When it comes to the President’s executive power of removal, PHH Corporation v. Consumer Financial Protection Bureau (2018) said an independent agency director can’t be fired at will.
The facts of this case are interesting. PHH Corporation (Petitioners) v. the Consumer Financial Protection Bureau (Respondent) filed a lawsuit, which was decided on January 31, 2018, in the U.S. Court of Appeals for the District of Columbia Circuit. This case determined Congress can create an independent agency with a single person who can only be removed for cause.
Now, here’s the issue: Can Congress create an independent agency with a single agency head who can be removed with a for cause requirement?
The U.S. Court of Appeals for the District of Columbia Circuit established the following rule. While following the precedent as laid out in Morrison v. Olsen and Humphrey’s Executor v. United States, the U.S. Court of Appeals for the District of Columbia Circuit ruled Congress can put a ‘for cause’ requirement on the President’s executive power of removal.
In dissent, Judge Brett Kavanaugh wrote an interesting dissent. In his opinion, he argued for the separation of powers between government branches; moreover, he argued it is necessary to separate the branches of government to protect the freedom of indivuiduals. This dissent was wrote in response to an en banc U.S. Court of Appeals for the District of Columbia Circuit’s decision
Notably, President Donald Trump has nominated Judge Brett Kavanaugh as the next Supreme Court addition. With the Republicans in control of Congress, the Senate could confirm President Trump’s nomination. Currently, Senate confirmation hearings are set for September 4, 2018 on Judge Brett Kavanaugh’s nomination.
Implicitly, the U.S. Court of Appeals for the District of Columbia Circuit overruled Myers v. United States in this case. Basically, Myers said the President’s power of removal is absolute; therefore, he can remove an administrative agency at will. Now, the President power of removal is not absolute when it comes to removing administrative state heads.
Historically, the Consumer Financial Protection Bureau was established by Elizabeth Warren. In response to the 2008 financial crisis, Elizabeth Warren helped to create the CFPB. Ironically, President Barack Obama wouldn’t name Elizabeth Warren as agency director since the Senate would never confirm her. President Barack Obama named Richard Cordray as the first agency director of CFPB.
In brief, this case was about the President’s executive power of removal. This case said the President can’t fire independent agency directors at will. However, next year, this case will be appealed to the Supreme Court, which might establish a new rule with Justice Brett Kavanaugh sitting on the Supreme Court.