“The Court should dump the limit on the removal power that it created out of thin air in 1935.”
—Corbin K. Barthold, WLF Senior Litigation Counsel

Click here for WLF’s brief. 

(Washington, DC)—Washington Legal Foundation today filed an amicus curiae brief urging the U.S. Supreme Court to restore the president’s power to remove principal officers at will.

The framers of our Constitution rejected many royal prerogatives, but, chastened by their experience with the defective Articles of Confederation, they retained a broad executive removal power. This decision can be seen in (among other places) Article II’s clauses vesting “the executive Power” in a single “President” who must “take Care that the Laws be faithfully executed.” In 1935, however, the Supreme Court declared that Congress may grant for-cause removal protection to a principal officer on a panel of purportedly neutral “experts” who wield “quasi legislative” and “quasi judicial” power. The Court in effect granted Congress the power to create a fourth branch of government, a branch of independent boards and commissions.

Since 1935, Congress has steadily pushed the boundaries of its court-granted privilege to create “for-cause” removal protections. This has culminated in the creation of the Consumer Financial Protection Bureau, an entity headed by a single director who both wields extensive authority and enjoys for-cause protection.

The petitioner in Seila Law LLC v. Consumer Financial Protection Bureau contends that the structure of the CFPB violates the Constitution’s separation of powers. In its supportive amicus brief, WLF engages in an extensive review of the history of the removal power. The breadth of that power can be seen, WLF argues, in English history, in the text and structure of the Constitution, and in over a century of unbroken executive-branch practice after the founding.

Celebrating its 42nd year as America’s premier public-interest law firm and policy center, WLF advocates for free-market principles, limited government, individual liberty, and the rule of law.