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Like the U.S. Supreme Court, Monmouth College class had opinions on Consumer Financial Protection Bureau case

by Barry McNamara

Monmouth, Ill. (07/01/2020) — One of the more consequential cases of the 2019-20 United States Supreme Court term regarding the limits of presidential power was closely followed by a Monmouth College political science class, including two May graduates who are heading to law school.

In Seila Law v. Consumer Financial Protection Bureau, the Supreme Court ruled June 29 that the president of the United States may fire the director of the Consumer Financial Protection Bureau without cause.

"The assignment for my Constitutional Law students this spring was to act as a justice on the Supreme Court and issue their opinion in the case," said Monmouth political science professor Andre Audette. "Many students decided the same way as the Court did, using very similar reasons. I also asked them to predict how the Supreme Court would decide this issue. Several students were correct in stating that the issue would fall along ideological lines."

The Consumer Financial Protection Bureau was created by the Dodd-Frank Act in 2010 in wake of the Great Recession. The federal bureau, which regulates banks and other financial institutions, is run by a director who exercises executive power. The federal legislation specified that the director could only be removed by the president for cause, sparking a decade-long legal debate.

"This was the major question in the case," said Audette. "Does it violate the Constitution to give the director so much executive power but only make them accountable to the president for 'inefficiency, neglect or malfeasance?'"

Audette said at first glance that seems like "a very obscure, technical question." However, he said, it has "enormous consequences for the power of the president to shape who holds leadership positions in the government and for political parties hoping to push their agenda once they get to Washington."

Audette said that some court observers have said the court's decision is the most important separation-of-powers case in years.

Writing for the 5-4 majority, Chief Justice John Roberts ruled that the bureau's structure violated the Constitution's separation of powers. Because the bureau's director "is neither elected by the people nor meaningfully controlled (by the threat of removal) by someone who is," Roberts said that it makes it harder to hold elected officials such as the president accountable for the actions of their administration.

"However," said Audette, "seven justices agreed that the structure of the CFPB can be 'severed' from the rest of the Dodd-Frank Act, so the law as a whole still stands with this one exception."

One Monmouth student said the high court might have held back too much.

"The Court's decision was expected, to say the least," said Matthew Datlof '22 of Las Vegas. "However, in my view, the court did not go far enough in deciding the legality of the 'for-cause' protection. The Court decided that the 'for-cause' protection will not be extended to the commissioner of the CFBP, but sustained for multi-member agencies of the executive. The 'for-cause' protection directly interferes with the powers of the president, violating the separation of powers."

Datlof argues that the "for-cause" protection should be struck down by the court, overturning the 1935 case Humphrey's Executor v. United States.

"It's simply bad law," he said. "If Congress can insulate principal officers from the will of the president in this manner, what is to say that Congress would not impose this same statutory rule on other offices of the executive?"

May graduate Hadley Smithhisler said the decision did not surprise her, but she agreed with the dissent.

"Though we've seen in the past few weeks with cases about immigration, LGBTQ+ rights and abortion that the Roberts court is not always consistently conservative, there is a pretty clear ideological split when it comes to business and presidential removal powers," she said. "In my final paper for the course, I argued that the removal structure for the CFPB's director was constitutional and did not violate separation of powers because the Constitution never mentions presidential removal powers, let alone 'at will' removal powers, and the Supreme Court has pretty unambiguously upheld challenged laws imposing limits on presidential removal powers, so long as the power remains in the President's hands."

Datlof said he appreciates the critical thinking skills demanded in Audette's class.

"Professor Audette's class brilliantly captures the uncertainty of the powers and restraints of our federal government in Supreme Court jurisprudence," said Datlof. "You are required to stretch your horizons past your own presumptions about the issue, and wrestle with the nuance of the problem with intellectual honesty. If you approach these questions with legitimate curiosity and evenhandedness, you find yourself with a holistic understanding of the issue. Regardless of the outcome, the process in which we reach our conclusions in class adequately equips us to tackle problems we will inevitably face in our personal lives."

For Smithhisler, that inevitability is coming sooner than later.

"I appreciate that this class forced me to not only study and memorize cases but also to apply rulings to new real and hypothetical situations," she said. "I had to develop concrete opinions on legal and political issues I had never thought about. I practiced case briefing and writing decisions on cases in this class, and I have no doubt that will benefit me when I start law school in August" at Indiana University's Maurer School of Law.

Another member of the class, May graduate Emma Hildebrand, will also be in law school in Indiana in the fall, studying at the University of Notre Dame.

"I'm so glad that I had the opportunity to get to know the processes of legal research and legal writing this past semester in 'Con Law,'" said Hildebrand. "I have truly been equipped with an understanding of precedent and the deeply-rooted principles that make up our country's laws and judicial system. I feel very prepared for law school this fall thanks to Professor Audette."

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