Seila Law LLC v. Consumer Financial Protection Bureau

P R E L I M I N A R Y P R I N T Volume 591 U. S. Part 1 Pages 197– 298

O F F I C I A L R E P O R T S

T H E S U P R E M E C O U R T June 29, 2020

N O T I C E : This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.

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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 fnancial crisis, Congress established the Con- sumer Financial Protection Bureau (CFPB), an independent regulatory agency tasked with ensuring that consumer debt products are safe and transparent. See Dodd-Frank Wall Street Reform and Consumer Pro- tection Act (Dodd-Frank), 124 Stat. 1376. Congress transferred the ad- ministration of 18 existing federal statutes to the CFPB, including the Fa i r C r e d i t R e p o r t i n g Ac t , t h e Fa i r De b t C o l l e c t i o n P r a c t i c e s Ac t , and the Tr uth in Lending Act; and Congress enacted a new prohibition on unfair and deceptive practices in the consumer-fnance sector. 12

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

sive r ulemaking, enforcement, and adjudicatory powers, including the authority to conduct investigations, issue subpoenas and civil investiga- tive demands, initiate administrative adjudications, prosecute civil ac- tions in federal court, and issue binding decisions in administrative pro- ceedings. The CFPB may seek restitution, disgorgement, injunctive relief, and sig nifcant civil penalties for violations of the 19 federal stat- utes 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 b o a r d s o r c o m m i s s i o n s , t h e C F P B i s l e d b y a s i n g l e D i r e c t o r , § 5491( b)(1), who is appointed by the President with the advice and con- sent of the Senate, § 5491( b)(2), for a fve-year term, during which the President may remove the Director only for “ ineffciency, neglect of duty, or malfeasance in offce, ” §§ 5491(c)(1), (3). The CFPB receives its funding outside the annual appropriations process from the Federal R e s e r v e , w h i c h i s i t s e l f f u n d e d o u t s i d e t h e a p p r o p r i a t i o n s p r o c e s s through bank assessments.

In 2017, the CFPB issued a civil investigative demand to Seila Law LLC, a California-based law frm that provides debt-related legal serv- ices to clients. The civil investigative demand (essentially a subpoena) sought information and documents related to the frm's business prac- tices. Seila Law asked the CFPB to set aside the demand on the ground that the agency's leadership by a single Director removable only for cause violated the separation of powers. When the CFPB declined,

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Seila Law refused to comply with the demand, and the CFPB fled a petition to enforce the demand in District Court. Seila Law renewed its claim that the CFPB's str ucture violated the separation of powers, but the District Court disagreed and ordered Seila Law to comply with the demand. The Ninth Circuit affrmed, concluding that Seila Law's challenge was foreclosed by Humphrey's Execu tor v. Un i ted Sta tes, 295

U. S. 602, and M or r iso n v. O lso n, 487 U. S. 654.

Held: The judg ment is vacated and remanded.

923 F. 3d 680, vacated and remanded.

The Chief Justice delivered the opinion of the Court with respect

1. Appointed amicus raises three threshold arguments for why this

Court may not or should not reach the merits of petitioner 's constitu- tional challenge, but they are unavailing. Pp. 209 – 213.

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

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

Pp. 213 – 232. (a) Article II vests the entire “executive Power ” in the President alone, but the Constitution presumes that lesser executive offcers will assist the President in discharg ing his duties. The President's execu- tive power generally includes the power to supervise—and, if necessary, remove—those who exercise the President's authority on his behalf.

The President's removal power has long been confrmed by history and precedent. It was recog nized by the First Congress in 1789, confrmed by this Court in Myers v. Un i ted Sta tes, 272 U. S. 52, and reiterated in Free En ter pr ise Fund v. Publ ic Co mpany Accoun t ing O v ersi gh t Bd., 561 U. S. 477. In Free En ter pr ise Fund, the Court recog nized 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 En ter pr ise Fund lef t in place only two exceptions to the Presi- dent's unrestricted removal power. First, Humphrey's Execu tor per- mitted Congress to g ive for-cause removal protection to a multimember body of experts who were balanced along partisan lines, appointed to staggered terms, performed only “quasi-leg islative” and “quasi-judicial functions, ” and were said not to exercise any executive power. Second, M or r iso n approved for-cause removal protection for an in fer ior off- cer—the independent counsel—who had limited duties and no policy- making or administrative authority. Pp. 213 – 218. ( b) Neither Humphrey's Execu tor nor M or r iso n resolves whether the CFPB Director 's insulation from removal is constitutional. The New Deal-era FTC upheld in Humphrey's Execu tor bears little resem-

Cite as: 591 U. S. 197 (2020) 199 Syllabus

blance to the CFPB. Unlike the multiple Commissioners of the FTC, who were balanced along partisan lines and served staggered terms to ensure the accumulation of institutional knowledge, the CFPB Director serves a fve-year term that guarantees abr upt shif ts in leadership and the loss of agency expertise. In addition, the Director cannot be dis- missed as a mere leg islative or judicial aid. Rather, the Director pos- sesses sig nifcant administrative and enforcement authority, including the power to seek daunting monetary penalties against private parties in federal court —a quintessentially executive power not considered in Humphrey's Execu tor.

The log ic of M or r iso n also does not apply. The independent counsel approved in M or r iso n was an inferior offcer who lacked policymaking or administrative authority and exercised narrow authority to initiate criminal investigations and prosecutions of governmental actors identi- fed by others. By contrast, the CFPB Director is a principal offcer whose duties are far from limited. The Director promulgates binding r ules feshing out 19 consumer-protection statutes that cover everything from credit cards and car payments to mortgages and student loans.

And the Director brings the coercive power of the state to bear on millions of private citizens and businesses, imposing potentially billion- dollar penalties through administrative adjudications and civil actions.

The question here is therefore whether to extend the Humphrey's Execu tor and M or r iso n exceptions to a “new situation. ” Free En ter- pr ise Fund, 561 U. S., at 433. Pp. 218 – 220. (c) The Court declines to extend these precedents to an independ- ent agency led by a single Director and vested with sig nifcant executive power. Pp. 220 – 232.

(1) The CFPB's str ucture has no foothold in history or tradition.

Congress has provided removal protection to principal offcers who alone wield power in only four isolated instances: the Comptroller of the Currency (for a one-year period during the Civil War); the Offce of Special Counsel; the Administrator of the Social Security Administra- tion; and the Director of the Federal Housing Finance Agency. Aside from the one-year blip for the Comptroller of the Currency, these exam- ples are modern and contested; and they do not involve regulatory or enforcement authority comparable to that exercised by the CFPB.

Pp. 220 – 222.

(2) The CFPB's single-Director confguration is also incompatible

with the str ucture of the Constitution, which—with the sole exception of the Presidency—scr upulously avoids concentrating power in the hands of any single individual. The Framers' constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through

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regular elections. In that scheme, individual executive offcials may wield sig nifcant authority, but that authority remains subject to the ongoing supervision and control of the elected President. The CFPB's single-Director str ucture contravenes this carefully calibrated system by vesting sig nifcant governmental power in the hands of a single indi- vidual who is neither elected by the people nor meaning fully controlled (through the threat of removal) by someone who is. The Director may un i la terally, without meaning ful supervision, issue fnal regulations, oversee adjudications, set enforcement priorities, initiate prosecutions, and determine what penalties to impose on private parties. And the Director may do so without even having to rely on Congress for appro- priations. While the CFPB's independent, single-Director str ucture is suffcient to render the agency unconstitutional, the Director 's fve-year term and receipt of funds outside the appropriations process heighten the concern that the agency will “slip from the Executive's control, and thus from that of the people. ” Free En ter pr ise Fund, 561 U. S., at 499.

Pp. 222 – 226.

(3) Amicus raises three principal arguments in the agency's de-

fense. First, amicus challenges the textual basis for the President's removal power and high lights statements from individual Framers ex- pressing divergent views on the subject. This Court's precedents, how- ever, make clear that the President's removal power derives from the “executive Power ” vested exclusively in the President by Article II.

And this Court has already discounted the founding-era statements cited by amicus in light of their context. Second, amicus claims that Humphrey's Execu tor and M or r iso n establish a general r ule that Con- gress may freely constrain the President's removal power, with only two limited exceptions not applicable here. But text, frst principles, the First Congress's decision in 1789, Myers, and Free En ter pr ise Fund all establish that the President's removal power is the r ule, not the excep- tion. Finally, amicus submits that this Court can cure any constitu- tional defect in the CFPB's str ucture by interpreting the language “ ineffciency, neglect of duty, or malfeasance in offce, ” 12 U. S. C. § 5491(c)(3), to reserve substantial discretion to the President. But Humphrey's Execu tor implicitly re jected 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 makes plain that the CFPB is an “ independent bureau. ” § 5491(a).

The dissent advances several additional arguments in the agency's defense, but they have already been expressly considered and re jected by the Court in Free En ter pr ise Fund. Pp. 226 – 232.

Cite as: 591 U. S. 197 (2020) 201 Syllabus

The Chief Justice, joined by Justice Alito and Justice Kav- 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 defne its authority. Pp. 232 – 238.

Roberts, C. J., delivered the opinion of the Court with respect to Parts I, II, and III, in which Thomas, Alito, Gorsuch, and Kavanaugh, JJ., joined, and an opinion with respect to Part IV, in which Alito and Kav- anaugh, JJ., joined. Thomas, J., fled an opinion concurring in part and dissenting in part, in which Gorsuch, J., joined, post, p. 238. Kagan, J., fled an opinion concurring in the judg ment with respect to severability and dissenting in part, in which Ginsburg, Breyer, and Sotomayor , JJ., joined, post, p. 261.

Kanno n K. Shanmugam arg ued the cause for petiti oner.

With h im on the br iefs were Masha G. Han sfo rd, Wi ll i am

T. Marks, Joel S. John so n, and An tho ny Bisco n t i.

So l ici t o r Gene ral Francisco arg ued the cause for respond- ent urg ing vacatur. With h im on the br iefs were Assistan t At t o r ney Gene ral Hun t, Depu ty So l ici t o r Gene ral Wall, Dep- u ty Assistan t At t o r ney Gene ral M oo ppan, Jo n a than Y. Ell is, Mark B. Ste r n, Dan i el A gu i l ar, and Stev en Y. Bressle r.

Paul D. Clemen t, by invitati on of the Cour t, 589 U. S. –––, arg ued the cause as amicus cur i ae in suppor t of the judg- ment below. With h im on the br ief were Er in E. Mur phy, Ma t thew D. Ro w en, and Andrew C. L aw rence.

Do ugl as N. Le t te r arg ued the cause for the United States House of Representatives as amicus cur i ae urg ing affr m- ance. With h im on the br ief were Megan Barbe ro, Adam A. G rogg, Br i an H. Fle tche r, and Pamel a S. Karl an.*

*Briefs of amici cur i ae urg ing reversal were fled for the State of Texas et al. by Ken Paxto n, Attorney General of Texas, Ky le D. Hawkins, Solici- tor General, Je ff rey C. Ma teer, First Assistant Attorney General, and L a- nora C. Pett i t, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Stev e Marshall of Alabama, Lesl i e Ru tled ge of Arkansas, Chr istopher M. Car r of Georg ia, Cur t is T. H i ll, Jr., of Indiana, Derek Schmid t of Kansas, Je ff L andr y of Louisiana, Doug Peterso n of Nebraska, Mi ke Hun ter of Oklahoma, Alan Wi lso n of South

Opinion of Roberts, C. J.

Chief Justice Roberts delivered the opini on of the Cour t w ith respect to Par ts I, II, and III.

In the wake of the 2008 fnancia l cr isis, Congress estab- lished the Consumer Financia l Protecti on Bureau (CFPB), an independent reg u latory agency tasked w ith ensur ing that

Carolina, Jaso n R. Ravnsborg of South Dakota, Sean Reyes of Utah, and Pa tr ick M or r isey of West Virg inia; for the Buckeye Institute by Wi ll i am

S. Co nsovoy, Tho mas R. M cCar thy, and Rober t Al t; for the Cato Institute

et al. by Ilya Shapiro and Michael E. Rosman; for the Center for Consti- tutional Jurispr udence by John C. Eastman and An tho ny T. Caso; for the Center for the Rule of Law by Theodore B. O lso n, Hel g i C. Walker, Loch- lan F. Shel fer, and Jeremy M. Chr ist i ansen; for the Chamber of Com- merce of the United States of America by Andrew J. P incus and Stephen

Ell is, Jr.; for Harpeth Financial Services, LLC, by Andrew M. G rossman; for the Landmark Legal Foundation by Ma tthew C. For ys, Michael J. O'Ne i ll, and Richard P. Hu tch iso n; for Nationwide Biweekly Administra- tion, Inc., et al. by Amanda R. Parker; for the New Civil Liberties Alli- ance by Jo na than F. Mi tchell and Har r i et M. Hageman; for the Pacifc Legal Foundation by O l i v er J. D un ford, Glenn E. Roper, and Stev e Simp- so n; for RD Legal Funding Partners, LP, et al. by Alber t G i ang, Dav id

K. Wi ll ingham, and Michael D. Ro th; for Separation of Powers Scholars

by Ilan Wur man; for the Southeastern Legal Foundation et al. by Sco tt

A. Keller, Kimberly S. Her mann, Karen R. Har ned, and Luke A. Wake;

for the State National Bank of Big Spring et al. by G regor y Jacob, C.

Boyden G ray, Adam R. F. G usta fso n, and Sam Kazman; for Twenty- seven Members of the U. S. House of Representatives by Michael A. Car v in, Paul Lettow, and An tho ny J. D ick; for the Washington Legal Foundation by Corb in K. Bar tho ld and Cor y L. Andrews; for Patrick J. Collins et al. by Charles J. Cooper, Dav id H. Tho mpso n, and Peter A. Pa tterso n; and for Sen.

Mike Lee et al. by Gene C. Schaer r, Er i k S. Ja ffe, and Ka thr yn E. Tarber t.

Briefs of amici cur i ae urg ing affrmance were fled for the State of New York et al. by Let i t i a James, Attorney General of New York, Barbara D.

Under wood, Solicitor General, Stev en C. Wu, Deputy Solicitor General, and Caro l ine A. O lsen, Assistant Solicitor General, and by the Attorneys General for their respective jurisdictions as follows: Xav i er Becer ra of California, Ph i l We iser of Colorado, Wi ll i am To ng of Connecticut, Ka th- leen Jenn ings of Delaware, Karl A. Racine of the District of Columbia, Clare E. Co nnors of Hawaii, Kwame Raoul of Illinois, Aaro n M. Frey of Maine, Br i an E. Frosh of Maryland, Maura Healey of Massachusetts, Dana Nessel of Michigan, Ke i th Ell iso n of Minnesota, Aaro n D. Ford of

Cite as: 591 U. S. 197 (2020) 203 Opinion of Roberts, C. J.

consumer debt products are safe and transparent. In organ- izing the CFPB, Congress deviated from the str ucture of near ly every other independent administrative agency in our h istory. Instead of placing the agency under the leadersh ip of a board w ith mu ltiple members, Congress provided that the CFPB wou ld be led by a sing le Director, who serves for a longer ter m than the President and cannot be removed by the President except for ineffciency, neg lect, or ma lfeasance.

The CFPB Director has no boss, peers, or voters to repor t to. Yet the Director w ields vast r u lemak ing, enforcement, and adjudicatory author ity over a sig nifcant por ti on of the

U. S. economy. The questi on before us is whether th is ar-

rangement vi olates the Constituti on's separati on of powers.

Under our Constituti on, the “executive Power ”—a ll of it — is “vested in a President, ” who must “ take Care that the Laws be faithfu lly executed. ” Ar t. II, § 1, cl. 1; i d., § 3. Be-

Nevada, G urb ir S. G rewal of New Jersey, Hector H. Balderas of New Mexico, Josh Ste in of North Carolina, Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Peter F. Nero nha of Rhode Island, Tho mas J.

Do nov an, Jr., of Vermont, Mark R. Her r ing of Virg inia, Rober t Ferguso n of Washington, and Josh Kaul of Wisconsin; for Current and Former Mem- bers of Congress by El i zabeth B. Wydra, Br i anne J. Gorod, and Br i an R.

Frazelle; for Financial Regulation Scholars by Deepak G up ta and Adam

J. Lev i t in, pro se; for the Main Street Alliance by Stev en E. Fineman,

Jaso n L. Lich tman, and Andrew R. Kaufman; for the National Consumer Law Center et al. by Stu ar t T. Rossman, J. L. Po ttenger, Jr., Je ff rey Gen- tes, Seth E. Mer min, Jo na than R. Marshall, and Pa tr ici a M. Kipn is; for the Project on Government Oversight et al. by J. Carl Cecere; for Public Citizen et al. by Sco tt L. Nelso n and All iso n M. Zi ev e; for Self-Help Credit Union et al. by Dan i el S. So mmers; for Rachel E. Barkow et al. by Rich- ard L. Rev esz; for Harold H. Br uff et al. by L a t i f M. Nuran i, Je ff rey M.

Bayne, G i ll i an E. Metzger, and Peter M. Shane; for John Harrison by Mr.

Har r iso n, pro se; for Martin S. Lederman et al. by Mr. Leder man and Dav id C. V ladeck, both pro se; and for Sen. Sheldon Whitehouse et al. by Stephen D. Susman and Amanda Bo nn.

Briefs of amici cur i ae were fled for the Consumer Bankers Association by Jo na than S. Frankl in and Peter B. Si egal; for the Mortgage Bankers Association et al. by Benjamin B. Klubes, Michelle L. Rogers, and El i za- beth R. Bai ley; and for Alan B. Morrison by Mr. M or r iso n, pro se.

Opinion of Roberts, C. J.

cause no sing le person cou ld fu lfll that responsibility a lone, the Framers expected that the President wou ld rely on sub- ordinate offcers for assistance. Ten years ago, in Free En- te r pr ise Fund v. Publ ic Co mpany Acco un t ing O v e rsi gh t Bd., 561 U. S. 477 (2010), we reiterated that, “as a genera l matter, ” the Constituti on g ives the President “ the author ity to remove those who assist h im in carry ing out h is duties, ” i d., at 513 – 514. “Without such power, the President cou ld not be held fu lly accountable for discharg ing h is own respon- sibilities; the buck wou ld stop somewhere else. ” Id., at 514.

The President's power to remove—and thus supervise— those who w ield executive power on h is beha lf follows from the text of Ar ticle II, was settled by the First Congress, and was confr med in the landmark decisi on Mye rs v. Un i ted Sta tes, 272 U. S. 52 (1926). Our precedents have recog nized only two excepti ons to the President's unrestr icted remova l power. In Humphrey's Execu t o r v. Un i ted Sta tes, 295 U. S.

602 (1935), we held that Congress cou ld create exper t agen- cies led by a gro up of pr incipa l offcers removable by the President only for good cause. And in Un i ted Sta tes v. Pe r- kin s, 116 U. S. 483 (1886), and M o r r iso n v. O lso n, 487 U. S. 654 (1988), we held that Congress cou ld provide tenure pro- tecti ons to cer tain in fe r io r offcers w ith narrowly defned duties.

We are now asked to extend these precedents to a new confg urati on: an independent agency that w ields sig nifcant executive power and is r un by a sing le individua l who cannot be removed by the President unless cer tain statutory cr ite- r ia are met. We decline to take that step. Wh ile we need not and do not revisit our pr i or decisi ons a llow ing cer tain limitati ons on the President's remova l power, there are com- pelling reasons not to extend those precedents to the novel context of an independent agency led by a sing le Director.

Such an agency lacks a foundati on in h istor ica l practice and clashes w ith constituti ona l str ucture by concentrating power in a unilatera l actor insu lated from Presidentia l control.

Cite as: 591 U. S. 197 (2020) 205 Opinion of the Court

We therefore hold that the str ucture of the CFPB vi olates the separati on of powers. We go on to hold that the CFPB Director 's remova l protecti on is severable from the other statutory provisi ons bear ing on the CFPB's author ity. The agency may therefore continue to operate, but its Director, in light of our decisi on, must be removable by the President at w ill.

In the summer of 2007, then-Professor Elizabeth Warren ca lled for the creati on of a new, independent federa l agency focused on reg u lating consumer fnancia l products. Warren, Unsafe at Any Rate, Democracy (Summer 2007). Professor Warren believed the fnancia l products marketed to ordinary A m e r i c a n h o u s e h o l d s — c r e d i t c a r d s , s t u d e n t l o a n s , m o r t - gages, and the like—had grown increasing ly unsafe due to a “reg u latory jumble” that paid too much attenti on to banks and too little to consumers. Ib i d. To remedy the lack of “coherent, consumer-or iented” fnancia l reg u lati on, she pro- posed “concentrat[ing] the review of fnancia l products in a sing le locati on”—an independent agency modeled af ter the mu ltimember Consumer Product Safety Commissi on. Ib i d.

That proposa l soon met its moment. With in months of Professor Warren's wr iting, the subpr ime mor tgage market collapsed, precipitating a fnancia l cr isis that w iped out over $10 tr illi on in Amer ican household wea lth and cost milli ons of Amer icans their jobs, their retirements, and their homes.

In the af ter math, the Obama administrati on embraced Pro- fessor Warren's recommendati on. Through the Treasury Depar tment, the administrati on encouraged Congress to es- tablish an agency w ith a mandate to ensure that “consumer protecti on reg u lati ons” in the fnancia l sector “are wr itten fair ly and enforced vigorously. ” Dept. of Treasury, Finan- cia l Reg u latory Refor m: A New Foundati on 55 (2009). Like Professor Warren, the administrati on envisi oned a tradi-

Opinion of the Court

ti ona l independent agency, r un by a mu ltimember board w ith a “diverse set of viewpoints and exper iences. ” Id., at 58.

In 2010, Congress acted on these proposa ls and created the Consumer Financia l Protecti on Bureau (CFPB) as an in- dependent fnancia l reg u lator w ith in the Federa l Reserve System. Dodd-Frank Wa ll Street Refor m and Consumer P r o t e c t i o n Ac t ( D o d d - Fr a n k ) , 1 2 4 S t a t . 1 3 7 6 . C o n g r e s s tasked the CFPB w ith “ implement[ing] ” and “enforc[ing] ” a large body of fnancia l consumer protecti on laws to “ensur[e] that a ll consumers have access to markets for consumer f- nancia l products and services and that markets for consumer fnancia l products and services are fair, transparent, and competitive. ” 12 U. S. C. § 5511(a). Congress transferred the administrati on of 18 existing federa l statutes to the CFPB, including the Fair Credit Repor ting Act, the Fair Debt Collecti on Practices Act, and the Tr uth in Lending Act.

See §§ 5512(a), 5481(12), (14). In additi on, Congress enacted a new proh ibiti on on “any unfair, deceptive, or abusive act or practice” by cer tain par ticipants in the consumer-fnance sector. § 5536(a)(1)(B). Congress author ized the CFPB to implement that broad standard (and the 18 pre-existing stat- utes placed under the agency's purview) through binding reg u lati ons. §§ 5531(a)–( b), 5581(a)(1)(A), ( b).

Congress a lso vested the CFPB w ith potent enforcement powers. The agency has the author ity to conduct investiga- ti ons, issue subpoenas and civil investigative demands, initi- ate administrative adjudicati ons, and prosecute civil acti ons in federa l cour t. §§ 5562, 5564(a), (f ). To remedy vi olati ons of federa l consumer fnancia l law, the CFPB may seek resti- tuti on, disgorgement, and in junctive relief, as well as civil pena lties of up to $1 milli on ( infati on adjusted) for each day that a vi olati on occurs. §§ 5565(a), (c)(2); 12 CFR § 1083.1(a), Table (2019). Since its incepti on, the CFPB has obtained over $11 billi on in relief for over 25 milli on consumers, in- cluding a $1 billi on pena lty against a sing le bank in 2018.

See CFPB, Financia l Repor t of the Consumer Financia l Pro- Cite as: 591 U. S. 197 (2020) 207

Opinion of the Court

tecti on Bureau, Fisca l Year 2015, p. 3; CFPB, Bureau of Consumer Financia l Protecti on Announces Settlement With Wells Fargo for Auto-Loan Administrati on and Mor tgage Practices (Apr. 20, 2018).

The CFPB's r u lemak ing and enforcement powers are cou- pled w ith extensive adjudicatory author ity. The agency may conduct administrative proceedings to “ensure or en- force compliance w ith” the statutes and reg u lati ons it admin- isters. 12 U. S. C. § 5563(a). When the CFPB acts as an adjudicator, it has “ jur isdicti on to grant any appropr iate lega l or equitable relief. ” § 5565(a)(1). The “ hear ing off- cer ” who presides over the proceedings may issue subpoenas, order depositi ons, and resolve any moti ons fled by the par- ties. 12 CFR § 1081.104( b). At the close of the proceed- ings, the hear ing offcer issues a “recommended decisi on, ” a n d t h e C F P B D i r e c t o r c o n s i d e r s t h a t r e c o m m e n d a t i o n and “ issue[s] a fna l decisi on and order. ” §§ 1081.400(d), 1081.402( b); see a lso § 1081.405.

Congress's desig n for the CFPB differed from the propos- a ls of Professor Warren and the Obama administrati on in one cr itica l respect. Rather than create a traditi ona l independ- ent agency headed by a mu ltimember board or commissi on, Congress elected to place the CFPB under the leadersh ip of a sing le Director. 12 U. S. C. § 5491( b)(1). The CFPB Di- rector is appointed by the President w ith the advice and con- sent of the Senate. § 5491( b)(2). The Director serves for a ter m of fve years, dur ing wh ich the President may remove the Director from offce only for “ ineffciency, neg lect of duty, or ma lfeasance in offce. ” §§ 5491(c)(1), (3).

Unlike most other agencies, the CFPB does not rely on the annua l appropr iati ons process for funding. Instead, the CFPB receives funding directly from the Federa l Reserve, wh ich is itself funded outside the appropr iati ons 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 Federa l Reserve

Opinion of the Court

grants that request so long as it does not exceed 12% of the tota l operating expenses of the Federa l Reserve ( infati on adjusted). §§ 5497(a)(1), (2)(A)( i i i), (2)(B). In recent years, the CFPB's annua l budget has exceeded ha lf a billi on dollars.

See CFPB, Fisca l Year 2019: Ann. Perfor mance Plan and Rep., p. 7.

Seila Law LLC is a Ca lifor nia-based law fr m that pro- vides debt-related lega l services to clients. In 2017, the CFPB issued a civil investigative demand to Seila Law to deter mine whether the fr m had “engag[ed] in unlawfu l acts or practices in the adver tising, marketing, or sa le of debt relief services. ” 2017 WL 6536586, *1 (CD Ca l., Aug. 25, 2 0 1 7 ) . S e e a l s o 1 2 U. S . C. § 5 5 6 2 (c ) ( 1 ) ( a u t h o r i z i n g t h e agency to issue such demands to persons who “may have any infor mati on[ ] relevant to a vi olati on” of one of the laws enforced by the CFPB). The demand (essentia lly a sub- poena) directed Seila Law to produce infor mati on and docu- ments related to its business practices.

Seila Law asked the CFPB to set aside the demand, objecting that the agency's leadersh ip by a sing le Director removable only for cause vi olated the separati on of powers.

The CFPB declined to address that claim and directed Seila Law to comply w ith the demand.

When Seila Law refused, the CFPB fled a petiti on to en- force the demand in the Distr ict Cour t. See § 5562(e)(1) (creating cause of acti on for that purpose). In response, Seila Law renewed its defense that the demand was inva lid and must be set aside because the CFPB's str ucture vi olated the Constituti on. The Distr ict Cour t disagreed and ordered Seila Law to comply w ith the demand (w ith one modifcati on not relevant here).

The Cour t of Appea ls affr med. 923 F. 3d 680 (CA9 2019).

The Cour t observed that the “arg uments for and against” the constituti ona lity of the CFPB's str ucture had a lready been “ thorough ly canvassed” in major ity, concurr ing, and dissent- ing opini ons by the en banc Cour t of Appea ls for the Distr ict

Cite as: 591 U. S. 197 (2020) 209 Opinion of the Court

of Columbia Circuit in PHH Co r p. v. CFPB, 881 F. 3d 75 (2018), wh ich had re jected a cha llenge similar to the one pre- sented here. 923 F. 3d, at 682. The Cour t saw “no need to re-plow the same ground. ” Ib i d. Instead, it provided a br ief explanati on for why it agreed w ith the PHH Cour t's core holding. The Cour t took as its star ting point Hum- phrey's Execu t o r, wh ich had approved for-cause remova l protecti on for the Commissi oners of the Federa l Trade Com- missi on (FTC). In apply ing that precedent, the Cour t rec- og nized that the CFPB w ields “substantia lly more executive power than the FTC did back in 1935” and that the CFPB's leadersh ip by a sing le Director (as opposed to a mu ltimem- ber commissi on) presented a “str uctura l difference” that some jur ists had found “dispositive. ” 923 F. 3d, at 683 – 684.

But the Cour t felt bound to disregard those differences in light of our decisi on in M o r r iso n, wh ich per mitted a sing le individua l (an independent counsel) to exercise a core execu- tive power (prosecuting cr imina l offenses) despite being in- su lated from remova l except for cause. Because the Cour t found Humphrey's Execu t o r and M o r r iso n “controlling, ” it affr med the Distr ict Cour t's order requir ing compliance w ith the demand. 923 F. 3d, at 684.

We granted cer ti orar i to address the constituti ona lity of the CFPB's str ucture. 589 U. S. ––– (2019). We a lso re- quested arg ument on an additi ona l questi on: whether, if the CFPB's str ucture vi olates the separati on of powers, the CFPB Director 's remova l protecti on can be severed from the rest of the Dodd-Frank Act.

Because the Gover nment agrees w ith petiti oner on the mer its of the constituti ona l questi on, we appointed Pau l Clement to defend the judg ment below as amicus cur i ae.

He has ably discharged h is responsibilities.

We frst consider three threshold arg uments raised by the appointed amicus for why we may not or shou ld not reach the mer its. Each is unavailing.

Opinion of the Court

First, amicus arg ues that the demand issued to petiti oner is not “ traceable” to the a lleged constituti ona l defect because two of the three Directors who have in tur n played a role in enforcing the demand were (or now consider themselves to be) removable by the President at w ill. Br ief for Cour t- Appointed Amicus Cur i ae 21– 24. Amicus h igh lights the Gover nment's arg ument below that the demand, or ig ina lly issued by for mer Director Richard Cordray, had been ratifed by an act ing CFPB Director who, according to the Offce of Lega l Counsel (OLC), was removable by the President at w ill. See Br ief for Appellee in No. 17– 56324 (CA9), pp. 1, 10, 13 –19 (citing Desig nating an Acting Director of the Bureau of Consumer Financia l Protecti on, 41 Op. OLC –––, ––– (Nov. 25, 2017)). Amicus fur ther observes that current CFPB Director Kath leen Kraninger, now responsible for en- forcing the demand, agrees w ith the Solicitor Genera l's posi- ti on in th is case that her for-cause remova l protecti on is un- constituti ona l. See Br ief for Respondent on Pet. for Cer t.

20; Letter from K. Kraninger, CFPB Director, to M. McCon- nell, Major ity Leader, U. S. Senate, p. 2 (Sept. 17, 2019); Let- ter 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 revea l that the demand wou ld have been issued—and wou ld continue to be en- forced— even in the absence of the CFPB Director 's remova l protecti on, mak ing the asser ted separati on of powers dispute “ar tifcia l. ” Br ief for Cour t-Appointed Amicus Cur i ae 22.

Even if that were tr ue, it wou ld not depr ive us of jur isdic- ti on. Amicus' traceability arg ument appears to cha llenge petiti oner 's Ar ticle III standing. See Lujan v. De fende rs o f Wi ld l i fe, 504 U. S. 555, 560 (1992) (explaining that the plain- tiff 's in jury must be “fair ly traceable to the cha llenged acti on of the defendant” ( inter na l quotati on marks and a lterati ons

1 Director Kraninger did not indicate whether she would disregard her statutory removal protection if the President attempted to remove her without cause.

Cite as: 591 U. S. 197 (2020) 211 Opinion of the Court

omitted)). But amicus' arg ument does not cast any doubt on the jur isdicti on of the Distr ict Cour t because petiti oner is the de fendan t and did not invoke the Cour t's jur isdicti on.

See Bo nd v. Un i ted Sta tes, 564 U. S. 211, 217 (2011) (When the plaintiff has standing, “Ar ticle III does not restr ict the opposing par ty's ability to object to relief being sought at its expense. ”).

It is tr ue that “standing must be met by persons seek ing appellate review, just as it must be met by persons appear ing in cour ts of frst instance. ” Ho ll ingswo r th v. Pe r r y, 570

U. S. 693, 705 (2013) ( inter na l quotati on marks omitted).

But petiti oner 's appellate standing is beyond dispute. Peti- ti oner is compelled to comply w ith the civil investigative de- mand and to provide documents it wou ld prefer to w ithhold, a concrete in jury. That in jury is traceable to the decisi on below and wou ld be fu lly redressed if we were to reverse the judg ment of the Cour t of Appea ls and remand w ith in- str ucti ons to deny the Gover nment's petiti on to enforce the demand.

Without engag ing w ith these pr inciples, amicus contends that a litigant w ish ing to cha llenge an executive act on the basis of the President's remova l power must show that the cha llenged act wou ld not have been taken if the responsible offcia l had been subject to the President's control. See Br ief for Cour t-Appointed Amicus Cur i ae 21– 24. Our prec- edents say other w ise. We have held that a litigant cha l- leng ing gover nmenta l acti on as void on the basis of the separati on of powers is not required to prove that the Gover nment's course of conduct wou ld have been different in a “counterfactua l wor ld” in wh ich the Gover nment had acted w ith constituti ona l author ity. Free En te r pr ise Fund, 561 U. S., at 512, n. 12. In the specifc context of the Presi- dent's remova l power, we have found it suffcient that the cha llenger “sustain[s] in jury” from an executive act that a l- legedly exceeds the offcia l's author ity. Bo wshe r v. Syn ar,

Opinion of the Court

Second, amicus contends that the proper context for as- sessing the constituti ona lity of an offcer 's remova l restr ic- ti on is a contested remova l. See Br ief for Cour t-Appointed Amicus Cur i ae 24 – 27. Wh ile that is cer tainly one way to review a remova l restr icti on, it is not the only way. Our precedents have long per mitted pr ivate par ties aggr ieved by an offcia l's exercise of executive power to cha llenge the off- cia l's author ity to w ield that power wh ile insu lated from re- mova l by the President. See Bo wshe r, 478 U. S., at 721 ( lawsuit fled by aggr ieved th ird par ty in the absence of con- tested remova l); Free En te r pr ise Fund, 561 U. S., at 487 (same); M o r r iso n, 487 U. S., at 668 – 669 (defense to subpoena asser ted by th ird par ty in the absence of contested remova l).

Indeed, we have expressly “re ject[ed] ” the “arg ument that considerati on of the effect of a remova l provisi on is not `r ipe' until that provisi on is actua lly used, ” because when such a provisi on vi olates the separati on of powers it inficts a “ here- and-now” in jury on affected th ird par ties that can be reme- died by a cour t. Bo wshe r, 478 U. S., at 727, n. 5 ( inter na l quotati on marks omitted). The Cour t of Appea ls therefore correctly enter tained petiti oner 's constituti ona l defense on the mer its.

Lastly, amicus contends that we shou ld dismiss the case because the par ties agree on the mer its of the constituti ona l questi on and the case therefore lacks “adverseness. ” Tr. of Ora l Arg. 42 – 43, 45 – 46. That contenti on, however, is fore- closed by Un i ted Sta tes v. Windso r, 570 U. S. 744 (2013).

There, we explained that a lower cour t order that presents rea l-wor ld consequences for the Gover nment and its adver- sary suffces to suppor t Ar ticle III jur isdicti on— even if “ the Executive may welcome” an adverse order that “ is accom- panied by the constituti ona l r u ling it wants. ” Id., at 758.

He r e , p e t i t i o n e r a n d t h e G o v e r n m e n t d i s a g r e e a b o u t whether petiti oner must comply w ith the civil investigative demand. The lower cour ts sided w ith the Gover nment, and the Gover nment has not volunteered to relinquish that vic-

Cite as: 591 U. S. 197 (2020) 213 Opinion of the Court

tory and w ithdraw the demand. To the contrary, wh ile the Gover nment agrees that the agency is unconstituti ona lly str uctured, it believes it may never theless enforce the de- mand on remand. See in f ra, at 232. According ly, our “de- cisi on w ill have rea l meaning ” for the par ties. INS v.

Chadha, 462 U. S. 919, 939 (1983). And, as in Windso r, any pr udentia l concer ns w ith deciding an impor tant lega l ques- ti on in th is posture can be addressed by “ the practice of en- ter taining arg uments made by an amicus when the Solicitor Genera l confesses error w ith respect to a judg ment below, ” wh ich we have done. 570 U. S., at 760.

We therefore tur n to the mer its of petiti oner 's constitu- ti ona l cha llenge.

We hold that the CFPB's leadersh ip by a sing le individua l removable only for ineffciency, neg lect, or ma lfeasance vi o- lates the separati on of powers.

Ar ticle II provides that “ [t]he executive Power sha ll be vested in a President, ” who must “ take Care that the Laws be faithfu lly executed. ” Ar t. II, § 1, cl. 1; i d., § 3. The en- tire “executive Power ” belongs to the President a lone. But because it wou ld be “ impossib[ le] ” for “one man” to “perfor m a ll the great business of the State, ” the Constituti on assumes that lesser executive offcers w ill “assist the supreme Mag is- trate in discharg ing the duties of h is tr ust. ” 30 Wr itings of George Wash ing ton 334 (J. Fitzpatr ick ed. 1939).

These lesser offcers must remain accountable to the Presi- dent, whose author ity they w ield. As Madison explained, “ [I]f any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws. ” 1 Anna ls of Cong. 463 (1789). That power, in tur n, genera lly includes the ability to remove exec- utive offcia ls, for it is “only the author ity that can remove” such offcia ls that they “must fear and, in the perfor mance of

Opinion of the Court

[their] functi ons, obey. ” Bo wshe r, 478 U. S., at 726 ( inter na l quotati on marks omitted).

The President's remova l power has long been confr med by h istory and precedent. It “was discussed extensively in Congress when the frst executive depar tments were cre- ated” in 1789. Free En te r pr ise Fund, 561 U. S., at 492. “ The view that `prevailed, as most consonant to the text of the Constituti on' and ` to the requisite responsibility and har- mony in the Executive Depar tment, ' was that the executive power included a power to oversee executive offcers through remova l. ” Ib i d. (quoting Letter from James Madison to Thomas Jefferson (June 30, 1789), 16 Documentary History of the First Federa l Congress 893 (2004)). The First Con- gress's recog niti on of the President's remova l power in 1789 “provides contemporaneous and weighty evidence of the Constituti on's meaning, ” Bo wshe r, 478 U. S., at 723 ( inter na l quotati on marks omitted), and has long been the “settled and well understood constr ucti on of the Constituti on, ” Ex par te Hennen, 13 Pet. 230, 259 (1839).

The Cour t recog nized the President's prerogative to re- move executive offcia ls in Mye rs v. Un i ted Sta tes, 272 U. S.

52. Ch ief Justice Taf t, wr iting for the Cour t, conducted an

exhaustive examinati on of the First Congress's deter mina- ti on in 1789, the views of the Framers and their contempo- rar ies, h istor ica l practice, and our precedents up until that point. He concluded that Ar ticle II “grants to the Presi- dent” the “genera l administrative control of those executing the laws, including the power of appointment and remov al of executive offcers. ” Id., at 163 –164 (emphasis added).

Just as the President's “selecti on of administrative offcers is essentia l to the executi on of the laws by h im, so must be h is power of removing those for whom he can not continue to be responsible. ” Id., at 117. “ [T]o hold other w ise, ” the Cour t reasoned, “wou ld make it impossible for the President . . . to take care that the laws be faithfu lly executed. ” Id., at 164.

Cite as: 591 U. S. 197 (2020) 215 Opinion of the Court

We recently reiterated the President's genera l remova l power in Free En te r pr ise Fund. “Since 1789, ” we re- capped, “ the Constituti on has been understood to empower the President to keep these offcers accountable—by remov- ing them from offce, if necessary. ” 561 U. S., at 483. Al- though we had previ ously sustained congressi ona l limits on that power in cer tain circumstances, we declined to extend those limits to “a new situati on not yet encountered by the Cour t”—an offcia l insu lated by two layers of for-cause re- mova l protecti on. Id., at 483, 514. In the face of that novel impediment to the President's oversight of the Executive Branch, we adhered to the genera l r u le that the President possesses “ the author ity to remove those who assist h im in carry ing out h is duties. ” Id., at 513 – 514.

Free En te r pr ise Fund lef t in place two excepti ons to the President's unrestr icted remova l power. First, in Hum- phrey's Execu t o r, decided less than a decade af ter Mye rs, the Cour t upheld a statute that protected the Commissi oners of the FTC from remova l except for “ ineffciency, neg lect of duty, or ma lfeasance in offce. ” 295 U. S., at 620 (quoting 15 U. S. C. § 41). In reach ing that conclusi on, the Cour t stressed that Congress's ability to impose such remova l re- str icti ons “w ill depend upon the character of the offce. ” 295 U. S., at 631.

Because the Cour t limited its holding “ to offcers of the k ind here under considerati on, ” i d., at 632, the contours of the Humphrey's Execu t o r excepti on depend upon the char- acter istics of the agency before the Cour t. Rightly or wrong ly, the Cour t viewed the FTC (as it existed in 1935) as exercising “no par t of the executive power. ” Id., at 628.

Instead, it was “an administrative body” that perfor med “specifed duties as a leg islative or as a judicia l aid. ” Ib i d.

It acted “as a leg islative agency” in “mak ing investigati ons and repor ts” to Congress and “as an agency of the judiciary” in mak ing recommendati ons to cour ts as a master in chan-

Opinion of the Court

cery. Ib i d. “ To the extent that [the FTC] exercise[d] any executive f unct io n[,] as disting uished from executive po w e r in the constituti ona l sense, ” it did so only in the discharge of its “quasi-leg islative or quasi-judicia l powers. ” Ib i d. (em- phasis added).2 The Cour t identifed severa l organizati ona l features that helped explain its character izati on of the FTC as non- executive. Composed of fve members—no more than three from the same politica l par ty—the Commissi on was desig ned to be “non-par tisan” and to “act w ith entire impar tia lity. ” Id., at 624; see i d., at 619 – 620. The FTC's duties were “nei- ther politica l nor executive, ” but instead ca lled for “ the trained judg ment of a body of exper ts” “ infor med by exper i- ence. ” Id., at 624 ( inter na l quotati on marks omitted). And the Commissi oners' staggered, seven-year ter ms enabled the agency to accumu late technica l exper tise and avoid a “com- plete change” in leadersh ip “at any one time. ” Ib i d.

In shor t, Humphrey's Execu t o r per mitted Congress to g ive for-cause remova l protecti ons to a mu ltimember body of exper ts, ba lanced a long par tisan lines, that perfor med leg- islative and judicia l functi ons and was said not to exercise any executive power. Consistent w ith that understanding, the Cour t later applied “ [t]he ph ilosophy of Humphrey's Execu t o r ” to uphold for-cause remova l protecti ons for the members of the War Claims Commissi on—a three-member “adjudicatory body” tasked w ith resolving claims for com- pensati on ar ising from Wor ld War II. Wi ene r v. Un i ted Sta tes, 357 U. S. 349, 356 (1958).

2 The Court's conclusion that the FTC did not exercise executive power has not withstood the test of time. As we observed in M or r iso n v. O lso n, 487 U. S. 654 (1988), “ [I]t is hard to dispute that the powers of the FTC at the time of Humphrey's Execu tor would at the present time be considered `executive, ' at least to some degree. ” Id., at 690, n. 28. See also Arl ing- to n v. FCC, 569 U. S. 290, 305, n. 4 (2013) (even though the activities of administrative agencies “ take ` leg islative' and ` judicial' forms, ” “ they are exercises of—indeed, under our constitutional str ucture they must be ex- ercises of—the `executive Power ' ” (quoting Art. II, § 1, cl. 1)).

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Wh ile recog nizing an excepti on for mu ltimember bodies w ith “quasi-judicia l” or “quasi-leg islative” functi ons, Hum- phrey's Execu t o r reaffr med the core holding of Mye rs that the President has “unrestr ictable power . . . to remove purely executive offcers. ” 295 U. S., at 632. The Cour t acknowl- edged that between purely executive offcers on the one hand, and offcers that closely resembled the FTC Commis- si oners on the other, there existed “a feld of doubt” that the Cour t lef t “for future considerati on. ” Ib i d.

We have recog nized a second excepti on for in fe r io r off- cers in two cases, Un i ted Sta tes v. Pe rkin s and M o r r iso n v. O lso n. 3 In Pe rkin s, we upheld tenure protecti ons for a nava l cadet-eng ineer. 116 U. S., at 485. And, in M o r r iso n, we upheld a provisi on granting good-cause tenure protecti on to an independent counsel appointed to investigate and pros- ecute par ticu lar a lleged cr imes by h igh-rank ing Gover nment offcia ls. 487 U. S., at 662 – 663, 696 – 697. Back ing away from the reliance in Humphrey's Execu t o r on the concepts of “quasi-leg islative” and “quasi-judicia l” power, we viewed the u ltimate questi on as whether a remova l restr icti on is of “such a nature that [it] impede[s] the President's ability to perfor m h is constituti ona l duty. ” 487 U. S., at 691. Al- though the independent counsel was a sing le person and per- for med “ law enforcement functi ons that typica lly have been under taken by offcia ls w ith in the Executive Branch, ” we concluded that the remova l protecti ons did not undu ly inter- fere w ith the functi oning of the Executive Branch because

3 Article II distinguishes between two kinds of offcers—principal off- cers (who must be appointed by the President with the advice and consent of the Senate) and inferior offcers (whose appointment Congress may vest in the President, courts, or heads of Departments). § 2, cl. 2. While “ [o]ur cases have not set forth an exclusive criterion for distinguishing between principal and inferior offcers, ” we have in the past examined factors such as the nature, scope, and duration of an offcer 's duties. Ed- mo nd v. Un i ted Sta tes, 520 U. S. 651, 661 (1997). More recently, we have focused on whether the offcer 's work is “directed and supervised” by a principal offcer. Id., at 663.

Opinion of the Court

“ the independent counsel [was] an infer i or offcer under the Appointments Clause, w ith limited jur isdicti on and tenure and lack ing policymak ing or sig nifcant administrative au- thor ity. ” Ib i d.

These two excepti ons—one for mu ltimember exper t agen- cies that do not w ield substantia l executive power, and one for infer i or offcers w ith limited duties and no policymak ing or administrative author ity—“represent what up to now have been the outer most constituti ona l limits of per missi- ble congressi ona l restr icti ons on the President's remova l power. ” PHH, 881 F. 3d, at 196 (Kavanaugh, J., dissenting) ( inter na l quotati on marks omitted).

N e i t h e r H u m p h r e y ' s E x e c u t o r n o r M o r r i s o n r e s o l v e s whether the CFPB Director 's insu lati on from remova l is con- stituti ona l. Star t w ith Humphrey's Execu t o r. Unlike the New Dea l-era FTC upheld there, the CFPB is led by a sing le Director who cannot be descr ibed as a “ body of exper ts” and cannot be considered “non-par tisan” in the same sense as a group of offcia ls drawn from both sides of the aisle. 295

U. S., at 624. Moreover, wh ile the staggered ter ms of the

F T C C o m m i s s i o n e r s p r e v e n t e d c o m p l e t e t u r n o v e r s i n agency leadersh ip and g uaranteed that there wou ld a lways be some Commissi oners who had accr ued sig nifcant exper- tise, the CFPB's sing le-Director str ucture and fve-year ter m g uarantee abr upt sh if ts in agency leadersh ip and w ith it the loss of accumu lated exper tise.

In additi on, the CFPB Director is hardly a mere leg islative or judicia l aid. Instead of mak ing repor ts and recommenda- ti ons to Congress, as the 1935 FTC did, the Director pos- sesses the author ity to promu lgate binding r u les fesh ing out 19 federa l statutes, including a broad proh ibiti on on unfair and deceptive practices in a major seg ment of the U. S. econ- omy. And instead of submitting recommended dispositi ons

Cite as: 591 U. S. 197 (2020) 219 Opinion of the Court

to an Ar ticle III cour t, the Director may unilatera lly issue f na l decisi ons awarding lega l and equitable relief in adminis- trative adjudicati ons. Fina lly, the Director 's enforcement author ity includes the power to seek daunting monetary pen- a lties against pr ivate par ties on beha lf of the United States in federa l cour t —a quintessentia lly executive power not con- sidered in Humphrey's Execu t o r.4 The log ic of M o r r iso n a lso does not apply. Everyone agrees the CFPB Director is not an infer i or offcer, and her duties are far from limited. Unlike the independent counsel, who lacked policymak ing or administrative author ity, the Di- rector has the sole responsibility to administer 19 separate consumer-protecti on statutes that cover everyth ing from credit cards and car payments to mor tgages and student loans. It is tr ue that the independent counsel in M o r r iso n was empowered to initiate cr imina l investigati ons and prose- cuti ons, and in that respect w ielded core executive power.

But that power, wh ile sig nifcant, was trained inward to h igh-rank ing gover nmenta l actors identifed by others, and was confned to a specifed matter in wh ich the Depar tment of Justice had a potentia l confict of interest. By contrast, the CFPB Director has the author ity to br ing the coercive power of the state to bear on milli ons of pr ivate citizens and

4 The dissent would have us ig nore the reasoning of Humphrey's Exe- cu tor and instead apply the decision only as part of a reimag ined Humphrey's-through-M or r iso n framework. See post, at 278, n. 7, 279 – 282 (Kagan, J., concurring in judg ment with respect to severability and dissenting in part) (hereinaf ter dissent). But we take the decision on its own terms, not through gloss added by a later Court in dicta. The dissent also criticizes us for suggesting that the 1935 FTC may have had lesser responsibilities than the present FTC. See post, at 286 – 287, n. 10. Per- haps the FTC possessed broader r ulemaking, enforcement, and adjudica- tory powers than the Humphrey's Court appreciated. Perhaps not.

Either way, what matters is the set of powers the Court considered as the basis for its decision, not any latent powers that the agency may have had not alluded to by the Court.

Opinion of the Court

businesses, imposing even billi on-dollar pena lties through administrative adjudicati ons and civil acti ons.

In light of these differences, the constituti ona lity of the CFPB Director 's insu lati on from remova l cannot be settled by Humphrey's Execu t o r or M o r r iso n a lone.

The questi on instead is whether to extend those prece- dents to the “new situati on” before us, namely an independ- ent agency led by a sing le Director and vested w ith sig nif- cant executive power. Free En te r pr ise Fund, 561 U. S., at

483. We decline to do so. Such an agency has no basis in

h istory and no place in our constituti ona l str ucture.

1

“Perhaps the most telling indicati on of [a] severe constitu- ti ona l problem” w ith an executive entity “ is [a] lack of h istor- ica l precedent” to suppor t it. Id., at 505 ( inter na l quotati on marks omitted). An agency w ith a str ucture like that of the CFPB is a lmost wholly unprecedented.

Af ter years of litigating the agency's constituti ona lity, the Cour ts of Appea ls, par ties, and amici have identifed “only a handfu l of isolated” incidents in wh ich Congress has provided good-cause tenure to pr incipa l offcers who w ield power a lone rather than as members of a board or commissi on.

Ib i d. “ [T]hese few scattered examples”—four to be exact — shed little light. NLRB v. Noel Cann ing, 573 U. S. 513, 538 (2014).

First, the CFPB's defenders point to the Comptroller of the Currency, who en joyed remova l protecti on for o ne year dur ing the Civil War. That example has r ightly been dis- missed as an aberrati on. It was “adopted w ithout discus- si on” dur ing the heat of the Civil War and abandoned be- fore it cou ld be “ tested by executive or judicia l inquiry. ” Mye rs, 272 U. S., at 165. (At the time, the Comptroller may a lso have been an infer i or offcer, g iven that he labored

Cite as: 591 U. S. 197 (2020) 221 Opinion of the Court

“under the genera l directi on of the Secretary of the Treas- ury. ” Ch. 58, 12 Stat. 665.) 5 Second, the suppor ters of the CFPB point to the Offce of the Specia l Counsel (OSC), wh ich has been headed by a sin- g le offcer since 1978. 6 But th is frst endur ing sing le-leader offce, created near ly 200 years af ter the Constituti on was ratifed, drew a contemporaneous constituti ona l objecti on from the Offce of Lega l Counsel under President Car ter and a subsequent veto on constituti ona l grounds by President Reagan. See Memorandum Opini on for the Genera l Coun- sel, Civil Service Commissi on, 2 Op. OLC 120, 122 (1978); Public Papers of the Presidents, Rona ld Reagan, Vol. II, Oct. 26, 1988, pp. 1391–1392 (1991).7 In any event, the OSC exercises only limited jur isdicti on to enforce cer tain r u les gover ning Federa l Gover nment employers and employees.

See 5 U. S. C. § 1212. It does not bind pr ivate par ties at a ll or w ield reg u latory author ity comparable to the CFPB.

Th ird, the CFPB's defenders note that the Socia l Secur ity Administrati on (SSA) has been r un by a sing le Administra- tor since 1994. That example, too, is comparatively recent and controversia l. President Clinton questi oned the consti- tuti ona lity of the SSA's new sing le-Director str ucture upon

5 The dissent suggests that the Comptroller still enjoyed some degree of insulation af ter his removal protection was repealed because the President faced a new requirement to “communicate[ ] ” his “reasons” for terminating the Comptroller to the Senate. Post, at 274 (quoting Act of June 3, 1864, ch. 106, § 1, 13 Stat. 100). But the President could still remove the Comp- troller for any reason so long as the President was, in the dissent's phrase, “ in a fring mood. ” Post, at 275.

6 The OSC should not be confused with the independent counsel in M or- r iso n or the special counsel recently appointed to investigate allegations related to the 2016 Presidential election. Despite sharing similar titles, those individuals have no relationship to the OSC.

7 An Act similar to the one vetoed by President Reagan was eventually sig ned by President George H. W. Bush af ter extensive negotiations and compromises with Congress. See Public Papers of the Presidents, George

H. W. Bush, Vol. I, Apr. 10, 1989, p. 391 (1990).

Opinion of the Court

sig ning 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 ad- diti on, unlike the CFPB, the SSA lacks the author ity to br ing enforcement acti ons against pr ivate par ties. Its role is largely limited to adjudicating claims for Socia l Secur ity benefts.

The only remaining example is the Federa l Housing Fi- nance Agency (FHFA), created in 2008 to assume responsi- bility for Fannie Mae and Freddie Mac. That agency is es- sentia lly a compani on of the CFPB, established in response to the same fnancia l cr isis. See Housing and Economic Re- covery Act of 2008, 122 Stat. 2654. It reg u lates pr imar ily G o v e r n m e n t - s p o n s o r e d e n t e r p r i s e s , n o t p u r e l y p r i v a t e actors. And its sing le-Director str ucture is a source of on- going controversy. Indeed, it was recently held unconstitu- ti ona l by the Fif th Circuit, sitting en banc. See Co ll in s v.

Mnuch in, 938 F. 3d 553, 587– 588 (2019).

With the excepti on of the one-year blip for the Comptrol- ler of the Currency, these isolated examples are moder n and contested. And they do not involve reg u latory or enforce- ment author ity remotely comparable to that exercised by the CFPB. The CFPB's sing le-Director str ucture is an innova- ti on w ith no foothold in h istory or traditi on.8

2

In additi on to being a h istor ica l anoma ly, the CFPB's sing le-Director confg urati on is incompatible w ith our consti- tuti ona l str ucture. Aside from the sole excepti on of the

8 The dissent categorizes the CFPB as one of many “fnancial regulators” that have historically enjoyed some insulation from the President. See post, at 271– 276. But even assuming fnancial institutions like the Second Bank and the Federal Reserve can claim a special historical status, the CFPB is in an entirely different league. It acts as a mini leg islature, prosecutor, and court, responsible for creating substantive r ules for a wide swath of industries, prosecuting violations, and levying knee-buckling pen- alties against private citizens. See supra, at 206 – 207. And, of course, it is the only agency of its kind r un by a single Director.

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Presidency, that str ucture scr upu lously avoids concentrating power in the hands of any sing le individua l. “ The Framers recog nized that, in the long ter m, str uctura l protecti ons against abuse of power were cr itica l to preserv- ing liber ty. ” Bo wshe r, 478 U. S., at 730. Their soluti on to gover nmenta l power and its per ils was simple: divide it. To prevent the “gradua l concentrati on” of power in the same hands, they enabled “ [a]mbiti on . . . to counteract ambiti on” at every tur n. The Federa list No. 51, p. 349 (J. Cooke ed.

1961) (J. Madison). At the h ighest level, they “split the atom of sovereig nty” itself into one Federa l Gover nment and the States. Gamble v. Un i ted Sta tes, 587 U. S. 678, 688 (2019) ( inter na l quotati on marks omitted). They then divided the “powers of the new Federa l Gover nment into three defned categor ies, Leg islative, Executive, and Judicia l. ” Chadha, 462 U. S., at 951.

They did not stop there. Most prominently, the Framers

the House of Representatives and the Senate, each composed of mu ltiple Members and Senators. Ar t. I, §§ 2, 3.

The Executive Branch is a stark depar ture from a ll th is divisi on. The Framers viewed the leg islative power as a specia l threat to individua l liber ty, so they divided that power to ensure that “differences of opini on” and the “ jar- r ings of par ties” wou ld “promote deliberati on and circum- specti on” and “check excesses in the major ity. ” See The Federa list No. 70, at 475 (A. Hamilton); see a lso i d., No. 51, at 350. By contrast, the Framers thought it necessary to secure the author ity of the Executive so that he cou ld carry out h is unique responsibilities. See i d., No. 70, at 475 – 478.

As Madison put it, wh ile “ the weight of the leg islative au- thor ity requires that it shou ld be . . . divided, the weakness of the executive may require, on the other hand, that it shou ld be for tifed. ” Id., No. 51, at 350.

The Framers deemed an energetic executive essentia l to “ the protecti on of the community against foreig n attacks, ” “ the steady administrati on of the laws, ” “ the protecti on of

Opinion of the Court proper ty, ” and “ the secur ity of liber ty. ” Id., No. 70, at 471.

According ly, they chose not to bog the Executive down w ith the “ habitua l feebleness and dilator iness” that comes w ith a “diversity of views and opini ons. ” Id., at 476. Instead, they gave the Executive the “ [d]ecisi on, activity, secrecy, and dispatch” that “character ise the proceedings of one man. ” Id., at 472.

To justify and check tha t author ity—unique in our consti- tuti ona l str ucture—the Framers made the President the most democratic and politica lly accountable offcia l in Gov- er nment. Only the President (a long w ith the Vice Presi- dent) is elected by the entire Nati on. And the President's politica l accountability is enhanced by the solitary nature of the Executive Branch, wh ich provides “a sing le object for the jea lousy and watchfu lness of the people. ” Id., at 479.

The President “cannot delegate u ltimate responsibility or the active obligati on to supervise that goes w ith it, ” because Ar- ticle II “makes a sing le President responsible for the acti ons of the Executive Branch. ” Free En te r pr ise Fund, 561 U. S., at 496 – 497 (quoting Cl in t o n v. Jo nes, 520 U. S. 681, 712 –713 (1997) (Breyer , J., concurr ing in judg ment)).

The resu lting constituti ona l strateg y is straightfor ward: divide power everywhere except for the Presidency, and ren- der the President directly accountable to the people through reg u lar electi ons. In that scheme, individua l executive of- fcia ls w ill still w ield sig nifcant author ity, but that author ity remains subject to the ongoing supervisi on and control of the elected President. Through the President's oversight, “ the chain of dependence [is] preserved, ” so that “ the lowest off- cers, the middle grade, and the h ighest” a ll “depend, as they ought, on the President, and the President on the commu- nity. ” 1 Anna ls of Cong. 499 (J. Madison).

The CFPB's sing le-Director str ucture contravenes th is carefu lly ca librated system by vesting sig nifcant gover n- menta l power in the hands of a sing le individua l accountable to no one. The Director is neither elected by the people nor

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meaning fu lly controlled (through the threat of remova l) by someone who is. The Director does not even depend on Congress for annua l appropr iati ons. See The Federa list No. 58, at 394 (J. Madison) (descr ibing the “power over the purse” as the “most compleat and effectua l weapon” in repre- senting the interests of the people). Yet the Director may un i l a te rally, w ithout meaning fu l supervisi on, issue fna l reg- u lati ons, oversee adjudicati ons, set enforcement pr i or ities, initiate prosecuti ons, and deter mine what pena lties to im- pose on pr ivate par ties. With no colleag ues to persuade, and no boss or electorate look ing over her shou lder, the Di- rector may dictate and enforce policy for a vita l seg ment of the economy affecting milli ons of Amer icans.

The CFPB Director 's insu lati on from remova l by an ac- countable President is enough to render the agency's str uc- ture unconstituti ona l. But severa l other features of the CFPB combine to make the Director 's remova l protecti on even more problematic. In additi on to lack ing the most di- rect method of Presidentia l control—remova l at w ill—the agency's unique str ucture a lso forecloses cer tain indirect methods of Presidentia l control.

Because the CFPB is headed by a sing le Director w ith a fve-year ter m, some Presidents may not have any oppor tu- nity to shape its leadersh ip and thereby infuence its activi- ties. A President elected in 2020 wou ld likely not appoint a CFPB Director until 2023, and a President elected in 2028 may nev e r appoint one. That means an unlucky President might get elected on a consumer-protecti on platfor m and enter offce only to fnd herself saddled w ith a holdover Di- rector from a competing politica l par ty who is dead set again st that agenda. To make matters worse, the agency's sing le-Director str ucture means the President w ill not have the oppor tunity to appoint any other leaders—such as a chair or fellow members of a Commissi on or Board—who can serve as a check on the Director 's author ity and help br ing the agency in line w ith the President's preferred policies.

Opinion of the Court

The CFPB's receipt of funds outside the appropr iati ons process fur ther aggravates the agency's threat to Presiden- tia l control. The President nor ma lly has the oppor tunity to recommend or veto spending bills that affect the operati on of administrative agencies. See Ar t. I, § 7, cl. 2; Ar t. II, § 3.

And, for the past century, the President has annua lly sub- mitted a proposed budget to Congress for approva l. See Budget and Accounting Act, 1921, ch. 18, § 201, 42 Stat. 20.

Presidents frequently use these budgetary tools “ to infuence the policies of independent agencies. ” PHH, 881 F. 3d, at 147 (Henderson, J., dissenting) (citing Pasachoff, The Presi- dent's Budget as a Source of Agency Policy Control, 125 Ya le

nity exists for the President to infuence the CFPB Director.

Instead, the Director receives over $500 milli on per year to fund the agency's chosen pr i or ities. And the Director re- ceives that money from the Federa l Reserve, wh ich is itself funded outside of the annua l appropr iati ons process. Th is fnancia l freedom makes it even more likely that the agency w ill “slip from the Executive's control, and thus from that of the people. ” Free En te r pr ise Fund, 561 U. S., at 499. 9

3

Amicus raises three pr incipa l arg uments in the agency's defense. At the outset, amicus questi ons the textua l basis

9 Amicus and the dissent try to diminish the CFPB's insulation from Presidential control by observing that the CFPB's fnal r ules can be set aside by a super majority of the Financial Stability and Oversight Council (FSOC). See Brief for Court-Appointed Amicus Cur i ae 40; post, at 292,

n. 13, 295. But the FSOC's veto power is statutorily reserved for extreme

situations, when two-thirds of the Council concludes that a CFPB regula- tion would “put the safety and soundness of the United States banking system or the stability of the fnancial system of the United States at risk. ” 12 U. S. C. §§ 5513(a), (c)(3). That narrow escape hatch has no impact on the CFPB's enforcement or adjudicatory authority and has never been used in the ten years since the agency's creation. It certainly d o e s n o t r e n d e r t h e C F P B 's i n d e p e n d e n t , s i n g l e - D i r e c t o r s t r u c t u r e constitutional.

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for the remova l power and h igh lights statements from Madi- son, Hamilton, and Ch ief Justice Marsha ll expressing “ het- erodox” views on the subject. Br ief for Cour t-Appointed Amicus Cur i ae 4 – 5, 28 – 29. But those concer ns are mis- placed. It is tr ue that “ there is no `remova l clause' in the Constituti on, ” i d., at 1, but neither is there a “separati on of powers clause” or a “federa lism clause. ” These foundati ona l doctr ines are instead evident from the Constituti on's vesting of cer tain powers in cer tain bodies. As we have explained many times before, the President's remova l power stems from Ar ticle II's vesting of the “executive Power ” in the President. Free En te r pr ise Fund, 561 U. S., at 483 (quoting Ar t. II, § 1, cl. 1). As for the opini ons of Madison, Hamilton, and Ch ief Justice Marsha ll, we have a lready considered the statements cited by amicus and discounted them in light of their context (Madison), the fact they refect initia l impres- si ons later abandoned by the speaker (Hamilton), or their subsequent re jecti on as ill-considered dicta (Ch ief Justice Marsha ll). See Free En te r pr ise Fund, 561 U. S., at 500, n. 6 (Madison); Mye rs, 272 U. S., at 136 –139, 142 –144 (Hamilton and Ch ief Justice Marsha ll).10

10 The dissent likewise points to Madison's statement in The Federalist No. 39 that the “ tenure” of “ministerial offces generally will be a subject of legal regulation. ” Post, at 270 (quoting The Federalist No. 39, p. 253 (J. Cooke ed. 1961)). But whatever Madison may have meant by that statement, he later led the charge in contending, on the foor of the First Congress, that “ inasmuch as the power of removal is of an Executive na- ture . . . it is beyond the reach of the Leg islative body. ” 1 Annals of Cong.

464 (1789); see also id., at 462 – 464, 495 – 496. Like the dissent in Free En ter pr ise 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 Constitu- tion, was that the Comptroller hold offce for a term of `years, unless sooner removed by the President'; he would thus be `dependent upon the President, because he can be removed by him, ' and also `dependent upon the Senate, because they must consent to his [reappointment] for every term of years. ' ” Free En ter pr ise Fund v. Publ ic Co mpany Ac- coun t ing O v ersi gh t Bd., 561 U. S. 477, 499, 500, n. 6 (2010) (quoting 1

Opinion of the Court

Next, amicus offers a grand theory of our remova l prece- dents that, if accepted, cou ld leave room for an agency like the CFPB—and many other innovative intr usi ons on Ar ti- cle II. According to amicus, Humphrey's Execu t o r and M o r r iso n establish a genera l r u le that Congress may impose “modest” restr icti ons on the President's remova l power, w ith only two limited excepti ons. Br ief for Cour t-Appointed Amicus Cur i ae 33 – 37. Congress may not reserve a role fo r i tsel f in individua l remova l decisi ons (as it attempted to do in Mye rs and Bo wshe r). And it may not eliminate the Pres- ident's remova l power a ltogether (as it effectively did in Free En te r pr ise Fund). Outside those two situati ons, amicus arg ues, Congress is genera lly free to constrain the Presi- dent's remova l power. See a lso post, at 276 – 282 (Kagan, J., concurr ing in judg ment w ith respect to severability and dissenting in par t) ( hereinaf ter dissent) (expressing similar view).

But text, frst pr inciples, the First Congress's decisi on in 1789, Mye rs, and Free En te r pr ise Fund a ll establish that the President's remova l power is the r u le, not the excepti on.

Wh ile we do not revisit Humphrey's Execu t o r or any other precedent today, we decline to elevate it into a freestanding invitati on for Congress to impose additi ona l restr icti ons on the President's remova l author ity.11

Annals of Cong. 612; citation omitted). See post, at 270, n. 4. The dissent further notes that, at the time of the founding, some States placed limita- tions on their Governors' removal power. See post, at 267. But the Framers hardly viewed State Governors as a reliable guide in fashioning the Federal Executive. Indeed, they expressly re jected the “executive council” str ucture favored by most States, fearing that subjecting the President to oversight, as the States had, would “distract and . . . enervate the whole system of administration” and inject it with “ habitual feebleness and dilatoriness. ” The Federalist No. 70, at 473, 476 (A. Hamilton).

11 Building on amicus' proposal, the dissent would endorse whatever “ the times demand, so long as the President retains the ability to carry out his constitutional duties. ” Post, at 264. But that amorphous test

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Fina lly, amicus contends that if we identify a constitu- ti ona l problem w ith the CFPB's str ucture, we shou ld avoid it by broadly constr uing the statutory grounds for removing t h e C F P B D i r e c t o r f r o m o f f i c e . S e e B r i e f f o r C o u r t - Appointed Amicus Cur i ae 50 – 53; Tr. of Ora l Arg. 57– 62.

The Dodd-Frank Act provides that the Director may be re- moved for “ ineffciency, neg lect of duty, or ma lfeasance in offce. ” 12 U. S. C. § 5491(c)(3). In amicus' view, that lan- g uage cou ld be interpreted to reserve substantia l discreti on to the President. Br ief for Cour t-Appointed Amicus Cu- r i ae 51.

We are not persuaded. For one, Humphrey's Execu t o r implicitly re jected an interpretati on that wou ld leave the President free to remove an offcer based on disagreements about agency policy. See 295 U. S., at 619, 625 – 626. In ad- diti on, wh ile both amicus and the House of Representatives invite us to adopt whatever constr ucti on wou ld cure the con-

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 276. But that carveout makes no log ical or constitutional sense. In the dissent's view, for-cause removal restrictions are permissi- ble because they guarantee the President “meaning ful control” over his subordinates. Post, at 288 ( internal quotation marks and alterations omitted); see also post, at 268, 279 – 280, 285 – 286, 295. If that is the theory, then what is the harm in g iving the President the same “meaning ful con- trol” over his close advisers? The dissent claims to see a constitutional distinction between the President's “own constitutional duties in foreig n relations and war ” and his duty to execute laws passed by Congress.

Post, at 273. But the same Article that establishes the President's foreig n relations and war duties expressly entr usts him to take care that the laws be faithfully executed. And, from the perspective of the governed, it is far from clear that the President's core and traditional powers present greater cause for concern than peripheral and modern ones. If anything, “ [t]he growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, he i gh tens the concern that it may slip from the Executive's control, and thus from that of the people. ” Free En ter pr ise Fund, 561 U. S., at 499 (emphasis added).

Opinion of the Court

stituti ona l problem, they have not advanced any workable standard der ived from the statutory lang uage. Amicus suggests that the proper standard might per mit remova ls based on gene ral policy disagreements, but not speci fc ones; the House suggests that the per missible bases for remova l might vary depending on the context and the Presidentia l power involved. See Tr. of Ora l Arg. 58 – 60, 76 –77. They do not attempt to root either of those standards in the statu- t o r y t e x t . F u r t h e r, a l t h o u g h n e a r l y i d e n t i c a l l a n g u a g e gover ns the remova l of some two-dozen mu ltimember in- dependent agencies, amicus suggests that the standard shou ld vary from agency to agency, morph ing as necessary to avoid constituti ona l doubt. Id., at 55 – 56. We decline to embrace such an uncer tain and elastic approach to the text.

Amicus and the House a lso fail to engage w ith the Dodd- Frank Act as a whole, wh ich makes plain that the CFPB is an “ independent bureau. ” 12 U. S. C. § 5491(a); see a lso 44

U. S. C. § 3502(5) ( listing the CFPB as an “ independent reg u-

latory agency”). Neither amicus nor the House explains how the CFPB wou ld be “ independent” if its head were re- quired to implement the President's policies upon pain of remova l. See Black 's Law Dicti onary 838 (9th ed. 2009) (defning “ independent” as “ [n]ot subject to the control or infuence of another ”). The Constituti on might of course compel the agency to be dependent on the President notw ith- standing Congress's contrary intent, but that resu lt cannot fair ly be inferred from the statute Congress enacted.

Constituti ona l avoidance is not a license to rewr ite Con- gress's work to say whatever the Constituti on needs it to say in a g iven situati on. Without a proffered interpretati on that is rooted in the statutory text and str ucture, and wou ld avoid the constituti ona l vi olati on we have identifed, we take Congress at its word that it meant to impose a meaning fu l restr icti on on the President's remova l author ity.

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The dissent, for its par t, largely repr ises points that the Cour t has a lready considered and re jected: It notes the lack of an express remova l provisi on, invokes Congress's genera l power to create and defne executive offces, h igh lights iso- lated statements from individua l Framers, downplays the de- cisi on of 1789, minimizes Mye rs, brainstor ms methods of Presidentia l control shor t of remova l, touts the need for cre- ative congressi ona l responses to technolog ica l and economic change, and celebrates a prag matic, fexible approach to Amer- ican gover nance. See post, at 261– 284, 292 – 293, 297– 298.

If these arg uments sound familiar, it's because they are.

They were raised by the dissent in Free En te r pr ise Fund.

Compare post, at 261– 284, 292 – 293, 297– 298, w ith Free En- te r pr ise Fund, 561 U. S., at 515 – 524, 530 (Breyer , J., dis- senting). The answers to these repeated concer ns ( beyond those we have a lready covered) are the same today as they were ten years ago. Today, as then, Congress's “plenary control over the sa lary, duties, and even existence of execu- tive offces” makes “Presidentia l oversight” mo re cr itica l— not less—as the “ [o]nly” tool to “counter [Congress's] infu- ence. ” Id., at 500 (opini on of the Cour t). Today, as then, the var i ous “ bureaucratic minutiae” a President might use to corra l agency personnel is no substitute for at w ill re- mova l. Ib i d. And today, as a lways, the urge to meet new technolog ica l and societa l problems w ith novel gover nmenta l str uctures must be tempered by constituti ona l restraints that are not known—and were not chosen—for their eff- ciency or fexibility. Id., at 499.

As we explained in Free En te r pr ise Fund, “One can have a gover nment that functi ons w ithout being r u led by func- ti onar ies, and a gover nment that benefts from exper tise w ithout being r u led by exper ts. ” Ib i d. Wh ile “ [n]o one doubts Congress's power to create a vast and var ied federa l bureaucracy, ” the expansi on of that bureaucracy into new terr itor ies the Framers cou ld scarcely have imag ined only

Opinion of Roberts, C. J.

sharpens our duty to ensure that the Executive Branch is overseen by a President accountable to the people. Ib i d.

Having concluded that the CFPB's leadersh ip by a sing le independent Director vi olates the separati on of powers, we now tur n to the appropr iate remedy. We directed the par- ties to br ief and arg ue whether the Director 's remova l pro- tecti on was severable from the other provisi ons of the Dodd- Frank Act that establish the CFPB. If so, then the CFPB may continue to exist and operate notw ithstanding Con- gress's unconstituti ona l attempt to insu late the agency's Di- rector from remova l by the President. There is a live con- troversy between the par ties on that questi on, and resolving it is a necessary step in deter mining petiti oner 's entitlement to its requested relief.

As the defendant in th is acti on, petiti oner seeks a straight- for ward remedy. It asks us to deny the Gover nment's peti- ti on to enforce the civil investigative demand and dismiss the case. The Gover nment counters that the demand, though initia lly issued by a Director unconstituti ona lly insu lated from remova l, can still be enforced on remand because it has since been ratifed by an Acting Director accountable to the President. The par ties dispute whether th is a lleged ratif- cati on in fact occurred and whether, if so, it is lega lly suff- cient to cure the constituti ona l defect in the or ig ina l demand.

That debate tur ns on case-specifc factua l and lega l questi ons not addressed below and not br iefed here. A remand for the lower cour ts to consider those questi ons in the frst in- stance is therefore the appropr iate course—unless such a remand wou ld be futile.

In petiti oner 's view, it wou ld be. Before the Cour t of Ap- pea ls, petiti oner contended that, regardless of any ratifca- ti on, the demand is unenforceable because the statutory pro- visi on insu lating the CFPB Director from remova l cannot be severed from the other statutory provisi ons that defne the

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CFPB's author ity. See Br ief for Appellant in No. 17– 56324 (CA9), pp. 27– 28, 30 – 32. If petiti oner is correct, and the of- fending remova l provisi on means the entire agency is uncon- stituti ona l and power less to act, then a remand wou ld be pointless. With no agency lef t w ith statutory author ity to maintain th is suit or other w ise enforce the demand, the ap- propr iate dispositi on wou ld be to reverse w ith instr ucti ons to deny the Gover nment's petiti on to enforce the agency's demand for documents and dismiss the case, as petiti oner requests.

According ly, there is a live controversy over the questi on of severability. And that controversy is essentia l to our ability to provide petiti oner the relief it seeks: If the remova l restr icti on is not severable, then we must grant the relief requested, promptly re jecting the demand outr ight. If, on the other hand, the remova l restr icti on is severable, we must instead remand for the Gover nment to press its ratifcati on arg uments in fur ther proceedings. Unlike the linger ing rat- ifcati on issue, severability presents a pure questi on of law that has been fu lly br iefed and arg ued by the par ties. We therefore proceed to address it.12 It has long been settled that “one secti on of a statute may be repug nant to the Constituti on w ithout render ing the whole act void. ” Loeb v. Co lumb i a To w n sh ip Tr ustees, 179

U. S. 472, 490 (1900) (quoting Treasure r o f Faye t te Cty. v.

Peo ple's & D rov e rs' Bank, 47 Oh i o St. 503, 523, 25 N. E. 697,

12 Justice Thomas believes that any ratifcation is irrelevant. In his view, even if the issuance of the demand and initiation of this suit have been validly ratifed, Director Kraninger 's activities in litigating the case—af ter inheriting it from an Acting Director, but before becoming removable at will herself in light of our decision—present a distinct consti- tutional injury requiring immediate dismissal. See post, at 254 – 256 (opin- ion concurring in part and dissenting in part). But whether and when the temporary involvement of an unconstitutionally insulated offcer in an otherwise valid prosecution requires dismissal falls outside the questions presented, has not been fully briefed, and is best resolved by the lower courts in the frst instance.

Opinion of Roberts, C. J.

702 (1890)). Because a “statute bad in par t is not necessar- ily void in its entirety, ” “ [p]rovisi ons w ith in the leg islative power may stand if separable from the bad. ” Do rchy v.

Kan sas, 264 U. S. 286, 289 – 290 (1924).

“Genera lly speak ing, when confronting a constituti ona l faw in a statute, we try to limit the soluti on to the problem, sever ing any problematic por ti ons wh ile leaving the remain- der intact. ” Free En te r pr ise Fund, 561 U. S., at 508 ( inter- na l quotati on marks omitted). Even in the absence of a severability clause, the “ traditi ona l” r u le is that “ the uncon- stituti ona l provisi on must be severed unless the statute cre- ated in its absence is leg islati on that Congress wou ld not have enacted. ” Al aska Airl ines, Inc. v. Brock, 480 U. S.

678, 685 (1987). When Congress has expressly provided a severability clause, our task is simplifed. We w ill presume “ that Congress did not intend the va lidity of the statute in questi on to depend on the va lidity of the constituti ona lly of- fensive provisi on . . . unless there is strong evidence that Congress intended other w ise. ” Id., at 686.

The only constituti ona l defect we have identifed in the CFPB's str ucture is the Director 's insu lati on from remova l.

If the Director were removable at w ill by the President, the constituti ona l vi olati on wou ld disappear. We must there- fore decide whether the remova l provisi on can be severed from the other statutory provisi ons relating to the CFPB's powers and responsibilities.

In Free En te r pr ise Fund, we found a set of unconstitu- ti ona l remova l provisi ons severable even in the absence of an express severability clause because the surviving provisi ons were capable of “functi oning independently” and “noth ing in the statute's text or h istor ica l context [made] it evident that Congress, faced w ith the limitati ons imposed by the Consti- tuti on, wou ld have preferred no Board at a ll to a Board whose members are removable at w ill. ” 561 U. S., at 509 ( inter na l quotati on marks omitted).

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So too here. The provisi ons of the Dodd-Frank Act bear- ing on the CFPB's str ucture and duties remain fu lly opera- tive w ithout the offending tenure restr icti on. Those provi- si ons are capable of functi oning independently, and there is noth ing in the text or h istory of the Dodd-Frank Act that demonstrates Congress wou ld have preferred no CFPB to a CFPB supervised by the President. Quite the opposite.

Unlike the Sarbanes-Oxley Act at issue in Free En te r pr ise Fund, the Dodd-Frank Act contains an express severability clause. There is no need to wonder what Congress wou ld have wanted if “any provisi on of th is Act” is “ held to be unconstituti ona l” because it has told us: “ the remainder of th is Act” shou ld “not be affected. ” 12 U. S. C. § 5302.

Petiti oner urges us to disregard th is plain lang uage for three reasons. None is persuasive. First, petiti oner dis- misses the clause as non-probative “ boilerplate” because it applies “ to the entire, 848-page Dodd-Frank Act” and “ap- pears a lmost 600 pages before the remova l provisi on at issue. ” Br ief for Petiti oner 45. In petiti oner 's view, that means we cannot be cer tain that Congress rea lly meant to apply the clause to each of the Act's provisi ons. But boiler- plate is boilerplate for a reason—because it offers tr ied-and- tr ue lang uage to ensure a precise and predictable resu lt.

That is the case here. The lang uage unmistakably refer- ences “any provisi on of th is Act. ” 12 U. S. C. § 5302 (empha- sis added). And it appears in a log ica l and prominent place, immediately follow ing the Act's title and defniti ons secti ons, reinforcing the conclusi on that it applies to the entirety of the Act. Congress was not required to labor i ously inser t duplicative severability clauses, provisi on by provisi on, to ac- complish its stated objective.

Second, petiti oner points to an additi ona l severability clause in the Act that applies only to one of the Act's sub- titles. See 15 U. S. C. § 8232. In petiti oner 's view, that clause wou ld be superfuous if Congress meant the genera l

Opinion of Roberts, C. J.

severability clause to apply across the Act. But “our prefer- ence for avoiding surplusage constr ucti ons is not absolute. ” L ami e v. Un i ted Sta tes Tr ustee, 540 U. S. 526, 536 (2004).

In th is instance, the redundant lang uage appears to refect the fact that the subtitle to wh ich it refers or ig inated as a standa lone bill that was later incorporated into Dodd-Frank.

Compare 15 U. S. C. § 8232 w ith H. R. 2571, 111th Cong., 1st Sess., § 302 (2009). And petiti oner does not offer any con- str ucti on that wou ld g ive effect to both provisi ons, mak ing the redundancy both inescapable and unilluminating. See M icroso f t Co r p. v. i4i L. P., 564 U. S. 91, 106 (2011) (“ The canon against superfuity assists only where a competing in- terpretati on g ives effect to every clause and word of a stat- ute. ” ( inter na l quotati on marks omitted)).

Fina lly, petiti oner arg ues more broadly that Congress wou ld not have wanted to g ive the President unbr idled con- trol over the CFPB's vast author ity. Petiti oner h igh lights the references to the CFPB's independence in the statutory text and leg islative h istory, as well as in Professor Warren's and the Obama administrati on's or ig ina l proposa ls. See Br ief for Petiti oner 43 – 44 (collecting examples). And peti- ti oner submits that Congress might not have exempted the CFPB from congressi ona l oversight via the appropr iati ons process if it had known that the CFPB wou ld come under executive control.

These observati ons cer tainly confr m that Congress pre- ferred an independent CFPB to a dependent one; but they shed little light on the cr itica l questi on whether Congress wou ld have preferred a dependent CFPB to no agency a t all. That is the only questi on we have the author ity to de- cide, and the answer seems clear. Petiti oner assumes that, if we eliminate the CFPB, reg u latory and enforcement au- thor ity over the statutes it administers wou ld simply rever t back to the handfu l of independent agencies previ ously re- sponsible for them. See i d., at 46. But, as the Solicitor Genera l and House of Representatives explain, that sh if t

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wou ld tr igger a major reg u latory disr upti on and wou ld leave appreciable damage to Congress's work in the consumer- fnance arena. See Reply Br ief for Respondent 21– 22; Tr. of Ora l Arg. 67– 68. One of the agencies whose reg u latory author ity was transferred to the CFPB no longer exists.

See 12 U. S. C. §§ 5412 – 5413 (Offce of Thr if t Supervisi on).

The others do not have the staff or appropr iati ons to absorb t h e C F P B 's 1, 50 0- em pl oy ee, 5 00 -m i l l i on -d ol la r o pe ra ti on s.

And none has the author ity to administer the Dodd-Frank Act's new proh ibiti on on unfair and deceptive practices in the consumer-fnance sector. Given these consequences, it is far from evident that Congress wou ld have preferred no CFPB to a CFPB led by a Director removable at w ill by the President.

Justice Thomas wou ld have us junk our settled severabil- ity doctr ine and star t afresh, even though no par ty has asked us to do so. See post, at 252 – 253, 258 – 261 (opini on concur- r ing in par t and dissenting in par t). Among other th ings, he objects that it is sheer “specu lati on” that Congress wou ld prefer that its consumer protecti on laws be enforced by a Director accountable to the President rather than not at a ll.

Post, at 261. We th ink it clear that Congress wou ld prefer that we use a sca lpel rather than a bu lldozer in cur ing the constituti ona l defect we identify today. And such an ap- proach by th is Cour t can come as no surpr ise to Congress, wh ich was on notice of constituti ona l objecti ons to sing le-Di- rector agencies by mu ltiple past Presidents from both politica l par ties, supra, at 221– 222, and enacted Dodd-Frank against the background of our established severability doctr ine.

As in every severability case, there may be means of reme- dy ing the defect in the CFPB's str ucture that the Cour t lacks the author ity to provide. Our severability ana lysis does not foreclose Congress from pursuing a lter native re- sponses to the problem—for example, conver ting the CFPB into a mu ltimember agency. The Cour t's only instr ument, however, is a blunt one. We have “ the negative power to

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disregard an unconstituti ona l enactment, ” Massachuse t ts v.

Mell o n, 262 U. S. 447, 488 (1923); see Marb ur y v. Mad iso n, 1 Cranch 137, 178 (1803), but we cannot rewr ite Congress's work by creating offces, ter ms, and the like. “ [S]uch edito- r ia l freedom . . . belongs to the Leg islature, not the Judi- ciary. ” Free En te r pr ise Fund, 561 U. S., at 510.

Because we fnd the Director 's remova l protecti on sever- able from the other provisi ons of Dodd-Frank that establish the CFPB, we remand for the Cour t of Appea ls to consider whether the civil investigative demand was va lidly ratifed.

* * * A decade ago, we declined to extend Congress's author ity to limit the President's remova l power to a new situati on, never before confronted by the Cour t. We do the same today. In our constituti ona l system, the executive power belongs to the President, and that power genera lly includes the ability to supervise and remove the agents who w ield executive power in h is stead. Wh ile we have previ ously up- held limits on the President's remova l author ity in cer tain contexts, we decline to do so when it comes to pr incipa l off- cers who, acting a lone, w ield sig nifcant executive power.

The Constituti on requires that such offcia ls remain depend- ent on the President, who in tur n is accountable to the people.

The judg ment of the United States Cour t of Appea ls for the Ninth Circuit is vacated, and the case is remanded for fur ther proceedings consistent w ith th is opini on.

It is so o rde red.

Justice Thomas, w ith whom Justice Gorsuch joins, concurr ing in par t and dissenting in par t.

The Cour t's decisi on today takes a restrained approach on the mer its by limiting Humphrey's Execu t o r v. Un i ted Sta tes, 295 U. S. 602 (1935), rather than overr u ling it. At

Cite as: 591 U. S. 197 (2020) 239 Opinion of Thomas, J.

the same time, the Cour t takes an aggressive approach on severability by sever ing a provisi on when it is not necessary to do so. I wou ld do the opposite.

Because the Cour t takes a step in the r ight directi on by l i m i t i n g H u m p h r e y ' s E x e c u t o r t o “ m u l t i m e m b e r e x p e r t agencies that do no t w i eld substan t i al execu t i v e po w e r, ” an te, at 218 (emphasis added), I join Par ts I, II, and III of its opini on. I respectfu lly dissent from the Cour t's severability ana lysis, however, because I do not believe that we shou ld address severability in th is case.

The decisi on in Humphrey's Execu t o r poses a direct threat to our constituti ona l str ucture and, as a resu lt, the liber ty of the Amer ican people. The Cour t concludes that it is not str ictly necessary for us to overr u le that decisi on.

See an te, at 204, 215 – 219. But w ith today's decisi on, the Cour t has repudiated a lmost every aspect of Humphrey's Ex- ecu t o r. In a future case, I wou ld repudiate what is lef t of th is erroneous precedent.

“ The Constituti on does not vest the Federa l Gover nment w ith an undifferentiated `gover nmenta l power. ' ” Depar t- men t o f Tran spo r ta t io n v. Associ a t io n o f Ame r ican Rai l- ro ads, 575 U. S. 43, 67 (2015) (Thomas, J., concurr ing in judg- ment). It sets out three branches and vests a different for m of power in each—leg islative, executive, and judicia l. See Ar t. I, § 1; Ar t. II, § 1, cl. 1; Ar t. III, § 1.

Ar ticle II of the Constituti on vests “ [t]he executive Power ” in the “President of the United States of Amer ica, ” § 1, cl. 1, and directs that he sha ll “ take Care that the Laws be faithfu lly executed, ” § 3. Of course, the President cannot fu lfll h is role of executing the laws w ithout assistance. See Mye rs v. Un i ted Sta tes, 272 U. S. 52, 117 (1926). He there- fore must “select those who [are] to act for h im under h is directi on in the executi on of the laws. ” Ib i d. Wh ile these

Opinion of Thomas, J.

offcers assist the President in carry ing out h is constituti on- a lly assig ned duties, “ [t]he buck stops w ith the President. ” Free En te r pr ise Fund v. Publ ic Co mpany Acco un t ing O v e r- si gh t Bd., 561 U. S. 477, 493 (2010). “Since 1789, the Consti- tuti on has been understood to empower the President to keep [h is] offcers accountable—by removing them from of- fce, if necessary. ” Id., at 483. The Framers “ insist[ed] ” upon “unity in the Federa l Executive” to “ensure both vigor and accountability” to the people. Pr in tz v. Un i ted Sta tes, 521 U. S. 898, 922 (1997); see a lso an te, at 224.

Despite the defned str uctura l limitati ons of the Constitu- ti on and the clear vesting of executive power in the Presi- dent, Congress has increasing ly sh if ted executive power to a de fact o four th branch of Gover nment —independent agen- cies. These agencies w ield considerable executive power w ithout Presidentia l oversight. They are led by offcers who are insu lated from the President by remova l restr ic- ti ons, “reduc[ing] the Ch ief Mag istrate to [the role of ] cajoler-in-ch ief. ” Free En te r pr ise Fund, 561 U. S., at 502.

But “ [t]he people do not vote for the Offcers of the United States. They instead look to the President to g uide the as- sistants or deputies subject to h is super intendence. ” Id., at 497– 498 (a lterati ons, inter na l quotati on marks, and citati on omitted). Because independent agencies w ield substantia l power w ith no accountability to either the President or the people, they “pose a sig nifcant threat to individua l liber ty and to the constituti ona l system of separati on of powers and checks and ba lances. ” PHH Co r p. v. CFPB, 881 F. 3d 75, 165 (CADC 2018) (Kavanaugh, J., dissenting).

Unfor tunately, th is Cour t “ ha[s] not a lways been vig ilant about protecting the str ucture of our Constituti on, ” at times endorsing a “more prag matic, fexible approach” to our Gov- er nment's desig n. Pe rez v. M o r tgage Banke rs Assn., 575

U. S. 92, 115 –116 (2015) (Thomas, J., concurr ing in judg ment)

( inter na l quotati on marks omitted). Our tolerance of inde- pendent agencies in Humphrey's Execu t o r is an unfor tunate

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example of the Cour t's failure to apply the Constituti on as wr itten. That decisi on has paved the way for an ever- expanding encroachment on the power of the Executive, con- trary to our constituti ona l desig n.

1

The lead up to Humphrey's Execu t o r beg ins w ith th is Cour t's decisi on in Mye rs, 272 U. S. 52. Mye rs involved a federa l statute that proh ibited the President from removing cer tain postmasters except “ by and w ith the advice and con- sent of the Senate. ” Id., at 107 ( inter na l quotati on marks omitted). The questi on presented was “whether under the Constituti on the President has the exclusive power of remov- ing executive offcers of the United States whom he has ap- pointed by and w ith the advice and consent of the Senate. ” Id., at 106. In a 70-page opini on by Ch ief Justice Taf t, the Cour t held that the Constituti on did vest such power in the President.

The Cour t anchored its ana lysis in evidence from the founding era. It acknowledged that the “subject [of re- mova l] was not discussed in the Constituti ona l Conventi on, ” i d., at 109 –110, but it reviewed in detail the First Congress' vigorous debate about the remova l of executive offcers in what is known as the Decisi on of 1789, i d., at 111–135. 1 In the course of ana lyzing the Decisi on of 1789, the Cour t ex- plained that Ar ticle II vests “ the executive power of the Gover nment . . . in one person”—the President —and that the executive power includes the author ity to “select those who [are] to act for h im under h is directi on in the executi on of the laws. ” Id., at 116 –117. Reiterating the positi on of James Madison and other Members of the First Congress, the Cour t noted that a llow ing limits on the President's remova l author-

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).

Opinion of Thomas, J.

ity wou ld grant Congress “ the means of thwar ting the Exec- utive in the exercise of h is great powers and in the bear ing of h is great responsibility, by fastening upon h im, as subordi- nate executive offcers, men who by their ineffcient service under h im, by their lack of loya lty to the service, or by their different views of policy, might make h is tak ing care that the laws be faithfu lly executed most diffcu lt or impossible. ” Id., at 131. Af ter “devot[ing] much space to [the] discussi on and decisi on of the questi on of the Presidentia l power of re- mova l in the First Congress” as well as its understanding of the executive power, i d., at 136, the Cour t concluded that “ the power to remove offcers appointed by the President and the Senate vested in the President a lone, ” i d., at 114. It repeatedly descr ibed th is remova l power as “unrestr icted. ” Id., at 115, 134, 150, 172, 176.

The Cour t noted that the First Congress' understanding of the remova l questi on was quickly “accepted as a fna l deci- si on of the questi on by a ll branches of the Gover nment. ” Id., at 136. The decisi on was “affr med by th is Cour t in un- mistakable ter ms. ” Id., at 148, 152 –153 (discussing Ex par te Hennen, 13 Pet. 230, 259 (1839); Parso n s v. Un i ted Sta tes, 167 U. S. 324, 330 (1897)). Presidents had “unifor m[ ly] ” adopted the First Congress' view “whenever an issue ha[d] clear ly been raised. ” Mye rs, 272 U. S., at 169. And “Con- gress, in a number of acts, followed and enforced the leg isla- tive decisi on of 1789 for seventy-four years. ” Id., at 145.

Wh ile disputes w ith President Andrew Johnson over Recon- str ucti on led Congress to “enact leg islati on to cur tail the then acknowledged powers of the President, ” i d., at 165, the Mye rs Cour t declined to g ive these politica lly charged acts any weight, i d., at 175 –176.

Af ter exhaustively ana lyzing the h istor ica l evidence, the Cour t had “no hesitati on in holding that [the First Congress'] conclusi on [was] correct. ” Id., at 176. According ly, the Cour t held that “ the provisi on of the law [at issue], by wh ich the unrestr icted power of remova l of frst class postmasters

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is denied to the President, [was] in vi olati on of the Constitu- ti on, and inva lid. ” Ib i d.

2

Nine years af ter Mye rs, the Cour t decided Humphrey's Execu t o r. That case arose from the attempted remova l of Commissi oner William Humphrey from the Federa l Trade Commissi on (FTC). In 1931, President Herber t Hoover ap- pointed Humphrey to serve a 7-year ter m as one of the F T C 's f i v e C o m m i s s i o n e r s . B y a l l a c c o u n t s , Hu m p h r e y proved to be a controversia l fg ure. See Crane, Debunk ing Humphrey's Execu t o r, 83 Geo. Wash. L. Rev. 1835, 1841 (2015); Winer man, The FTC at Ninety: History Through Headlines, 72 Antitr ust L. J. 871, 878 – 879 (2005); Yoo, Ca la- bresi, & Nee, The Unitary Executive Dur ing the Th ird Ha lf- Century, 1889 –1945, 80 Notre Dame L. Rev. 1, 64 (2004). He repor tedly “vowed not to approve any Commissi on acti on that did not have as its goa l to help business help itself, ” “ threaten[ed] cr imina l prosecuti on against other commis- si oners who publicly dissented, ” and “ca lled h is fellow com- missi oners men dr unk w ith their own greatness” when they voted to initiate an investigati on. Crane, supra, at 1841 ( in- ter na l quotati on marks omitted).

Less than two years into Humphrey's ter m, newly inaug u- rated President Franklin D. Roosevelt wrote Humphrey a letter, ask ing for h is resig nati on. The President explained that, in h is view, “ the aims and purposes of the Administra- ti on w ith respect to the work of the Commissi on [cou ld] be carr ied out most effectively w ith personnel of [h is] own selec- ti on. ” Humphrey's Execu t o r, 295 U. S., at 618 ( inter na l quotati on marks omitted). A little over a month af ter h is frst letter, President Roosevelt wrote Humphrey again to ask for h is resig nati on. The letter stated: “You w ill, I know, rea lize that I do not feel that your mind and my mind go a long together on either the policies or the administer ing of the [ FTC], and, frankly, I th ink it is best for the people of th is country that I shou ld have a fu ll confdence. ” Id., at

Opinion of Thomas, J.

619 ( inter na l quotati on marks omitted). Humphrey declined to resig n. In October 1933, President Roosevelt infor med Humphrey that he was removed from h is positi on. Hum- phrey did not comply, continuing “ to insist that he was still a member of the commissi on, entitled to perfor m its duties and receive the compensati on provided by law. ” Ib i d.

Four months later, Humphrey died. The executor of h is estate brought suit in the Cour t of Claims, seek ing to re- cover Humphrey's sa lary from the date of h is remova l until the date of h is death. The Cour t of Claims cer tifed two questi ons to th is Cour t: (1) whether § 1 of the Federa l Trade Commissi on Act of 1914, ch. 311, 38 Stat. 717, proh ibited the President from removing FTC Commissi oners except for “ ineffciency, neg lect of duty, or ma lfeasance in offce, ” and

(2) if so, whether that restr icti on was constituti ona l. 295

U. S., at 619 ( inter na l quotati on marks omitted).

The Cour t answered both of these questi ons in favor of Humphrey's estate. It frst held that the FTC Act “ limit[ed] the executive power of remova l to the causes enumerated” therein—ineffciency, neg lect of duty, or ma lfeasance in of- fce. Id., at 626. In the Cour t's view, th is constr ucti on of the Act was clear from “ the face of the statute” and “ the character of the commissi on, ” i d., at 624, wh ich the Cour t descr ibed as a “ body of exper ts” that operates “ independent of executive author ity . . . and free to exercise its judg ment w ithout the leave or h indrance of any other offcia l, ” i d., at 625 – 626.

Then, notw ithstanding the text of Ar ticle II of the Consti- tuti on and the decisi on in Mye rs, the Cour t held that the Act's restr icti on on the President's author ity to remove Com- missi oners was constituti ona l. The Cour t acknowledged that the “recently decided” Mye rs decisi on had “fu lly re- view[ed] the genera l subject of the power of executive re- mova l” and “examine[d] at leng th the h istor ica l, leg islative and judicia l data bear ing upon the questi on. ” Humphrey's Execu t o r, 295 U. S., at 626. And it conceded that executive

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offcers are “subject to the exclusive and illimitable power of remova l by the Ch ief Executive. ” Id., at 627; see a lso i d., at 631 (recog nizing “ the President's illimitable power of remova l” over executive offcers). 2 The Cour t, however, claimed that “ [t]he offce of a postmaster is so essentia lly unlike the offce [of an FTC Commissi oner] that the decisi on in the Mye rs case [cou ld not] be accepted as controlling. ” Id., at 627. In the Cour t's view, unlike the postmaster in Mye rs, FTC Commissi oners did not qua lify as “purely execu- tive offcers. ” 295 U. S., at 632.

The Cour t grounded its ana lysis in its asser ti on that the FTC “occupies no place in the executive depar tment and . . . exercises no par t of the executive power vested by the Con- stituti on in the President. ” Id., at 628. Rather, in the Cour t's view, by “flling in and administer ing the details embodied by [the FTC Act's] genera l standard[,] the commis- si on act[ed] in par t quasi-leg islatively and in par t quasi- judicia lly. ” Ib i d. The Cour t stated that the FTC acted “as a leg islative agency” by “mak ing investigati ons and repor ts thereon for the infor mati on of Congress” and acted “as an agency of the judiciary” when perfor ming its role “as a mas- ter in chancery under r u les prescr ibed by the cour t. ” Ib i d.

“Such a body, ” the Cour t explained, “cannot in any proper sense be character ized as an ar m or an eye of the execu- tive. ” Ib i d.

Af ter disting uish ing “purely executive offcers” from off- cers exercising “quasi-leg islative or quasi-judicia l powers, ”

2 The explicit and repeated recog nition of the President's “ illimitable power ” in Humphrey's Execu tor high lights the dissent's error in claiming that Humphrey's Execu tor “abandoned [the] view” set out in Myers v.

Un i ted Sta tes, 272 U. S. 52 (1926). Post, at 277 (Kagan, J., concurring in judg ment with respect to severability and dissenting in part) (herein- af ter dissent). Humphrey's Execu tor did not abandon Myers; it distin- guished Myers based on the fawed premise that the FTC exercised “quasi-leg islative” and “quasi-judicial” power that is not part of “ the exec- utive power vested by the Constitution in the President. ” Humphrey's Execu tor, 295 U. S., at 628; see also in f ra, at 246 – 248.

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ib i d., the Cour t held that “ [w]hether the power of the Presi- dent to remove an offcer sha ll prevail over the author ity of Congress to conditi on the power by . . . precluding a remova l except for cause, w ill depend upon the character of the of- fce, ” i d., at 631. “ [P]urely executive offcers” are subject to the President's “unrestr ictable power . . . to remove. ” Id., at 632. But w ith regard to “quasi-leg islative” and “quasi- judicia l” offcers, the Cour t concluded that “no remova l [cou ld] be made . . . except for one or more of the causes named. ” Ib i d.

3

Humphrey's Execu t o r laid the foundati on for a fundamen- ta l depar ture from our constituti ona l str ucture w ith noth ing more than handwaving and obfuscating phrases such as “quasi-leg islative” and “quasi-judicia l. ” Unlike the thor- ough ana lysis in Mye rs, the Cour t's th inly reasoned decisi on is completely “devoid of textua l or h istor ica l precedent for the novel pr inciple it set for th. ” M o r r iso n v. O lso n, 487

U. S. 654, 726 (1988) (Sca lia, J., dissenting). The excepti ona l

weakness of the reasoning cou ld be a product of the circum- stances under wh ich the case was decided—in the midst of a bitter standoff between the Cour t and President Roose- velt3—or it cou ld be just another example of th is Cour t de-

3 A number of historical sources indicate that President Roosevelt saw Humphrey's Execu tor v. Un i ted Sta tes, 295 U. S. 602 (1935), as an attack on his administration. Given the Court's recent decision in Myers, the Roosevelt administration was reportedly “stunned” by the Court's decision in Humphrey's Execu tor, and the President was particularly annoyed that the decision “ma[de] it appear that he had been willfully violating the C o n s t i t u t i o n . ” S e e W. L e u c h t e n bu rg, T he Su pr em e C ou r t Re bo r n 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 Execu tor v. Un i ted Sta tes. The President thought they went out of their way to spite him personally. ' ” E. Gerhart, America's Advocate: Robert H. Jackson 99 (1958) (quoting 1949 interview with Jus- tice Jackson).

Cite as: 591 U. S. 197 (2020) 247 Opinion of Thomas, J.

par ting from the str ictures of the Constituti on for a “more prag matic, fexible approach” to our gover nment's desig n.

Pe rez, 575 U. S., at 116 (opini on of Thomas, J.) ( inter na l quotati on marks omitted). But whatever the motivati on, H u m p h r e y ' s E x e c u t o r d o e s n o t c o m p o r t w i t h t h e Constituti on.

Humphrey's Execu t o r relies on one key premise: the no- ti on that there is a category of “quasi-leg islative” and “quasi- judicia l” power that is not exercised by Congress or the Judi- ciary, but that is a lso not par t of “ the executive power vested by the Constituti on in the President. ” Humphrey's Execu- t o r, supra, at 628. Work ing from that premise, the Cour t disting uished the “ illimitable” power of remova l recog nized in Mye rs, Humphrey's Execu t o r, 295 U. S., at 627– 628, and upheld the FTC Act's remova l restr icti on, wh ile simu ltane- ously acknowledg ing that the Constituti on vests the Presi- dent w ith the entirety of the executive power, i d., at 628.

The problem is that the Cour t's premise was entirely wrong. The Constituti on does not per mit the creati on of of- fcers exercising “quasi-leg islative” and “quasi-judicia l pow- ers” in “quasi-leg islative” and “quasi-judicia l agencies. ” Id., at 628 – 629. No such powers or agencies exist. Congress lacks the author ity to delegate its leg islative power, W h i t- man v. Ame r ican Tr ucking Assn s., Inc., 531 U. S. 457, 472 (2001), and it cannot author ize the use of judicia l power by offcers acting outside of the bounds of Ar ticle III, Ste r n v.

Marshall, 564 U. S. 462, 484 (2011). Nor can Congress cre- ate agencies that straddle mu ltiple branches of Gover nment.

The Constituti on sets out three branches of Gover nment and provides each w ith a different for m of power—leg islative, executive, and judicia l. See Ar t. I, § 1; Ar t. II, § 1, cl. 1; Ar t. III, § 1. Free-foating agencies simply do not compor t w ith th is constituti ona l str ucture. “ [A]gencies have been ca lled quasi-leg islative, quasi-executive or quasi-judicia l, as the occasi on required, in order to va lidate their functi ons w ith in the separati on-of-powers scheme of the Constituti on. ”

Opinion of Thomas, J.

FTC v. Rube ro i d Co., 343 U. S. 470, 487 (1952) (Jackson, J., dissenting). But “ [t]he mere retreat to the qua lify ing `quasi' is implicit w ith confessi on that a ll recog nized classifcati ons have broken down, and `quasi' is a smooth cover wh ich we draw over our confusi on as we might use a counterpane to concea l a disordered bed. ” Id., at 487– 488.

That is exactly what happened in Humphrey's Execu t o r.

The Cour t upheld the FTC Act's remova l restr icti on by using the “quasi” label to suppor t its claim that the FTC “exercise[d] no par t of the executive power vested by the C o n s t i t u t i o n i n t h e P r e s i d e n t . ” H u m p h r e y ' s E x e c u t o r, supra, at 628. But “ it is hard to dispute that the powers of the FTC at the time of Humphrey's Execu t o r wou ld at the present time be considered `executive, ' at least to some de- gree. ” M o r r iso n, supra, at 690, n. 28; see an te, at 216, n. 2; see post, at 278, n. 7 (Kagan, J., concurr ing in judg ment w ith respect to severability and dissenting in par t).

Today's decisi on constitutes the latest in a ser ies of cases that have sig nifcantly under mined Humphrey's Execu t o r.

First, in M o r r iso n, the Cour t repudiated the reasoning of the decisi on. 487 U. S., at 689. Then, in Free En te r pr ise Fund, we retur ned to the pr inciples set out in the “ landmark case of Mye rs. ” 561 U. S., at 492. And today, the Cour t r ightfu lly limits Humphrey's Execu t o r to “mu ltimember ex- per t agencies that do not w ield substantia l executive power. ” An te, at 218. Af ter these decisi ons, the foundati on for Humphrey's Execu t o r is not just shaky. It is nonexistent.

Th is Cour t's repudiati on of Humphrey's Execu t o r began w ith its decisi on in M o r r iso n. There, the Cour t upheld a statute insu lating an independent counsel from remova l by the Attor ney Genera l absent a show ing of “good cause. ” M o r r iso n, supra, at 659 – 660. In doing so, the Cour t set aside the reasoning of Humphrey's Execu t o r. It recog nized that Humphrey's Execu t o r “rel[ied] on the ter ms `quasi-

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leg islative' and `quasi-judicia l' to disting uish the offcia ls in- volved in Humphrey's Execu t o r . . . from those in Mye rs. ” 487 U. S., at 689. But it then immediately stated that its “present considered view is that the deter minati on of whether the Constituti on a llows Congress to impose a `good cause'-type restr icti on on the President's power to remove an offcia l cannot be made to tur n on whether or not that offcia l is classifed as `purely executive. ' ” Ib i d. The Cour t a lso re jected Humphrey's Execu t o r 's conclusi on that the FTC did not exercise executive power, stating that “ the powers of the FTC at the time of Humphrey's Execu t o r wou ld at the present time be considered `executive. ' ” M o r- r iso n, supra, at 690, n. 28. The lone dissenter, Justice Sca lia, disagreed w ith much of the Cour t's ana lysis but noted that the Cour t had r ightfu lly “swept” Humphrey's Execu t o r “ into the dustbin of repudiated constituti ona l pr inciples. ” 487 U. S., at 725. Thus, a ll Members of the Cour t who heard M o r r iso n re jected the core rati ona le of Humphrey's Execu t o r.

The reasoning of the Cour t's decisi on in Free En te r pr ise Fund created fur ther tensi on ( if not outr ight confict) w ith H u m p h r e y ' s E x e c u t o r. I n F r e e E n t e r p r i s e F u n d , t h e Cour t concluded that a dua l layer of for-cause remova l re- str icti ons for members of the Public Company Accounting Oversight Board vi olated the Constituti on. In its ana lysis, the Cour t recog nized that a llow ing offcers to “execute the laws” beyond the President's control “ is contrary to Ar ticle II's vesting of the executive power in the Presi den t. ” 561

U. S., at 496 (emphasis added). The Cour t acknowledged

that “ the executive power include[s] a power to oversee exec- utive offcers through remova l. ” Id., at 492. And it ex- plained that, w ithout the power of remova l, the President cannot “ be held fu lly accountable” for the exercise of the executive power, “ `greatly diminish[ing] the intended and necessary responsibility of the ch ief mag istrate h imself. ' ” Id., at 514 (quoting The Federa list No. 70, p. 478 (J. Cooke ed.

Opinion of Thomas, J.

1961) (A. Hamilton)). Accountability, the Cour t repeatedly emphasized, plays a centra l role in our constituti ona l str uc- ture. See, e. g., Free En te r pr ise Fund, 561 U. S., at 498 (“ [ E]xecutive power w ithout the Executive's oversight . . . subver ts the President's ability to ensure that the laws are faithfu lly executed—as well as the public 's ability to pass judg ment on h is effor ts”); i d., at 513 (“ The Constituti on that makes the President accountable to the people for executing the laws a lso g ives h im the power to do so”). Humphrey's Execu t o r is at odds w ith every sing le one of these pr inciples: It ig nores Ar ticle II's Vesting Clause, sidesteps the Presi- dent's remova l power, and encourages the exercise of execu- tive power by unaccountable offcers. The reasoning of the two decisi ons simply cannot be reconciled.

Fina lly, today's decisi on builds upon M o r r iso n and Free En te r pr ise Fund, fur ther eroding the foundati on of Hum- phrey's Execu t o r. The Cour t correctly notes that “ [t]he entire `executive Power ' belongs to the President a lone. ” An te, at 213. The President therefore must have “power to remove—and thus supervise—those who w ield executive power on h is beha lf. ” An te, at 204. As a resu lt, the Cour t concludes that Humphrey's Execu t o r must be limited to “mu ltimember exper t agencies that do no t w i eld substan t i al execu t i v e po w e r. ” An te, at 218 (emphasis added). And, at the same time, it recog nizes (as the Cour t did in M o r r iso n) that “ [t]he Cour t's conclusi on that the FTC did not exercise executive power has not w ithstood the test of time. ” An te, at 216, n. 2. In other words, Humphrey's Execu t o r does not even satisfy its own excepti on.

In light of these decisi ons, it is not clear what is lef t of Humphrey's Execu t o r 's rati ona le.4 But if any remnant of

4 The dissent, while vigorously defending the holding of Humphrey's Ex- ecu tor, can muster no defense for the reasoning of the decision. The dis- sent does not defend the notion of “quasi” powers or “quasi” agencies, recog nizing that the power exercised by the FTC was executive power.

See post, at 278, n. 7. And, in 38 pages, it cannot explain how any aspect

Cite as: 591 U. S. 197 (2020) 251 Opinion of Thomas, J.

that decisi on is still standing, it cer tainly is not enough to justify the numerous, unaccountable independent agencies that currently exercise vast executive power outside the bounds of our constituti ona l str ucture.

* * * Continued reliance on Humphrey's Execu t o r to justify the existence of independent agencies creates a ser i ous, ongoing threat to our Gover nment's desig n. Leaving these unconsti- tuti ona l agencies in place does not enhance th is Cour t's leg it- imacy; it subver ts politica l accountability and threatens indi- v i d u a l l i b e r t y. We h a v e a “ r e s p o n s i b i l i t y t o ` e x a m i n [e] w ithout fear, and revis[e] w ithout reluctance, ' any ` hasty and cr ude decisi ons' rather than leaving ` the character of [the] law impaired, and the beauty and har mony of the [Amer i- can constituti ona l] system destroyed by the perpetuity of error. ' ” Gamble v. Un i ted Sta tes, 587 U. S. 678, 716 (2019) (Thomas, J., concurr ing) (quoting 1 J. Kent, Commentar ies on Amer ican Law 444 (1826); some a lterati ons in or ig ina l).

We simply cannot compromise when it comes to our Gover n- ment's str ucture. Today, the Cour t does enough to resolve th is case, but in the future, we shou ld reconsider Hum- phrey's Execu t o r in t o t o. And I hope that we w ill have the w ill to do so.

Wh ile I th ink that the Cour t correctly resolves the mer its of the constituti ona l questi on, I do not agree w ith its decisi on

of Humphrey's Execu tor (other than its holding) survived M or r iso n v. O lso n, 487 U. S. 654 (1988), and Free En ter pr ise Fund v. Publ ic Co mpany Accoun t ing O v ersi gh t Bd., 561 U. S. 477 (2010). Instead, the dissent sim- ply claims that Humphrey's Execu tor was “extended” and “clarifed” in M or r iso n, post, at 279, attempting to breathe validity into Humphrey's Execu tor through the Court's M or r iso n decision. But the dissent's read- ing of M or r iso n as “extend[ing] Humphrey's domain” is baffing. Post, at 279. M or r iso n expressly repudiated the substantive reasoning of Humphrey's Execu tor. See supra, at 248 – 249.

Opinion of Thomas, J.

to sever the remova l restr icti on in 12 U. S. C. § 5491(c)(3).

See an te, at 232 – 238 (plura lity opini on); post, at 296 – 297. To resolve th is case, I wou ld simply deny the Consumer Finan- cia l Protecti on Bureau (CFPB) petiti on to enforce the civil investigative demand.

Ar ticle III of the Constituti on vests “ [t]he judicia l Power of the United States” in the “supreme Cour t” and the lower federa l cour ts established by Congress. § 1. “ [T]he judi- cia l power is, fundamenta lly, the power to render judg ments in individua l cases” or controversies that are proper ly before the cour t. Mur phy v. Na t io n al Co lleg i a te Ath le t ic Assn., 584 U. S. 453, 488 (2018) (Thomas, J., concurr ing); see a lso Pl au t v. Spend thr i f t Far m, Inc., 514 U. S. 211, 219 (1995) (“ ` [A] “ judicia l Power ” is one to render dispositive judg- ments' ”); Baude, The Judg ment Power, 96 Geo. L. J. 1807, 1815 –1816 (2008). “ [T]he power exercised is that of ascer- taining and declar ing the law applicable to the controversy. ” Massachuse t ts v. Mell o n, 262 U. S. 447, 488 (1923). In the context of a constituti ona l cha llenge, “ [i]t amounts to little more than the negative power to disregard an unconstitu- ti ona l enactment. ” Ib i d.; see a lso Mitchell, The Wr it-of- Erasure Fa llacy, 104 Va. L. Rev. 933, 936 (2018). Thus, if a par ty arg ues that a statute and the Constituti on confict, “ then cour ts must resolve that dispute and . . . follow the h igher law of the Constituti on. ” Mur phy, 584 U. S., at 488 (Thomas, J., concurr ing).

Consistent w ith th is understanding, “ [e]ar ly Amer ican cour ts did not have a severability doctr ine. ” Ib i d. (citing Wa lsh, Par tia l Unconstituti ona lity, 85 N. Y. U. L. Rev. 738, 769 (2010)). If a statute was unconstituti ona l, the cour t wou ld just decline to enforce the statute in the case before it. 584 U. S., at 488 (Thomas, J., concurr ing). That was the end of the matter. “ [T]here was no `next step' in wh ich [a] cour[t] ” severed por ti ons of a statute. Wa lsh, supra, at 777.

Cite as: 591 U. S. 197 (2020) 253 Opinion of Thomas, J.

Our moder n severability precedents create tensi on w ith th is h istor ic practice. Instead of declining to enforce an un- constituti ona l statute in an individua l case, th is Cour t has stated that cour ts must “seve[r] and excis[e] ” por ti ons of a statute to “remedy” the constituti ona l problem. Un i ted Sta tes v. Booke r, 543 U. S. 220, 245 (2005); Al aska Airl ines, Inc. v. Brock, 480 U. S. 678, 686 (1987). The Cour t's rhetor ic when discussing severance implies that a cour t's decisi on to sever a provisi on “for ma lly suspend[s] or erase[s it], when [the provisi on] actua lly remains on the books as a law. ” Mitchell, supra, at 1017. The Federa l Judiciary does not have the power to excise, erase, a lter, or other w ise str ike down a statute. Mur phy, supra, at 489 (Thomas, J., concur- r ing); Mitchell, supra, at 936. And the Cour t's reference to severability as a “remedy” is inaccurate. Traditi ona l reme- dies—like in juncti ons, declarati ons, or damages—“ `operate w ith respect to specifc par ties, ' not `on lega l r u les in the abstract. ' ” Mur phy, supra, at 489 (Thomas, J., concurr ing) (quoting Harr ison, Severability, Remedies, and Constitu- ti ona l Adjudicati on, 83 Geo. Wash. L. Rev. 56, 85 (2014)).

Because the power of judicia l review does not a llow cour ts to revise statutes, Mitchell, supra, at 983, the Cour t's sever- ability doctr ine must be rooted in statutory interpretati on.

But, even view ing severability as an interpretive questi on, I remain skeptica l of our doctr ine. As I have previ ously explained, “ the severability doctr ine of ten requires cour ts to weigh in on statutory provisi ons that no par ty has standing to cha llenge, br ing ing cour ts dangerously close to issuing ad- visory opini ons. ” Mur phy, 584 U. S., at 490 (concurr ing opini on). And the applicati on of the doctr ine “does not follow basic pr inciples of statutory interpretati on. ” Id., at 489.

Instead of deter mining the meaning of a statute's text, sever- ability involves “nebu lous inquir[ies] into hypothetica l con- gressi ona l intent. ” Booke r, supra, at 320, n. 7 (Thomas, J., dissenting in par t).

Opinion of Thomas, J.

Consistent w ith the traditi ona l understanding of the ju- dicia l power, I wou ld deny CFPB's petiti on to enforce the civil investigative demand that it issued to Seila. See § 5562(e)(1). Seila “cha llenge[d] the va lidity of both the civil investigative demand and the ensuing enforcement acti on. ” Reply Br ief for Petiti oner 5. Seila has not countersued or sought affr mative relief preventing the CFPB from acting in the future; it simply asks us to “reverse the cour t of appea ls' judg ment. ” Br ief for Petiti oner 35. I wou ld do just that.

As the Cour t recog nizes, the enforcement of a civil investiga- tive demand by an offcia l w ith unconstituti ona l remova l pro- tecti on in jures Seila. See an te, at 211. Presented w ith an enforcement request from an unconstituti ona lly insu lated Di- rector, I wou ld simply deny the CFPB's petiti on for an order of enforcement. Th is approach wou ld resolve the dispute before us w ithout addressing the issue of severability.

The Cour t, however, does more. In the plura lity's view,5 because the CFPB raised a ratifcati on arg ument before the Cour t of Appea ls, we can (and shou ld) reach the questi on of severability. See an te, at 232 – 233. But as explained more fu lly below, resolving th is questi on is wholly unnecessary.

Regardless of whether the CFPB's ratifcati on theory is va lid, the Cour t of Appea ls on remand must reach the same outcome: The CFPB's civil investigative demand cannot be enforced against Seila.

The ratifcati on arg ument presented by the CFPB is quite simple. Since its creati on in 2010, the CFPB has had three Directors—frst Director Richard Cordray, then Acting Di- rector Mick Mu lvaney, and now Director Kath leen Kran- inger. The CFPB's frst Director, Director Cordray, issued a civil investigative demand to Seila and initiated the en-

5 The dissent provides no analysis of severability, simply stating “i f the agency's removal provision is unconstitutional, it should be severed. ” Post, at 297.

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forcement acti on. The CFPB has conceded that these ac- ti ons were unconstituti ona l. But, in the Ninth Circuit, the CFPB arg ued that the investigative demand was ratifed by Acting Director Mu lvaney, who it claimed was no t insu lated by the remova l provisi on. Br ief for Appellee in No. 17– 56324, pp. 13 –19. In the CFPB's view, the President cou ld remove Acting Director Mu lvaney at w ill because the “re- mova l provisi on by its ter ms applies only to ` the Director, ' not to an Acting Director, ” and the Federa l Vacancy Refor m Act “does not limit the President's ability to desig nate a dif- ferent person as Acting Director. ” Id., at 14. Based on th is ratifcati on theory, the CFPB asked the Ninth Circuit to affr m the Distr ict Cour t's order granting the CFPB's peti- ti on to enforce its investigative demand.

The CFPB does not ask th is Cour t to address ratifcati on on the mer its, but it does rely on its unresolved ratifcati on theory to asser t that the Cour t shou ld reach severability.

In doing so, the CFPB relies on the same theory that it pre- sented to the Ninth Circuit. Thus, the only live ratifcati on claim is the theory that Acting Director Mu lvaney ratifed the civil investigative demand. See an te, at 232 – 233.6 The resoluti on of the CFPB's Acting-Director ratifcati on theory, however, has no bear ing on the outcome of the dis- pute before us and therefore provides no basis for addressing severability. If the Acting Director did not ratify the inves- tigative demand, then there is obvi ously no need to address severability. And even if he did, the Cour t still does not need to address severability because the a lleged ratifcati on does not cure the constituti ona l in jury— enforcement of an

6 The Court-appointed amicus suggests that the CFPB's current Direc- tor, Director Kraninger, ratifed the enforcement proceeding by maintain- ing the suit af ter she stated her belief that the removal provision is uncon- stitutional. But the CFPB expressly disclaimed the notion that Director Kraninger had the power to ratify the civil investigative demand, stating that she “remains statutorily insulated from removal, regardless whether she believes the law is invalid. ” Reply Brief for Respondent 7.

Opinion of Thomas, J.

investigative demand by an unconstituti ona lly insu lated Di- rector. Seila “cha llenge[d] the va lidity of both the civil in- vestigative demand and the en su ing en fo rcemen t act io n. ” Reply Br ief for Petiti oner 5 (emphasis added). Acting Di- rector Mu lvaney may (or may not) have proper ly ratifed the issuance of the investigative demand and the initiati on of the enforcement proceedings. But he cer tainly cou ld not ratify the continuance of the enforcement acti on by h is successor, Director Kraninger. Id., at 7. Thus, even if the CFPB's ratifcati on theory is va lid, Seila still has an in jury: It has been (and continues to be) subjected to enforcement of an investigative demand by Director Kraninger, who “remains statutor ily insu lated from remova l. ” Reply Br ief for Re- spondent 7; see a lso Free En te r pr ise Fund, 561 U. S., at 513; an te, at 211– 212. Thus, we shou ld decline to enforce the civil investigative demand against Seila. See supra, at 252.

Ultimately, I cannot see how the resoluti on of the sever- ability questi on affects the dispute before us. And even if severability cou ld affect th is case in some hypothetica l sce- nar i o, I wou ld not reach out to resolve the issue g iven m y g r o w i n g d i s c o m f o r t w i t h o u r c u r r e n t s e v e r a b i l i t y precedents.

Confdent that it can address the questi on of severability, the plura lity moves on to conduct its ana lysis. It star ts by pointing to the severability clause in the Dodd-Frank Act.

See an te, at 235 – 236. That clause states: “If any provisi on of th is Act, an amendment made by th is Act, or the applica- ti on of such provisi on or amendment to any person or circum- stance is held to be unconstituti ona l, the remainder of th is Act, the amendments made by th is Act, and the applicati on of the provisi ons of such to any person or circumstance sha ll not be affected thereby. ” § 5302. The plura lity states that “ [i]f the Director were removable at w ill by the President, the constituti ona l vi olati on wou ld disappear. ” An te, at 234.

Then, rely ing on lang uage in the severability clause, it con- Cite as: 591 U. S. 197 (2020) 257

Opinion of Thomas, J.

cludes that the remova l provisi on, § 5491(c)(3), shou ld be severed.

The plura lity suggests that its ana lysis is a matter of sim- ply enforcing the “plain lang uage” of the severability clause.

See an te, at 235. But I am not sure it is that simple. For one, the plura lity does not actua lly ana lyze the statutory lan- g uage.7 Second, the ana lysis the plura lity does provide looks noth ing like traditi ona l statutory interpretati on. Gen- era lly, when we interpret a statute, we do not hold that the text sets out a “presum[pti on] ” that can be rebutted by look- ing to atextua l evidence of leg islative intent. An te, at 234. A text-based interpretati on does not a llow a free-rang ing inquiry into what “ `Congress, faced w ith the limitati ons im- posed by the Constituti on, wou ld have preferred' ” had it known of a constituti ona l issue. Ib i d. (quoting Free En te r- pr ise Fund, supra, at 509). Nor does it consider whether Congress wou ld have wanted to avoid “a major reg u latory disr upti on. ” An te, at 237. Statutory interpretati on fo- cuses on the text.

7 The severability clause refers to three alternative scenarios: (1) a “pro- vision of [the] Act . . . is held to be unconstitutional”; (2) “an amendment made by [the] Act . . . is held to be unconstitutional”; and (3) “ the applica- tion 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 frst scenario, calling for a provision to be severed from the Dodd-Frank Act. See an te, at 235.

But, as discussed below, there is no single “provision” of the Act that has led to the constitutional injury in this case. See in f ra, at 258. It is the attempted enforcement of a civil investigative demand under § 5562(e)(1) by an unconstitutionally insulated Director that causes the constitutional injury in this case. There is at least a nonfrivolous argument that this c a s e i m p l i c a t e s t h e t h i r d s c e n a r i o c o n t e m p l a t e d b y t h e s e v e r a b i l i t y 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 re- quire any “provision” to be severed; the unconstitutional application of § 5562(e)(1) simply would not affect other provisions of the Dodd-Frank Act. Such a reading would be consistent with the traditional limits on the judicial power. See supra, at 252 – 253.

Opinion of Thomas, J.

Even treating the questi on as a matter of pure statutory interpretati on and assuming that the plura lity points to the correct lang uage, the text of the severability clause cannot, in isolati on, justify severance of the remova l provisi on. In some instances, a constituti ona l in jury ar ises as a resu lt of two or more statutory provisi ons operating together. See,

e. g., Free En te r pr ise Fund, supra, at 509 (stating that the

convergence of “a number of statutory provisi ons” produce a constituti ona l vi olati on); Booke r, 543 U. S., at 316 – 317 (opin- i on of Thomas, J.) (explaining that “ the concer ted acti on of [18 U. S. C.] § 3553( b)(1) and the operative Guidelines and the relevant Ru le of Cr imina l Procedure resu lted in unconstitu- ti ona l judicia l factfnding ”); Lea, Situati on Severability, 103 Va. L. Rev. 735, 778 –780 (2017) (discussing statutory conver- gences). That is precisely the situati on we have in th is case.

As in Free En te r pr ise Fund, the provisi on requir ing “good- cause remova l is only one of [the] statutory provisi ons that, work ing together, produce a constituti ona l vi olati on. ” 561

U. S., at 509. The constituti ona l vi olati on resu lts from, at

a minimum, the combinati on of the remova l provisi on, 12

U. S. C. § 5491(c)(3), and the provisi on a llow ing the CFPB to

seek enforcement of a civil investigative demand, § 5562(e)(1).

When confronted w ith two provisi ons that operate together to vi olate the Constituti on, the text of the severability clause provides no g uidance as to wh ich provisi on shou ld be sev- ered. Thus, we must choose, based on someth ing other than the severability clause, wh ich provisi on to sever.

Without text to g uide us, the severability inquiry moves away from statutory interpretati on and fa lls back on th is Cour t's questi onable precedents. See Mur phy, 584 U. S., at 489 – 491 (Thomas, J., concurr ing). An ana lysis of the Cour t's decisi ons in Booke r and Free En te r pr ise Fund illus- trates the Cour t's approach to deter mining wh ich provisi on to sever when confronting an in jury caused by an unconstitu- ti ona l convergence of mu ltiple statutory provisi ons.

Cite as: 591 U. S. 197 (2020) 259 Opinion of Thomas, J.

In Booke r, a Ru le of Cr imina l Procedure, a subset of provi- si ons in the Sentencing Guidelines, and a statutory provisi on operated together to require unconstituti ona l judicia l fact- f i n d i n g . T o d e t e r m i n e w h i c h a s p e c t o f t h e s e n t e n c i n g scheme to sever, the Cour t sought to divine “what Congress wou ld have intended in light of the Cour t's constituti ona l holding. ” Booke r, 543 U. S., at 246 ( inter na l quotati on marks omitted). The Cour t “recog nize[d] that sometimes severability questi ons . . . can ar ise [in the context of ] a leg is- latively unforeseen constituti ona l problem. ” Id., at 247.

But it nonetheless felt qua lifed to craf t a remedy that wou ld “move sentencing in Congress' preferred directi on. ” Id., at

264. Surpr ising ly, that “move” did not involve enforcing the

constituti ona l aspects of Congress' sentencing scheme. The Cour t stated that “we cannot assume that Congress, if faced w ith the statute's inva lidity in key applicati ons, wou ld 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 wh ich mandatory Sentencing Guidelines wou ld have posed no constituti ona l problem, the Cour t de- cided to “sever and excise . . . the provisi on that requires sentencing cour ts to impose a sentence w ith in the applicable Guidelines range, ” a long w ith another provisi on wh ich was not even at issue in the case. Id., at 259. In essence, the Cour t craf ted a new sentencing scheme, transfor ming the Sentenc- ing Guidelines into an entirely discreti onary system based on its estimati on that Congress wou ld have wanted that resu lt.

The Cour t in Free En te r pr ise Fund declined to explicitly engage in Booke r 's free-wheeling inquiry into Congress' hy-

8 This statement in Booker is irreconcilable with the plurality's assertion here that “Congress would prefer that we use a scalpel rather than a bulldozer in curing the constitutional defect. ” An te, at 237. Thus, it ap- pears that the plurality either sub si len t io “ junk[s] our settled severability doctrine, ” ib id., or invokes, without explanation, different assumptions for different cases.

Opinion of Thomas, J.

pothetica l preferences, but it did not replace that inquiry w ith a clear standard. In that case, the Cour t held that a “number of statutory provisi ons . . . , work ing together, produce[d] a constituti ona l vi olati on” similar to the vi olati on at issue here. Free En te r pr ise Fund, 561 U. S., at 509.

The Cour t decided to sever the Board's remova l restr icti on.

It explicitly recog nized that there were mu ltiple ways to ad- dress the constituti ona l in jury, stating that the Cour t cou ld, for example, “ blue-pencil a suffcient number of the Board's responsibilities, ” or “restr ict the Board's enforcement pow- ers. ” Ib i d. But it descr ibed these a lter native opti ons as involving “editor ia l freedom—far more extensive than [the] holding today—[that] belongs to the Leg islature, not the Ju- diciary. ” Id., at 510. The Cour t did not explain, however, why the opti on that it chose was not a lso “editor ia l freedom” that belongs to the Leg islature or why the a lter natives in- volved “more extensive” “editor ia l freedom” than its pre- ferred opti on. Ib i d. The most that the Cour t provided was a suggesti on that fewer provisi ons wou ld have to be severed under its approach. Id., at 509 – 510.

Today's plura lity opini on provides no fur ther g uidance.

In fact, the plura lity does not even recog nize that it has made a choice between the provisi ons that cause the constituti ona l in jury. It merely states that “ [i]f the Director were remov- able at w ill by the President, the constituti ona l vi olati on wou ld disappear. ” An te, at 234. Fair enough. But if the Director lacked executive author ity under the statute to seek enforcement of a civil investigative demand, § 5562(e)(1), the constituti ona l vi olati on in th is case wou ld a lso disappear.

The plura lity thus chooses wh ich of the provisi ons to sever.

In shor t, when mu ltiple provisi ons of law combine to cause a constituti ona l in jury, the Cour t's current approach a llows the Cour t to decide wh ich provisi on to sever. The text of a severability clause does not g uide that choice. Nor does the practice of ear ly Amer ican cour ts. See supra, at 252.

Cite as: 591 U. S. 197 (2020) 261 Opinion of Kagan, J.

The Cour t is thus lef t to choose based on noth ing more than specu lati on as to what the Leg islature wou ld have preferred.

And the resu lt of its choice can have a dramatic effect on the gover ning statutory scheme. See Booke r, supra, at 259 (conver ting the entirety of the Sentencing Guidelines from a mandatory to a discreti onary system). Th is is not a simple matter of follow ing the “plain lang uage” of a statute. An te, at 235. 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 judicia l power. * * * Given my concer ns about our moder n severability doctr ine and the fact that severability makes no difference to the dispute before us, I wou ld resolve th is case by simply deny- ing the CFPB's petiti on to enforce the civil investigative demand.

Justice Kagan, w ith whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, concurr ing in the judg ment w ith respect to severability and dissenting in par t.

Throughout the Nati on's h istory, th is Cour t has lef t most decisi ons about how to str ucture the Executive Branch to Congress and the President, acting through leg islati on they both agree to. In par ticu lar, the Cour t has commonly a l- lowed those two branches to create zones of administrative independence by limiting the President's power to remove agency heads. The Federa l Reserve Board. The Federa l Trade Commissi on (FTC). The Nati ona l Labor Relati ons Board. Statute af ter statute establish ing such entities in- str ucts the President that he may not discharge their direc- tors except for cause—most of ten phrased as ineffciency, neg lect of duty, or ma lfeasance in offce. Those statutes, whose lang uage the Cour t has repeatedly approved, provide the model for the remova l restr icti on before us today. If precedent were any g uide, that provisi on wou ld have sur-

Opinion of Kagan, J.

vived its encounter w ith th is Cour t —and so wou ld the in- tended independence of the Consumer Financia l Protecti on Bureau (CFPB).

Our Constituti on and h istory demand that resu lt. The text of the Constituti on a llows these common for-cause re- mova l limits. Noth ing in it speaks of remova l. And it grants Congress author ity to organize a ll the instituti ons of Amer ican gover nance, provided only that those arrange- ments a llow the President to perfor m h is own constituti on- a lly assig ned duties. Still more, the Framers' choice to g ive the politica l branches w ide discreti on over administrative of- fces has played out through Amer ican h istory in ways that have settled the constituti ona l meaning. From the frst, Congress debated and enacted measures to create spheres of administrati on— especia lly of fnancia l affairs— detached from direct presidentia l control. As the years passed, and gover nance became ever more complicated, Congress contin- ued to adopt and adapt such measures—confdent it had lati- tude to do so under a Constituti on meant to “endure for ages to come. ” M cCull och v. Mar y l and, 4 Wheat. 316, 415 (1819) (approving the Second Bank of the United States). Not every innovati on in gover nance—not every exper iment in administrative independence—has proved successfu l. And debates about the pr udence of limiting the President's con- trol over reg u latory agencies, including through h is remova l power, have never abated.1 But the Constituti on—both as or ig ina lly draf ted and as practiced—mostly leaves disagree- ments about administrative str ucture to Congress and the President, who have the knowledge and exper ience needed to address them. With in broad bounds, it keeps the cour ts—who do not —out of the picture.

1 In the academic literature, compare, e. g., Kagan, Presidential Adminis- tration, 114 Harv. L. Rev. 2245, 2331– 2346 (2001) (generally favoring presi- dential control over agencies), with, e. g., Strauss, Overseer, or “ The De- cider ”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 704, 713 –715 (2007) (generally favoring administrative independence).

Cite as: 591 U. S. 197 (2020) 263 Opinion of Kagan, J.

The Cour t today fails to respect its proper role. It recog- nizes that th is Cour t has approved limits on the President's remova l power over heads of agencies much like the CFPB.

Agencies possessing similar powers, agencies charged w ith similar missi ons, agencies created for similar reasons. The major ity's explanati on is that the heads of those agencies fa ll w ith in an “excepti on”—one for mu ltimember bodies and an- other for infer i or offcers—to a “genera l r u le” of unrestr icted presidentia l remova l power. An te, at 215. And the major- ity says the CFPB Director does not. That account, though, is wrong in every respect. The major ity's genera l r u le does not exist. Its excepti ons, likew ise, are made up for the occa- si on—gerrymandered so the CFPB fa lls outside them. And the distincti on doing most of the major ity's work—between mu ltimember bodies and sing le directors— does not respond to the constituti ona l va lues at stake. If a remova l provisi on vi olates the separati on of powers, it is because the measure so depr ives the President of control over an offcia l as to impede h is own constituti ona l functi ons. But w ith or w ith- out a for-cause remova l provisi on, the President has at least as much control over an individua l as over a commissi on— and possibly more. That means the constituti ona l concer n is, if anyth ing, ameli orated when the agency has a sing le head. Unw itting ly, the major ity shows why cour ts shou ld stay their hand in these matters. “Compared to Congress and the President, the Judiciary possesses an infer i or under- standing of the rea lities of administrati on” and the way “po- litica l power[ ] operates. ” Free En te r pr ise Fund v. Publ ic Co mpany Acco un t ing O v e rsi gh t Bd., 561 U. S. 477, 523 (2010) (Breyer , J., dissenting).

In second-g uessing the politica l branches, the major ity second-g uesses as well the w isdom of the Framers and the judg ment of h istory. It wr ites in r u les to the Constituti on that the draf ters knew well enough not to put there. It re- pudiates the lessons of Amer ican exper ience, from the 18th century to the present day. And it commits the Nati on to

Opinion of Kagan, J.

a static versi on of gover nance, incapable of responding to new conditi ons and cha llenges. Congress and the President established the CFPB to address fnancia l practices that had brought on a devastating recessi on, and cou ld do so again. Today's decisi on w ipes out a feature of that agency its creators thought fundamenta l to its missi on—a measure of independence from politica l pressure. I respectfu lly dissent.

The text of the Constituti on, the h istory of the country, the precedents of th is Cour t, and the need for sound and adaptable gover nance—a ll stand against the major ity's opini on. They point not to the major ity's “genera l r u le” of “unrestr icted remova l power ” w ith two gr udg ing ly applied “excepti ons. ” An te, at 215, 218. Rather, they bestow dis- creti on on the leg islature to str ucture administrative insti- tuti ons as the times demand, so long as the President retains the ability to carry out h is constituti ona l duties.

And most relevant here, they g ive Congress w ide leeway to limit the President's remova l power in the interest of enhan- cing independence from politics in reg u latory bodies like the CFPB.

What does the Constituti on say about the separati on of powers—and par ticu lar ly about the President's remova l au- thor ity? (Spoiler a ler t: about the latter, noth ing at a ll.)

The major ity offers the civics class versi on of separati on of powers—ca ll it the Schoolhouse Rock defniti on of the phrase. See Schoolhouse Rock! Three Ring Gover nment (Mar. 13, 1979), http://www.youtube.com/watch?v=pKSGy iT- o3o (“Ring one, Executive. Two is Leg islative, that's Con- g r e s s . R i n g t h r e e, Ju d i c i a r y ” ) . T h e C o n s t i t u t i o n 's f i r s t three ar ticles, the major ity recounts, “split the atom of sov- ereig nty” among Congress, the President, and the cour ts.

An te, at 223 ( inter na l quotati on marks omitted). And by that Cite as: 591 U. S. 197 (2020) 265

Opinion of Kagan, J.

mechanism, the Framers provided a “simple” fx “ to gover n- menta l power and its per ils. ” Ib i d.

There is noth ing wrong w ith that as a beg inning (except the adjective “simple”). It is of course tr ue that the Fram- ers lodged three different k inds of power in three different entities. And that they did so for a cr ucia l purpose— because, as James Madison wrote, “ there can be no liber ty where the leg islative and executive powers are united in the same person[ ] or body” or where “ the power of judg ing [is] not separated from the leg islative and executive powers. ” The Federa list No. 47, p. 325 (J. Cooke ed. 1961) (quoting Baron de Montesquieu).

The problem lies in treating the beg inning as an ending too—in failing to recog nize that the separati on of powers is, by desig n, neither r ig id nor complete. Blackstone, whose work infuenced the Framers on th is subject as on others, observed that “every branch” of gover nment “suppor ts and is suppor ted, reg u lates and is reg u lated, by the rest. ” 1 W.

Blackstone, Commentar ies on the Laws of Eng land 151 (1765). So as James Madison stated, the creati on of distinct branches “did not mean that these depar tments ought to have no par tia l agency in, or no controu l over the acts of each other. ” The Federa list No. 47, at 325 (emphasis de- leted).2 To the contrary, Madison explained, the draf ters of the Constituti on—like those of then-existing state constitu- ti ons—opted against keeping the branches of gover nment “absolutely separate and distinct. ” Id., at 327. Or as Jus- tice Story reiterated a ha lf-century later: “ [W]hen we speak of a separati on of the three great depar tments of gover n- ment, ” it is “not meant to affr m, that they must be kept wholly and entirely separate. ” 2 J. Story, Commentar ies

2 The principle of separation of powers, Madison continued, maintained only that “where the who le power of one department is exercised by the same hands which possess the who le power of another department, the fundamental principles of a free constitution[ ] are subverted. ” The Fed- eralist No. 47, at 325 – 326.

Opinion of Kagan, J.

on the Constituti on of the United States § 524, p. 8 (1833).

Instead, the branches have—as they must for the whole arrangement to work—“common link[s] of connexi on [and] dependence. ” Ib i d.

One way the Constituti on refects that visi on is by g iving Congress broad author ity to establish and organize the Exec- utive Branch. Ar ticle II presumes the existence of “Off- cer[s] ” in “executive Depar tments. ” § 2, cl. 1. But it does not, as you might th ink from reading the major ity opini on, g ive the President author ity to decide what k inds of off- cers—in what depar tments, w ith what responsibilities—the Executive Branch requires. See an te, at 213 (“ The entire `executive Power ' belongs to the President a lone”). In- stead, Ar ticle I's Necessary and Proper Clause puts those decisi ons in the leg islature's hands. Congress has the power “ [t]o make a ll Laws wh ich sha ll be necessary and proper for carry ing into Executi on” not just its own enumerated powers but a lso “a ll other Powers vested by th is Constituti on in the Gover nment of the United States, or in any Depar tment or Offcer thereof. ” § 8, cl. 18. Similar ly, the Appointments Clause refects Congress's centra l role in str uctur ing the Ex- ecutive Branch. Yes, the President can appoint pr incipa l of- fcers, but only as the leg islature “sha ll . . . establish[ ] by Law” (and of course subject to the Senate's advice and con- sent). Ar t. II, § 2, cl. 2. And Congress has plenary power to decide not only what infer i or offcers w ill exist but a lso who (the President or a head of depar tment) w ill appoint them. So as Madison told the frst Congress, the leg islature gets to “create[ ] the offce, defne[ ] the powers, [and] limit[ ] its durati on. ” 1 Anna ls of Cong. 582 (1789). The President, as to the constr ucti on of h is own branch of gover nment, can only try to work h is w ill through the leg islative process.3

3 Article II's Opinions Clause also demonstrates the possibility of limits on the President's control over the Executive Branch. Under that Clause, the President “may require the Opinion, in writing, of the principal Offcer in each of the executive Departments, upon any Subject relating to the

Cite as: 591 U. S. 197 (2020) 267 Opinion of Kagan, J.

The major ity relies for its contrary visi on on Ar ticle II's Vesting Clause, see an te, at 213 – 214, 227, but the provisi on can't carry a ll that weight. Or as Ch ief Justice Rehnquist wrote of a similar claim in M o r r iso n v. O lso n, 487 U. S. 654 (1988), “extrapolat[ing] ” an unrestr icted remova l power from such “genera l constituti ona l lang uage”—wh ich says only that “ [t]he executive Power sha ll be vested in a President”—is “more than the text w ill bear. ” Id., at 690, n. 29. Dean John Manning has well explained why, even were it not obvi- ous from the Clause's “open-ended lang uage. ” Separati on of Powers as Ordinary Interpretati on, 124 Harv. L. Rev. 1939, 1971 (2011). The Necessary and Proper Clause, he wr ites, makes it impossible to “establish a constituti ona l vi olati on simply by show ing that Congress has constrained the way ` [t]he executive Power ' is implemented”; that is exactly what the Clause g ives Congress the power to do. Id., at 1967.

Only “a speci fc h istor ica l understanding ” can bar Congress from enacting a g iven constraint. Id., at 2024. And noth- ing of that sor t broadly prevents Congress from limiting the President's remova l power. I'll tur n soon to the Decisi on of 1789 and other evidence of Post-Conventi on thought. See in f ra, at 269 – 273. For now, note two points about practice before the Constituti on's draf ting. First, in that era, Par lia- ment of ten restr icted the King 's power to remove roya l off- cers—and the President, needless to say, wasn't supposed to be a k ing. See Birk, Interrogating the Histor ica l Basis for a Unitary Executive, 73 Stan. L. Rev. 175 (2021). Sec- ond, many States at the time a llowed limits on g uber nator ia l remova l power even though their constituti ons had simi- lar vesting clauses. See Shane, The Or ig ina list Myth of

Duties of their respective Offces. ” § 2, cl. 1. For those in the majority's camp, that Clause presents a puzzle: If the President must always have the direct supervisory control they posit, including by threat of removal, why would he ever need a constitutional warrant to demand agency heads' opinions? The Clause becomes at least redundant —though really, inexpli- cable—under the majority's idea of executive power.

Opinion of Kagan, J.

the Unitary Executive, 19 U. Pa. J. Const. L. 323, 334 – 344 (2016). Histor ica l understandings thus belie the major ity's “genera l r u le. ” Nor can the Take Care Clause come to the major ity's res- cue. That Clause cannot proper ly serve as a “placeholder for broad judicia l judg ments” about presidentia l control.

Goldsmith & Manning, The Protean Take Care Clause, 164

U. Pa. L. Rev. 1835, 1867 (2016); but see an te, at 213 – 214,

228 – 229, n. 11 (using it that way). To beg in w ith, the provi- si on—“ he sha ll take Care that the Laws be faithfu lly exe- cuted”—speaks of duty, not power. Ar t. II, § 3. New schol- arsh ip suggests the lang uage came from Eng lish and colonia l oaths taken by, and placing fduciary obligati ons on, a ll man- ner and rank of executive offcers. See Kent, Leib, & Shug- er man, Faithfu l Executi on and Ar ticle II, 132 Harv. L. Rev.

2111, 2121– 2178 (2019). To be sure, the impositi on of a duty may imply a grant of power suffcient to carry it out. But again, the major ity's view of that power ill compor ts w ith founding-era practice, in wh ich remova l limits were common.

See, e. g., Cor w in, Tenure of Offce and the Remova l Power Under the Constituti on, 27 Colum. L. Rev. 353, 385 (1927) (noting that New York 's Constituti on of 1777 had near ly the same clause, though the State's executive had “very little voice” in remova ls). And yet more impor tant, the text of the Take Care Clause requires only enough author ity to make sure “ the laws [are] faithfu lly executed”—meaning w ith fdelity to the law itself, not to every presidentia l policy preference.

As th is Cour t has held, a President can ensure “ `faithfu l exe- cuti on' of the laws”—thereby satisfy ing h is “ take care” obli- gati on—w ith a remova l provisi on like the one here. M o r- r iso n, 487 U. S., at 692. A for-cause standard g ives h im “ample author ity to assure that [an offcia l] is competently perfor ming [h is] statutory responsibilities in a manner that compor ts w ith the [relevant leg islati on's] provisi ons. ” Ib i d.

Fina lly, reca ll the Constituti on's tellta le silence: Nowhere does the text say anyth ing about the President's power to

Cite as: 591 U. S. 197 (2020) 269 Opinion of Kagan, J.

remove subordinate offcia ls at w ill. The major ity professes unconcer n. Af ter a ll, it says, “neither is there a `separati on of powers clause' or a `federa lism clause. ' ” An te, at 227.

But those concepts are carved into the Constituti on's text — the for mer in its frst three ar ticles separating powers, the latter in its enumerati on of federa l powers and its reserva- ti on of a ll else to the States. And anyway, at-w ill remova l is hardly such a “foundati ona l doctr ine[ ], ” ib i d.: You won't fnd it on a civics class syllabus. That's because remova l is a t oo l—one means among many, even if sometimes an impor- tant one, for a President to control executive offcia ls. See genera lly Free En te r pr ise Fund, 561 U. S., at 524 (Breyer , J., dissenting). To fnd that author ity h idden in the Consti- tuti on as a “genera l r u le” is to discover what is nowhere there.

History no better serves the major ity's cause. As Madi- son wrote, “a reg u lar course of practice” can “ liquidate & settle the meaning of ” disputed or indeter minate constitu- ti ona l provisi ons. Letter to Spencer Roane (Sept. 2, 1819), in 8 Wr itings of James Madison 450 (G. Hunt ed. 1908); see NLRB v. Noel Cann ing, 573 U. S. 513, 525 (2014). The ma- jor ity lays claim to that k ind of record, asser ting that its muscu lar view of “ [t]he President's remova l power has long been confr med by h istory. ” An te, at 214. But that is not so. The ear ly h istory—including the fabled Decisi on of 1789 —shows mostly debate and divisi on about remova l au- thor ity. And when a “settle[ment of ] meaning ” at last oc- curred, it was not on the major ity's ter ms. Instead, it sup- por ts w ide latitude for Congress to create spheres of administrative independence.

1

Beg in w ith evidence from the Constituti on's ratifcati on.

And note that th is moment is indeed the beg inning: Del- egates to the Constituti ona l Conventi on never discussed

Opinion of Kagan, J.

whether or to what extent the President wou ld have power to remove executive offcia ls. As a resu lt, the Framers ad- vocating ratifcati on had no sing le view of the matter. In Federa list No. 77, Hamilton presumed that under the new Constituti on “ [t]he consent of [the Senate] wou ld be neces- sary to displace as well as to appoint” offcers of the United States. Id., at 515. He thought that scheme wou ld pro- mote “steady administrati on”: “Where a man in any stati on had g iven satisfactory evidence of h is ftness for it, a new president wou ld be restrained” from substituting “a per- son more agreeable to h im. ” Ib i d. By contrast, Madison thought the Constituti on a llowed Congress to decide how any executive offcia l cou ld be removed. He explained in Federa list No. 39: “ The tenure of the minister ia l offces gen- era lly w ill be a subject of lega l reg u lati on, confor mably to the reason of the case, and the example of the State Constitu- ti ons. ” Id., at 253. Neither view, of course, at a ll suppor ts the major ity's story.4 The second chapter is the Decisi on of 1789, when Congress addressed the remova l power wh ile consider ing the bill cre- ating the Depar tment of Foreig n Affairs. Speak ing through Ch ief Justice Taf t —a judicia l presidentia list if ever there was one—th is Cour t in Mye rs v. Un i ted Sta tes, 272 U. S. 52 (1926), read that debate as expressing Congress's judg ment that the Constituti on gave the President illimitable power to remove executive offcia ls. The major ity rests its own

4 The majority dismisses Federalist Nos. 77 and 39 as “refect[ing] initial impressions later abandoned. ” An te, at 227, and n. 10. But even Hamil- ton's and Madison's later impressions are less helpful to the majority than it suggests. Assuming Hamilton gave up on the Senate's direct participa- tion 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 frst Congress's enactment of removal limits (as the majority high lights), he also maintained that the leg islature had constitutional power to protect the Comptroller of the Treasury from at-will fring. See in f ra, at 272 –

273. In any event, such chang ing minds and inconstant opinions don't

usually prove the existence of constitutional r ules.

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h istor ica l claim on that ana lysis (though somehow a lso fnd- ing room for its two excepti ons). See an te, at 214 – 215.

But Taf t's h istor ica l research has held up even worse than Mye rs' holding (wh ich was mostly reversed, see in f ra, at 277). As Dean Manning has concluded af ter review ing dec- ades' wor th of scholarsh ip on the issue, “ the implicati ons of the debate, proper ly understood, [are] h igh ly ambig uous and prone to overreading. ” Manning, 124 Harv. L. Rev., at 1965,

n. 135; see i d., at 2030 – 2031.

The best view is that the First Congress was “deeply divided” on the President's remova l power, and “never squarely addressed” the centra l issue here. Id., at 1965, n.

135; Prakash, New Light on the Decisi on of 1789, 91 Cor nell

vea led three main positi ons. See Cor w in, 27 Colum. L. Rev., at 361. Some shared Hamilton's Federa list No. 77 view: The Constituti on required Senate consent for remova l. At the opposite extreme, others claimed that the Constituti on gave absolute remova l power to the President. And a th ird fac- ti on maintained that the Constituti on placed Congress in the dr iver 's seat: The leg islature cou ld reg u late, if it so chose, the President's author ity to remove. In the end, Congress passed a bill say ing noth ing about remova l, leaving the Pres- ident free to fre the Secretary of Foreig n Affairs at w ill.

But the only one of the three views defnitively re jected was Hamilton's theory of necessary Senate consent. As even strong proponents of executive power have shown, Congress never “endorse[d] the view that [it] lacked author ity to mod- ify” the President's remova l author ity when it w ished to.

Prakash, supra, at 1073; see Manning, supra, at 1965, n. 135, 2030 – 2031. The summer of 1789 thus ended w ithout resolu- ti on of the cr itica l questi on: Was the remova l power “ beyond the reach of congressi ona l reg u lati on?” Prakash, supra, at 1072.

At the same time, the First Congress gave offcia ls han- dling fnancia l affairs—as compared to diplomatic and mili-

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tary ones—some independence from the President. The title and frst secti on of the statutes creating the Depar t- ments of Foreig n Affairs and War desig nated them “execu- tive depar tments. ” Act of Ju ly 27, 1789, ch. 4, 1 Stat. 28; Act of Aug. 7, 1789, ch. 7, 1 Stat. 49. The law creating the Treasury Depar tment conspicuously avoided doing so. See Act of Sept. 2, 1789, ch. 12, 1 Stat. 65. That difference in nomenclature sig na led others of substance. Congress lef t the organizati on of the Depar tments of Foreig n Affairs and War skeleta l, enabling the President to decide how he wanted to staff them. See Casper, An Essay in Separati on of Powers, 30 Wm. & Mary L. Rev. 211, 239 – 241 (1989). By contrast, Congress listed each of the offces w ith in the Treas- ury Depar tment, a long w ith their functi ons. See ib i d. Of the three initia l Secretar ies, only the Treasury's had an obli- gati on to repor t 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 “fna l and conclusive. ” Act of Mar. 3, 1795, ch. 48, § 4, 1 Stat. 441– 442. That decisi on, preventing presi- dentia l overr ides, marked the Comptroller as exercising in- dependent judg ment.5 Tr ue enough, no statute sh ielded the Comptroller from discharge. But even James Madison, who

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 “ is the sole & supreme judge in all claims for money against the US. and would no more receive a direction from me” than would “one of the judges of the supreme court. ” Letter from

T. Jefferson to B. Latrobe (June 2, 1808), in Thomas Jefferson and the

National Capital 429, 431 (S. Padover ed. 1946). A couple of decades later, Attorney General William Wirt reached the same conclusion, stating that “ the President has no right to interpose in the settling of accounts” be- cause Congress had “separated” the Comptroller from the President's au- thority. 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 offcials, at least so long as it “express[ed] that intention clearly. ” 1 Op. Atty. Gen. 212, 213 (1818).

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at th is point opposed most remova l limits, told Congress that “there may be strong reasons why an offcer of th is k ind shou ld not hold h is offce at the pleasure” of the Secretary or President. 1 Anna ls of Cong. 612. At the least, as Pro- fessor Prakash wr ites, “Madison maintained that Congress had the [constituti ona l] author ity to modify [the Comptrol- ler 's] tenure. ” Prakash, supra, at 1071.

Contrary to the major ity's view, then, the founding era closed w ithout any agreement that Congress lacked the power to curb the President's remova l author ity. And as it kept that questi on open, Congress took the frst steps— wh ich wou ld launch a traditi on—of disting uish ing fnancia l reg u lators from diplomatic and military offcers. The latter mainly helped the President carry out h is own constituti ona l duties in foreig n relati ons and war. The for mer ch iefy car- r ied out statutory duties, fu lflling functi ons Congress had assig ned to their offces. In addressing the new Nati on's fnances, Congress had beg un to use its powers under the Necessary and Proper Clause to desig n effective administra- tive instituti ons. And that included tak ing steps to insu late cer tain offcers from politica l infuence.

2

As the decades and centur ies passed, those effor ts picked up steam. Confronting new economic, technolog ica l, and so- cia l conditi ons, Congress—and of ten the President —saw new needs for pockets of independence w ith in the federa l bureaucracy. And that was especia lly so, again, when it came to fnancia l reg u lati on. I menti on just a few h igh lights here—times when Congress decided that effective gover- nance depended on sh ielding technica l or exper tise-based functi ons relating to the fnancia l system from politica l pres- sure (or the moneyed interests that might lie beh ind it).

Enacted under the Necessary and Proper Clause, those measures—creating some of the Nati on's most endur ing in- stituti ons—themselves helped settle the extent of Congress's

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power. “ [A] reg u lar course of practice, ” to use Madison's phrase, has “ liquidate[d] ” constituti ona l meaning about the per missibility of independent agencies. See supra, at 269.

Take frst Congress's decisi on in 1816 to create the Second Bank of the United States—“ the frst tr u ly independent agency in the republic 's h istory. ” Lessig & Sunstein, The President and the Administrati on, 94 Colum. L. Rev. 1, 30 (1994). Of the twenty-fve directors who led the Bank, the President cou ld appoint and remove only fve. See Act of Apr. 10, 1816, § 8, 3 Stat. 269. Yet the Bank had a greater impact on the Nati on than any but a few instituti ons, reg u- lating the Nati on's money supply in ways anticipating what the Federa l Reserve does today. Of course, the Bank was controversia l—in large par t because of its freedom from presidentia l control. Andrew Jackson chafed at the Bank 's independence and eventua lly fred h is Treasury Secretary for keeping public moneys there (a dismissa l that itself pro- voked a politica l stor m). No matter. Innovati ons in gover- nance a lways have opponents; administrative independence predictably (though by no means invar iably) provokes presi- dentia l ire. The point is that by the ear ly 19th century, Con- gress established a body w ielding enor mous fnancia l power mostly outside the President's domini on.

The Civil War brought yet fur ther encroachments on pres- identia l control over fnancia l reg u lators. In response to war time economic pressures, President Lincoln (not known for h is modest view of executive power) asked Congress to establish an offce ca lled the Comptroller of the Currency.

The statute he sig ned made the Comptroller removable only w ith the Senate's consent —a versi on of the old Hamiltonian idea, though th is time required not by the Constituti on itself but by Congress. See Act of Feb. 25, 1863, ch. 58, 12 Stat.

665. A year later, Congress amended the statute to per mit

remova l by the President a lone, but only upon “reasons to be communicated by h im to the Senate. ” Act of June 3, 1864, § 1, 13 Stat. 100. The major ity dismisses the or ig ina l

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versi on of the statute as an “aberrati on. ” An te, at 220.

But in the wake of the independence g iven frst to the Comp- troller of the Treasury and then to the nati ona l Bank, it's hard to conceive of th is newest Comptroller positi on as so great a depar ture. And even the second iterati on of the statute preserved a constraint on the remova l power, requir- ing a President in a fr ing mood to explain h imself to Con- gress—a demand likely to make h im sleep on the subject.

In both versi ons of the law, Congress responded to new f- nancia l cha llenges w ith new reg u latory instituti ons, a ler t to the per ils in th is area of politica l interference.6 And then, near ly a century and a ha lf ago, the foodgates opened. In 1887, the grow ing power of the railroads over the Amer ican economy led Congress to create the Interstate Commerce Commissi on. Under that leg islati on, the Presi- dent cou ld remove the fve Commissi oners only “for ineff- ciency, neg lect of duty, or ma lfeasance in offce”—the same standard Congress applied to the CFPB Director. Act of Feb. 4, 1887, § 11, 24 Stat. 383. More—many more—for-

6 The Comptroller leg islation of the Civil War provided a key precedent for what does appear a historical “aberration”—the Tenure of Offce Act of 1867. See ch. 154, 14 Stat. 430. Anxious to prevent President Andrew Johnson from interfering with reconstr uction policies—including through his command of the military— Congress barred presidential removal of any Senate-confrmed offcials without the Senate's consent. The law thus severed the President's removal authority over even offcials like the Sec- retaries of War and State. The statute became the basis for the Nation's frst presidential impeachment, but was repealed in 1887. See Act of Mar.

3, 1887, ch. 353, 24 Stat. 500. In one sense, the two-decade-long existence of the Tenure of Offce Act reveals the 19th-century political system's com- fort with expansive restrictions on presidential removal. But the ulti- mate repudiation of the law, and the broad historical consensus that it went too far, just as strongly shows the limits that system later accepted on leg islative power—that Congress may not impose removal restrictions preventing the President from carrying out his own constitutionally as- sig ned functions in areas like war or foreig n affairs. See M or r iso n v. O lso n, 487 U. S. 654, 689 – 691 (1988) (recog nizing that limit as the constitu- tional standard).

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cause remova l provisi ons followed. In 1913, Congress gave the Gover nors of the Federa l Reserve Board for-cause pro- tecti on to ensure the agency wou ld resist politica l pressure and promote economic stability. See Act of Dec. 23, 1913, ch.

6, 38 Stat. 251. The next year, Congress provided similar protecti on to the FTC in the interest of ensur ing “a continu- ous policy” “free from the effect” of “chang ing [Wh ite House] incumbency. ” 51 Cong. Rec. 10376 (1914). The Federa l De- posit Insurance Corporati on (FDIC), the Secur ities and Ex- change Commissi on (SEC), the Commodity Futures Trading Commissi on. In the fnancia l rea lm, “ independent agencies have remained the bedrock of the instituti ona l framework gover ning U. S. markets. ” Gadinis, From Independence to Politics in Financia l Reg u lati on, 101 Ca l. L. Rev. 327, 331 (2013). By one count, across a ll subject matter areas, 48 agencies have heads (and below them hundreds more infer i or offcia ls) removable only for cause. See Free En te r pr ise Fund, 561 U. S., at 541 (Breyer , J., dissenting). So year by year by year, the broad sweep of h istory has spoken to the constituti ona l questi on before us: Independent agencies are everywhere.

What is more, the Cour t's precedents before today have accepted the role of independent agencies in our gover nmen- ta l system. To be sure, the line of our decisi ons has not r un a ltogether straight. But we have repeatedly upheld provi- si ons that prevent the President from fr ing reg u latory off- cia ls except for such matters as neg lect or ma lfeasance. In those decisi ons, we sounded a cauti on, insisting that Con- gress cou ld not impede through remova l restr icti ons the President's perfor mance of h is own constituti ona l duties.

(So, to take the clearest example, Congress cou ld not curb the President's power to remove h is close military or diplo- matic advisers.) But w ith in that broad limit, th is Cour t held, Congress cou ld protect from at-w ill remova l the off- cia ls it deemed to need some independence from politica l pressures. Nowhere do those precedents suggest what the

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major ity announces today: that the President has an “unre- str icted remova l power ” subject to two bounded excepti ons.

An te, at 204.

The major ity grounds its new approach in Mye rs, ig nor ing the way th is Cour t has cabined that decisi on. Mye rs, the major ity tells us, found an unrestrained remova l power “es- sentia l to the [President's] executi on of the laws. ” An te, at 214 (quoting Mye rs, 272 U. S., at 117). What the major ity does not say is that w ith in a decade the Cour t abandoned that view (much as later scholars re jected Taf t's one-sided h istory, see supra, at 270 – 271). In Humphrey's Execu t o r

v. Un i ted Sta tes, 295 U. S. 602 (1935), the Cour t uncere-

moni ously—and unanimously—confned Mye rs to its facts. “ [T]he narrow point actua lly decided” there, Humphrey's stated, was that the President cou ld “remove a postmaster of the frst class, w ithout the advice and consent of the Sen- ate. ” 295 U. S., at 626. Noth ing else in Ch ief Justice Taf t's prolix opini on “c[a]me w ith in the r u le of stare decisis. ” Ib i d. (Indeed, the Cour t went on, everyth ing in Mye rs “out of har mony” w ith Humphrey's was expressly “disapproved. ” 295 U. S., at 626.) Ha lf a century later, the Cour t was more generous. Two decisi ons read Mye rs as standing for the pr inciple that Congress's own “par ticipati on in the remova l of executive offcers is unconstituti ona l. ” Bo wshe r v. Syn ar, 478 U. S. 714, 725 (1986); see M o r r iso n, 487 U. S., at 686 (“As we observed in Bo wshe r, the essence” of “Mye rs was the judg ment that the Constituti on prevents Congress from draw[ing] to itself ” the power to remove ( inter na l quota- ti on marks omitted)). Bo wshe r made clear that Mye rs had noth ing to say about Congress's power to enact a provisi on m e r e l y “ l i m i t [ i n g ] t h e P r e s i d e n t 's p o w e r s o f r e m o v a l ” through a for-cause provisi on. 478 U. S., at 724. That issue, the Cour t stated, was “not presented” in “ the Mye rs case. ” Ib i d. Instead, the relevant cite was Humphrey's.

And Humphrey's found constituti ona l a statute identica l to the one here, providing that the President cou ld remove FTC Commissi oners for “ ineffciency, neg lect of duty, or ma l-

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feasance in offce. ” 295 U. S., at 619. The Humphrey's Cour t, as the major ity notes, relied in substantia l par t on what k ind of work the Commissi oners perfor med. See i d., at 628, 631; an te, at 215 – 216. (By contrast, noth ing in the decisi on tur ned—as the major ity suggests, see ib i d.—on any of the agency's organizati ona l features. See in f ra, at 290.)

According to Humphrey's, the Commissi oners' pr imary work was to “carry into effect leg islative policies”—“flling in and administer ing the details embodied by [a statute's] genera l standard. ” 295 U. S., at 627– 628. In additi on, the Cour t noted, the Commissi oners recommended dispositi ons in cour t cases, much as a specia l master does. Given those “quasi- leg islative” and “quasi-judicia l”—as opposed to “purely exec- u t i v e ” — f u n c t i o n s , C o n g r e s s c o u l d l i m i t t h e P r e s i d e n t 's remova l author ity. Id., at 628.7 Or said another way, Con- gress cou ld g ive the FTC some “ independen[ce from] execu- tive control. ” Id., at 629.

About two decades later, an again-unanimous Cour t in Wi ene r v. Un i ted Sta tes, 357 U. S. 349 (1958), reaffr med Humphrey's. The questi on in Wi ene r was whether the President cou ld dismiss w ithout cause members of the War Claims Commissi on, an entity charged w ith compensating in- jur ies ar ising from Wor ld War II. Disdaining Mye rs and rely ing on Humphrey's, the Cour t said he cou ld not. The Cour t descr ibed as “shor t-lived” Mye rs' view that the Presi- dent had “ inherent constituti ona l power to remove offcia ls, no matter what the relati on of the executive to the discharge

7 The majority is quite right that today we view all the activities of administrative agencies as exercises of “ the `executive Power. ' ” Arl ing- to n v. FCC, 569 U. S. 290, 305, n. 4 (2013) (quoting Art. II, § 1, cl. 1); see an te, at 216, n. 2. But we well understand, just as the Humphrey's Court did, that those activities may “ take ` leg islative' and ` judicial' forms. ” Ar- l ing to n, 569 U. S., at 305, n. 4. The classic examples are agency r ule- makings 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 offcials performing even the most “executive” of functions. See in f ra, at 279 – 280.

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of their duties. ” 357 U. S., at 352.8 Here, the Commissi on- ers were not close agents of the President, who needed to be responsive to h is preferences. Rather, they exercised adju- dicatory responsibilities over lega l claims. Congress, the Cour t found, had wanted the Commissi oners to do so “free from [politica l] control or coercive infuence. ” Id., at 355 (quoting Humphrey's, 295 U. S., at 629). And that choice, as Humphrey's had held, was w ith in Congress's power. The Constituti on enabled Congress to take down “ the Damocles' sword of remova l” hang ing over the Commissi oners' heads.

357 U. S., at 356.

Another three decades on, M o r r iso n both extended Hum- phrey's domain and clar ifed the standard for addressing re- mova l issues. The M o r r iso n Cour t, over a one-Justice dis- sent, upheld for-cause protecti ons afforded to an independent counsel w ith power to investigate and prosecute cr imes com- mitted by h igh-rank ing offcia ls. The Cour t well understood that those law enforcement functi ons differed from the r u le- mak ing and adjudicatory duties h igh lighted in Humphrey's and Wi ene r. But that difference did not resolve the issue.

An offcia l's functi ons, M o r r iso n held, were relevant to but not dispositive of a remova l limit's constituti ona lity. The key questi on in a ll the cases, M o r r iso n saw, was whether such a restr icti on wou ld “ impede the President's ability to perfor m h is constituti ona l duty. ” 487 U. S., at 691. Only if it did so wou ld it fa ll outside Congress's power. And the protecti on for the independent counsel, the Cour t found, did not. Even though the counsel's functi ons were “purely exec-

8 Expressing veiled contempt as only he could, Justice Frankfurter wrote for the Court that Chief Justice Taf t's opinion had “ laboriously tra- versed” 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 confned the scope of the Myers decision. ” 357 U. S., at

352. Justice Frankfurter implied that the “Chief Justice who himself had

been President” was lucky his handiwork had not been altogether re- versed. Id., at 351.

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utive, ” the President's “need to control the exercise of [her] discreti on” was not “so centra l to the functi oning of the Ex- ecutive Branch as to require” unrestr icted remova l author- ity. Id., at 690 – 691. Tr ue enough, the Cour t acknowl- edged, that the for-cause standard prevented the President from fr ing the counsel for discreti onary decisi ons or judg- ment ca lls. But it preserved “ample author ity” in the Presi- dent “ to assure that the counsel is competently perfor ming ” her “responsibilities in a manner that compor ts w ith” a ll lega l requirements. Id., at 692. That meant the President cou ld meet h is own constituti ona l obligati on “ to ensure ` the faithfu l executi on' of the laws. ” Ib i d.; see supra, at 268.9 The major ity's descr ipti on of M o r r iso n, see an te, at 217– 218, is not tr ue to the decisi on. (Mostly, it seems, the major- ity just w ishes the case wou ld go away. See an te, at 219,

n. 4.) First, M o r r iso n is no “excepti on” to a broader r u le

from Mye rs. M o r r iso n echoed a ll of Humphrey's cr iticism of the by-then infamous Mye rs “dicta. ” 487 U. S., at 687.

It again re jected the noti on of an “a ll-inclusive” remova l power. Ib i d. It yet fur ther confned Mye rs' reach, mak ing clear that Congress cou ld restr ict the President's remova l

9 Pretending this analysis is mine rather than M or r iso n's, the majority reg isters its disagreement. See an te, at 228 – 229, n. 11. In its view, a test asking whether a for-cause provision impedes the President's ability to carry out his constitutional functions has “no real limiting principle. ” Ib id. If the provision leaves the President with constitutionally suffcient control over some subordinates ( like the independent counsel), the major- ity asks, why not over even his close military or diplomatic advisers? See ib id. But the Constitution itself supplies the answer. If the only presi- dential duty at issue is the one to ensure faithful execution of the laws, a for-cause provision does not stand in the way: As M or r iso n recog nized, it preserves authority in the President to ensure ( just as the Take Care Clause requires) that an offcial is abiding by law. See 487 U. S., at 692.

But now suppose an additional constitutional duty is implicated—relating, say, to the conduct of foreig n affairs or war. To carry out those duties, the President needs advisers who will ( beyond complying with law) help him devise and implement policy. And that means he needs the capacity to fre such advisers for disagreeing with his policy calls.

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of offcia ls carry ing out even the most traditi ona l executive functi ons. And the decisi on, w ith care, set out the gover n- ing r u le—again, that remova l restr icti ons are per missible so long as they do not impede the President's perfor mance of h is own constituti ona lly assig ned duties. Second, as a ll that suggests, M o r r iso n is not limited to infer i or offcers. In the eight pages addressing the remova l issue, the Cour t con- stantly spoke of “offcers” and “offcia ls” in genera l. 487

U. S., at 685 – 693. By contrast, the Cour t there used the

word “ infer i or ” in just one sentence (wh ich of course the ma- jor ity quotes), when apply ing its genera l standard to the case's facts. Id., at 691. Indeed, Justice Sca lia's dissent emphasized that the counsel's infer i or-offce status played no role in the Cour t's decisi on. See i d., at 724 (“ The Cour t cou ld have resolved the remova l power issue in th is case by simply rely ing ” on that status, but did not). As Justice Sca lia noted, the Cour t in Un i ted Sta tes v. Pe rkin s, 116 U. S.

483, 484 – 485 (1886), had a century ear lier a llowed Congress to restr ict the President's remova l power over infer i or off- cers. See M o r r iso n, 487 U. S., at 723 –724. Were that M o r- r iso n's basis, a simple citati on wou ld have suffced.

Even Free En te r pr ise Fund, in wh ich the Cour t recently held a remova l provisi on inva lid, operated w ith in the frame- work of th is precedent —and in so doing, lef t in place a remova l provisi on just like the one here. In that case, the Cour t considered a “ h igh ly unusua l” scheme of double for-cause protecti on. 561 U. S., at 505. Members of an ac- counting board were protected from remova l by SEC Com- missi oners, who in tur n were protected from remova l by the President. The Cour t found that the two-layer str ucture depr ived 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 Cour t explained, be- cause neither he nor any fu lly dependent agent cou ld decide “whether[ ] good cause exists” for a discharge. Id., at 495 –

496. That holding cast no doubt on ordinary for-cause pro-

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tecti ons, of the k ind in the Cour t's pr i or cases (and here as well). Quite the opposite. The Cour t observed that it did not “ take issue w ith for-cause limitati ons in genera l”—wh ich do enable the President to deter mine whether good cause for discharge exists ( because, say, an offcia l has vi olated the law). Id., at 501. And the Cour t's soluti on to the constitu- ti ona l problem it saw was merely to str ike one level of insu la- ti on, mak ing the Board removable by the SEC at w ill. That remedy lef t the SEC's own for-cause protecti on in place.

The President cou ld thus remove Commissi oners for ma lfea- sance or neg lect, but not for policy disagreements. See an te, at 229 – 230.

So caselaw joins text and h istory in establish ing the gen- era l per missibility of for-cause provisi ons g iving some inde- pendence to agencies. Contrary to the major ity's view, those laws do not represent a suspici ous depar ture from il- limitable presidentia l control over administrati on. For a l- most a century, th is Cour t has made clear that Congress has broad discreti on to enact for-cause protecti ons in pursuit of good gover nance.

The deferentia l approach th is Cour t has taken g ives Con- gress the fexibility it needs to craf t administrative agencies.

Diverse problems of gover nment demand diverse soluti ons.

They ca ll for var ied measures and mixtures of democratic accountability and technica l exper tise, energ y and effciency.

Sometimes, the arg uments push toward tight presidentia l control of agencies. The President's engagement, some peo- ple say, can disr upt bureaucratic stag nati on, counter indus- try capture, and make agencies more responsive to public interests. See, well, Kagan, Presidentia l Administrati on, 114 Harv. L. Rev. 2245, 2331– 2346 (2001). At other times, the arg uments favor greater independence from presidentia l involvement. Insu lati on from politica l pressure helps en- sure impar tia l adjudicati ons. It places technica l issues in the hands of those most capable of addressing them. It pro-

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motes continuity, and prevents shor t-ter m electora l interests from distor ting policy. (Consider, for example, how the Fed- era l Reserve's independence stops a President try ing to w in a second ter m from manipu lating interest rates.) Of course, the r ight ba lance between presidentia l control and independ- ence is of ten uncer tain, contested, and va lue-laden. No mathematica l for mu la gover ns instituti ona l desig n; trade- offs are endemic to the enterpr ise. But that is precisely why the issue is one for the politica l branches to debate— and then debate again as times change. And it's why cour ts shou ld stay (mostly) out of the way. Rather than impose r ig id r u les like the major ity's, they shou ld let Congress and the President fg ure out what blend of independence and po- litica l control w ill best enable an agency to perfor m its in- tended functi ons.

Judicia l intr usi on into th is feld usua lly revea ls only how little cour ts know about gover nance. Even everyth ing I just said is an over-simplifcati on. It suggests that agencies can easily be arranged on a spectr um, from the most to the least presidentia lly controlled. But that is not so. A g iven agency's independence (or lack of it) depends on a wea lth of features, relating not just to remova l standards, but a lso to appointments practices, procedura l r u les, inter na l organiza- ti on, oversight reg imes, h istor ica l traditi ons, cu ltura l nor ms, and ( inevitably) persona l relati onsh ips. It is hard to pin- point how those factors work individua lly, much less in con- cer t, to infuence the distance between an agency and a Pres- ident. In that light, even the judicia l opini ons' perennia l focus on remova l standards is a bit of a puzzle. Remova l is only the most obvi ous, not necessar ily the most potent, means of control. See genera lly Free En te r pr ise Fund, 561

U. S., at 524 (Breyer , J., dissenting). That is because infor-

ma l restraints can prevent Presidents from fr ing at-w ill of- fcers—and because other devices can keep offcers w ith for- cause protecti on under control. Of course no cour t, as Free En te r pr ise Fund noted, can accurately assess the “ bureau-

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cratic minutiae” affecting a President's infuence over an agency. Id., at 500 (major ity opini on); an te, at 30 (repr ising the point). But that is yet more reason for cour ts to defer to the branches charged w ith fash i oning administrative str uctures, and to hesitate before r u ling out agency desig n specs like for-cause remova l standards.

Our Constituti on, as shown ear lier, entr usts such decisi ons to more accountable and knowledgeable actors. See supra, at 264 – 269. The document —w ith great good sense—sets out a lmost no r u les about the administrative sphere. As Ch ief Justice Marsha ll wrote when he upheld the frst inde- pendent fnancia l agency: “ To have prescr ibed the means by wh ich gover nment shou ld, in a ll future time, execute its pow- ers, wou ld have been to change, entirely, the character of the instr ument. ” M cCull och, 4 Wheat., at 415. That wou ld have been, he continued, “an unw ise attempt to provide, by immutable r u les, for exigencies wh ich, if foreseen at a ll, must have been seen dimly. ” Ib i d. And if the Constituti on, for those reasons, does not lay out immutable r u les, then neither shou ld judges. Th is Cour t has usua lly respected that in- juncti on. It has declined to second-g uess the work of the politica l branches in creating independent agencies like the CFPB. In reversing course today—in spur ning a “prag- matic, fexible approach to Amer ican gover nance” in favor of a dog matic, infexible one, an te, at 231—the major ity makes a ser i ous error.

As the major ity explains, the CFPB emerged out of disas- ter. The collapse of the subpr ime mor tgage market “precip- itat[ed] a fnancia l cr isis that w iped out over $10 tr illi on in Amer ican household wea lth and cost milli ons of Amer icans their jobs, their retirements, and their homes. ” An te, at

205. In that moment of economic r uin, the President pro-

posed and Congress enacted leg islati on to address the causes of the collapse and prevent a recurrence. An impor tant par t of that statute created an agency to protect consumers from

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e x p l o i t a t i v e f i n a n c i a l p r a c t i c e s . T h e a g e n c y w o u l d t a k e over enforcement of a lmost 20 existing federa l laws. See 12

U. S. C. § 5581. And it wou ld administer a new proh ibiti on

on “unfair, deceptive, or abusive act[s] or practice[s] ” in the consumer-fnance sector. § 5536(a)(1)(B).

No one had a doubt that the new agency shou ld be inde- pendent. As explained a lready, Congress has h istor ica lly g iven—w ith th is Cour t's per missi on—a measure of inde- pendence to fnancia l reg u lators like the Federa l Reserve Board and the FTC. See supra, at 271– 276. And agencies of that k ind had administered most of the leg islati on whose enforcement the new statute transferred to the CFPB. The law thus included an ordinary for-cause provisi on—once again, that the President cou ld fre the CFPB's Director only for “ ineffciency, neg lect of duty, or ma lfeasance in offce. ” § 5491(c)(3). That standard wou ld a llow the President to discharge the Director for a failure to “faithfu lly execute[ ] ” the law, as well as for basic incompetence. U. S. Const., Ar t. II, § 3; see supra, at 268, 280. But it wou ld not per mit remova l for policy differences.

The questi on here, wh ich by now you're well equipped to answer, is whether including that for-cause standard in the statute creating the CFPB vi olates the Constituti on.

Apply ing our longstanding precedent, the answer is clear: It does not. Th is Cour t, as the major ity acknowledges, has sustained the constituti ona lity of the FTC and similar inde- pendent agencies. See an te, at 204, 215 – 218. The for-cause protecti ons for the heads of those agencies, the Cour t has found, do not impede the President's ability to perfor m h is own constituti ona l duties, and so do not breach the separa- ti on of powers. See supra, at 277– 282. There is noth ing different here. The CFPB w ields the same k ind of power as the FTC and similar agencies. And a ll of their heads receive the same k ind of remova l protecti on. No less than

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those other entities—by now par t of the fabr ic of gover n- ment —the CFPB is thus a per missible exercise of Congress's power under the Necessary and Proper Clause to str ucture administrati on.

First, the CFPB's powers are noth ing unusua l in the uni- verse of independent agencies. The CFPB, as the major ity notes, can issue reg u lati ons, conduct its own adjudicati ons, and br ing civil enforcement acti ons in cour t —a ll backed by the threat of pena lties. See an te, at 203; 12 U. S. C. §§ 5512, 5562 – 5565. But then again, so too can (among others) the FTC and SEC, two agencies whose reg u latory missi ons par- a llel the CFPB's. See 15 U. S. C. §§ 45, 53, 57a, 57b– 3, 78u, 78v, 78w. Just for a compar ison, the CFPB now has 19 en- forcement acti ons pending, wh ile the SEC brought 862 such acti ons last year a lone. See Br ief for Petiti oner 7; SEC, Div. of Enforcement 2019 Ann. Rep. 14. And a lthough the ma- jor ity bemoans that the CFPB can “ br ing the coercive power of the state to bear on milli ons of pr ivate citizens, ” an te, at 219 – 220, that scary-sounding descr ipti on applies to most independent agencies. Forget that the more relevant fac- toid for those many citizens might be that the CFPB has recovered over $11 billi on for bank ing consumers. See an te, at 206. The key point here is that the CFPB got the mass of its reg u latory author ity from other independent agencies that had brought the same “coercive power to bear. ” See

12 U. S. C. § 5581 (transferr ing power from, among others,

the Federa l Reserve, FTC, and FDIC). Congress, to be sure, gave the CFPB new author ity over “unfair, deceptive, or abusive act[s] or practice[s] ” in transacti ons involving a “ c o n s u m e r f i n a n c i a l p r o d u c t o r s e r v i c e. ” § § 5 5 1 7 ( a ) ( 1 ) , 5536(a)(1). But again, the FTC has power to go af ter “unfair or deceptive acts or practices in or affecting commerce”—a por tfoli o spanning a far w ider swath of the economy. 15

U. S. C. § 45(a)(1).10 And if infuence on economic life is the

10 The majority suggests that the FTC was a different animal when this

Court upheld its independent status in Humphrey's. See an te, at 218.

But then, as now, the FTC's organic statute broadly “empowered and di-

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measure, consider the Federa l Reserve, whose every act has g loba l consequence. The CFPB, gauged by that compar i- son, is a piker.

Second, the remova l protecti on g iven the CFPB's Director is standard fare. The remova l power rests w ith the Presi- dent a lone; Congress has no role to play, as it did in the laws str uck down in Mye rs and Bo wshe r. See supra, at 277.

The statute provides only one layer of protecti on, unlike the law in Free En te r pr ise Fund. See supra, at 281– 282. And the clincher, wh ich you have heard before: The for-cause standard used for the CFPB is identica l to the one the Cour t upheld in Humphrey's. Both enable the President to fre an agency head for “ ineffciency, neg lect of duty, or ma lfeasance in offce. ” See 12 U. S. C. § 5491(c)(3); 15 U. S. C. § 41; supra, at 277– 278. A remova l provisi on of that k ind applied to a fnancia l agency head, th is Cour t has held, does not “undu ly trammel[ ] on executive author ity, ” even though it prevents the President from dismissing the offcia l for a discreti onary

The remova l power has not been “completely str ipped from

rected” the agency “ to prevent persons” or businesses “from using unfair methods of competition in commerce. ” Act of Sept. 26, 1914, § 5, 38 Stat.

719. To fulfll that mandate, the agency could and did r un investigations,

bring administrative charges, and conduct adjudications. See ib id.; § 6(a), id., at 721; FTC Ann. Rep. (1935) (describing the FTC's extensive enforce- ment activities in the year before Humphrey's). And if any person re- fused to comply with an order, the agency could seek its enforcement in federal court under a high ly deferential standard. See § 5, 38 Stat. 720; FTC v. Paci fc Sta tes Paper Trade Assn., 273 U. S. 52, 63 (1927). Still more, the FTC has always had statutory r ulemaking authority, even though ( like several other agencies) it relied on adjudications until the 1960s. See § 6(g), 38 Stat. 722; Na t io nal Petro leum Re fners 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 an te, at 219, n. 4, lacks all plausibility.) And in any case, the relevant point of comparison is the present-day FTC, which remains independent even if it now has some expanded powers—and which remains constitutional under not only Humphrey's but also M or r iso n. See supra, at 277– 280.

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the President, ” providing h im w ith no means to “ensure the `faithfu l executi on' of the laws. ” Id., at 692; see supra, at 280. Rather, th is Cour t has explained, the for-cause stand- ard g ives the President “ample author ity to assure that [the offcia l] is competently perfor ming h is or her statutory respon- sibilities in a manner that compor ts w ith” a ll lega l obligati ons.

487 U. S., at 692; see supra, at 280. In other words—and con- tra today's major ity—the President's remova l power, though not absolute, g ives h im the “meaning fu l[ ] control[ ] ” of the Director that the Constituti on requires. An te, at 224 – 225.

The ana lysis is as simple as simple can be. The CFPB Director exercises the same powers, and receives the same remova l protecti ons, as the heads of other, constituti ona lly per missible independent agencies. How cou ld it be that th is opini on is a dissent?

The major ity focuses on one ( it says suffcient) reason: The CFPB Director is sing u lar, not plura l. “Instead of placing the agency under the leadersh ip of a board w ith mu ltiple members, ” the major ity protests, “Congress provided that the CFPB wou ld be led by a sing le Director. ” An te, at 203.11

11 The majority briefy 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 an te, at 226. But so too do other fnancial regulators, including the Federal Reserve Board and the FDIC. See 12 U. S. C. §§ 243, 1815(d), 1820(e). And budgetary independence comes mostly at the expense of Congress's control over the agency, not the President's. (Because that is so, it actually works to the President's advantage.) Second, the majority complains that the Director 's fve-year term may prevent a President from “shap[ing the agency's] leadership” through appointments. An te, at 225.

But again that is tr ue, to one degree or another, of quite a few longstand- ing independent agencies, including the Federal Reserve, the FTC, the Merit Systems Protection Board, and the Postal Service Board of Gover- nors. See, e. g., §§ 241, 242; 15 U. S. C. § 41; 5 U. S. C. §§ 1201, 1202; 39

U. S. C. § 202. (If you think the last is unimportant, just ask the current

President whether he agrees.)

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And a solo CFPB Director does not ft w ith in either of the major ity's supposed excepti ons. He is not an infer i or off- cer, so (the major ity says) M o r r iso n does not apply; and he is not a mu ltimember board, so (the major ity says) neither d o e s H u m p h r e y ' s . F u r t h e r , t h e m a j o r i t y a r g u e s , “ [a] n agency w ith a [unitary] str ucture like that of the CFPB” is “novel”—or, if not quite that, “a lmost wholly unprece- dented. ” An te, at 204, 220. Fina lly, the CFPB's organiza- ti ona l for m vi olates the “constituti ona l str ucture” because it vests power in a “sing le individua l” who is “ insu lated from Presidentia l control. ” An te, at 204, 224. I'm tempted at th is point just to say: No. All I've ex- plained about constituti ona l text, h istory, and precedent in- va lidates the major ity's thesis. But I'll set out here some more targeted points, tak ing step by step the major ity's reasoning.

First, as I'm afraid you've heard before, the major ity's “ex- cepti ons” ( like its genera l r u le) are made up. See supra, at 276 – 282. To beg in w ith, our precedents re ject the very idea of such excepti ons. “ The ana lysis contained in our remova l cases, ” M o r r iso n stated, shuns any attempt “ to defne r ig id categor ies” of offcia ls who may (or may not) have job protec- ti on. 487 U. S., at 689. Still more, the contours of the ma- jor ity's excepti ons don't connect to our decisi ons' reasoning.

The ana lysis in M o r r iso n, as I've shown, extended far be- yond infer i or offcers. See supra, at 281. And of course that ana lysis had to apply to ind i v i du al offcers: The inde- pendent counsel was very much a person, not a committee.

So the idea that M o r r iso n is in a separate box from th is case doesn't hold up.12 Similar ly, Humphrey's and later prece-

12 The majority, seeking some other way to distinguish M or r iso n, as- serts that the independent counsel's “duties” were more “ limited” than the CFPB Director 's. An te, at 218 – 219. That's tr ue in a sense: All (all?) the special counsel had to do was decide whether the President and his top advisers had broken the law. But I doubt (and I suspect Presidents would too) whether the need to control those duties was any less “central to the

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dents g ive no suppor t to the major ity's view that the number of people at the apex of an agency matters to the constitu- ti ona l issue. Those opini ons menti on the “groupness” of the agency head only in their background secti ons. The major- ity picks out that until-now-irrelevant fact to disting uish the CFPB, and constr ucts around it an until-now-unheard-of ex- cepti on. So if the major ity rea lly wants to see someth ing “novel, ” an te, at 204, it need only look to its opini on.

By contrast, the CFPB's sing le-director str ucture has a fair bit of precedent beh ind it. The Comptroller of the Cur- rency. The Offce of the Specia l Counsel (OSC). The Socia l Secur ity Administrati on (SSA). The Federa l Housing Fi- nance Agency (FHFA). Maybe four pr i or agencies is in the eye of the beholder, but it's hardly noth ing. I've a lready explained why the ear liest of those agencies—the Civil-War- era Comptroller—is not the blip the major ity descr ibes.

See supra, at 274 – 275. The offce is one in a long line, star t- ing w ith the founding-era Comptroller of the Treasury (a lso one person), of fnancia l reg u lators desig ned to do their jobs w ith some independence. As for the other three, the major- ity objects: too power less and too contested. See an te, at 220 – 222. I th ink not. On power, the SSA r uns the Nati on's largest gover nment program—among other th ings, deciding a ll claims brought by its 64 milli on benefciar ies; the FHFA plays a cr ucia l role in overseeing the mor tgage market, on wh ich milli ons of Amer icans annua lly rely; and the OSC prosecutes misconduct in the two-milli on-person federa l workforce. All different from the CFPB, no doubt; but the major ity can't th ink those matters beneath a President's no- tice. (Consider: Wou ld the President lose more votes from a ma lfuncti oning SSA or CFPB?) And controversia l? Well,

functioning of the Executive Branch” than the need to control the CFPB's. M or r iso n, 487 U. S., at 691– 692. And in any event, as I've shown, M or- r iso n did much more than approve a specifc removal provision; it created a standard to govern all removal cases that is at complete odds with the majority's reasoning. See supra, at 279 – 281.

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yes, they are. Almost all independent agencies are contro- versia l, no matter how many directors they have. Or at least controversia l among Presidents and their lawyers.

That's because whatever might be said in their favor, those agencies divest the President of some remova l power. If sig ning statements and veto threats made independent agen- cies unconstituti ona l, quite a few wou ldn't pass muster.

Maybe that's what the major ity rea lly wants (I wou ldn't know)—but it can't pretend the disputes surrounding these agencies had anyth ing to do w ith whether their heads are sing u lar or plura l.

Still more impor tant, novelty is not the test of constitu- ti ona lity when it comes to str uctur ing agencies. See M is- tre t ta v. Un i ted Sta tes, 488 U. S. 361, 385 (1989) (“ [M]ere anoma ly or innovati on” does not vi olate the separati on of powers). Congress reg u lates in that sphere under the Nec- essary and Proper Clause, not (as the major ity seems to th ink) a Rinse and Repeat Clause. See supra, at 266. The Framers understood that new times wou ld of ten require new measures, and exigencies of ten demand innovati on. See M cCull och, 4 Wheat., at 415; supra, at 284. In line w ith that belief, the h istory of the administrative sphere—its r u les, its practices, its instituti ons—is replete w ith exper i- ment and change. See supra, at 269 – 276. Indeed, each of the agencies the major ity says now fts w ith in its “excep- ti ons” was once new; there is, as the say ing goes, “a frst time for everyth ing. ” Na t io n al Fede ra t io n o f Independen t Business v. Sebel ius, 567 U. S. 519, 549 (2012). So even if the CFPB differs from its forebears in having a sing le direc- tor, that depar ture is not itself “ telling ” of a “constituti ona l problem. ” An te, at 220. In deciding what th is moment de- manded, Congress had no obligati on to make a carbon copy of a desig n from a bygone era.

And Congress's choice to put a sing le director, rather than a mu ltimember commissi on, at the CFPB's head vi olates no pr inciple of separati on of powers. The purpor ted constitu-

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ti ona l problem here is that an offcia l has “slip[ped] from the Executive's control” and “supervisi on”—that he has become unaccountable to the President. An te, at 225, 226 ( inter na l quotati on marks omitted). So to make sense on the major i- ty's own ter ms, the distincti on between sing u lar and plura l agency heads must rest on a theory about why the for mer more easily “slip” from the President's grasp. But the ma- jor ity has noth ing to offer. In fact, the opposite is more likely to be tr ue: To the extent that such matters are measur- able, individua ls are easier than groups to supervise.

To beg in w ith, try ing to genera lize about these matters is someth ing of a fool's errand. Presidentia l control, as noted ear lier, can operate through many means—remova l to be sure, but a lso appointments, oversight devices (e. g., centra l- ized review of r u lemak ing or litigating positi ons), budgetary processes, persona l outreach, and more. See Free En te r- pr ise Fund, 561 U. S., at 524 (Breyer , J., dissenting); supra, at 283 – 284.13 The effectiveness of each of those control mechanisms, when present, can then depend on a mu ltitude of agency-specifc practices, nor ms, r u les, and organizati ona l

13 To use one important example, Congress provided for executive over- sight of all the CFPB's r ulemaking. 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 fnancial system. 12 U. S. C. § 5513(a). The FSOC is chaired by the Treasury Secretary, and most of its members are under the direct supervision of the President. See § 5321. So the majority is wrong in saying that the CFPB's Director can “un i la terally” issue fnal regulations. An te, at 225 (emphasis in orig inal).

Indeed, the President has more control over r ulemaking at the CFPB than at any similar independent agency. And the majority is similarly wrong to think that because the FSOC has not yet issued a formal veto, its review authority makes no practical difference. See an te, at 226, n. 9.

Regulatory review, whether by the Offce of Management and Budget or the FSOC, usually relies more on the threat of vetoes than on their execu- tion. OMB casts a long shadow over r ulemaking in the Executive Branch, but rarely uses its veto pen. See Sunstein, The Offce of Information and Regulatory Affairs: Myths and Realities, 126 Harv. L. Rev. 1838, 1846 – 1847, n. 37 (2013).

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features. In that complex stew, the difference between a sing u lar and plura l agency head w ill of ten make not a wh it of difference. Or to make the point more concrete, a mu lti- member commissi on may be harder to control than an indi- vidua l director for a host of reasons unrelated to its plura l character. That may be so when the two are subject to the same remova l standard, or even when the individua l director has greater for ma l job protecti on. Indeed, the very cate- gory of mu ltimember commissi ons breaks apar t under in- specti on, spoiling the major ity's essentia l dichotomy. See genera lly Br ief for Rachel E. Barkow et a l. as Amici Cur i ae.

Some of those commissi ons have chairs appointed by the President; others do not. Some of those chairs are quite powerfu l; others are not. Par tisan-ba lance requirements, ter m leng th, voting r u les, and more—a ll vary w idely, in ways that make a sig nifcant difference to the ease of presidentia l control. Why, then, wou ld anyone disting uish a long a simple commissi on/sing le-director axis when decid- ing whether the Constituti on requires at-w ill remova l?

But if the demand is for genera lizati on, then the major ity's distincti on cuts the opposite way: More powerfu l control m e c h a n i s m s a r e n e e d e d ( i f a n y t h i n g ) f o r c o m m i s s i o n s .

Holding everyth ing else equa l, those are the agencies more likely to “slip from the Executive's control. ” An te, at 226.

Just consider your everyday exper ience: It's easier to get one person to do what you want than a gagg le. So too, you know exactly whom to blame when an individua l—but not when a group— does a job badly. The same is tr ue in bureaucracies. A mu ltimember str ucture reduces accountability to the Pres- ident because it's harder for h im to oversee, to infuence—or to remove, if necessary—a group of fve or more commissi on- ers than a sing le director. Indeed, that is why Congress so of ten resor ts to hydra-headed agencies. “ [M]u ltiple mem- bersh ip, ” an infuentia l Senate Repor t concluded, is “a buffer against Presidentia l control” (especia lly when combined, as it of ten is, w ith par tisan-ba lance requirements). Senate

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Committee on Gover nmenta l Affairs, Study on Federa l Reg- u lati on, S. Doc. No. 95 – 91, vol. 5, p. 75 (1977). So, for exam- ple, Congress constr ucted the Federa l Reserve as it did be- cause it is “easier to protect a board from politica l control than to protect a sing le appointed offcia l. ” R. Cushman, The Independent Reg u latory Commissi ons 153 (1941). 14 It is hard to know why Congress did not take the same tack when creating the CFPB. But its choice brought the agency only closer to the President —more exposed to h is view, more subject to h is sway. In shor t, the major ity gets the matter backward: Where presidentia l control is the object, better to have one than many.

Because it has no answer on that score, the major ity slides to a different questi on: Assuming presidentia l control of any independent agency is vanish ing ly slim, is a sing le-head or a mu lti-head agency more capable of exercising power, and so of endanger ing liber ty? See an te, at 222 – 225. The major ity says a sing le head is the greater threat because he may w ield power “un i l a te rally” and “ [w]ith no colleag ues to persuade. ” An te, at 225 (emphasis in or ig ina l). So the CFPB fa lls victim to what the major ity sees as a constituti ona l anti-power- concentrati on pr inciple (w ith an excepti on for the President).

If you've never heard of a statute being str uck down on that ground, you're not a lone. It is bad enough to “extrapo- lat[e] ” from the “genera l constituti ona l lang uage” of Ar ticle II's Vesting Clause an unrestr icted remova l power constrain-

14 I could go on. A recent study prepared for the Administrative Con- ference of the United States noted that “ [g]overnance by multiple mem- bers limits the President's infuence. ” J. Selin & D. Lewis, Sourcebook of United States Executive Agencies 89 (2d ed. 2018). And the General Accounting Offce has recog nized that the desire for “greater independ- ence” is what “most likely explains why the Congress in the past has opted to head independent regulatory bodies with multimember commissions rather than single administrators. ” Hearing before the Senate Subcom- mittee on the Consumer of the Committee on Commerce, Science, and T r a n s p o r t a t i o n , 1 0 0 t h C o n g . , 1 s t S e s s . , 1 3 5 ( 1 9 8 7 ) ( S t a t e m e n t o f F. Frazier).

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ing Congress's ability to leg islate under the Necessary and Proper Clause. M o r r iso n, 487 U. S., at 690, n. 29; see supra, at 267. It is still worse to extrapolate from the Constitu- ti on's genera l str ucture (divisi on of powers) and implicit va l- ues ( liber ty) a limit on Congress's express power to create administrative bodies. And more: to extrapolate from such sources a distincti on as prosaic as that between the SEC and the CFPB—i. e., between a mu lti-headed and sing le-headed agency. That is, to adapt a phrase (or two) from our prece- dent, “more than” the emanati ons of “ the text w ill bear. ” M o r r i s o n , 4 8 7 U. S . , a t 6 9 0 , n . 2 9 . B y u s i n g a b s t r a c t separati on-of-powers arg uments for such purposes, the Cour t “appropr iate[s] ” the “power delegated to Congress by the Necessary and Proper Clause” to compose the gover n- ment. Manning, Foreword: The Means of Constituti ona l Power, 128 Harv. L. Rev. 1, 78 (2014). In deciding for itself what is “proper, ” the Cour t goes beyond its own proper bounds.

And in doing so, the major ity again revea ls its lack of in- terest in how agencies work. First, the premise of the ma- jor ity's arg ument —that the CFPB head is a mini-dictator, not subject to meaning fu l presidentia l control, see an te, at 224 – 225 —is wrong. As th is Cour t has seen in the past, inde- pendent agencies are not fu lly independent. A for-cause re- mova l provisi on, as noted ear lier, leaves “ample” control over agency heads in the hands of the President. M o r r iso n, 487

U. S., at 692; see supra, at 279 – 280. He can discharge them

for failing to perfor m their duties competently or in accord- ance w ith law, and so ensure that the laws are “faithfu lly executed. ” U. S. Const., Ar t. II, § 3; see supra, at 268, 280.

And he can use the many other tools attached to the Offce of the Presidency—including in the CFPB's case, r u lemak ing review—to exer t infuence over discreti onary policy ca lls.

See supra, at 292, and n. 13. Second, the major ity has noth- ing but intuiti on to back up its essentia lly functi ona list claim that the CFPB wou ld be less capable of exercising power if

Opinion of Kagan, J.

it had more than one Director (even supposing that were a suitable issue for a cour t to address). An te, at 222 – 225.

Maybe the CFPB wou ld be. Or maybe not. Although a mu ltimember for mat tends to fr ustrate the President's con- trol over an agency, see supra, at 293 – 294, it may not lessen the agency's own ability to act w ith decisi on and dispatch.

(Consider, for a recent example, the Federa l Reserve Board.)

That effect presumably wou ld depend on the agency's inter- na l organizati on, voting r u les, and similar matters. At the least: If the Cour t is going to inva lidate statutes based on empir ica l asser ti ons like th is one, it shou ld offer some empir- ica l suppor t. It shou ld not pretend that its assessment that the CFPB w ields more power more dangerously than the SEC comes from someplace in the Constituti on. But today the major ity fails to accord even that minima l respect to Congress.

Reca ll again how th is dispute got star ted. In the midst of the Great Recessi on, Congress and the President came together to create an agency w ith an impor tant missi on. It wou ld protect consumers from the reckless fnancia l prac- tices that had caused the then-ongoing economic collapse.

Not only Congress but a lso the President thought that the new agency, to fu lfll its mandate, needed a measure of inde- pendence. So the two politica l branches, acting together, gave the CFPB Director the same job protecti on that innu- merable other agency heads possess. All in a ll, those branches must have thought, they had done a good day's work. Rely ing on their exper ience and knowledge of admin- istrati on, they had built an agency in the way best suited to carry out its functi ons. They had protected the public from fnancia l ch icanery and cr isis. They had gover ned.

And now consider how the dispute ends—w ith fve un- elected judges re jecting the resu lt of that democratic proc- ess. The outcome today w ill not shut down the CFPB: A different major ity of th is Cour t, including a ll those who join

Cite as: 591 U. S. 197 (2020) 297 Opinion of Kagan, J.

th is opini on, believes that i f the agency's remova l provisi on is unconstituti ona l, it shou ld be severed. But the major ity on constituti ona lity jettisons a measure Congress and the President viewed as integra l to the way the agency shou ld operate. The major ity does so even though the Constituti on grants to Congress, acting w ith the President's approva l, the author ity to create and shape administrative bodies. And even though those branches, as compared to cour ts, have far greater understanding of politica l control mechanisms and agency desig n.

Noth ing in the Constituti on requires that outcome; to the contrary. “Wh ile the Constituti on diffuses power the better to secure liber ty, it a lso contemplates that practice w ill inte- grate the dispersed powers into a workable gover nment. ” Yo ungst o w n Shee t & Tube Co. v. Saw ye r, 343 U. S. 579, 635 (1952) (Jackson, J., concurr ing). The Framers took pains to craf t a document that wou ld a llow the str uctures of gover- nance to change, as times and needs change. The Constitu- ti on says only a few words about administrati on. As Ch ief Justice Marsha ll wrote: Rather than prescr ibing “ immutable r u les, ” it enables Congress to choose “ the means by wh ich gover nment shou ld, in a ll future time, execute its powers. ” M cCull och, 4 Wheat., at 415. It author izes Congress to meet new exigencies w ith new devices. So Ar ticle II does not genera lly proh ibit independent agencies. Nor do any supposed str uctura l pr inciples. Nor do any odors waf ting from the document. Save for when those agencies impede the President's perfor mance of h is own constituti ona l duties, the matter is lef t up to Congress.

Our h istory has stayed tr ue to the Framers' visi on. Con- gress has accepted their invitati on to exper iment w ith ad- ministrative for ms—nowhere more so than in the feld of f- nancia l reg u lati on. And th is Cour t has mostly a llowed it to do so. The resu lt is a broad array of independent agen- cies, no two exactly a like but a ll w ith a measure of insu lati on from the President's remova l power. The Federa l Reserve

Opinion of Kagan, J.

Board; the FTC; the SEC; maybe some you've never heard of. As to each, Congress thought that for ma l job protecti on for policymak ing wou ld produce reg u latory outcomes in greater accord w ith the long-ter m public interest. Congress may have been r ight; 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 shou ld be gover ned.

The CFPB shou ld have joined the ranks. Maybe it w ill still do so, even under today's opini on: The Cour t tells Con- gress that it may “pursu[e] a lter native responses” to the identifed constituti ona l defect —“for example, conver ting the CFPB into a mu ltimember agency. ” An te, at 237. But there was no need to send Congress back to the draw ing b o a r d . T h e C o n s t i t u t i o n d o e s n o t d i s t i n g u i s h b e t w e e n sing le-director and mu ltimember independent agencies. It instr ucts Congress, not th is Cour t, to decide on agency de- sig n. Because th is Cour t ig nores that sensible—indeed, that obvi ous— divisi on of tasks, I respectfu lly dissent.