MARY REICHARD, HOST: It’s Monday morning and we are back at it for The World and Everything in It. Today is the 23rd of March, 2020. Good morning to you, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. Well, just like everybody else, the justices of the Supreme Court adjusted how to do their work during this time of emergency.
They’ve postponed oral arguments scheduled for the rest of this month—without consulting you!
REICHARD: That’s right, the court appears to have zero regard for my schedule!
But seriously, this is going to be something to watch.
The court calendar had 20 arguments remaining for the term. But not now. So the chief justice is going to have to figure out how to handle the docket.
Good news for lawyers who need to file appeals to the high court: they’ll have five months to file instead of three.
EICHER: And these are changes in place until further notice, considering all the unknowns that remain at this point.
Now, this isn’t fully unprecedented. The Supreme Court building shut down during the anthrax scare in October 2001.
REICHARD: That’s right. But the court just moved location and kept hearing arguments. That’s not going to help in this case.
The court has postponed arguments before. Back in 1918, the court simply put off arguments for a whole month because of the Spanish Flu. And the yellow fever outbreaks postponed arguments in the 1790s.
So we’ve come through these things before. And Lord willing, we will again.
Meantime, the justices are still at work. It’s even possible we’ll receive opinions this morning, and if so, I’ll tell you about those tomorrow.
EICHER: Hmm. Well, the court’s been pretty reluctant to embrace technology. No cameras in the courtroom, for example.
But might this pandemic force the court to modernize a bit, even temporarily? I’m thinking oral arguments by way of Skype or something like that?
REICHARD: Wouldn’t surprise me. I mean, we have six justices over 65 years old. So they’re in the population at greatest risk with COVID-19. Skype might be a solution.
EICHER: Well, meantime, let’s catch up on arguments you’ve not treated yet. One of them is quite relevant to the day—given what’s happening to the economy and the capital markets. Wall Street’s performance this past week is considered the worst since the 2008 financial crisis, and it’s that crisis that led to some controversial new laws. One of them is before the Supreme Court.
Listen to this clip from 2010 of President Barack Obama announcing a new agency, the brainchild of Senator Elizabeth Warren. At the time, she chaired the Congressional Oversight Panel of the Troubled Asset Relief Program, TARP.
OBAMA: Part of what led to the financial crisis were practices that took advantage of consumers…For years, banks, mortgage lenders, and credit card companies have often used fine print, and confusing language… to take advantage of American consumers. Basically, the Consumer Financial Protection Bureau will be a watchdog for the American consumer.
The Consumer Financial Protection Bureau, CFPB. You’ll hear that initialism repeatedly before we’re done today.
CFPB grew out of the Dodd-Frank Act, and Congress decided that the head of CFPB would serve a five-year term and that person could be removed by the president only for cause.
That’s the crux of the dispute here: the structure of CFPB, that the petitioner in the case contends violates the constitutional separation of powers.
REICHARD: Here are the facts of this case. In 2017, CFPB investigated a law firm in California for its telemarketing practices. The agency suspected the firm’s practices were abusive.
That firm is Seila Law LLC. It refused the agency’s demands to produce documents and answer questions.
CFPB sued to force compliance. Seila Law lost over and over in court, and so finally appealed to the Supreme Court.
ROBERTS: We’ll hear argument this morning in case number 19-7. Seila Law v Consumer Financial Protection Bureau. Mr. Shanmugam?
Here’s how Seila Law’s attorney, Kannon Shanmugam, laid out the argument.
SHANMUGAM: The structure of the CFPB is unprecedented and unconstitutional. Never before in American history has Congress given so much executive power to a single individual who does not answer to the president.
Article II of the US Constitution gives executive power to the President. He in turn keeps federal officers accountable by holding the power to fire them, for any reason or no reason.
But CFPB makes an exception. It requires the president to show “inefficiency, neglect of duty, or malfeasance in office” before firing a director.
That takes away the president’s constitutional authority to remove officials at will. For political reasons, for example. It may not look good, but that’s our system.
The federal government is the Seila Law firm’s opponent in this case, but it isn’t arguing to dissolve CFPB.
Solicitor General Noel Francisco is trying to convince the Supreme Court to send it back to lower court to tweak things: to allow the president to fire the director at will. But keep the rest of the law that formed CFPB.
But Shanmugam for the law firm argues the court shouldn’t tweak things:
SHANMUGAM: The court should leave to Congress the quintessentially legislative task of deciding how to fix the CFPB’s defective structure.
Maybe you’re thinking this is esoteric stuff.
The Framers were explicit that the legislative process should be slow and arduous, full of debate, to ensure the will of the people figured into our laws.
But once that process is complete, the Framers vested in the president power to quickly enforce the law and to hold executive officials accountable.
So you’ve heard from two lawyers so far. One arguing the agency should be chucked, another arguing it should be tweaked.
Nobody stepped up to defend CFPB as it is. For that, the Supreme Court appointed former solicitor general Paul Clement. Listen to this exchange with Justice Samuel Alito.
ALITO: In concrete terms. So let’s say that the director is appointed by a prior president and the new president says: I want to remove you because I think you are too pro-consumer and you’re hurting the economy, or you are not sufficiently protecting consumer interests. Would that be permissible? There’s just a policy disagreement about the way interests are balanced. Would that be sufficient to remove that person?
CLEMENT: If the only alternative is to strike the statute down, I would say that’s sufficient. Now I will confess I don’t think that’s what Congress had in mind when it put those words in this particular statute. And I think, as written, it’s still perfectly constitutional.
That seemed to convince Justice Kagan. She addresses Solicitor General Francisco.
KAGAN: Why don’t we just leave it to the political branches, who actually know about these things?
FRANCISCO: The reason why I don’t think that the courts leave this just to the executive branches is…to protect the liberty of the people by enforcing the structural constraints of our Constitution…that the executive power shall be vested in a president and that he shall take care that the laws will be faithfully executed. The only way he can do that is if he’s fully accountable for the decisions of his principal officers.
The justices’ questions revealed how differently they interpret the Constitution. Listen to this question from Justice Sonia Sotomayor:
SOTOMAYOR: Mr. Clement, can you say what your counter is to “the buck stops here” argument? There seems to be an overriding assumption that somehow the president needs unfettered discretion to execute the laws
CLEMENT: So I don’t think that that’s true as a constitutional matter with respect to every power the president exercises. I think Congress has the power to say there are certain things where we want the president to have a role, but we also want it somewhat insulated from politics—take the Fed, for example. We don’t want the president to juice up interest rates right before a presidential election, so we’re going to give that to somebody who is insulated. How insulated depends on what’s constitutionally permissible. In the current situation, you see people are trying to make a political football out of dealing with a pandemic disease. So maybe Congress decides: You know what makes sense, let’s have the head of CDC be protected by for-cause removal because that’ll make sure people get good advice and it doesn’t become political.
One relevant aside to all this: a similar case came before Justice Brett Kavanaugh when he was a federal appeals judge.
The majority there upheld CFPB’s structure, but he dissented. Kavanaugh’s dissent opposed the for-cause requirement because he saw it as a violation of the Constitution.
He would have kept CFPB, but severed it from that one provision.
I’m guessing that reasoning will carry the day in this case. And that’s this week’s Legal Docket.