The President’s Removal Power and the PHH Litigation
Last Friday, the Consumer Financial Protection Bureau filed a petition for en banc review in PHH Corp. v. CFPB. The petition challenges Judge Kavanaugh’s opinion for two judges of a panel of the D.C. Circuit, which declared unconstitutional the statute limiting the President’s authority to remove the CFPB’s Director, Richard Cordray. In doing so, the petition, rather self-consciously, raises the constitutional stakes of the appeal about as high as they can possibly go — characterizing the agency’s challenge to the panel opinion as “set[ting] up what may be the most important separation-of-powers case in a generation, since the independent counsel statute was challenged in Morrison v. Olson, 487 U.S. 654 (1988).”
In this post, I won’t attempt to resolve the dispute over the constitutionality of the statutory restriction on the President’s authority to remove the CFPB Director. In light of the CFPB’s petition, there’ll be time yet to address the legality of that statute, which provides that the Director may be fired only for “inefficiency, neglect of duty, or malfeasance in office” during a five-year term. (For those interested, the panel decision has already been discussed in these pages by Aaron Nielson and Jack Beermann.)