Amicus Brief: Seila Law LLC v. Consumer Financial Protection Bureau


The precedent of this Court does not compel an outcome for either side. Although decisions such as Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and Morrison v. Olson, 487 U.S. 654 (1988), approved statutes that insulate administrative officers from presidential removal, each of those rulings is readily distinguishable from the situation presented in this case. See PHH Corp. v. Consumer Financial Protection Bureau, 881 F.3d 75, 164–98 (D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting) (distinguishing Humphrey’s Executor and Morrison).

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CASE: Seila Law LLC v. Consumer Financial Protection Bureau


DOCUMENT: No. 19-7

COUNSEL OF RECORD: Jonathan F. Mitchell

FILED: December 16, 2019


June 29, 2020 | Opinion on Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit
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December 16, 2019 | Amicus Curiae Brief of the New Civil Liberties Alliance in Support of Petitioner
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December 16, 2019 | Amicus Curiae Brief of the New Civil Liberties Alliance in Support of Petitioner

Washington, DC – Today, the New Civil Liberties Alliance filed an amicus brief in the United States Supreme Court supporting the Petitioner in Seila Law LLC v. Consumer Financial Protection Bureau. The Petitioner in this case asks whether Congress has the authority to vest executive authority in the Consumer Financial Protection Bureau (CFPB), an independent agency led by a single Director, while also shielding that agency’s Director from Presidential oversight and removal. NCLA’s brief argues that the U.S. Constitution does not give Congress such authority. In fact, to the extent Supreme Court precedent suggests otherwise, NCLA’s brief suggests those prior precedents must be overruled.

The Ninth Circuit’s opinion below failed to cite or acknowledge Article II’s vesting clause, which requires that all executive power be “vested in a President of the United States of America.” The Constitution is clear that Congress violates the vesting clause if it attempts to vest any portion of executive power in an officer outside the President’s direction and control. Rather than focus on the language of the Constitution, the Ninth Circuit relied entirely on two cases, ruling that Humphrey’s Executor v. United States and Morrison v. Olson “lead us to conclude that the CFPB’s structure is constitutionally permissible.” NCLA’s brief explains why those cases do not control the outcome here. Upon recognizing that the CFPB wields executive power, the Ninth Circuit should have concluded that the statute that insulates the agency’s Director from Presidential removal and control is unconstitutional, and it should have confined the Humphrey’s Executor and Morrison precedents to the facts of those cases..

NCLA released the following statements:

“By insulating the CFPB Director from Presidential oversight, Congress is depriving Americans of their constitutional right to live under a government in which executive power is accountable to them through the elected President. This freedom is among those that are threatened by independent agencies, and one that the NCLA seeks to protect by participating in cases such as this.”  —Harriet Hageman, NCLA Senior Litigation Counsel

“The idea that a judge should interpret the Constitution in a manner that the judge knows to be wrong simply because prior jurists erred in interpreting the document bespeaks a staggering dereliction of judicial duty. It is high time for the U.S. Supreme Court to revisit Humphrey’s Executor and recognize that the Constitution does not allow the reallocation of executive authority that took place there.” —Mark Chenoweth, NCLA Executive Director and General Counsel

Media Inquiries: Judy Pino, 202-869-5218

NCLA Asks U.S. Supreme Court to Recognize the President’s Removal Authority over CFPB Director
Seila Law LLC v. Consumer Financial Protection Bureau


NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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