It also attracted the ire of conservatives, who have long hated the notion of independent regulatory agencies allowed to act free of direction by the president — what they describe as a “headless fourth branch” of government.

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The president can fire most executive branch top officials for any reason or no reason. Independent agencies such as the Securities and Exchange Commission, the Federal Trade Commission and the Federal Communications Commission operate differently — more independently. Their commissioners, representing both political parties, are appointed for set terms and they cannot be fired without evidence of malfeasance.

That feature sticks in the craw of many conservatives, who see independent agencies as an ungainly addition grafted onto the supposedly pristine triangular structure of legislative, executive and judicial power that we all learned in third grade. These agencies, conservatives argue, represent an unconstitutional limitation on the president’s power to direct the executive branch.

The problem they face is that the Supreme Court, in a 1935 case known as Humphrey’s Executor v. United States, unanimously upheld independent agencies against such a constitutional challenge. Like the director of the CFPB, the federal trade commissioner whose firing was challenged in Humphrey’s Executor — William E. Humphrey had died, so his estate pursued the case — could only be removed for cause.

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In the Seila case that the justices agreed to review, the court of appeals found that precedent dictated the outcome, even though the CFPB is headed by a single director, while other independent agencies have a multi-member structure. The full D.C. Circuit, in a separate case, came to the same conclusion.

But now the stage is set for a momentous battle in the Supreme Court. The D.C. Circuit case was initially heard by a three-judge panel that included then-Judge Brett M. Kavanaugh, who wrote an opinion striking down the CFPB structure as a violation of separation of powers. Beginning his 100-page opinion, “This is a case about executive power and individual liberty,” Kavanaugh concluded that the for-cause removal feature, combined with the provision for a single director, reposed too much power in one unelected official. The full appeals court then overturned Kavanaugh’s decision, vacating his opinion and reaffirming the constitutionality of the CFPB by a 7-to-3 vote.

Kavanaugh is not recused in the Seila case, so it’s clear there will be at least one vote for striking down the leadership structure of the CFPB. Based on their overall conservative views, it’s quite possible that Justices Clarence Thomas and Samuel A. Alito Jr., possibly along with Neil M. Gorsuch, would be prepared to go even further, overruling Humphrey’s Executor altogether. Kavanaugh himself pointedly criticized the case in a footnote, calling it inconsistent with other court holdings but adding that a court of appeals could not overrule Supreme Court precedent. No such limit constrains him now.

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In that same footnote, Kavanaugh also suggested that overruling Humphrey’s Executor would be less than momentous, since such entities “would simply transform into executive agencies supervised and directed by the President.” But there is quite a lot tucked into that “simply” — namely, the traditional operation of independent agencies. It is their ability to act at arm’s length from the political control of the president, and to apply their best expert judgment to pressing national problems, that would be lost in the supposedly simple transformation Kavanaugh outlines.

As for Chief Justice John G. Roberts Jr., the court’s new center, he is a less-certain vote than the other four, and he surely will be conscious of the implications of undermining the long-standing principle of Humphrey’s Executor. But the chief justice came to the court as a dyed-in-the-wool conservative, and antipathy to independent agencies as a violation of the separation of powers is an article of faith for conservatives of his generation.

If I were forced to wager, I’d bet on a 5-to-4 opinion invalidating the CFPB on the Kavanaugh rationale, with two or three justices suggesting they would take the plunge and overrule Humphrey’s Executor.

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Why would that be such a significant result? Judging from his opinion while on the D.C. Circuit, Kavanaugh will be at pains to present the invalidation of the leadership structure of the CFPB as just a small inroad. The problem is that Kavanaugh articulated no real principle, nor is one readily apparent, to justify that carve-out. As Judge Cornelia “Nina” Pillard warned in her opinion for the majority, “A constitutional analysis that condemns the CFPB’s for-cause removal provision provides little assurance against — indeed invites — the judicial abolition of all independent agencies.”

Absent an obvious principled stopping point on the path toward outright overruling Humphrey’s Executor, an opinion along the lines of Kavanaugh’s in the D.C. Circuit would fundamentally destabilize the institution of independent agencies. It would leave the legal status of independent agencies unstable, inviting a future court, if not this one, to administer the final blow.

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