Today the D.C. Circuit rejected as unconstitutional the for-cause removal protection for the head of the Consumer Financial Protection Bureau (CPFB). Brett Kavanaugh’s opinion relies on historical practice (because it finds the constitutional text doesn’t resolve the question). The opinion found inapposite the examples of single heads with removal protection (e.g., the single head of the new Federal Housing Finance Agency). One arguable historical precedents for placing great power in the hands of a single official whom the President could not remove freely (that is, the President could remove only for cause) is the independent counsel statute, as independent counsels were removable only for cause. This historical example has a particular legal pedigree: the Supreme Court upheld the independent counsel law in Morrison v. Olson.
And therein lies a story. Rehnquist wrote the majority opinion, and Justice Scalia dissented (joined by nobody). I regard that dissent as the best and most persuasive opinion Scalia ever wrote, and I’m not alone in that judgment. My sense is that over time more and more people have come to be persuaded by the dissent.
But today it reached a new level. When it invokes Morrison, Kavanaugh’s opinion mainly cites Scalia’s dissent as authority. More dramatic is its treatment of the precedent itself:
[Morrison] did not expressly consider whether an independent agency could be headed by a single director. The independent counsel, moreover, had only a limited jurisdiction for particular defined investigations. In addition, the independent counsel experiment ended with nearly universal consensus that the experiment had been a mistake and that Justice Scalia had been right back in 1988 to view the independent counsel system as an unconstitutional departure from historical practice and a serious threat to individual liberty. See id. at 699 (Scalia, J., dissenting) (“this wolf comes as a wolf”); see also Stanford Lawyer, Spring 2015, at 4 (quoting Justice Kagan’s statement that Justice Scalia’s dissent in Morrison is “one of the greatest dissents ever written and every year it gets better”). The independent counsel experience, if anything, strongly counsels caution with respect to single-Director independent agencies.
The first two points in this paragraph aren’t particularly persuasive. Morrison did not explicitly consider the significance of a single director, but nothing in the majority opinion cast any doubt about the constitutionality, and in fact I think the majority’s reasoning pretty clearly allowed it. And the point about limited jurisdiction was, as Scalia emphasized in his powerful dissent, a fairly minor limit given the enormous power of an independent counsel within that jurisdiction. So that third point seems to be doing some real work. And the conclusion is striking: there is a “nearly universal consensus” that the majority opinion wrongly upheld found the independent counsel statute. In today’s opinion, the Morrison majority opinion is not the precedent — Scalia’s dissent is.
Kavanaugh was a key member of Ken Starr’s independent counsel team. He got to see the power of the independent counsel first hand.
Ted Olson, the (losing) respondent in Morrison v. Olson, argued for the winning side in today’s case. I’m sure he enjoyed the treatment of the Morrison majority and the reliance on Scalia’s dissent.