The Chief Justices Battle over the Removal Power

Seila Law was the Court’s most significant separation of powers case since Noel Canning. Yet, this decisions is–at best–a symbolic victory for conservatives; not nearly enough to staunch the June gloom. I don’t think people will embroider “Overrule Humphrey’s Executor” on red baseball hats.

As a practical matter, this case will have little impact. Whether the President can fire the CFPB Director for cause, or at will, will not make much of a difference. (Had the Court broadly read the phrases “”inefficiency, neglect of duty, or malfeasance in office,” we could have see significant shifts in administrative law.) The more likely course is to simply wait for the Director’s five-year term to expire. Recall that President Trump chose not to fire Richard Cordray. (Conveniently, Cordray resigned to embark on a failed gubernatorial campaign.)

Perhaps the most significant–and rewarding–aspect of the case was the battle royale between the actual and de facto Chief Justices: John Roberts and Elena Kagan. They are the two leaders of the Court. And from my vantage point, the two best writers on the Court. It is a joy to read their prose.

Roberts writes with a level of surgical precision that every lawyer should emulate. There is seldom a wasted word. When I edit a Roberts opinion, there is very little to remove. He puts so much care and thought into every syllable. Meticulous and polished.

Kagan writes with a delightful conversational flair. I found myself chuckling at several of her quips. I adore her rhetorical questions:

  • What does the Constitution say about the separation of powers—and particularly about the President’s removal authority? (Spoiler alert: about the latter, nothing at all.)
  • The analysis is as simple as simple can be. The CFPB Director exercises the same powers, and receives the same removal protections, as the heads of other, constitutionally permissible independent agencies. How could it be that this opinion is a dissent?

I encourage people to emulate Roberts’s style. But don’t try to fake Kagan’s style. This type of wit cannot be forced. It must come naturally, and from within.

Justice Kagan name-dropped to great effect. In one spot, she

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