Separation of Powers—or Is It Delegation of Powers—Is Alive and Well

In Seila Law v. Consumer Financial Protection Bureau, 2020 U.S. LEXIS 3515 (June 29, 2020) U.S. Supreme Court Chief Justice John Roberts delivered the opinion of the court with respect to Parts I, II and III. He addressed the infrequently crossed rubicon concerning separation of powers. This decision is almost a delegation of powers issue as well. In view of the astronomical expansion of the fourth branch of government, the administrative, the federal courts are wisely looking at both the separation of powers and the delegation of powers, both governed by the delicate instrumentation contained within the Great Compromise, known as the U.S. Constitution of 1789. The Founders deliberately created a seesaw. There were three seats on their seesaw, but the Founders clearly understood the ease of creating an imbalance. Thomas Jefferson was suspicious of the expansionist Federalists and the Federalists were fearful of the uncontrolled unwashed masses. This opinion continues the unending debate about where control in our tripartite exists. In reality, and for the everyday American, the government is controlled by the administrative branch; that aspect of government that promulgates the rules and regulations governing daily life.

In the wake of the 2008 financial crisis, Congress established the Consumer Financial Protection Bureau (CFPB), an independent regulatory agency tasked with ensuring that consumer debt products are safe and transparent. In organizing the CFPB, “Congress deviated from the structure of nearly every other independent administrative agency in our history.” Instead of placing the agency under the leadership of a board with multiple members, Congress provided that the CFPB would be led by a single director, who serves for a longer term than the president and cannot be removed by the president except for inefficiency, neglect or malfeasance. The CFPB director has no boss, peers or voters to report to. The director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the U.S. economy. The question that the court faced was whether this arrangement violates the Constitution’s separation of powers.