The University of Chicago Law Review Online has just published a symposium on the Supreme Court’s decision in Seila Law v. Consumer Financial Protection Bureau, in which the Court held that the CFPB’s structure was unconstitutional and, consequently, that the for-cause removal limitation was invalid.
My own contribution to the symposium, “Conservative Minimalism and the Consumer Financial Protection Bureau,” focuses on how the Chief Justice’s opinion for the Court in Seila Law exhibits many of the conservative minimalist features of his jurisprudence. Here is the abstract (from SSRN):
The October 2019 Term offered further confirmation that Chief Justice Roberts is a conservative minimalist. This jurisprudential approach was on display in Seila Law v. Consumer Financial Protection Bureau, where the Chief Justice wrote the opinion for the Court invalidating a for-cause requirement for removal of the CFPB Director. Chief Justice Roberts’ decision embraced a conservative conception of separation of powers, closely aligned with the “unitary executive” theory. Yet his application of this theory was quite restrained. While embracing principles that would seem to have broader application, the Chief Justice eschewed any questioning of prior precedent and provided the plaintiffs with minimal relief, adopting a surgical approach to severability. Whatever the substantive merits of the Chief Justice’s Seila Law opinion, it was quite consistent with his overall jurisprudence since joining the Court.
Several of the essays are worth a read. Here is a list of the contributions to the symposium:
- Josh Blackman, October Term 2019 in Review: Blue June
- Jerry L. Mashaw, Of Angels, Pins, and For-Cause Removal: A Requiem for the Passive Virtues
- Jonathan H. Adler, Conservative Minimalism and the Consumer Financial Protection Bureau
- Lisa Schultz Bressman, What Seila Law Says about Chief Justice Roberts’s View of the Administrative State
- David A. Strauss, Non-Judicial Precedent and the Removal Power
- Markham S. Chenoweth & Michael P. DeGrandis, Out of the Separation-of-Powers Frying Pan and Into the Nondelegation Fire
- Patricia A. McCoy, Constitutionalizing Financial Instability
- John Harrison, Seila Law and the Law of Judicial Review
- Jack M. Beermann, Seila Law: Is There a “There” There?
- Timothy G. Duncheon & Richard L. Revesz, Seila Law as an Ex Post, Static Conception of Separation of Powers