate.” Id. , at 106. In a 70-page opinion by Chief Justice Taft, the Court held that the Constitu tion did vest such power in the President. The Court anchored its analysis in evidence from the4 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of T HOMAS , J. founding era. It acknowledged that the “subject [of re

moval] was not discussed in the Constitutional Conven

tion,” id. , at 109–110, but it reviewed in detail the First Congress’ vigorous debate abo ut 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 execu

tive power of the Government . . . in one person”—the President—and that the executive power includes the au

thority to “select those who [are] to act for him under his direction in the execution of the laws.” Id. , at 116–117. Re

iterating 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 faith

fully executed most difficult or impossible.” Id. , at 131. Af

ter “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 execu

tive power, id. , at 136, the Court concluded that “the power to remove officers appointed by the President and the Sen

ate vested in the President alone,” id. , at 114. It repeatedly described this removal po wer 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 de

cision of the question by all branches of the Government.”

——————

1 For a comprehensive review of the Decision of 1789, see Prakash, New Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006).5 Cite as: 591 U. S. ____ (2020)

Opinion of T HOMAS , J.

Id. , at 136. The decision was “affirmed by this Court in un

mistakable 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 “uni

form[ly]” adopted the First Co ngress’ view “whenever an is

sue 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 Congre ss 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 Con

gress’] 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 post

masters 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 ap

pointed 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 Commis

sion action that did not have as its goal to help business6 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of T HOMAS , J. help itself,” “threaten[ed] criminal prosecution against other commissioners who publicly dissented,” and “called his fellow commissioners men drunk with their own great

ness” when they voted to initiate an investigation. Crane,

supra , at 1841 (internal quotation marks omitted). Less than two years into Humphrey’s term, newly inau

gurated President Franklin D. Roosevelt wrote Humphrey a letter, asking for his resignation. The President ex

plained that, in his view, “the aims and purposes of the Ad

ministration 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 admin

istering 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 in

formed 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 re

cover 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 re striction was constitutional. 295 U. S., at 619 (internal quotation marks omitted). The Court answered both of these questions in favor of7 Cite as: 591 U. S. ____ (2020)

Opinion of T HOMAS , 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 of

fice. 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 Consti

tution 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 acknowl

edged that the “recently decided” Myers decision had “fully review[ed] the general subject of the power of executive re

moval” 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 re

moval” 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 deci

sion in the Myers case [could not] be accepted as control

-

——————

2 The explicit and repeated recognit ion 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 (K AGAN , J., concurring in judgment with respect to severabili ty and dissenting in part) (hereinaf

ter dissent). Humphrey’s Executor did not abandon Myers ; it distin

guished Myers based on the flawed prem ise that the FTC exercised “quasi-legislative” and “quasi-judicial” power that is not part of “the ex

ecutive power vested by the Cons titution in th e 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 T HOMAS , J. ling.” Id. , at 627. In the Court’s view, unlike the postmas

ter 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 exec utive power vested by the Con

stitution 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 com

mission act[ed] in part quasi-legislatively and in part quasijudicially.” Ibid. The Court stated that the FTC acted “as a legislative agency” by “makin g investigations and reports thereon for the information of Congress” and acted “as an agency of the judiciary” when performing its role “as a mas

ter 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 offic

ers exercising “quasi-legislativ e or quasi-judicial powers,” ibid. , the Court held that “[w]hether the power of the Pres

ident to remove an officer shall prevail over the authority of Congress to condition the power by . . . precluding a re

moval except for cause, will depend upon the character of the office,” id. , at 631. “[P]urely executive officers” are sub

ject to the President’s “unrestricta ble power . . . to remove.” Id.

, at 632

. But with regard to “quasi-legislative” and “quasi-judicial” officers, the Court concluded that “no re

moval [could] be made . . . except for one or more of the causes named.” Ibid.

3 Humphrey’s Executor laid the foundation for a fundamen

tal departure from our constitu tional structure with noth

ing more than handwaving and obfuscating phrases such as9 Cite as: 591 U. S. ____ (2020)

Opinion of T HOMAS , J. “quasi-legislative” and “quasi-judicial.” Unlike the thor

ough 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 excep

tional 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 Roosevelt 3 —or it could be just another example of this Court departing from the strictu res of the Constitution for a “more pragmatic, flexible approach” to our government’s design. Perez , 575 U. S., at 116 (opinion of T HOMAS , J.) (in

ternal quotation marks omitted). But whatever the moti

vation, Humphrey’s Executor does not comport with the Constitution. Humphrey’s Executor relies on one key premise: the no

tion 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

——————

3 A number of historical sources indi cate 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 reported ly “stunned” by the Court’s deci

sion in Humphrey’s Executor

, and the President wa s particularly an

noyed that the decision “ma[de] it a ppear that he had been willfully vio

lating 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 thei r way to spite him personally.’ ” E. Gerhart, America’s Advocate: Robert H. Jackson 99 (1958) (quoting 1949 inter

view with Justice Jackson).10 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of T HOMAS , J.

U. S., at 627–628, and upheld the FTC Act’s removal re

striction, while simultaneously acknowledging that the Constitution vests the President with the entirety of the ex

ecutive power, id. , at 628. The problem is that the Court’s premise was entirely wrong. The Constitution does not permit the creation of of

ficers exercising “quasi-legisl ative” and “quasi-judicial pow

ers” 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, Whit

man 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 cre

ate agencies that straddle multiple branches of Govern

ment. The Constitution sets out three branches of Govern

ment and provides each with a different form of power— legislative, executive, and judici al. See Art. I, §1; Art. II, §1, cl. 1; Art. III, §1. Free-floating agencies simply do not comport with this constituti onal structure. “[A]gencies have been called quasi-legislat ive, 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 rec

ognized 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 us

ing the “quasi” label to support its claim that the FTC “ex

ercise[d] no part of the executive power vested by the Con

stitution in the President.” Humphrey’s Executor

, supra , at 628. But “it is hard to dispute that the powers of the FTC11 Cite as: 591 U. S. ____ (2020)

Opinion of T HOMAS , 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 (K AGAN , 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 “land

mark case of Myers .” 561 U. S., at 492. And today, the Court rightfully limits Humphrey’s Executor to “multimem

ber 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 nonexist

ent. 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 Executor12 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of T HOMAS , 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 repudi ated 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 th e 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:13 Cite as: 591 U. S. ____ (2020)

Opinion of T HOMAS , J. It ignores Article II’s Vesting Clause, sidesteps the Presi

dent’s removal power, and encourages the exercise of exec

utive 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 Humph

rey’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 “multimem

ber 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

——————

4 The 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. Ol

son , 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 read

ing of Morrison as “extend[ing] Humphrey’s domain” is baffling. Post , at 19. Morrison expressly repudiated the substantive reasoning of Humph

rey’s Executor . See supra , at 11–12.14 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of T HOMAS , 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, ongo

ing threat to our Government ’s design. Leaving these un

constitutional agencies in place does not enhance this Court’s legitimacy; it subve rts 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 har

mony of the [American constitu tional] system destroyed by the perpetuity of error.’ ” Gamble v. United States , 587 U. S. ___, ___ (2019) (T HOMAS , 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 deci

sion 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 Protec

tion Bureau (CFPB) petition to enforce the civil investiga

tive 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 Co ngress. §1. “[T]he judicial power is, fundamentally, the power to render judgments in15 Cite as: 591 U. S. ____ (2020)

Opinion of T HOMAS , J.

individual cases” or controvers ies that are properly before the court. Murphy v. National Collegiate Athletic Assn. , 584 U. S. ___, ___–___ (2018) (T HOMAS , 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 Con

stitution conflict, “then courts must resolve that dispute and, . . . follow the higher law of the Constitution.” Murphy

, 584 U. S., at ___ (T HOMAS , 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 unconsti

tutional, the court would just decline to enforce the statute in the case before it. 584 U. S., at ___ (T HOMAS , J., concur

ring) (slip op., at 3)

. That was the end of the matter. “[T]here was no ‘next step’ in which [a] cour[t]” severed por

tions of a statute. Walsh, supra , at 777. Our modern severability precedents create tension with this historic practice. Instead of declining to enforce an un

constitutional 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 rheto

ric when discussing severance implies that a court’s deci

sion to sever a provision “forma lly suspend[s] or erase[s it], when [the provision] actually remains on the books as a16 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of T HOMAS , 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 ___ (T HOMAS , J., concurring) (slip op., at 4); Mitchell, supra , at 936. And the Court’s reference to severab ility as a “remedy” is inaccu

rate. Traditional remedies—like injunctions, declarations, or damages—“ ‘operate with respect to specific parties,’ not ‘on legal rules in the abstract.’ ” Murphy

, supra , at ___ (T HOMAS , J., concurring) (slip op., at 3) (quoting Harrison, Severability, Remedies, and Co nstitutional 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 sev

erability doctrine must be rooted in statutory interpreta

tion. But, even viewing severability as an interpretive question, I remain skeptical of our doctrine. As I have pre

viously explained, “the severability doctrine often requires courts to weigh in on statutor y provisions that no party has standing to challenge, bringing courts dangerously close to issuing advisory opinions.” Murphy , 584 U. S., at ___ (con

curring opinion) (slip op., at 5). And the application of the doctrine “does not follow basic pr inciples of statutory inter

pretation.” Id. , at ___ (slip op., at 4)

. Instead of determin

ing the meaning of a statute’s text, severability involves “nebulous inquir[ies] into hy pothetical congressional in

tent.” Booker

, supra, at 320, n. 7 (T HOMAS , J., dissenting in part).

B Consistent with the traditional understanding of the ju

dicial power, I would deny C FPB’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 preven ting the CFPB from acting17 Cite as: 591 U. S. ____ (2020)

Opinion of T HOMAS , J. in the future; it simply asks us to “reverse the court of ap

peals’ judgment.” Brief for Pe titioner 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. Pre

sented with an enforcement request from an unconstitu

tionally 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 Richar d Cordray, then Acting Di

rector Mick Mulvaney, and now Director Kathleen Kran

inger. The CFPB’s first Dire ctor, Director Cordray, issued a civil investigative demand to Seila and initiated the en

forcement action. The CFPB has conceded that these ac

tions 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

——————

5 The dissent provides no analysis of severability, simply stating “ if the agency’s removal provision is unconstit utional, it should be severed.” Post, at 37.18 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of T HOMAS , J. remove Acting Director Mulvaney at will because the “re

moval provision by its terms ap plies 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 dif

ferent person as Acting Director.” Id. , at 14. Based on this ratification theory, the CFPB asked the Ninth Circuit to af

firm 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 pre

sented 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 dis

pute before us and therefore provides no basis for address

ing severability. If the Acti ng Director did not ratify the investigative demand, then there is obviously no need to ad

dress severability. And even if he did, the Court still does not need to address severability because the alleged ratifi

cation does not cure the cons titutional injury—enforcement of an investigative demand by an unconstitutionally insu

lated Director. Seila “challenge[d] the validity of both the civil investigative demand and the ensuing enforcement ac

tion .” Reply Brief for Petitioner 5 (emphasis added). Acting Director Mulvaney may (or may not) have properly ratified

——————

6 The Court-appointed amicus suggests that the CFPB’s current Direc

tor, Director Kraninger, ratified the enforcement proceeding by main

taining the suit after she stated her belief that the removal provision is unconstitutional. But the CFPB expr essly disclaimed the notion that Director Kraninger had the power to ratify the civil investigative de

mand, stating that she “remains stat utorily insulated from removal, re

gardless whether she believes the law is invalid.” Reply Brief for Re

spondent 7.19 Cite as: 591 U. S. ____ (2020)

Opinion of T HOMAS , 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 suc

cessor, 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 “re

mains 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 cl ause 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 circum

stance 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 violat ion 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 severability20 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of T HOMAS , J.

clause. See ante , at 33. But I am not sure it is that simple. For one, the plurality does not actually analyze the statu

tory language. 7 Second, the analysis the plurality does pro

vide looks nothing like traditio nal statutory interpretation. Generally, when we interpret a st atute, 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-rang

ing 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 want ed to avoid “a major reg

ulatory 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

——————

7 The severability clause refers to three alternative scenarios: (1) a “provision of [the] Act . . . is held to be unconstitutional”; (2) “an amend

ment made by [the] Act . . . is held unconstitutional”; and (3) “the appli

cation of [a] provision or amendment [of the Act] to any person or circum

stance is held to be unconstitutional .” 12 U. S. C. §5302. The plurality assumes, with no analysis , that this case falls in the first scenario, call

ing for a provision to be severe d 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 argu

ment 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 ap

plication 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 14–15.21 Cite as: 591 U. S. ____ (2020)

Opinion of T HOMAS , J.
some instances, a constitutional injury arises as a result of two or more statutory provisio ns 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 T HOMAS , J.) (explaining that “the concerted ac

tion of [18 U. S. C.] §3553(b)(1) and the operative Guide

lines and the relevant Rule of Cr iminal Procedure resulted in unconstitutional judicial factfinding”); Lea, Situation Severability, 103 Va. L. Rev. 735, 778–780 (2017) (discuss

ing statutory convergences). T hat is precisely the situation we have in this case. As in Free Enterprise Fund , the pro

vision requiring “good-cause removal is only one of [the] statutory provisions that, wo rking together, produce a con

stitutional 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 pro

vision allowing the CFPB to seek enforcement of a civil in

vestigative demand, §5562(e)(1). When confronted with two provisions that operate together to violate the Consti

tution, the text of the severability clause provides no guid

ance as to which provision should be severed. Thus, we must choose, based on something other than the severabil

ity 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 ___–___ (T HOMAS , J., concurring) (slip op., at 4–6). An analysis of the Court’s decisions in Booker and Free Enter

prise Fund illustrates the Court’s approach to determining which provision to sever when confronting an injury caused by an unconstitutional converge nce of multiple statutory provisions. In Booker , a Rule of Criminal Procedure, a subset of pro

visions in the Sentencing Guidelines, and a statutory pro

vision operated together to re quire unconstitutional judicial22 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of T HOMAS , J. factfinding. To determine which aspect of the sentencing scheme to sever, the Court soug ht 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 “re cognize[d] that sometimes severability questions . . . can arise [in the context of] a leg

islatively unforeseen constitutional problem.” Id. , at 247. But it nonetheless felt qualified to craft a remedy that would “move sentencing in Cong ress’ preferred direction.” Id. , at 264. Surprisingly, that “move” did not involve en

forcing the constitutional aspe cts of Congress’ sentencing scheme. The Court stated that “we cannot assume that Congress, if faced with the statute’s invalidity in key appli

cations, 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 pro

vision 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

——————

8 This statement in Booker is irreconcilable with the plurality’s asser

tion 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 severa

bility doctrine,” ibid. , or invokes, without expl anation, different assump

tions for different cases.23 Cite as: 591 U. S. ____ (2020)

Opinion of T HOMAS , J. “number of statutory provisions . . . , working together, pro

duce[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 Boar d’s removal restriction. It explicitly recognized that ther e were multiple ways to ad

dress 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 pow

ers.” Ibid. But it described these alternative options as in

volving “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 Legislatur e or why the alternatives in

volved “more extensive” “edi torial freedom” than its pre

ferred 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 consti

tutional injury. It merely states that “[i]f the Director were removable at will by the President, the constitutional viola

tion would disappear.” Ante , at 32–33. Fair enough. But if the Director lacked executive aut hority 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 pro

visions 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 wh ich 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 would24 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of T HOMAS , J. have preferred. And the result of its choice can have a dra

matic 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 doc

trine 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 investiga

tive demand.K AGAN , J., dissenting

_________________

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

Opinion of K AGAN , 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]

J USTICE K AGAN , with whom J USTICE G INSBURG , J USTICE B REYER , and J USTICE S OTOMAYOR join, concurring in the judgment with respect to se verability and dissenting in part. Throughout the Nation’s histor y, this Court has left most decisions about how to structure the Executive Branch to Congress and the President, acti ng through legislation they both agree to. In particular, the Court has commonly al

lowed 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 in

structs the President that he may not discharge their direc

tors except for cause—most of ten phrased as inefficiency, neglect of duty, or malfeasance in office. Those statutes, whose language the Court has re peatedly approved, provide the model for the removal restri ction before us today. If precedent were any guide, that provision would have sur

vived its encounter with this Court—and so would the in

tended 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 re

moval limits. Nothing in it speaks of removal. And itK AGAN , J., dissenting 2 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of K AGAN , J. grants Congress authority to organize all the institutions of American governance, provided only that those arrange

ments allow the President to perform his own constitution

ally 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. Mary

land , 4 Wheat. 316, 415 (1819) (approving the Second Bank of the United States). Not every innovation in govern

ance—not every experiment in administrative independ

ence—has proved successful. And debates about the pru

dence 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 ad

ministrative 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 recog

nizes that this Court has approved limits on the President’s removal power over heads of agencies much like the CFPB. Agencies possessing similar po wers, agencies charged with

——————

1 In the academic lit erature, compare, e.g., Kagan, Presidential Admin

istration, 114 Harv. L. Rev. 2245, 2331–2346 (2001) (generally favoring presidential control ov er agencies), with, e.g., Strauss, Overseer, or “The Decider”? The President in Administ rative Law, 75 Geo. Wash. L. Rev. 696, 704, 713–715 (2007) (generally favoring administrative independ

ence).K AGAN , J., dissenting 3 Cite as: 591 U. S. ____ (2020)

Opinion of K AGAN , 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 unre

stricted presidential removal power. Ante, at 13. And the majority says the CFPB Directo r does not. That account, though, is wrong in every resp ect. 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 bo dies and single directors— does not respond to the constitutional values at stake. If a removal provision violates the separation of powers, it is be

cause 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 Pres

ident has at least as much control over an individual as over a commission—and possibly more. That means the consti

tutional 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. “Com

pared to Congress and the President, the Judiciary pos

sesses an inferior understanding of the realities of admin

istration” and the way “political power[ ] operates.” Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U. S. 477, 523 (2010) (B REYER , 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 re

pudiates the lessons of American experience, from the 18th century to the present day. An d it commits the Nation to a static version of governance, incapable of responding to new conditions and challenges. Congress and the President es

tablished the CFPB to address financial practices that had brought on a devastating recession, and could do so again.K AGAN , J., dissenting 4 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of K AGAN , J. Today’s decision wipes out a feature of that agency its cre

ators thought fundamental to its mission—a measure of in

dependence 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 discre

tion on the legislature to s tructure administrative institu

tions 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 in

dependence 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, Execut ive. Two is Legislative, that’s Congress. Ring three, Judiciary”). The Constitu

tion’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 FramersK AGAN , J., dissenting 5 Cite as: 591 U. S. ____ (2020)

Opinion of K AGAN , J. lodged three different kinds of power in three different en

tities. 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 per

son[ ] or body” or where “the powe r of judging [is] not sepa

rated from the legislative and executive powers.” The Fed

eralist 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 de

leted). 2 To the contrary, Madison explained, the drafters of the Constitution—like those of then-existing state constitu

tions—opted against keeping the branches of government “absolutely separate and distinct.” Id., at 327. Or as Jus

tice Story reiterated a half-century later: “[W]hen we speak of a separation of the three great departments of govern

ment,” 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). In

stead, the branches have—as they must for the whole ar

rangement to work—“common link[s] of connexion [and] de

pendence.” Ibid.

——————

2 The principle of separation of powers, Madison continued, main

tained only that “where the whole power of one department is exercised by the same hands which possess the whole power of another depart

ment, the fundamental principl es of a free constitution[ ] are subverted.” The Federalist No. 47, at 325–326.K AGAN , J., dissenting 6 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of K AGAN , J. One way the Constitution refle cts that vision is by giving Congress broad authority to establish and organize the Ex

ecutive Branch. Article II pr esumes the existence of “Of

ficer[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 offic

ers—in what departments, wi th what responsibilities—the Executive Branch requires. See ante, at 11 (“The entire ‘ex

ecutive Power’ belongs to the President alone”). Instead, Article I’s Necessary and Proper Clause puts those deci

sions 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 pow

ers but also “all other Powers ve sted 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 cen tral role in structuring the Executive Branch. Yes, the Pr esident can appoint principal officers, but only as the legislature “shall . . . establish[ ] by Law” (and of course subject to the Senate’s advice and con

sent). 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

——————

3 Article II’s Opinions Clause also demonstrates the possibility of limits on the President’s control over the Ex ecutive Branch. Under that Clause, the President “may require the Opinion, in writing, of the principal Of

ficer in each of the executive Depar tments, upon any Subject relating to the Duties of their respective Offices. ” §2, cl. 1. For those in the major

ity’s camp, that Clause presents a pu zzle: If the President must always have the direct supervisory control they posit, including by threat of re

moval, why would he ever need a constitutional warrant to demand agency heads’ opinions? The Clause becomes at least redundant—K AGAN , J., dissenting 7 Cite as: 591 U. S. ____ (2020)

Opinion of K AGAN , 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 Powe r shall be vested in a Presi

dent”—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.” Sep

aration 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 con

stitutional violation simply by showing that Congress has constrained the way ‘[t]he executive Power’ is imple

mented”; that is exactly what the Clause gives Congress the power to do. Id., at 1967. Only “a specific historical under

standing” can bar Congress from enacting a given con

straint. Id., at 2024. And nothing of that sort broadly pre

vents Congress from limiting the President’s removal power. I’ll turn soon to the Decision of 1789 and other evi

dence of Post-Convention thought. See infra , at 9–13. For now, note two points about pr actice before the Constitu

tion’s drafting. First, in that era, Parliament often re

stricted the King’s power to re move 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 re

moval 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.K AGAN , J., dissenting 8 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of K AGAN , J. “general rule.” Nor can the Take Care Clause come to the majority’s res

cue. 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 sug

gests 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 com

ports with founding-era practice, in which removal limits were common. See, e.g., Corwin, Tenure of Office and the Removal Power Under the Consti tution, 27 Colum. L. Rev. 353, 385 (1927) (noting that New York’s Constitution of 1777 had nearly the same clause, though the State’s execu

tive had “very little voice” in removals). And yet more im

portant, the text of the Take Care Clause requires only enough authority to make sure “the laws [are] faithfully ex

ecuted”—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 re

moval 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: No

where does the text say anything about the President’s power to remove subordinate offi cials at will. The majorityK AGAN , J., dissenting 9 Cite as: 591 U. S. ____ (2020)

Opinion of K AGAN , 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 pow

ers, 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 some

times an important one, for a President to control executive officials. See generally Free Enterprise Fund, 561 U. S., at 524 (B REYER , 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 Madi

son wrote, “a regular course of practice” can “liquidate & settle the meaning of ” disputed or indeterminate constitu

tional 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 ma

jority 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] me aning” at last occurred, it was not on the majority’s terms. Instead, it supports wide latitude for Congress to create spheres of administrative in

dependence.

1 Begin with evidence from the Constitution’s ratification. And note that this moment is indeed the beginning: Dele

gates to the Constitutional Convention never discussedK AGAN , J., dissenting 10 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of K AGAN , J. whether or to what extent the President would have power to remove executive officials. As a result, the Framers ad

vocating 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 neces

sary to displace as well as to appoint” offi cers 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 presi

dent 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 Con

gress 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 illimit

able power to remove executive o fficials. The majority rests

——————

4 The majority dismisses Federalist No s. 77 and 39 as “reflect[ing] ini

tial impressions later abandoned.” Ante, at 26, and n. 10. But even Ham

ilton’s and Madison’s later impression s are less helpful to the majority than it suggests. Assuming Hamilton gave up on the Senate’s direct par

ticipation 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 th e Treasury from at-will firing. See infra , at 12–13. In any event, such changing minds and inconstant opin

ions don’t usually prove the exis tence of constitutional rules.K AGAN , J., dissenting 11 Cite as: 591 U. S. ____ (2020)

Opinion of K AGAN , J.

its own historical claim on t hat analysis (though somehow also finding room for its two exceptions). See ante, at 12– 13. But Taft’s historical rese arch 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 di

vided” 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 re

vealed 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 re

moval. 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 regu

late, if it so chose, the President’s authority to remove. In the end, Congress passed a bill saying nothing about re

moval, leaving the President free to fire the Secretary of Foreign Affairs at will. But the only one of the three views definitively rejected was Ham ilton’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 ques

tion: Was the removal power “beyond the reach of congres

sional regulation?” Prakash, supra, at 1072. At the same time, the First Congress gave officials han-K AGAN , J., dissenting 12 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of K AGAN , J. dling financial affairs—as compared to diplomatic and mil

itary ones—some independence from the President. The ti

tle and first section of the statutes creating the Depart

ments 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 conspi cuously 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 pres

idential overrides, marked the Comptroller as exercising in

dependent judgment. 5 True enough, no statute shielded the

——————

5 As President Jefferson explained: “[W]ith the settlement of the ac

counts at the Treasury I have no right to interfere in the least,” because the Comptroller of the Treasury “i s 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 ju dges 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, stat

ing that “the President has no right to interpose in the settling of ac

counts” because Congress had “separ ated” 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).K AGAN , J., dissenting 13 Cite as: 591 U. S. ____ (2020)

Opinion of K AGAN , 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 Secre

tary or President. 1 Annals of Cong. 612. At the least, as Professor Prakash writes, “Madison maintained that Con

gress 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 constitu

tional duties in foreign rela tions and war. The former chiefly carried out statutory duties, fulfilling functions Con

gress had assigned to their offices. In addressing the new Nation’s finances, Congress had begun to use its powers un

der the Necessary and Proper Cl ause to design effective ad

ministrative 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 high

lights here—times when Cong ress decided that effectivegovernance depended on shielding technical or expertisebased functions relating to the financial system from polit

ical pressure (or the moneyed interests that might lie be

hind it). Enacted under the Necessary and Proper Clause,K AGAN , J., dissenting 14 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of K AGAN , J. those measures—creating some of the Nation’s most endur

ing institutions—themselves helped settle the extent of Congress’s power. “[A] regular course of practice,” to use Madison’s phrase, has “liquida te[d]” constitutional mean

ing about the permissibility of independent agencies. See

supra, at 9. Take first Congress’s decision in 1816 to create the Sec

ond 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, regu

lating 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 pro

voked a political storm). No ma tter. Innovations in govern

ance always have opponents; administrative independence predictably (though by no means invariably) provokes pres

idential 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 Con

gress to establish an office called the Comptroller of the Currency. The statute he signed made the Comptroller re

movable 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 amendedK AGAN , J., dissenting 15 Cite as: 591 U. S. ____ (2020)

Opinion of K AGAN , J. the statute to permit removal by the President alone, but only upon “reasons to be communicated by him to the Sen

ate.” Act of June 3, 1864, §1, 13 Stat. 100. The majority dismisses the original version of the statute as an “aberra

tion.” 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 grea t 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 inter

ference. 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

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6 The 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 re

moval of any Senate-confirmed offici als without the Senate’s consent. The law thus severed the President’s removal authority over even offi

cials like the Secretaries of War and St ate. 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 Te nure of Office Act reveals the 19th

century political system’s comfort wi th expansive restrictions on presi

dential removal. But the ultimate re pudiation 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 fu nctions in areas like war or foreign affairs. See Morrison v. Olson , 487 U. S. 654, 689–691 (1988) (recogniz

ing that limit as the co nstitutional standard).K AGAN , J., dissenting 16 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of K AGAN , J.Commerce Commission. Under that legislation, the President could remove the five Commissioners only “for ineffi

ciency, 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—for

cause removal provisions foll owed. In 1913, Congress gave the Governors of the Federal Reserve Board for-cause pro

tection to ensure the agency wo uld resist political pressure and promote economic stability. See Act of Dec. 23, 1913, ch. 6, 38 Stat. 251. The next year, Congress provided simi

lar protection to the FTC in th e interest of ensuring “a con

tinuous policy” “free from the effect” of “changing [White House] incumbency.” 51 Cong. Rec. 10376 (1914). The Fed

eral 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 Inde

pendence 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 hun

dreds more inferior officials) removable only for cause. See Free Enterprise Fund , 561 U. S., at 541 (B REYER , J., dis

senting). So year by year by year, the broad sweep of his

tory has spoken to the constitutional question before us: In

dependent agencies are everywhere.

C What is more, the Court’s precedents before today have accepted the role of independent agencies in our govern

mental 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 thro ugh removal restrictions theK AGAN , J., dissenting 17 Cite as: 591 U. S. ____ (2020)

Opinion of K AGAN , J. President’s performance of his own constitutional duties. (So, to take the clearest ex ample, Congress could not curb the President’s power to remove his close military or diplo

matic advisers.) But within that broad limit, this Court held, Congress could protect from at-will removal the offi

cials it deemed to need some independence from political pressures. Nowhere do those precedents suggest what the majority announces today: that the President has an “unre

stricted removal power” subject to two bounded exceptions. Ante , at 2. The majority grounds its new approach in Myers , ignor

ing 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 unceremoni

ously—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 Sen

ate.” 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 har

mony” 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 quotationK AGAN , J., dissenting 18 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of K AGAN , J. marks omitted)). Bowsher made clear that Myers had noth

ing to say about Congress’s power to enact a provision merely “limit[ing] the Presid ent’s powers of removal” through a for-cause provision. 478 U. S., at 724. That is

sue, 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 deci

sion 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’ pri

mary 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 ad

dition, the Court noted, the Commissioners recommended dispositions in court cases, much as a special master does. Given those “quasi-legislative” and “quasi-judicial”—as op

posed 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 “inde

penden[ce from] executive control.” Id., at 629. About two decades later, an again-unanimous Court in

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7 The majority is quite right that today we view all the activities of administrative agencies as exerci ses of “the ‘executive Power.’ ” Arling

ton v. FCC , 569 U. S. 290, 305, n. 4 (2013) (q uoting 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.” Ar

lington , 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.K AGAN , J., dissenting 19 Cite as: 591 U. S. ____ (2020)

Opinion of K AGAN , J.

Wiener v. United States , 357 U. S. 349 (1958), reaffirmed Humphrey’s . The question in Wiener was whether the Pres

ident 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 Presi

dent had “inherent constitutional power to remove officials, no matter what the relation of the executive to the dis

charge of their duties.” 357 U. S.

, at 352. 8 Here, the Com

missioners 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 e nabled Congress to take down “the Damocles’ sword of removal” hanging over the Com

missioners’ heads. 357 U. S., at 356. Another three decades on, Morrison both extended Humphrey’s domain and clarified the standard for address

ing removal issues. The Morrison Court, over a one-Justice dissent, upheld for-cause protections afforded to an inde

pendent 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

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8 Expressing 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 ha ndiwork had not been altogether reversed. Id., at 351.K AGAN , J., dissenting 20 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of K AGAN , J. Humphrey’s and Wiener . But that difference did not resolve the issue. An official’s functions, Morrison held, were rele

vant to but not dispositive of a removal limit’s constitution

ality. The key question in all the cases, Morrison saw, was whether such a restriction would “impede the President’s ability to perform his constituti onal 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 ex

ercise of [her] discretion” was not “so central to the func

tioning 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 couns el for discretionary decisions or judgment calls. But it preserved “ample authority” in the President “to assure that the counsel is competently per

forming” 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

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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 function s has “no real limiting principle.” Ibid. If the provision leaves the Presiden t with constitutionally sufficient control over some subordinates (lik e the independent counsel), the ma

jority asks, why not over even his cl ose military or diplomatic advisers? See ibid. But the Constitution itself supp lies 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 recog

nized, it preserves author ity in the President to en sure (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 impli

cated—relating, say, to the conduct of foreign affairs or war. To carry out those duties, the President needs advisers who will (beyond comply

ing with law) help him devise and im plement policy. And that means heK AGAN , J., dissenting 21 Cite as: 591 U. S. ____ (2020)

Opinion of K AGAN , J. The majority’s description of Morrison , see ante, at 15– 16, is not true to the decision. (Mostly, it seems, the major

ity 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 res trict the President’s removal of officials carrying out even the most traditional executive functions. And the decision, with care, set out the govern

ing 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 ma

jority 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 Presid ent’s removal power over in

ferior 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.K AGAN , J., dissenting 22 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU Opinion of K AGAN , J. a removal provision just like the one here. In that case, theCourt considered a “highly unusual” scheme of double forcause protection. 561 U. S., at 505. Members of an account

ing board were protected fr om removal by SEC Commis

sioners, 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 Presi

dent’s “ability to execute the laws,” the Court explained, be

cause 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 pro

tections, 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-caus e limitations in general”— which do enable the President to determine whether good cause for discharge exists (because, say, an official has vio

lated the law). Id., at 501. And the Court’s solution to the constitutional problem it saw wa s 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 gen

eral permissibility of for-cause provisions giving some inde

pendence to agencies. Contrary to the majority’s view, those laws do not represent a suspicious departure from il

limitable presidential control over administration. For al

most a century, this Court has made clear that Congress has broad discretion to enact for-cause protections in pur

suit of good governance.

D The deferential approach this Court has taken gives Con

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AGAN , 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 te chnical expertise, energy and efficiency. Sometimes, the arguments push towardtight presidential control of agencies. The President’s engagement, some people say, can disrupt bureaucratic stagnation, counter industry capture, and make agencies moreresponsive 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 prom otes continuity, and preventsshort-term electoral interests from distorting policy. (Consider, for example, how the Fe deral Reserve’s independencestops 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) outof 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 K AGAN , J.24 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU
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AGAN , J., dissentingappointments 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 anda 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 (B REYER , J., dissenting). That is becauseinformal restraints can prevent Presidents from firing atwill officers—and because othe r devices can keep officers with for-cause protection under co ntrol. 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 courtsto defer to the branches charged with fashioning administrative structures, and to hesi tate 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. AsChief 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. Thatwould have been, he continued, “an unwise attempt to provide, by immutable rules, for ex igencies 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 K AGAN , J.Cite as: 591 U. S. ____ (2020) 25

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AGAN , J., dissenting agencies like the CFPB. In reversing course today—inspurning a “pragmatic, flexible approach to American governance” in favor of a dogmatic, inflexible one, ante, at 29— the majority makes a serious error.

IIAs the majority explains, the CFPB emerged out of disaster. The collapse of the s ubprime 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 agen cy 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 historicallygiven—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 mo st 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 Directoronly for “inefficiency, neglect of duty, or malfeasance in office.” §5491(c)(3). That standard would allow the Presidentto 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 K AGAN , J.26 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU
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AGAN , J., dissenting answer, is whether including that for-cause standard in the statute creating the CFPB violates the Constitution.

A Applying our longstanding prec edent, the answer is clear: It does not. This Court, as the majority acknowledges, hassustained 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 hisown 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 powerunder 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) theFTC 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, at18, 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 K AGAN , J.Cite as: 591 U. S. ____ (2020) 27

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AGAN , J., dissenting over $11 billion for banking consumers. See ante, at 5. Thekey 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). Cong ress, to be sure, gave the CFPB new authority over “unf air, 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 protecti on given the CFPB’s Director

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10 The 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 st atute broadly “empowered and directed” the agency “to prevent person s” or businesses “from using unfair methods of competition in commerce.” Act of Sept. 26, 1914, §5, 38 Stat. 719. To fulfill that mandate, the agen cy 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 st atutory 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 ca se, the relevant point of comparison is the present-day FTC, which remain s 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 K AGAN , J.28 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU
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AGAN , J., dissentingis 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 theclincher, 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 anagency 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 th e 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 co mpetently 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’sremoval 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 head s 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 K AGAN , J.Cite as: 591 U. S. ____ (2020) 29

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AGAN , J., dissenting The CFPB Director is singular, no t 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; andhe 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 “constitutio nal structure” because it vestspower 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 somemore 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,

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11 The 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 Presiden t’s advantage.) Second, the majority complains that the Director’s five -year term may prevent a President from “shap[ing the agency’s] lead ership” 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 Bo ard, 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 wh ether he agrees.) Opinion of K AGAN , J.30 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU
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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 conne ct 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 individualofficers: 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” ofthe agency head only in their background sections. The majority picks out that until-now-irrelevant fact to distinguishthe 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 afair 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

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12 The 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 contro l those duties was any less “central to the functioning of the Executive Br anch” 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 K AGAN , J.Cite as: 591 U. S. ____ (2020) 31

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AGAN , J., dissentingexplained 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 independen ce. As for the other three, the majority objects: too powerl ess and too contested. See ante, at 18–21. I think not. On power, the SSA runs the Nation’s largest government program—among otherthings, 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 intheir favor, those agencies divest the President of some removal power. If signing statements and veto threats made independent agencies unconstitutional, quite a fewwouldn’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 ofpowers). 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 K AGAN , J.32 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU
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AGAN , 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—itsrules, 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 pu t a single director, ratherthan 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 mattersare 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 (B REYER , J., dissenting); Opinion of K AGAN , J.Cite as: 591 U. S. ____ (2020) 33

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supra, at 23–24. 13 The effectiveness of each of those controlmechanisms, when present, can then depend on a multitude of agency-specific practices, norms, rules, and organizational features. In t hat 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 aresubject to the same removal standard, or even when the individual director has greater fo rmal job protection. Indeed, the very category of multimember commissions breaksapart 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, vo ting rules, and more—all vary widely, in ways that make a significant difference to the ease of presidential control. Why, then, would anyone

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13 To 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 su pervision 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 cont rol over rulemaking at the CFPB than at any similar independent agen cy. 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 th reat of vetoes than on their execution. OMB casts a long shadow over rulemaking in the ExecutiveBranch, but rarely uses its veto pen. See Sunstein, The Office of Information and Regulatory Affairs: Myth s and Realities, 126 Harv. L. Rev. 1838, 1846–1847, n. 37 (2013). Opinion of K AGAN , J.34 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU
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distinguish along a simple commission/single-director axis when deciding whether the Co nstitution 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 notwhen 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 in fluential Senate Report concluded, is “a buffer against Pres idential control” (especiallywhen 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

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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 GeneralAccounting Office has recognized that the desire for “greater independence” is what “most likely explains why the Congress in the past hasopted to head independent regulatory bodies with multimember commissions rather than single administra tors.” 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 K AGAN , J.Cite as: 591 U. S. ____ (2020) 35

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AGAN , J., dissenting take the same tack when creating the CFPB. But its choicebrought the agency only closer to the President—more exposed to his view, more subject to his sway. In short, themajority 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 controlof 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). Sothe CFPB falls victim to what the majority sees as a constitutional anti-power-concentrati on 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 consti tutional language” of ArticleII’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

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AGAN , J., dissentingby 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 pr esidential control, see ante , at23—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 hand s 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 accordancewith 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 thePresidency—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 presum ably 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 C FPB wields more power more Opinion of K AGAN , J.Cite as: 591 U. S. ____ (2020) 37

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AGAN , 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 ofthe Great Recession, Congress and the President came together to create an agency with an important mission. Itwould protect consumers from the reckless financial practices that had caused the then-ongoing economic collapse. Not only Congress but also the President thought that thenew agency, to fulfill its mandate, needed a measure of independence. So the two politic al branches, acting together, gave the CFPB Director the sa me job protection that innumerable other agency heads possess. All in all, those branches must have thought, they had done a good day’swork. 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 s hut 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 K AGAN , J.38 SEILA LAW LLC v. CONSUMER FINANCIAL PROTECTION BUREAU
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to secure liberty, it also contemplates that practice will integrate the dispersed powers in to 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 a llow the structures of governance to change, as times and needs change. The Constitution says only a few words about administration. As ChiefJustice 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 wi th new devices. So Article II does not generally prohibit independent agencies. Nor doany 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 itto 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 SE C; maybe some you’ve neverheard of. As to each, Congress thought that formal job protection for policymaking woul d 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 defe ct—“for example, converting Opinion of K AGAN , J.Cite as: 591 U. S. ____ (2020) 39

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AGAN , J., dissenting the CFPB into a multimember agency.” Ante , at 36. But there was no need to send Congress back to the drawingboard. 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 K AGAN , J.