Thread by @nycsouthpaw

SCOTUS wants to know whether, if it destroys the CFPB for being too independent of the president, it ought to strike down the Dodd-Frank Act too. supremecourt.gov/orders/courtor…

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I want to explain why I think this SCOTUS order is surprisingly provocative. I hope you’ll bear with me.

1. This appeal comes to the Supreme Court out of the 9th Circuit, but it’s central concerns mirror a case that the DC Circuit decided while Kavanaugh was still a judge on that court, PHH v. CFPB.

2. In PHH, the law creating Consumer Financial Protection Board (CFPB) was challenged because of a provision within the law that prevented the President from firing the head of the CFPB except for certain listed causes.

3. This for-cause provision is 12 USC 5491(c)(3). It sits within the Consumer Financial Protection Act, which in turn is just one title (Title X) of the massive Dodd-Frank Act.

4. The unitary executive true-believers who brought the challenge argued that by not allowing the President to fire the head of the CFPB for any reason or no reason, Congress had encroached on the President’s prerogatives and violated the Contitution’s separation of powers.

5. This argument lost in the DC Circuit, and both the for-cause requirement and the CFPB were upheld. Three DC Circuit judges, however, took the challengers’ side and dissented.

6. The dissenters agreed that the for-cause requirement was unconstitutional, but they differed on how to fix it.

7. One dissenter thought that the whole of Title X (i.e. the whole CFPB) should be stricken from the law. The other two dissenters, including Kavanaugh, thought only the for-cause provision should fall. cadc.uscourts.gov/internet/opini…

8. The disagreement among the dissenters arises from the application of the court’s severability doctrine, which—roughly summarized—holds that judges are supposed to remove unconstitutional provisions and sustain however much of the rest of the law can stand without them.

9. The Severability Doctrine spawns a lot of controversies, and it’s not a surprise that SCOTUS would want to revisit the argument among the DC Circuit’s dissenters—namely, a precision snip that deletes the for-cause firing provision or a giant slash that deletes the whole CFPB.

10. For all I know, that is the argument the Justices truly want to have. But here’s the rub, it’s not the question they wrote and directed the parties to brief. That question is different, provocative and confusing.

11. “If the *CFPB* is found unconstitutional...” it starts. That opening premise seems to side with Judge Henderson that *the whole agency* is constitutionally suspect. Then it asks whether the for-cause provision can be severed from the entire mega-statute, the Dodd-Frank Act.

12. The terrifying prospect this question wording introduces is what if the answer is “no.” If the little for-cause provision can’t be severed from the D-F Act, the whole big thing has gotta go according to severability doctrine. (No one, to be clear, thinks that is likely.)

13. A more natural question from SCOTUS would have been: “If the for-cause provision is unconstitutional, may it be severed from Title X (the CFPB law), or must Title X be severed from the Dodd-Frank Act?”

That wording wouldn’t have suggested the whole D-F Act is in jeopardy.

14. It’d still be pretty crazy, of course, to think our Supreme Court might destroy a federal agency that protects people from predatory lenders based on what ordinary people consider a throat-clearing sentence in Article II. But that’s just modern baseline crazy at this point.

15. The question they actually asked spikes well above modern baseline crazy, and, because of its stilted premise, I suspect it’ll be genuinely difficult for the advocates to answer it without assuming that premise away. So... that’s my explanation. The end.