Volume 110
Issue
Summer '21

Seila Law as Separation-of-Powers Posturing

Written By: Edward Cantu

Abstract

The Court rarely decides separation-of-powers cases, and when it does, academics usually scramble to fit such decisions into a broader doctrinal narrative. Such was the case when in June of 2020 the Supreme Court decided Seila Law LLC v. Consumer Financial Protection Bureau. In short, the Court ruled that it is unconstitutional for Congress to restrict the President’s removal power of an agency head if that agency is headed by a single person. For some reason, the Court concluded that such removal restrictions are permissible when applied to multi-headed agencies but not single-headed agencies. This Article argues that an attempt to doctrinalize Seila is an attempt to see a forest where there are only trees. Ultimately, this Article argues that the decision makes most sense not as part of a broader principled doctrine but rather as a form of symbolic posturing the Court engages in to maintain the appearance that it takes the separation of powers seriously. 

Continue reading Seila Law as Separation-of-Powers Posturing.