The case, Seila Law LLC v. Consumer Financial Protection Bureau, focused on the organization of Congress’s newest independent agency, which dates to the Great Recession. Ever since its creation, the CFPB has been under attack by the industries it regulates. In Seila Law, these opponents claimed that the bureau’s structure was unconstitutional. Specifically they objected that the president could only fire the CFPB’s director — who is appointed by the president and confirmed by the Senate — for good cause.
The court, by a 5-to-4 margin, agreed, holding that the Constitution vested all executive power in the president to make government efficient and responsible. According to the majority opinion, the president needed to control government action to make sure that the state would be well run and responsive to the people’s will. This, Chief Justice John G. Roberts Jr. asserted, was the Founders’ vision, since “the Framers made the President the most democratic and politically accountable official in Government.”
The court’s understanding may be appealing. But it is not the Founders’s. They embraced a highly restricted franchise, and they refused to let even the small minority of Americans they believed should be eligible to vote pick the president themselves. Under the system they designed, the president is not now, nor has ever been, elected by the American people, but rather is chosen by the electoral college. And they explicitly left to the individual states the choice about how to select their state’s electors.
Roberts’s vision does have a historical foundation, however. But his understanding of American democracy traces not to the Founders but to the Progressive Era. Progressive Era reformers wanted to make American government efficient and responsible. To do that, they embraced democratically accountable executive leadership.
This was a new thing. In the late 19th and early 20th century, American government executives — the president and governors — were weak. And the presidency was particularly powerless. In analyzing the federal state while a graduate student, Woodrow Wilson described a country under “congressional government,” which was ineffectual. Coordinating among factions made it hard to accomplish anything. And, because no single individual was responsible for the government’s failure to act, voters could not hold anyone accountable at the ballot box.
To counter ineffectual, irresponsible government, Wilson and other Progressives championed consolidating federal power under the president’s control. They pushed for changes to the electoral process to connect the president more directly to the people, like the primary. And they lobbied for technical reforms inside the government to give the executive greater command over the state’s machinery.
But even as they sought to empower the executive, Progressives were careful not to give the president full control over the operation of the government. They wanted an effective and accountable leader, not an omnipotent one. To keep government responsible, Progressive reformers sometimes introduced internal checks and limits on executive power.
Consider the position of the comptroller general. Created in 1921, the office was occupied by a single individual, who headed a large staff, and had incredible powers over financial disbursements. The president could not fire him at will. Instead, he enjoyed a 15-year term, virtually guaranteeing that he would serve across multiple presidential administrations.
Significantly, Congress created this office not to undercut presidential power, but to make the president’s exercise of power responsible. The comptroller exercised important authority over moneys independent from the president, such as the power to authorize executive branch expenditures. This safeguarded Congress’s power of the purse. And it protected against mismanagement, aiming to increase executive efficacy, since sound financial administration would help the executive realize the aims of the state.
Oddly, the Seila court ignored this history. It traced its presidency-centered vision of democracy back to the Founding, even though its roots are much more recent. And it claimed that the structure of the bureau “lack[ed] a foundation in historical practice,” without examining the Progressive Era comptroller at all.
Looking to this history would have both bolstered and tempered the court’s majority opinion.
It bolsters some of the majority’s arguments about the importance of presidential efficacy for democracy. As it happens, the comptroller as initially imagined proved a disaster. The first comptroller still remained in office when Franklin D. Roosevelt was elected president. And he used his considerable powers to frustrate the president’s New Deal agenda.
Ultimately, to allow the president to realize the people’s will, the operation of the office had to be transformed. Today, the comptroller remains independent, but the office’s ability to interfere with executive branch operations has been curtailed by court decisions and government norms. The court is clearly right, then, that an unaccountable executive officer, insulated from presidential control, can undermine democracy. It has in the past.
But even reformed, the comptroller retains powers independent of the president. This is entirely deliberate: Progressive Era reformers and their New Deal successors understood, as the Founders had, that to make power responsible, sometimes it needed to be divided against itself. This conception demanded not only that the branches of government be separate but also that, sometimes, executive powers be beyond the president’s direct control.
This was one of Congress’s goals with the CFPB. Ever since the Progressive Era, Congress has made some agencies independent precisely to insulate them from political control to make government work better. The CFPB was part of that long tradition of effective state building.
Seila Law has made this project more difficult. To use the opinion’s own language, the court “bulldoz[ed]” where it should have used a “scalpel,” and so bulked up the president’s power while hobbling Congress’s and the people’s ability to contain it. Future reformers will have to come up with new ways to keep our modern government efficient and responsible.