Collins v. Yellen further clarifies the scope of “for cause” removal of agency heads.
At the end of its October 2019 term, in Seila Law v. Consumer Finance Protection Board, the Supreme Court limited a key precedent governing presidential removal of executive branch officials—Humphrey’s Executor v. United States.
Since 1935, Humphrey’s Executor has given Congress a firm basis for according “for cause” protections from removal to officials exercising quasi-legislative and quasi?judicial functions but few “executive” functions. Under that theory, Congress has created an alphabet soup of independent agencies headed by multi-member boards and commissions.
Seila Law involved the Consumer Finance Protection Bureau (CFPB), which unlike traditional independent agencies that combine primarily quasi-legislative and quasi-adjudicative functions, is headed by a single person. The Court held that agency heads who are not members of a multi-member body must be subject to removal at will by the President. Though the opinion highlighted several disturbing aspects of the CFPB’s and its Director’s unusual insulation from presidential control, the Court expressed its rule in categorical terms: no single-headed agency could be led by an official with tenure protection.
Ten days after handing down Seila Law, the Court granted certiorari in Collins v. Mnuchin–renamed Collins v. Yellen to reflect the change in administrations. Collins challenged the “for cause” removal provisions protecting the Director of the Federal Housing Finance Agency (FHFA). In some ways, Collins was an easier case than Seila Law. The FHFA’s responsibilities seemed far more amenable to characterization as “executive.” The agency and its Director, however, did not share some of the attributes of the CFPB and its head that had troubled the Seila Law Court.
The portion of the Court’s decision in Collins v. Yellen addressing Congress’ power to limit removal was, frankly, anti-climactic. The Court reiterated its Seila Law holding—an agency head must be cabined by either serving subject to presidential dismissal or having to share powers with others forming a multi-member governing body.
It did not matter that the FHFA, unlike the CFPB, administers only one statute (not 19), regulates only a small number of government-sponsored enterprises (not millions of individuals and businesses), and possesses little rulemaking and enforcement authority. Nor did it matter that, in Collins, the FHFA had merely taken on the role of conservator, a role many private entities assume. And finally, it did not matter that the provision protecting the director’s tenure generally allowed the President to remove the director for any unspecified “cause,” rather than limiting removal to specific grounds, such as “inefficiency, neglect of duty, and malfeasance in office.” Indeed, even the Seila Law dissenters agreed that Seila Law was controlling.
The more interesting and surprising aspects of Collins v. Yellen deal with what one might call the appointment and removal litigation “ecosystem”—the set of doctrines that determines the right to make such challenges and the available remedies. Humphrey’s Executor, Myers v. United States, and Weiner v. United States, notwithstanding, appointment and removal cases are rarely brought by the executive branch or by the official who has been removed or whose appointment is constitutionally questionable.
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