I. Legislative Delegation of Power

Making legal ideas into reality takes a lot of work. For instance, imagine legislators learn that air pollution is making their constituents sick with chronic illnesses like asthma and lung cancer. The legislators respond to the problem by drafting a bill to improve air quality. However, the legislators are not experts on air pollution. They are not familiar with the science behind air pollution and public health, nor do they know how to engineer solutions that will reduce the harmful impacts of air pollution. They also do not have the time to become experts in this narrow topic, or to conduct the necessary studies to determine how to clean up the air across the nation.

On the other hand, agencies are staffed with experts and ready to develop programs to carry out their Congressionally mandated missions. The EPA’s mission is to “protect human health and the environment.” Thus, improving air quality would be squarely in the EPA’s wheelhouse.

Ideally, Congress would be able to delegate (authorize/entrust) the work of putting a law like the Clean Air Act into action to an agency like the EPA. But, if Congress is the only government body vested with “all legislative powers” in the Constitution, how can Congress let agencies exercise those powers?

The Supreme Court has allowed for the delegation of Congressional power. The Court says that, in some cases, Congress can assign its legislative power to agencies. In 1825, the Supreme Court adopted a narrow interpretation of the Constitutional imperative in Article I, Section 1, saying that Congress can’t delegate powers that are “are strictly and exclusively legislative,” like making statutes. But, the Court said that Congress can delegate some powers. Since 1825, we’ve argued about where to draw the line between activities that are “strictly legislative” and activities that can be delegated to agencies. (We will discuss the delegation doctrine in depth later in the semester.)

Before delving into the nitty gritty of rulemaking, we will spend several weeks on the issue of separation of powers--  examining the question of what limitations Congress has to delegate its power to agencies, and to what extent does Congress control agency action. 

Why can Congress create agencies and have them do things that Congress could do itself if Article I, Section 1 of the U.S. Constitution reserves “all legislative powers” for Congress? A literal reading of this passage of the Constitution would mean that Congress is the only body that can carry out rulemaking and governing powers like those that agencies perform.

The Constitutions assigns a lot of work to Congress. Section 8 of Article I of the Constitution orders Congress to “make all laws which shall be deemed necessary and proper” to carry out a whole laundry list of specific “powers” including collecting taxes, providing for the “common defense and general welfare of the United States,” regulating commerce and money itself, promoting the “progress of science,” constitute tribunals inferior to the Supreme Court, declare war, and more. In short, the Constitution gave Congress a LOT of stuff to be in charge of!

Here is Article I of the U.S. Constitution if you want to see the “laundry list” of powers for yourself.

II. Historical Overview: Delegation of Legislative Power

The Constitution’s framers designed a government with three separate branches: executive, legislative, and judicial. The branches were meant to serve different roles and carry out distinct tasks. Each branch was supposed to act independently of the others and to “check” and “balance” the powers of the other two branches. Why, then, are executive branch agencies empowered to make regulations with the force of legislation and to adjudicate orders with binding legal consequences? Agencies’ activities seem to violate separation of powers principles.

These days, the Supreme Court does not rigidly enforce separation of powers principles. For instance, the Court allows Congress to delegate legislative authority to agencies. But the Court has not always treated Congress’s delegation of legislative authority to agencies so permissively. In phases where the Court strictly enforces the separation of powers (for instance, when the Supreme Court struck down President Truman’s order directing the Secretary of Commerce to seize and operate the nations’ steel mills), the Court applies the Constitution’s separation of powers wording literally, considering the framers’ text over the practicalities of the moment. 

In phases where the Court is not so strict about separating the branches’ powers, the Court focuses more on the facts of the matters, relying on “common sense” and pragmatic problem solving and less on theoretical Constitutional textualism concepts. Under this “functional approach” the Court looks to see whether one branch has overstepped or commingles powers in violation of the Constitution by using a “core function” test. The “core function” test allows for some commingling of powers, so long as one branch does not jeopardize a “core function” of another branch. 

Delegating Legislative Powers

The Supreme Court’s treatment of Congress’s delegation of power to agencies has changed over time. The Supreme Court’s first ever case about delegation was the Brig Aurora case in 1813. The court decided that Congress could authorize the President to lift a trade embargo against France and England when the countries stopped violating the “natural commerce” of the U.S. The Court explained that the statute did not violate nondelegation requirements because Congress developed the policy and requirements, and merely authorized the executive to act only when a specific “named contingency” happened. 

In 1928, the Supreme Court heard J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928), a case where Congress authorized the President to revise specific tariffs, but only when the revision was necessary to equalize production costs in the U.S. and a competing country. The Court replaced the “named contingency” test with an “intelligible principle” test. It decided that the delegation of authority was permissible because Congress established an intelligible principle that guided the executive branch, limiting and guiding its authority.

The Court changed its approach to legislative delegation in the 1930’s, reacting to President Franklin Roosevelt’s sweeping New Deal. Roosevelt’s New Deal directed Congress to delegate authority to a slew of agencies developed to stimulate the economy and workforce after the 1929 stock market crash. The New Deal is considered the starting point of the modern federal administrative system. The New Deal legislative agenda led to a proliferation of federal agencies and programs. In response to the sweeping use of Congressional delegation, the Court began to take a more restrictive approach, applying stricter nondelegation principles. 

In 1935 the Court struck down parts of the National Industrial Recovery Act, a statute authorizing the President to regulate industry wages and prices, as unconstitutional in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). Each of these cases confronted a challenge to the National Industry Recovery Act (NIRA) and mark the brief heyday of the nondelegation doctrine. In Panama Refining Co., the court struck down as an unconstitutional violation of the nondelegation doctrine the statutory language in the NIRA. The language granted the President broad authority to decide on a state-by-state basis how much oil producers can sell and transport in interstate commerce. 

The Court held that the statutory provision, Section 9(c) of the NIRA went beyond the limits of delegating authority because it "declared no policy, [] established no standard, [and] laid down no rule" to guide the President's discretion. Similarly, in A.L.A. Schechter Poultry Corp. v. United States, a provision of the NIRA was challenged under the nondelegation doctrine. This second case marks the last time (1935) that the Court held that Congress violated this doctrine. 

The Courts' decisions threatened to stymie the ambitious New Deal legislative agenda, so President Franklin Roosevelt proposed a Court Packing Plan. He threatened to add an additional justice to the Court for each justice over seventy years old to alter the Court’s composition and influence its decisions. The plan was never enacted.

Opinion

Mr. Chief Justice HUGHES delivered the opinion of the Court.

Petitioners . . . were convicted in the District Court of the United States for the Eastern District of New York on eighteen counts of an indictment charging violations of what is known as the ‘Live Poultry Code,'1 and on an additional count for conspiracy to commit such violations.2By demurrer to the indictment and appropriate motions on the trial, the defendants contended (1) that the code had been adopted pursuant to an unconstitutional delegation by Congress of legislative power; ...

New York City is the largest live poultry market in the United States. Ninety-six per cent. of the live poultry there marketed comes from other states. Three-fourths of this amount arrives by rail and is consigned to commission men or receivers. Most of these freight shipments (about 75 per cent.) come in at the Manhattan Terminal of the New York Central Railroad, and the remainder at one of the four terminals in New Jersey serving New York City. The commission men transact by far the greater part of the business on a commission basis, representing the shippers as agents, and remitting to them the proceeds of sale, less commissions, freight, and handling charges. Otherwise, they buy for their own account. They sell to slaughterhouse operators who are also called marketmen.

The defendants are slaughterhouse operators of the latter class. A.L.A. Schechter Poultry Corporation and Schechter Live Poultry Market are corporations conducting wholesale poultry slaughterhouse markets in Brooklyn, New York City. ... Defendants do not sell poultry in interstate commerce. The ‘Live Poultry Code’ was promulgated under section 3 of the National Industrial Recovery Act. 3 That section, the pertinent provisions of which are set forth in the margin,4 authorizes the President to approve **840 ‘codes of *522 fair competition.’ ... Violation of any provision of a code (so approved or prescribed) ‘in any transaction in or affecting interstate or foreign commerce’ is made a misdemeanor punishable by a fine of not more than $500 for each offense, and each day the violation continues is to be deemed a separate offense.

The ‘Live Poultry Code’ was approved by the President on April 13, 1934.

...

The code fixes the number of hours for workdays. It provides that no employee, with certain exceptions, shall be permitted to work in excess of forty hours in any one week, and that no employees, save as stated, ‘shall be paid in any pay period less than at the rate of fifty (50) cents per hour.’ ... The minimum number of employees, who shall be employed by slaughterhouse operators, is fixed; the number **841 being graduated according to the average volume of weekly sales.

[...]

The Question of the Delegation of Legislative Power.—We recently had occasion to review the pertinent decisions and the general principles which govern the determination of this question. Panama Refining Company v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed . 446. The Constitution provides that ‘All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.’ Article 1, s 1. And the Congress is authorized ‘To make all Laws which shall be necessary and proper for carrying into Execution’ its general powers. Article 1, s 8, par. 18. The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. We have repeatedly recognized the necessity of adapting *530legislation to complex conditions involving a host of details with which the national Legislature cannot deal directly. We pointed out in the Panama Refining Company Case that the Constitution has never been regarded as denying to Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply.

But we said that the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained. Id., 293 U.S. 388, page 421, 55 S.Ct. 241, 79 L.Ed. 446.

Accordingly, we look to the statute to see whether Congress has overstepped these limitations—whether Congress in authorizing ‘codes of fair competition’ has itself established the standards of legal obligation, thus performing its essential legislative function, or, by the failure to enact such standards, has attempted to transfer that function to others.

The aspect in which the question is now presented is distinct from that which was before us in the case of the Panama Refining Company. There the subject of the statutory prohibition was defined. National Industrial Recovery Act, s 9(c), 15 USCA s 709(c). That subject was the transportation in interstate and foreign commerce of petroleum and petroleum products which are produced or withdrawn from storage in excess of the amount permitted by state authority. The question was with respect to the range of discretion given to the President in prohibiting that transportation. Id., 293 U.S. 388, pages 414, 415, 430, 55 S.Ct. 241, 79 L.Ed. 446. As to the ‘codes of fair competition,’ under section 3 of the act, the question is more fundamental. *531 It is whether there is any adequate definition of the subject to which the codes are to be addressed.

What is meant by ‘fair competition’ as the term is used in the act? Does it refer to a category established in the law, and is the authority to make codes limited accordingly? Or is it used as a convenient designation for whatever set of laws the formulators of a code for a particular trade or industry may propose and the President may approve (subject to certain restrictions), or the President may himself prescribe, as being wise and beneficient provisions for the government of the trade or industry in order to accomplish the broad purposes of rehabilitation, correction, and expansion which are stated in the first section of Title 1?

**844  The act does not define ‘fair competition.’ ‘Unfair competition,’ as known to the common law, is a limited concept. Primarily, and strictly, it relates to the palming off of one's goods as those of a rival trader. *532 Good-year's Rubber Manufacturing Co. v. Good-year Rubber Co., 128 U.S. 598, 604, 9 S.Ct. 166, 32 L.Ed. 535; Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U.S. 118, 140, 25 S.Ct. 609, 49 L.Ed. 972; Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 413, 36 S.Ct. 357, 60 L.Ed. 713. In recent years, its scope has been extended. It has been held to apply to misappropriation as well as misrepresentation, to the selling of another's goods as one's own—to misappropriation of what equitably belongs to a competitor. International News Service v. Associated Press, 248 U.S. 215, 241, 242, 39 S.Ct. 68, 63 L.Ed. 211, 2 A.L.R. 293. 

Unfairness in competition has been predicated of acts which lie outside the ordinary course of business and are tainted by fraud or coercion or conduct otherwise prohibited by law.10 Id., 248 U.S. 315, page 258, 39 S.Ct. 68, 63 L.Ed. 211, 2 A.L.R. 293. But it is evident that in its widest range, ‘unfair competition,’ as it has been understood in the law, does not reach the objectives of the codes which are authorized by the National Industrial Recovery Act. The codes may, indeed, cover conduct which existing law condemns, but they are not limited to conduct of that sort. The government does not contend that the act contemplates such a limitation. It would be opposed both to the declared purposes of the act and to its administrative construction.

The Federal Trade Commission Act [section 5 (15 USCA s 4511 introduced the expression ‘unfair methods of competition,’ which were declared to be unlawful. That was an expression new in the law. Debate apparently convinced the sponsors of the legislation that the words ‘unfair competition,’ in the light of their meaning at common law, were too narrow. We have said that the substituted phrase has a broader meaning, that it does not admit of precise definition; its scope being left to judicial determination as controversies arise. Federal Trade Commission v. Raladam Co., 283 U.S. 643, 648, 649, 51 S.Ct. 587, 75 L.Ed. 1324, 79 A.L.R. 1191; Federal Trade Commission v. R. F. Keppel, 291 U.S. 304, 310—312, 54 S.Ct. 423, 78 L.Ed. 814. What are *533 ‘UNFAIR METHODS OF COMPETITION’ ARE THUS to be determined in particular instances, upon evidence, in the light of particular competitive conditions and of what is found to be a specific and substantial public interest. ... To make this possible, Congress set up a special procedure. A commission, a quasi judicial body, was created. Provision was made for formal complaint, for notice and hearing, for appropriate findings of fact supported by adequate evidence, and for judicial review to give assurance that the action of the commission is taken within its statutory authority. Federal Trade Commission v. Raladam Co., supra; Federal Trade Commission v. Klesner, supra.

**845 In providing for codes, the National Industrial Recovery Act dispenses with this administrative procedure and with any administrative procedure of an analogous character. But the difference between the code plan of the Recovery Act and the scheme of the Federal Trade Commission Act lies not only in procedure but in subject- *534 matter. We cannot regard the ‘fair competition’ of the codes as antithetical to the ‘unfair methods of competition’ of the Federal Trade Commission Act. The ‘fair competition’ of the codes has a much broader range and a new significance. 

[...]

We think the conclusion is inescapable that the authority sought to be conferred by section 3 was not merely to deal with “unfair competitive practices” which offend against existing law, and could be the subject of judicial condemnation without further legislation, or to create administrative machinery for the application of established principles of law to particular instances of violation. Rather, the purpose is clearly disclosed to authorize new and controlling prohibitions through codes of laws which would embrace what the formulators would propose, and what the President would approve or prescribe, as wise and beneficent measures for the government of trades and industries in order to bring about their rehabilitation, correction, and development, according to the general declaration of policy in section 1. Codes of laws of this sort are styled “codes of fair competition.”

[...]

*537  The government urges that the codes will “consist of rules of competition deemed fair for each industry by representative members of that industry—by the persons most vitally concerned and most familiar with its problems.” Instances are cited in which Congress has availed itself of such assistance; as, e.g., in the exercise of its authority over the public domain, with respect to the recognition of local customs or rules of miners as to mining claims,14 or, in matters of a more or less technical nature, as in designating the standard height of drawbars.15 But would it be seriously contended that Congress could delegate its legislative authority to trade or industrial associations or groups so as to empower them to enact the laws they deem to be wise and beneficent for the rehabilitation and expansion of their trade or industries? Could trade or industrial associations or groups be constituted legislative bodies for that purpose because such associations or groups are familiar with the problems of their enterprises? And could an effort of that sort be made valid by such a preface of generalities as to permissible aims as we find in section 1 of title 1? The answer is obvious. Such a delegation of legislative power is unknown to our law, and is utterly inconsistent with the constitutional prerogatives and duties of Congress.

 The question, then, turns upon the authority which section 3 of the Recovery Act vests in the President to approve or prescribe. If the codes have standing as penal statutes, this must be due to the effect of the executive action. But Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make *538 whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry. See Panama Refining Company v. Ryan, supra, and cases there reviewed.

Accordingly we turn to the Recovery Act to ascertain what limits have been set to the exercise of the President's discretion: First, the President, as a condition of approval, is required to find that the trade or industrial associations or groups which propose a code ‘impose no inequitable restrictions on admission to membership’ and are ‘truly representative.’ That condition, however, relates only to the status of the initiators of the new laws and not to the permissible scope of such laws. Second, the President is required to find that the code is not ‘designed to promote monopolies or to eliminate or oppress small **847 enterprises and will not operate to discriminate against them.’ And to this is added a proviso that the code ‘shall not permit monopolies or monopolistic practices.’ But these restrictions leave virtually untouched the field of policy envisaged by section 1, and, in that wide field of legislative possibilities, the proponents of a code, refraining from monopolistic designs, may roam at will, and the President may approve or disapprove their proposals as he may see fit. That is the precise effect of the further finding that the President is to make—that the code ‘will tend to effectuate the policy of this title.’ While this is called a finding, it is really but a statement of an opinion as to the general effect upon the promotion of trade or industry of a scheme of laws. These are the only findings which Congress has made essential in order to put into operation a legislative code having the aims described in the ‘Declaration of Policy.’

Nor is the breadth of the President's discretion left to the necessary implications of this limited requirement as to his findings. As already noted, the President in approving a code may impose his own conditions, adding to *539 or taking from what is proposed, as ‘in his discretion’ he thinks necessary ‘to effectuate the policy’ declared by the act. Of course, he has no less liberty when he prescribes a code on his own motion or on complaint, and he is free to prescribe one if a code has not been approved. The act provides for the creation by the President of administrative agencies to assist him, but the action or reports of such agencies, or of his other assistants—their recommendations and findings in relation to the making of codes—have no sanction beyond the will of the President, who may accept, modify, or reject them as he pleases. Such recommendations or findings in no way limit the authority which section 3 undertakes to vest in the President with no other conditions than those there specified. And this authority relates to a host of different trades and industries, thus extending the President's discretion to all the varieties of laws which he may deem to be beneficial in dealing with the vast array of commercial and industrial activities throughout the country.

Such a sweeping delegation of legislative power finds no support in the decisions upon which the Government especially relies. By the Interstate Commerce Act, Congress has itself provided a code of laws regulating the activities of the common carriers subject to the Act in order to assure the performance of their services upon just and reasonable terms, with adequate facilities and without unjust discrimination. Congress, from time to time, has elaborated its requirements as needs have been disclosed. To facilitate the application of the standards prescribed by the Act, Congress has provided an expert body. That administrative agency, in dealing with particular cases, is required to act upon notice and hearing, and its orders must be supported by findings of fact which, in turn, are sustained by evidence.  Interstate Commerce Comm'n v. Louisville & Nashville R. Co., 227 U. S. 88; Florida v. United States, 282 U. S. 194; United States

Page 295 U. S. 540 v. Baltimore & Ohio R. Co., 293 U. S. 454.

[...]

To summarize and conclude upon this point: Section 3 of the Recovery Act  . . . is without precedent. It supplies no standards for any trade, industry, or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure. Instead of prescribing rules of conduct, it authorizes the making of codes to prescribe them. For that legislative undertaking, section 3 sets up no standards, aside from the statement of the general aims of rehabilitation, correction, and expansion described in section 1. In view of the scope of that broad declaration and of the *542 nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. We think that the code-making authority thus conferred is an unconstitutional delegation of legislative power.

[...]

On both the grounds we have discussed, the attempted delegation of legislative power and the attempted regulation of intrastate transactions which affect interstate commerce only indirectly, we hold the code provisions here in question to be invalid and that the judgment of conviction must be reversed.

Since the 1930’s, the Supreme Court did change its stance on nondelegation, adopting a more accepting stance on legislative delegations of power. The Court has found that all of the legislation under its review complies with the nondelegation doctrine.  The Court’s liberal treatment of the nondelegation doctrine has resulted in tremendous power resting in administrative agencies that are tasked by Congress to carry out specific mandates that influence many aspects of our lives. 

Two cases, Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001) and Gundy v. United States, 139 S. Ct. 2116 (2019) illustrate the current take on legislative delegations of power. These cases reflect that the Court is reluctant to invalidate a statute that delegates quasi-legislative power to a federal agency. Seems a little strange since, under separation of powers, Congress is the only branch of government that is constitutionally permitted to make laws.  

So, the key here is "quasi" legislative powers. Let's think about what "quasi" means. The dictionary describes quasi as “seemingly; apparently  but not really” or “being partly or almost.” In essence, administrative agencies seemingly or partly veer into legislatively lawmaking, with the Constitutional restraint being the nondelegation doctrine.   However, the more recent case, Gundy, reflects some cracks in the historically unified reluctance to restrict Congress's delegation of quasi-legislative power to administrative agencies.  

In response to the dissenting judges in Gundy, who hinted at the need to limit Congresses broad discretion to delegate quasi-legislative power to administrative agencies, one commentator wrote, "the movement to expand the nondelegation doctrine doesn’t seek a healthier relationship between Congress and the administrative state. Instead, it hopes to roll back the administrative state itself.” 

Whitman v. American Trucking Associations, Inc.

531 U.S. 457 (2001)

Justice Scalia, delivered the opinion of the Court.

These cases present the following [question:] Whether § 109(b)(1) of the Clean Air Act (CAA) delegates legislative power to the Administrator of the Environmental Protection Agency (EPA).

Section 109(a) of the CAA requires the Administrator of the EPA to promulgate [National Ambient Air Quality Standards] NAAQS for [certain air pollutants]. Once a NAAQS has been promulgated, the Administrator must review the standard (and the criteria on which it is based) “at five-year intervals” and make “such revisions . . . as may be appropriate.” These cases arose when, on July 18, 1997, the Administrator [Whitman] revised the NAAQS for particulate matter and ozone. American Trucking Associations, Inc. [...] challenged the new standards [...]

The District of Columbia Circuit [...] agreed with the respondents that § 109(b)(1) delegated legislative power to the Administrator in contravention of the United States Constitution, Art. I, § 1, because it found that the EPA had interpreted the statute to provide no “intelligible principle” to guide the agency’s exercise of authority. The court thought, however, that the EPA could perhaps avoid the unconstitutional delegation by adopting a restrictive construction of § 109(b)(1), so instead of declaring the section unconstitutional the court remanded the NAAQS to the agency [...]

Section 109(b)(1) of the CAA instructs the EPA to set “ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on [the] criteria [documents of § 108] and allowing an adequate margin of safety, are requisite to protect the public health.” The Court of Appeals held that this section as interpreted by the Administrator did not provide an “intelligible principle” to guide the EPA’s exercise of authority in setting NAAQS. “[The] EPA,” it said, “lack[ed] any determinate criteria for drawing lines. It has failed to state intelligibly how much is too much.” The court hence found that the EPA’s interpretation (but not the statute itself) violated the nondelegation doctrine. We disagree.

In a delegation challenge, the constitutional question is whether the statute has delegated legislative power to the agency. Article I, § 1, of the Constitution vests “[a]ll legislative Powers herein granted . . . in a Congress of the United States.” This text permits no delegation of those powers, and so we repeatedly have said that when Congress confers decisionmaking authority upon agencies Congress must “lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.” J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928). We have never suggested that an agency can cure an unlawful delegation of legislative power by adopting in its discretion a limiting construction of the statute [...] The idea that an agency can cure an unconstitutionally standardless delegation of power by declining to exercise some of that power seems to us internally contradictory. The very choice of which portion of the power to exercise—that is to say, the prescription of the standard that Congress had omitted—would itself be an exercise of the forbidden legislative authority. Whether the statute delegates legislative power is a question for the courts, and an agency’s voluntary self denial has no bearing upon the answer.

We agree with the Solicitor General that the text of § 109(b)(1) of the CAA at a minimum requires that “[f]or a discrete set of pollutants and based on published air quality criteria that reflect the latest scientific knowledge, [the] EPA must establish uniform national standards at a level that is requisite to protect public health from the adverse effects of the pollutant in the ambient air.” Requisite, in turn, “mean[s] sufficient, but not more than necessary.” These limits on the EPA’s discretion are strikingly similar to the ones we approved in Touby v. United States, 500 U. S. 160 (1991), which permitted the Attorney General to designate a drug as a controlled substance for purposes of criminal drug enforcement if doing so was “‘necessary to avoid an imminent hazard to the public safety.’” They also resemble the Occupational Safety and Health Act of 1970 provision requiring the agency to “‘set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer any impairment of health’”—which the Court upheld in Industrial Union Dept., AFL—CIO v. American Petroleum Institute, 448 U. S. 607, 646 (1980) [...]

The scope of discretion § 109(b)(1) allows is in fact well within the outer limits of our nondelegation precedents. In the history of the Court we have found the requisite “intelligible principle” lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring “fair competition.” See Panama Refining Co. v. Ryan, 293 U. S. 388 (1935); A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935). We have, on the other hand, upheld the validity of § 11(b)(2) of the Public Utility Holding Company Act of 1935, which gave the Securities and Exchange Commission authority to modify the structure of holding company systems so as to ensure that they are not “unduly or unnecessarily complicate[d]” and do not “unfairly or inequitably distribute voting power among security holders.” American Power & Light Co. v. SEC, 329 U. S. 90, 104 (1946). We have approved the wartime conferral of agency power to fix the prices of commodities at a level that “‘will be generally fair and equitable and will effectuate the [in some respects conflicting] purposes of th[e] Act.’” Yakus v. United States, 321 U. S. 414, 420, 423-426 (1944). And we have found an "intelligible principle" in various statutes authorizing regulation in the “public interest.” See, e. g., National Broadcasting Co. v. United States, 319 U. S. 190, 225-226 (1943) (Federal Communications Commission’s power to regulate airwaves); New York Central Securities Corp. v. United States, 287 U. S. 12, 24-25 (1932) (Interstate Commerce Commission’s power to approve railroad consolidations). In short, we have “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” Mistretta v. United States, 488 U. S. 361, 416 (1989) (majority opinion).

It is true enough that the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred. While Congress need not provide any direction to the EPA regarding the manner in which it is to define “country elevators,” which are to be exempt from newstationary-source regulations governing grain elevators, see 42 U.S.C. § 7411(i), it must provide substantial guidance on setting air standards that affect the entire national economy. But even in sweeping regulatory schemes we have never demanded, as the Court of Appeals did here, that statutes provide a “determinate criterion” for saying “how much [of the regulated harm] is too much.” In Touby, for example, we did not require the statute to decree how “imminent” was too imminent, or how “necessary” was necessary enough, or even—most relevant here—how “hazardous” was too hazardous. Similarly, the statute at issue in Lichter authorized agencies to recoup “excess profits” paid under wartime Government contracts, yet we did not insist that Congress specify how much profit was too much. It is therefore not conclusive for delegation purposes that, as respondents argue, ozone and particulate matter are “nonthreshold” pollutants that inflict a continuum of adverse health effects at any airborne concentration greater than zero, and hence require the EPA to make judgments of degree. “[A] certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action.” Mistretta v. United States, supra. Section 109(b)(1) of the CAA, which to repeat we interpret as requiring the EPA to set air quality standards at the level that is “requisite”—that is, not lower or higher than is necessary—to protect the public health with an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent.

We therefore reverse the judgment of the Court of Appeals remanding for reinterpretation that would avoid a supposed delegation of legislative power [...]

Justice Stevens, with whom Justice Souter joins, concurring in part and concurring in the judgment.

Section 109(b)(1) delegates to the Administrator of the Environmental Protection Agency (EPA) the authority to promulgate national ambient air quality standards (NAAQS). In Part III of its opinion, the Court convincingly explains why the Court of Appeals erred when it concluded that § 109 effected “an unconstitutional delegation of legislative power.” I wholeheartedly endorse the Court’s result and endorse its explanation of its reasons, albeit with the following caveat.

The Court has two choices. We could choose to articulate our ultimate disposition of this issue by frankly acknowledging that the power delegated to the EPA is “legislative” but nevertheless conclude that the delegation is constitutional because adequately limited by the terms of the authorizing statute. Alternatively, we could pretend, as the Court does, that the authority delegated to the EPA is somehow not “legislative power.” Despite the fact that there is language in our opinions that supports the Court's articulation of our holding, I am persuaded that it would be both wiser and more faithful to what we have actually done in delegation cases to admit that agency rulemaking authority is “legislative power.” [...]

My view is not only more faithful to normal English usage, but is also fully consistent with the text of the Constitution. In Article I, the Framers vested “All legislative Powers” in the Congress, Art. I, § 1, just as in Article II they vested the “executive Power” in the President, Art. II, § 1. Those provisions do not purport to limit the authority of either recipient of power to delegate authority to others [...] Surely the authority granted to members of the Cabinet and federal law enforcement agents is properly characterized as “Executive” even though not exercised by the President.

It seems clear that an executive agency’s exercise of rulemaking authority pursuant to a valid delegation from Congress is “legislative.” As long as the delegation provides a sufficiently intelligible principle, there is nothing inherently unconstitutional about it [...] I would hold that when Congress enacted § 109, it effected a constitutional delegation of legislative power to the EPA.

Gundy v. United States

139 S. Ct. 2116 (2019)

Justice KAGAN announced the judgment of the Court and delivered an opinion, in which Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR join.

The nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government. This case requires us to decide whether 34 U.S.C. § 20913(d), enacted as part of the Sex Offender Registration and Notification Act (SORNA), violates that doctrine. We hold it does not. Under § 20913(d), the Attorney General must apply SORNA's registration requirements as soon as feasible to offenders convicted before the statute's enactment. That delegation easily passes constitutional muster.

I

Congress has sought, for the past quarter century, to combat sex crimes and crimes against children through sex-offender registration schemes. . . . In 2006,[ ] Congress enacted SORNA.

SORNA makes "more uniform and effective" the prior "patchwork" of sex-offender registration systems. The Act's express "purpose" is "to protect the public from sex offenders and offenders against children" by "establish[ing] a comprehensive national system for [their] registration." § 20901. To that end, SORNA covers more sex offenders, and imposes more onerous registration requirements, than most States had before. The Act also backs up those requirements with new criminal penalties. Any person required to register under SORNA who knowingly fails to do so (and who travels in interstate commerce) may be imprisoned for up to ten years. See 18 U.S.C. § 2250(a).

The basic registration scheme works as follows. A “sex offender” is defined as “an individual who was convicted of” specified criminal offenses: all offenses “involving a sexual act or sexual contact” and additional offenses “against a minor.” 34 U. S. C. §§20911(1), (5)(A), (7). Such an individual must register—provide his name, address, and certain other information—in every State where he resides, works, or studies. See §§20913(a), 20914. And he must keep the registration current, and periodically report in person to a law enforcement office, for a period of between fifteen years and life (depending on the severity of his crime and his history of recidivism). See §§20915, 20918.

Section 20913—the disputed provision here—elaborates the "[i]nitial registration" requirements for sex offenders. §§ 20913(b), (d). Subsection (b) sets out the general rule: An offender must register "before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement" (or, if the offender is not sentenced to prison, "not later than [three] business days after being sentenced"). Two provisions down, subsection (d) addresses (in its title's words) the "[i]nitial registration of sex offenders unable to comply with subsection (b)." The provision states:

    "The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter ... and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b)."

Subsection (d), in other words, focuses on individuals convicted of a sex offense before SORNA's enactment—a group we will call pre-Act offenders. Many of these individuals were unregistered at the time of SORNA's enactment, either because pre-existing law did not cover them or because they had successfully evaded that law (so were "lost" to the system). See supra, at 2121-2122. And of those potential new registrants, many or most could not comply with subsection (b)'s registration rule because they had already completed their prison sentences. For the entire group of pre-Act offenders, once again, the Attorney General "shall have the authority" to "specify the applicability" of SORNA's registration requirements and "to prescribe rules for [their] registration."

Under that delegated authority, the Attorney General issued an interim rule in February 2007, specifying that SORNA's registration requirements apply in full to "sex offenders convicted of the offense for which registration is required prior to the enactment of that Act." 72 Fed. Reg. 8897. The final rule, issued in December 2010, reiterated that SORNA applies to all pre-Act offenders. 75 Fed. Reg. 81850. That rule has remained the same to this day.

Petitioner Herman Gundy is a pre-Act offender. The year before SORNA's enactment, he pleaded guilty under Maryland law for sexually assaulting a minor. After his release from prison in 2012, Gundy came to live in New York. But he never registered there as a sex offender. A few years later, he was convicted for failing to register, in violation of § 2250. He argued below (among other things) that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to "specify the applicability" of SORNA's registration requirements to pre-Act offenders. § 20913(d). The District Court and Court of Appeals for the Second Circuit rejected that claim, see 695 Fed. Appx. 639 (2017), as had every other court (including eleven Courts of Appeals) to consider the issue. We nonetheless granted certiorari.

Today, we join the consensus and affirm.

II

Article I of the Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States." § 1. Accompanying that assignment of power to Congress is a bar on its further delegation. Congress, this Court explained early on, may not transfer to another branch "powers which are strictly and exclusively legislative." Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43, 6 L.Ed. 253 (1825). But the Constitution does not "deny[ ] to the Congress the necessary resources of flexibility and practicality [that enable it] to perform its function[s]." Yakus v. United States, 321 U.S. 414, 425, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (internal quotation marks omitted). Congress may "obtain[ ] the assistance of its coordinate Branches"—and in particular, may confer substantial discretion on executive agencies to implement and enforce the laws. Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). "[I]n our increasingly complex society, replete with ever changing and more technical problems," this Court has understood that "Congress simply cannot do its job absent an ability to delegate power under broad general directives." Ibid. So we have held, time and again, that a statutory delegation is constitutional as long as Congress "lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform." Ibid. (quoting J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928); brackets in original).

Given that standard, a nondelegation inquiry always begins (and often almost ends) with statutory interpretation. The constitutional question is whether Congress has supplied an intelligible principle to guide the delegee's use of discretion. So the answer requires construing the challenged statute to figure out what task it delegates and what instructions it provides.

[...]

To define the scope of delegated authority, we have looked to the text in “context” and in light of the statutory “purpose.” National Broadcasting Co. v. United States, 319 U.S. 190, 214, 216 (1943) (internal quotation marks omitted); see American Power & Light, 329 U. S., at 104 (stating that the delegation at issue “derive[d] much meaningful content from the purpose of the Act, its factual background and the statutory context”). In keeping with that method, we again do so today.

So begin at the beginning, with the “[d]eclaration of purpose” that is SORNA’s first sentence. §20901. There, Congress announced (as Reynolds noted, see supra, at 6–7) that “to protect the public,” it was “establish[ing] a comprehensive national system for the registration” of “sex offenders and offenders against children.” §20901. The term “comprehensive” has a clear meaning—something that is all-encompassing or sweeping. See, e.g., Webster’s Third New International Dictionary 467 (2002) (“covering a matter under consideration completely or nearly completely”); New Oxford American Dictionary 350 (2d ed. 2005) (“complete; including all or nearly all elements or aspects of something”).

That description could not fit the system SORNA created if the Attorney General could decline, for any reason or no reason at all, to apply SORNA to all pre-Act offenders. After all, for many years after SORNA’s enactment, the great majority of sex offenders in the country would be pre-Act offenders. If Gundy were right, all of those offenders could be exempt from SORNA’s registration requirements. So the mismatch between SORNA’s statement of purpose and Gundy’s view of §20913(d) is as stark as stark comes. Responding to that patent disparity, Gundy urges us to ignore SORNA’s statement of purpose because it is “located in the Act’s preface” rather than “tied” specifically to §20913(d). Brief for Petitioner 46. But the placement of such a statement within a statute makes no difference . . . .

The Act’s definition of “sex offender” (also noted in Reynolds, see supra, at 7)makes the same point. Under that definition, a “sex offender” is “an individual who was convicted of a sex offense.” §20911(1). Note the tense: “was,” not “is.” This Court has often “looked to Congress’ choice of verb tense to ascertain a statute’s temporal reach,” including when interpreting other SORNA provisions. Carr v. United States, 560 U.S. 438, 447–448 (2010) (holding that because SORNA “sets forth [its] travel requirement in the present tense,” the statute’s criminal penalties do not apply to a person whose interstate travel predated enactment); see, e.g.,United States v. Wilson, 503 U.S. 329, 333 (1992); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57 (1987).

Here, Congress’s use of the past tense to define the term “sex offender” shows that SORNA was not merely forward-looking. The word “is” would have taken care of all future offenders. The word “was” served to bring in the hundreds of thousands of persons previously found guilty of a sex offense, and thought to pose a current threat to the public. The tense of the “sex offender” definition thus confirms that the delegation allows only temporary exclusions, as necessary to address feasibility issues. Contra Gundy, it does not sweep so wide as to make a laughingstock of the statute’s core definition.

The Act’s legislative history backs up everything said above by showing that the need to register pre-Act offenders was front and center in Congress’s thinking. (Once again, the Reynolds majority noted this history, but Justice Scalia’s dissent thought that was gilding the lily. See supra, at 7, and n. 1. He had a point, but we can’t resist.) Recall that Congress designed SORNA to address “loopholes and deficiencies” in existing registration laws. See supra, at 2. And no problem attracted greater attention than the large number of sex offenders who had slipped the system. According to the House Report, “[t]he most significant enforcement issue in the sex offender program is that over 100,000 sex offenders” are “ ‘missing,’ meaning that they have not complied with” then-current requirements. H. R. Rep. No. 109–218, at 26. There is a “strong public interest,” the Report continued, in “having [those offenders] register with current information to mitigate the risks of additional crimes against children.” Id., at 24.

Senators struck a similar chord in the debates preceding SORNA’s passage, repeatedly stressing that the new provisions would capture the missing offenders. See, e.g., 152 Cong. Rec. 15338 (2006) (statement of Sen. Kyl) (“The penalties in this bill should be adequate to ensure that [the 100,000 missing offenders] register”); id., at 13050 (statement of Sen. Frist) (“Every day that we don’t have this national sex offender registry, these missing sex predators are out there somewhere”). Imagine how surprising those Members would have found Gundy’s view that they had authorized the Attorney General to exempt the missing “predators” from registering at all.

With that context and background established, we may return to §20913(d). As we have noted, Gundy makes his stand there (and there only), insisting that the lonesome phrase “specify the applicability” ends this case. See supra, at 10. But in so doing, Gundy ignores even the rest of the section that phrase is in. Both the title and the remaining text of that section pinpoint one of the “practical problems” discussed above: At the moment of SORNA’s enactment, many pre-Act offenders were “unable to comply” with the Act’s initial registration requirements. §20913(d); Reynolds, 565 U. S., at 440; see supra, at 8.

That was because, once again, the requirements assumed that offenders would be in prison, whereas many pre-Act offenders were on the streets. In identifying that issue, §20913(d) itself reveals the nature of the delegation to the Attorney General. It was to give him the time needed (if any) to address the various implementation issues involved in getting pre-Act offenders into the registration system. “Specify the applicability” thus does not mean “specify whether to apply SORNA” to pre-Act offenders at all, even though everything else in the Act commands their coverage. The phrase instead means “specify how to apply SORNA” to pre-Act offenders if transitional difficulties require some delay. In that way, the whole of §20913(d) joins the rest of SORNA in giving the Attorney General only time-limited latitude to excuse pre-Act offenders from the statute’s requirements. Under the law, he had to order their registration as soon as feasible.

And no Attorney General has used (or, apparently, thought to use) §20913(d) in any more expansive way. To the contrary. Within a year of SORNA’s enactment (217 days, to be precise), the Attorney General determined that SORNA would apply immediately to pre-Act offenders. See Interim Rule, 72 Fed. Reg. 8897; supra,at 4. That rule has remained in force ever since (save for a technical change to one of the rule’s illustrative examples). See Final Rule, 75 Fed. Reg. 81850.[3] And at oral argument here, the Solicitor General’s office—rarely in a hurry to agree to limits on the Government’s authority—acknowledged that §20913(d) does not allow the Attorney General to excuse a pre-Act offender from registering, except for reasons of “feasibility.” Tr. of Oral Arg. 41–42. We thus end up, on close inspection of the statutory scheme, exactly where Reynolds left us. The Attorney General’s authority goes to transition-period implementation issues, and no further.

[...]

C

Now that we have determined what § 20913(d) means, we can consider whether it violates the Constitution. The question becomes: Did Congress make an impermissible delegation when it instructed the Attorney General to apply SORNA's registration requirements to pre-Act offenders as soon as feasible? Under this Court's long-established law, that question is easy. Its answer is no.

As noted earlier, this Court has held that a delegation is constitutional so long as Congress has set out an "intelligible principle" to guide the delegee's exercise of authority. J. W. Hampton, Jr., & Co., 276 U.S. at 409, 48 S.Ct. 348; see supra, at 2123. Or in a related formulation, the Court has stated that a delegation is permissible if Congress has made clear to the delegee "the general policy" he must pursue and the "boundaries of [his] authority." American Power & Light, 329 U.S. at 105, 67 S.Ct. 133. Those standards, the Court has made clear, are not demanding. "[W]e have `almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.'" Whitman, 531 U.S. at 474-475, 121 S.Ct. 903 (quoting Mistretta, 488 U.S. at 416, 109 S.Ct. 647 (Scalia, J., dissenting)). Only twice in this country's history (and that in a single year) have we found a delegation excessive—in each case because "Congress had failed to articulate any policy or standard" to confine discretion. Mistretta, 488 U.S. at 373, n. 7, 109 S.Ct. 647 (emphasis added); see A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935). By contrast, we have over and over upheld even very broad delegations. Here is a sample: We have approved delegations to various agencies to regulate in the "public interest." See, e.g., National Broadcasting Co., 319 U.S. at 216, 63 S.Ct. 997; New York Central Securities Corp. v. United States, 287 U.S. 12, 24, 53 S.Ct. 45, 77 L.Ed. 138 (1932). We have sustained authorizations for agencies to set "fair and equitable" prices and "just and reasonable" rates. Yakus, 321 U.S. at 422, 427, 64 S.Ct. 660; FPC v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944). We more recently affirmed a delegation to an agency to issue whatever air quality standards are "requisite to protect the public health." Whitman, 531 U.S. at 472, 121 S.Ct. 903 (quoting 42 U.S.C. § 7409(b)(1)). And so forth.

In that context, the delegation in SORNA easily passes muster (as all eleven circuit courts to have considered the question found, see supra, at 2122-2123). The statute conveyed Congress's policy that the Attorney General require pre-Act offenders to register as soon as feasible. Under the law, the feasibility issues he could address were administrative—and, more specifically, transitional—in nature. Those issues arose, as Reynolds explained, from the need to "newly register[ ] or reregister [] `a large number' of pre-Act offenders" not then in the system. 565 U.S. at 440, 132 S.Ct. 975; see supra, at 2124-2125. And they arose, more technically, from the gap between an initial registration requirement hinged on imprisonment and a set of pre-Act offenders long since released. See 565 U.S. at 441, 132 S.Ct. 975; see supra, at 2124-2125. Even for those limited matters, the Act informed the Attorney General that he did not have forever to work things out. By stating its demand for a "comprehensive" registration system and by defining the "sex offenders" required to register to include pre-Act offenders, Congress conveyed that the Attorney General had only temporary authority. Or again, in the words of Reynolds, that he could prevent "instantaneous registration" and impose some "implementation delay." 565 U.S. at 443, 132 S.Ct. 975. That statutory authority, as compared to the delegations we have upheld in the past, is distinctly small-bore. It falls well within constitutional bounds.[4]

Indeed, if SORNA's delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs. Consider again this Court's long-time recognition: "Congress simply cannot do its job absent an ability to delegate power under broad general directives." Mistretta, 488 U.S. at 372, 109 S.Ct. 647; see supra, at 2123. Or as the dissent in that case agreed: "[S]ome judgments ... must be left to the officers executing the law." 488 U.S. at 415, 109 S.Ct. 647 (opinion of Scalia, J.); see Whitman, 531 U.S. at 475, 121 S.Ct. 903 ("[A] certain degree of discretion[ ] inheres in most executive" action (internal quotation marks omitted)). Among the judgments often left to executive officials are ones involving feasibility. In fact, standards of that kind are ubiquitous in the U.S. Code. See, e.g., 12 U.S.C. § 1701z-2(a) (providing that the Secretary of Housing and Urban Development "shall require, to the greatest extent feasible, the employment of new and improved technologies, methods, and materials in housing construction[] under [HUD] programs"); 47 U.S.C. § 903(d)(1) (providing that "the Secretary of Commerce shall promote efficient and cost-effective use of the spectrum to the maximum extent feasible" in "assigning frequencies for mobile radio services"). In those delegations, Congress gives its delegee the flexibility to deal with real-world constraints in carrying out his charge. So too in SORNA.

It is wisdom and humility alike that this Court has always upheld such "necessities of government." Mistretta, 488 U.S. at 416, 109 S.Ct. 647 (Scalia, J., dissenting) (internal quotation marks omitted); see ibid. ("Since Congress is no less endowed with common sense than we are, and better equipped to inform itself of the `necessities' of government; and since the factors bearing upon those necessities are both multifarious and (in the nonpartisan sense) highly political ... it is small wonder that we have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law"). We therefore affirm the judgment of the Court of Appeals.

It is so ordered.

[ . . . ]

Justice GORSUCH, with whom THE CHIEF JUSTICE and Justice THOMAS join, dissenting.

The Constitution promises that only the people's elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation's chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?

Today, a plurality of an eight-member Court endorses this extraconstitutional arrangement but resolves nothing. Working from an understanding of the Constitution at war with its text and history, the plurality reimagines the terms of the statute before us and insists there is nothing wrong with Congress handing off so much power to the Attorney General. But Justice ALITO supplies the fifth vote for today's judgment and he does not join either the plurality's constitutional or statutory analysis, indicating instead that he remains willing, in a future case with a full Court, to revisit these matters. Respectfully, I would not wait.

I

I

For individuals convicted of sex offenses after Congress adopted the Sex Offender Registration and Notification Act (SORNA) in 2006, the statute offers detailed instructions. It requires them “to provide state governments with (and to update) information, such as names and current addresses, for inclusion on state and federal sex offender registries.”[1] The law divides offenders into three tiers based on the seriousness of their crimes: Some must register for 15 years, others for 25 years, and still others for life.[2] The statute proceeds to set registration deadlines: Offenders sentenced to prison must register before they’re released, while others must register within three business days after sentencing.[3] The statute explains when and how offenders must update their registrations.[4] And the statute specifies particular penalties for failing to comply with its commands.[5] On and on the statute goes for more than 20 pages of the U. S. Code.

But what about those convicted of sex offenses before the Act’s adoption? At the time of SORNA’s enactment, the nation’s population of sex offenders exceeded 500,000, and Congress concluded that something had to be done about these “pre-Act” offenders too. But it seems Congress couldn’t agree what that should be. The treatment of pre-Act offenders proved a “controversial issue with major policy significance and practical ramifications for states.”[6] Among other things, applying SORNA immediately to this group threatened to impose unpopular and costly burdens on States and localities by forcing them to adopt or overhaul their own sex offender registration schemes.[7] So Congress simply passed the problem to the Attorney General. For all half-million pre-Act offenders, the law says only this, in 34 U. S. C. §20913(d):

“The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter . . . and to prescribe rules for the registration of any such sex offender.”

Yes, that’s it. The breadth of the authority Congress granted to the Attorney General in these few words can only be described as vast. As the Department of Justice itself has acknowledged, SORNA “does not require the Attorney General” to impose registration requirements on pre-Act offenders “within a certain time frame or by a date certain; it does not require him to act at all.”[8] If the Attorney General does choose to act, he can require all pre-Act offenders to register, or he can “require some but not all to register.”[9] For those he requires to register, the Attorney General may impose “some but not all of [SORNA’s] registration requirements,” as he pleases.[10] And he is free to change his mind on any of these matters “at any given time or over the course of different [political] administrations.”[11] Congress thus gave the Attorney General free rein to write the rules for virtually the entire existing sex offender population in this country—a situation that promised to persist for years or decades until pre-Act offenders passed away or fulfilled the terms of their registration obligations and post-Act offenders came to predominate.

Unsurprisingly, different Attorneys General have exercised their discretion in different ways.[12] For six months after SORNA’s enactment, Attorney General Gonzales left past offenders alone. Then the pendulum swung the other direction when the Department of Justice issued an interim rule requiring pre-Act offenders to follow all the same rules as post-Act offenders.[13] A year later, Attorney General Mukasey issued more new guidelines, this time directing the States to register some but not all past offenders.[14] Three years after that, Attorney General Holder required the States to register only those pre-Act offenders convicted of a new felony after SORNA’s enactment.[15] Various Attorneys General have also taken different positions on whether pre-Act offenders might be entitled to credit for time spent in the community before SORNA was enacted.[16]

These unbounded policy choices have profound consequences for the people they affect. Take our case. Before SORNA’s enactment, Herman Gundy pleaded guilty in 2005 to a sexual offense. After his release from prison five years later, he was arrested again, this time for failing to register as a sex offender according to the rules the Attorney General had then prescribed for pre-Act offenders. As a result, Mr. Gundy faced an additional 10-year prison term—10 years more than if the Attorney General had, in his discretion, chosen to write the rules differently.

[ . . . ]

The only real surprise is that the Court fails to make good on the consequences the government invited, resolving nothing and deferring everything. In a future case with a full panel, I remain hopeful that the Court may yet recognize that, while Congress can enlist considerable assistance from the executive branch in filling up details and finding facts, it may never hand off to the nation’s chief prosecutor the power to write his own criminal code. That “is delegation running riot.”[107]

Immigration and Naturalization Service v. Chadha

462 U.S. 919 (1983)

CHIEF JUSTICE BURGER delivered the opinion of the Court.

[After the passage of the 1952 Immigration and Nationality Act, Congress delegated to the Attorney General the discretion to suspend deportation hearings. The Attorney General then delegated this duty to the then-named Immigration and Naturalization Service (INS) (INS responsibilties now belong to the Immigration and Customs Enforcement , and Customs and Border Protection, and the Citizenship and Immigration Services).

Chadha is an East Indian man was born in Kenya and holds a British passport. He overstayed his student visa and was ordered to be deported. Chadha applied for a suspension of his deportation. The INS Immigration Judge ordered Chadha’s deportation to be suspended on June 25, 1974. The Immigration Judge found that Chadha met the requirements of § 244(a)(1) of the Immigration and Nationaliaty Act: he had resided continuously in the United States for over seven years, was of good moral character, and would suffer "extreme hardship" if deported.

Congress, however, had the power to disagree with the Attorney General and overturn the AG's decision to suspend a deporation. Section 244(c) provides:

"(1) Upon application by any alien who is found by the Attorney General to meet the requirements of subsection (a) of this section the Attorney General may in his discretion suspend deportation of such alien. If the deportation of any alien is suspended under the provisions of this subsection, a complete and detailed statement of the *925 facts and pertinent provisions of law in the case shall be reported to the Congress with the reasons for such suspension . . . "

Once the Attorney General's recommendation for suspension of Chadha's deportation was conveyed to Congress, Congress  could act under § 244(c)(2) of INA to veto the Attorney General's determination to suspend Chadha's deportation. 

Section 244(c)(2) provides:

"if during the session of the Congress at which a case is reported, or prior to the close of the session of the Congress next following the session at which a case is reported, either the Senate or the House of Representatives passes a resolution stating in substance that it does not favor the suspension of such deportation, the Attorney General shall thereupon deport such alien or authorize the alien's voluntary departure at his own expense under the order of deportation in the manner provided by law. If, within the time above specified, neither the Senate nor the House of Representatives shall pass such a resolution, the Attorney General shall cancel deportation proceedings.”]

[This case] presents a challenge to the constitutionality of the provision in § 244(c)(2) of the Immigration and Nationality Act, authorizing one House of Congress, by resolution, to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney General of the United States, to allow a particular deportable [immigrant] to remain in the United States.

On December 12, 1975, Representative Eilberg, Chairman of the Judiciary Subcommittee on Immigration, Citizenship, and International Law, introduced a resolution opposing “the granting of permanent residence in the United States to [six] aliens,” including Chadha [...] The resolution [passed] Since the House action was pursuant to § 244(c)(2), the resolution was not treated as an Art. I legislative act; it was not submitted to the Senate or presented to the President for his action.

[On November 8, 1976, Chadha was ordered deported pursuant to the House action. After exhausting his administrative remedies, Chadha filed a petition for review of the deportation order in the United States Court of Appeals for the Ninth Circuit.]

Explicit and unambiguous provisions of the Constitution prescribe and define the respective functions of the Congress and of the Executive in the legislative process. Since the precise terms of those familiar provisions are critical to the resolution of these cases, we set them out verbatim. Article I provides:

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Art. I, § 1. (Emphasis added.)

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States . . . .” Art. I, § 7, cl. 2. (Emphasis added.)

“Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) 946*946 shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.” Art. I, § 7, cl. 3. (Emphasis added.) [...]

These provisions of Art. I are integral parts of the constitutional design for the separation of powers. We have recently noted that “[t]he principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the documents that they drafted in Philadelphia in the summer of 1787.” Buckley v. Valeo, supra, 424 U.S., at 124, 96 S.Ct., at 684. Just as we relied on the textual provision of Art. II, § 2, cl. 2, to vindicate the principle of separation of powers in Buckley, we find that the purposes underlying the Presentment Clauses, Art. I, § 7, cls. 2, 3, and the bicameral requirement of Art. I, § 1 and § 7, cl. 2, guide our resolution of the important question presented in this case. The very structure of the **2782 articles delegating and separating powers under Arts. I, II, and III exemplify the concept of separation of powers and we now turn to Art. I.

The Presentment Clauses

The records of the Constitutional Convention reveal that the requirement that all legislation be presented to the President before becoming law was uniformly accepted by the Framers. Presentment to the President and the Presidential veto were considered so imperative that the draftsmen took special pains to assure that these requirements could not be circumvented [...] 

The decision to provide the President with a limited and qualified power to nullify proposed legislation by veto was based on the profound conviction of the Framers that the powers conferred on Congress were the powers to be most carefully circumscribed. It is beyond doubt that lawmaking was a power to be shared by both Houses and the President [...] 

The President’s role in the lawmaking process also reflects the Framers’ careful efforts to check whatever propensity a particular Congress might have to enact oppressive, improvident, or ill-considered measures [...] 

Bicameralism

The bicameral requirement of Art. I, §§ 1, 7, was of scarcely less concern to the Framers than was the Presidential veto and indeed the two concepts are interdependent. By providing that no law could take effect without the concurrence of the prescribed majority of the Members of both Houses, the Framers reemphasized their belief, already remarked upon in connection with the Presentment Clauses, that legislation should not be enacted unless it has been carefully and fully considered by the Nation's elected officials [...] 

It emerges clearly that the prescription for legislative action in Art. I, §§ 1, 7, represents the Framers’ decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure [...]

Examination of the action taken here by one House pursuant to § 244(c)(2) reveals that it was essentially legislative in purpose and effect. In purporting to exercise power defined in Art. I, § 8, cl. 4, to “establish an uniform Rule of Naturalization,” the House took action that had the purpose and effect of altering the legal rights, duties, and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the Legislative Branch. Section 244(c)(2) purports to authorize one House of Congress to require the Attorney General to deport an individual alien whose deportation otherwise would be canceled under § 244. The one-House veto operated in these cases to overrule the Attorney General and mandate Chadha’s deportation; absent the House action, Chadha would remain in the United States. Congress has acted and its action has altered Chadha’s status [...]

The nature of the decision implemented by the one-House veto in these cases further manifests its legislative character. After long experience with the clumsy, time-consuming private bill procedure, Congress made a deliberate choice to delegate to the Executive Branch, and specifically to the Attorney General, the authority to allow deportable aliens to remain in this country in certain specified circumstances. It is not disputed that this choice to delegate authority is precisely the kind of decision that can be implemented only in accordance with the procedures set out in Art. I. Disagreement with the Attorney General’s decision on Chadha’s deportation — that is, Congress’ decision to deport Chadha — no less than Congress’ original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked [...]

Clearly, when the [Constitution’s] Draftsmen sought to confer special powers on one House, independent of the other House, or of the President, they did so in explicit, unambiguous terms. These carefully defined exceptions from presentment and bicameralism underscore the difference between the legislative functions of Congress and other unilateral but important and binding one-House acts provided for in the Constitution. These exceptions are narrow, explicit, and separately justified; none of them authorize the action challenged here. On the contrary, they provide further support for the conclusion that congressional authority is not to be implied and for the conclusion that the veto provided for in § 244(c)(2) is not authorized by the constitutional design of the powers of the Legislative Branch.

Since it is clear that the action by the House under § 244(c)(2) was not within any of the express constitutional exceptions authorizing one House to act alone, and equally clear that it was an exercise of legislative power, that action was subject to the standards prescribed in Art. I [...] 

We hold that the congressional veto provision in § 244(c)(2) is severable from the Act and that it is unconstitutional.

NOTICE & COMMENT

Decolonizing Chadha, by Rebecca Bratspies 

The protest movement that coalesced this summer around #BlackLivesMatter galvanized a long overdue public conversation about race in the United States. Students across the country are demanding that their professors reexamine their textbooks and revise their course materials to grapple with the ways that structural racism has shaped our various disciplines. Administrative law is no exception to this long overdue trend. 

Many key administrative law cases have profound racial subtexts that reading the case alone would not reveal. It was not “students” who objected to corporal punishment in Ingraham v. Wright, it was the Black students who were and remain overwhelmingly more likely to be subjected to this degrading and painful punishment despite not being more likely to misbehave in school. All of the students suspended for “disobedient conduct” in Goss v. Lopez were Black, and the “widespread disturbance” for which they were suspended was actually Black History Week.  Left out of Board of Regents v. Roth is the fact that Mr. Roth was not reappointed to Oskhosh University because he spoke out against to the mass suspension of 94 Black students. Reading just the opinions, students would never know how racially fraught these cases are—the Supreme Court omitted the racial context as though it were irrelevant to the “real” legal issues at stake. This choice of ignoring the racial backstory to key cases often masquerades as even-handed legal neutrality. But editing out the lived reality of the parties and the context in which their dispute arose is actually a highly political choice, one that normalizes the perspective of the white, cis-gendered, middle class male as value-free, objective and neutral. My colleague Natalie Gomez-Velez’s contribution to this symposium documents the harm this faux neutrality inflicts on marginalized students. 

This insight is not new. Kimberlé Crenshaw has criticized what she labeled the “perspectiveless mode” of legal analysis for decades. Administrative law has been remarkably resistant to this critique. Cases and textbooks follow the Supreme Court’s lead of erasing the fraught racial and social context of key decisions. Students are introduced to administrative law not as the frontline of social struggle, but as a highly technical, arcane field whose purpose is to apply neutral, a priori rules. Class discussions can be limited to how various sets of facts should be interpreted in light of those rules. By this simple tactic of centering the discussion elsewhere, critiques raising systemic injustice can be easily shunted aside as “unlawyerly.” Students bring this mindset with them into practice, which results in a climate in which, as my colleague Julia Hernandez wrote, “raising racial inequities or unfairness in individual cases, even when specific examples exist, is highly discouraged and disfavored.”

Many of us deploy some form of this perspectiveless mode of administrative laws because it is how we were taught, and it feels comfortable and safe. Many of us, especially those who are white, may have had little experience or training discussing race and may be afraid of student reactions. Yet, we must do better. When we obscure how administrative law participates in and perpetuates white supremacy, we are ourselves ratifying that system. So I was delighted when Kati Kovacs launched a conversation about structural racism in administrative law on the administrative law prof listserv, which subsequently morphed into this series of blog posts. Law professors have a moral obligation to recognize the unique burdens the so-called perspectiveless mode of administrative law puts on our students, especially our students of color. We have an equal obligation to teach white students that systemic racism is encoded in the relationship between legal rules and social reality. 

To that end, I offer some thoughts on the 1983 Supreme Court decision INS v. Chadha. The Chadha case is discussed in just about every administrative law class to highlight the limits on Congress’s Article I powers. Interpreting the Bicameralism and Presentment Clauses, the Chadha majority concluded that one-house legislative vetoes unconstitutionally violate separation of powers. Justice Powell, who concurred in the result acknowledged that “the breadth of this holding gives one pause” because Congress had included more than 300 legislative vetoes in over 200 federal laws. Writing in dissent, Justice White accused the majority of “striking down in one fell swoop more laws than the court had cumulatively invalidated in its history.”  After the Supreme Court handed down its 7-2 ruling, Chadha commented “now, as long as the republic of the United States lives, the law students will all study my case.”

Yet, most casebooks include virtually no information about Jagdish Rai Chadha or about how he found himself in the situation that gave rise to this case. When he appeared before United States courts to defend himself against deportation, there was literally nowhere for him to go because Mr. Chadha was stateless. He had no nationality. A racist, colonial system of citizenship had expelled and disowned him.  When professors ignore that reality in favor of bicameralism and presentment they miss an opportunity to interrogate the erasure of issues of race in the administrative law setting. Chadha brings to life Ian Haney Lopez’s assertion that “law not only constructs race, race constructs law.”

Mr. Chadha could be any one of our students—a college educated, ambitious person, with no ties to anything that might make him seem “undesirable” in the eyes of a government. Reading him back into the case creates an opportunity to discuss how seemingly neutral law cloaks the racial politics surrounding articulations of citizenship, a point Ming Hsu Chen makes elegantly in her contribution to this symposium. Including Mr. Chadha’s story better prepares students to see issues of race and justice as the thread linking administrative disputes that are often presented as colorblind and unconnected. 

The Chadha opinion begins: 

Chadha is an East Indian who was born in Kenya and holds a British passport. He was lawfully admitted to the United States in 1966 on a nonimmigrant student visa. His visa expired on June 30, 1972. On October 11, 1973, the District Director of the Immigration and Naturalization Service ordered Chadha to show cause why he should not be deported for having “remained in the United States for a longer time than permitted.” 

This paragraph elides as much as it informs—leaving out the swirling drama of Kenyan independence that forms the backdrop for this case. To students in 2020, the existence of Kenya as a country is a fact that needs no interrogation. They have lived their entire lives in a world where Kenya is an independent country.  But that was not Mr. Chadha’s experience. When Mr. Chadha left Nairobi for Ohio, Kenya was a newly-minted member of the United Nations.

The Kenya Mr. Chadha was born into was a settler colony. Its residents were forced to navigate the multilayered racial hierarchies that British colonial rule used to dole out privilege. In Kenya, and elsewhere, British imperialism leveraged power by pitting ethnic, racial and religious groups against each other. My colleague Chaumtoli Huq has written about decolonial pedagogy.  Read through this decolonial lens, Chadha adds significantly to the administrative law classroom. 

Chadha’s experiences were embedded in the decolonial moment. After years of struggle, Kenya became independent in late 1963, with Jomo Kenyatta as its first president. At that moment of independence, Kenya had to address the Aristotelian question of “who is a citizen?” Reacting to the oppressive racial classifications at the heart of British imperialism, Kenya’s 1963 Constitution granted automatic citizenship to those born in Kenya so long as one parent had also been born in Kenya. That important caveat was aimed squarely at Kenya’s largely Asian mercantile class. Chadha’s family fell into this excluded group. 

Like so many others with ancestral ties to the Indian subcontinent, Mr. Chadha’s family had wound up in Kenya because it was a British colony. They were part of the forced migration of intellectual capital that Lisa Patel describes as integral to British settler colonialism. Chadha’s father had been born in South Africa, his mother in India. Thus, even though Mr. Chadha had been born and raised in Nairobi, Kenya did not automatically recognize him as a citizen. 

 (Many of the details about Mr. Chadha’s family and personal history come from the fabulous book Chadha: The Story of an Epic Constitutional Struggle. The first chapter details Chadha’s backstory).

Instead, Kenya’s Constitution gave Mr. Chadha the opportunity “upon making application before the specified date in such manner as may be prescribed by or under an Act of Parliament, to be registered as a citizen of Kenya.” Over a quarter million people found themselves in this situation—obliged either to leave the country they were born in or to try to apply for Kenyan citizenship and surrender their British passports. Mr. Chadha applied for citizenship. 

The citizenship process was lengthy and tangled. Multi-year delays were not uncommon. While his application was still pending, Mr. Chadha was admitted to Ohio Bowling Green State University. Kenyan authorities advised him to travel to the United States on his British passport rather than delay his matriculation. Once Mr. Chadha had done so, however, Kenya washed its hands of him, declaring that by using his British passport he had forfeited his opportunity to obtain Kenyan citizenship. Britain meanwhile rushed to adopt the 1968 Commonwealth Immigrants Act explicitly to prevent Kenyans with ancestral roots in the Indian subcontinent from leaving Kenya for the British Isles. By the time Mr. Chadha had completed his studies, the British Parliament had enacted the 1971 Immigration Act, which stripped most of its former colonial subjects of their right of abode in Britain. 

Because Mr. Chadha was neither black enough for Kenya, nor white enough for Britain, both disclaimed him. Mr. Chadha was rendered stateless because of his race and ethnicity. This was why Mr. Chadha found himself in a United States Immigration and Naturalization Service office seeking a United States work permit or some other means of regularizing his status. Instead, Chadha was detained, fingerprinted, and designated deportable. At his statutory hearing, the British Consulate and the Kenyan Embassy sent letters stating that neither country was willing to accept him. The Immigration Judge even inquired whether Mr. Chadha could be deported to India—a country he had never set foot in. However, India and Pakistan opposed Britain’s racist Immigration Act and insisted that British passport holders were Britain’s responsibility. No nation was willing to claim Mr. Chadha.  

Mr. Chadha was not a Kenyan citizen because of Kenya’s highly political choices; he was not a British citizen because of the United Kingdom’s different set of highly political choices—there was nothing neutral or inherent about the situation. Knowing this backstory, my students frequently express strong feelings about the legal choices Kenya and the United Kingdom made. Mr. Chadha’s experience forces them to grapple with the relevant laws and regulations as a series of intentional racialized policy choices, rather than merely viewing them as neutral a priori rules to be accepted and applied. Once made, this realization is difficult to unsee. With their “perspectiveless” bubble burst, students see how administrative laws and regulations can provide a veneer of neutrality to many other racialized and discriminatory choices. Of course, many students already bring this perspective with them into administrative law, especially students of color with first-hand experience of how neutrality can cloak discrimination. Chadha legitimizes their perspective as relevant to the ordinary discourse of an administrative law class, thereby opening space for their voices to be heard and considered. Chadha also forces their white compatriots (including me) to confront some uncomfortable truths about their own white privilege.  

Students use this experience to explore the racial subtexts throughout administrative law more thoroughly, which creates a natural opportunity to consider alternative choices and structures. Having seen Mr. Chadha’s citizenship constructed and deconstructed before their eyes, students approach the DACA cases, Trump v. Hawaii, and so many other administrative law cases with new appreciation for the artificiality of absolute regulatory lines. Moreover, by fostering student appreciation for the racialized nature of citizenship, the magnitude of deportation’s consequences, and the unequal burdens of whose citizenship needs proving, Chadha can lay the groundwork for a richer discussion of the litigation over the proposed inclusion of a citizenship question in the 2020 census case. Without appreciating the racialized context, and the overtly racist intentions behind the question, it is more difficult for students to understand the Supreme Court’s decision. 

The fact that Mr. Chadha was lawfully admitted to the United States in 1966 on a nonimmigrant student visa provides another opportunity to dig deeper into the intersection between administrative law, politics, and racial injustice. On July 7, ICE announced that all students on nonimmigrant student visas must leave the country if their schools did not provide in-person classes. Mr. Chadha’s status as holder of such a visa offers a window to discuss what this new rule would have meant for him and offers a gateway to discussing what it meant for the one million affected students whose lives were thrown into chaos, over half of whom come from China and India. A significant portion of these students faced travel restrictions that would have made it impossible for them to return home, putting them in a situation analogous to Mr. Chadha. Moreover, this new ICE rule (subsequently rescinded in the face of legal challenge) was issued as an “interim final rule,” offering the instructor the opportunity to review the ramifications of agency misuse of exceptions to Section 553 rulemaking to shut off discussion of important social consequences of discretionary agency decisions.   

Post-script: In 1984, Chadha became a citizen of the United States. He and his wife settled in in Northern California and raised their children there. As far as I know, they are still living something close to happily ever after. It is important to remind students that there can be happy endings. 

Rebecca Bratspies is a professor at CUNY School of Law where she runs the Center for Urban Environmental Reform (CUER). Follow her on Twitter here.  Follow CUER on Twitter here. 

While Congress has a lot of leeway to delegate legislative authority to agencies, it has little ability to disapprove of agency decisions. Imagine if Congress could both delegate authority to agencies to make decisions, and then change the outcome of those decisions after they are made. That would be a huge amount of power for one branch of government (the legislature) to have.

Congress has passed some limited legislation granting itself the ability to overturn final rules issues by federal agencies. The Congressional Review Act (CRA) of 1996 gives Congress a chance to disapprove of an agency’s final rule. Under this law, Congress can pass a joint resolution by simple majority of disapproval within sixty days after Congress receives a final rule.

The CRA may be implemented at any time. For example, for a rule issued in September 2021, Congress would have its usual 60-day window of review under the CRA. However, with the polarized political climate, 60-day“lookback window under the CRA has garnered greater attention. Because both houses of Congress (e.g. the House and Senate) and the President have to agree to overturn regulation through the Congressional Review Act, it will likely only be invoked successfully to overturn regulations finalized after elections that hails in a Congress controlled by the same party as a new President.

For instance, before 2017, the Congressional Review Act had only been invoked once to overturn an agency regulation. However, after Trump was elected in 2016, the Republican House and Congress swiftly passed fifteen joint resolutions to overturn Obama-era regulations. In the wake of those resolutions, several legislators tried to get rid of the Congressional Review Act, but did not succeed.

Steven J. Ball, Bridget C.E. Dooling, and Danial R. Pérez discuss the CRA Process in their working paper, Beyond Republicans and Disapproval of Regulations: The Institutionalization of the Congressional Review Act, March 21, 2001, Regulatory Studies Center, The George Washington University: 

THE CRA Process 

"The process of disapproving regulations under the CRA is relatively straightforward (Carey and Davis 2020, Copeland and Beth 2008, Pérez 2019). Agencies are required to submit promulgated rules to Congress and the Government Accountability Office. This submission opens a period of 60 working days during which expedited procedures are available for the disapproval of regulations.

Resolutions of disapproval introduced during this period require simple majorities for passage in both chambers of Congress. Although resolutions are assigned to committees of jurisdiction, the threshold for discharging Senate committees is lower than for ordinary legislation. Floor debates in the Senate are limited to ten hours, amendments to resolutions are not permitted, and filibusters are prohibited. A regulation is disapproved when a resolution is passed by both chambers and signed by the president, or when Congress overrides a presidential veto with two-thirds majorities.

The CRA includes a provision pertaining specifically to the transition from one Congress to the next. If a regulation is submitted fewer than 60 working days prior to the adjournment of a Congress, then a new review period is automatically established in the subsequent Congress. All such rules are treated, for purposes of the CRA, as if they had been submitted on the 15th working day of the succeeding Congress, at which point a 60-day window for review commences. This reset feature makes it possible for legislators to disapprove regulations in the months following presidential transitions (i.e., after the issuing administration has left office).

The CRA states that disapproved regulations “may not be reissued in substantially the same form.” This provision has generated considerable attention, given uncertainty regarding the operational meaning of “substantially the same” (Carey and Davis 2021, Cole 2018, Dude 2019). The Department of Labor (DOL) has never promulgated a revised ergonomics rule (Finkel and Sullivan 2011). In 2019, however, the DOL reissued a rule on drug testing of unemployment compensation applicants that had been nullified at the outset of the Trump administration (Carey 2019b). To date, the only other example of a disapproved rule being reissued is a 2021 Securities and Exchange Commission action on payments for commercial development of oil, minerals, and natural gas. In both instances, the agencies included detailed explanations arguing that the reissued rules were different enough so as not to run afoul of the CRA’s “substantially the same” provision (Carey and Davis 2021)." 

 ***

While the Supreme Court has not assessed the constitutionality of the Congressional Review Act (CRA), the Supreme Court has declared legislative veto power (the ability for Congress to veto agency decisions) unconstitutional in Immigration and Naturalization Service v. Chadha, which led to the passage of the CRA. 

A. Appointment Powers 

The President is responsible for appointing Officers of the United States. Article II, Section 2, clause 2 of the U.S. Constitution distinguishes “Officers of the United States” from “inferior Officers.” It is sometimes referred to as the "Appointments Clause." In this class, we will see how courts differentiate between Officers of the United States, which must be nominated by the President and confirmed by the Senate, and inferior Officers, who can be appointed by the President, Courts, or Department Heads, depending on what Congress decides.

Article II, Section 2 of the U.S. Constitution defines the two categories of Officers this way:

-Officers of the United States: The President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges, of the Supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.”

- Inferior Officers:  Do not need Senate Confirmation-- “Congress may by Law vest the appointment of such inferior Officers, as they think proper, in the President alone, and in the Courts of Law, or in the Heads of Departments.”

In this class, we cover Buckley v. Valeo, a landmark case which limited the power of Congress to appoint government officers. We then explore Lucia v. SEC, 138 S.Ct. 2044 (2018), which addresses the issue of  whether Administrative Law Judges are inferior officers under the Appointments Clause. There may be students in the class who have been in front of, represented clients before, or have had some legal interaction with an ALJ. Without question, ALJ's are a solid foundation in poverty law advocacy and wield a tremendous amount of power. 

Administrative Law Judges are independent decision-makers within an agency who only preside over claims or disputes that involve administrative law. In sum, they preside over  administrative hearings in which parties adversely affected by particular regulations can raise objections. They act as both the judge and the trier-of-fact. The power and scope of ALJs vary by state (most states use the APA to mirror its state law that governs ALJs—so states can give ALJs a greater/less scope or more/less power than is prescribed by the APA). 

ALJs are not appointed under Article III of the Constitution (meaning they are not lifetime-tenured federal judges), but share many of the same powers, as enumerated in  APA § 556 (e.g. issuing subpoenas, conferring with parties, regulate hearings, hold settlement conferences). There are state and federal ALJs. ALJs are technically employees of the agency (yes, seems strange), who are tasked with making impartial decisions. The APA provides guidelines designed to ensure the impartiality and independent judgement of ALJs. 5 U.S.C. §§ 554a, 1305, 3105, 3344, 5372, 7521.

Despite statutory guidance to more strongly ensure ALJ independence, there is long-standing critique around ALJ bias. ALJ bias disproportionately impacts people who live at the intersection of race, disability, and poverty:  Social Security Administration ALJs make up 86% of all ALJs: this article refers to non-ALJ judges. We do not discuss non-ALJ judges this semester. Commonly referred to as "Administrative Judges," AJs do not have to follow the APA. Yet, they also wield a tremendous about of power. AJs, for example, include, Immigration Judges. 

B. Removal Powers

While the Constitution explicitly assigns appointment powers, it is silent about the power to remove Officers of the United States (“executive officers”) and inferior Officers. The Supreme Court has interpreted Article II, Section 2 to imply that the President has more power to remove officers without the advice and consent of Congress than to appoint them. However, the President’s removal power is not unlimited, and Congress can limit the President’s removal power by statute when there is good cause to do so.
 

Two cases in the early 1900’s grappled with the President’s removal powers. (These cases lay the groundwork for the cases we will read today.): 

 Myers v. United States (1926) determined whether President Wilson could dismiss a postmaster without the Senate’s concurrence despite language in a federal law that provided that postmasters could only be removed with “the advice and consent of the Senate.” The Court decided that the law unconstitutionally limited the President’s removal power, and that a postmaster could be dismissed without the advice and consent of the Senate. In its opinion, the Court reasoned that “the power to prevent the removal of an officer who has served under the President is different from the authority to consent or reject his appointment. When a nomination is made, it may be presumed that the Senate is, or may become, as well advised to the fitness of the nominee as the President, but in the nature of things the defects in ability or intelligence or loyalty in the administration of the laws of one who has served as an officer under the President are facts as to which the President, or his trusted subordinates, must be better informed than the Senate [...]” 

Myers seemed to grant unlimited removal power to the President. The Supreme Court Limited this power in Humphrey’s Executor v. United States (1935).   When President Franklin Roosevelt removed Commissioner William Humphrey of the Federal Trade Commission who had been appointed by the previous President, the Commissioner’s estate sued for back pay, alleging that Humphrey’s dismissal was illegal. 

In Humphrey’s Executor, the Court limited Roosevelt’s removal power, holding that he’d acted beyond his constitutional powers. President Roosevelt dismissed Humphrey because their views about trade diverged, and the President felt “the work of the Commission [could] be carried out most effectively” with personnel that he chose himself. However, the statute said that a Commissioner could only be removed for “inefficiency, neglect of duty or malfeasance in office.” 

The Humphrey Court distinguished this case from Myers, explaining that a postmaster is solely an executive office, where an FTC Commissioner has duties and powers related to legislative and judicial powers. The FTC was “created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specific duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. It’s duties [...] must be free from executive control.” The Court reasoned that, in this case, the Commissioner’s role was both quasi-legislative and quasi-judicial. The Court must consider the “nature of the office” and limit the President’s removal powers when an office is performing duties that are legislative or judicial in nature.

We will read four cases that evoke the nuanced analyses SCOTUS provides in determining removal powers. Morrison v. Olson, 487 U.S. 654 (1988) is an expansive case that discusses both the power of appointment and the limitations of Presidential removal powers. Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010) and Seila Law v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020) further demonstrate the limitations on the President’s removal powers.

These appeals present constitutional challenges to the key provisions of the Federal Election Campaign Act of 1971 (Act), and related provisions of the Internal Revenue Code of 1954, all as amended in 1974.

The Court of Appeals, in sustaining the legislation in large part against various constitutional challenges, viewed it as “by far the most comprehensive reform legislation (ever) passed by Congress concerning the election of the President, Vice-President, and members of Congress.” The statutes at issue summarized in broad terms, contain the following provisions: (a) individual political contributions are limited to $1,000 to any single candidate per election, with an overall annual limitation of $25,000 by any contributor; independent expenditures by individuals and groups “relative to a clearly identified candidate” are limited to $1,000 a year; campaign spending by candidates for various federal offices and spending for national conventions by political parties are subject to prescribed limits; (b) contributions and expenditures above certain threshold levels must be reported and publicly disclosed; (c) a system for public funding of presidential campaign activities is established by Subtitle H of the Internal Revenue Code; and (d) a Federal Election Commission is established to administer and enforce the legislation.* * *

[The Justices divided in complicated ways in their views with respect to many of the issues raised, but they were unanimous with respect to the views expressed in section IV of the opinion. Eds.]

IV.THE FEDERAL ELECTION COMMISSION

The 1974 amendments to the Act create an eight-member Federal Election Commission (Commission) and vest in it primary and substantial responsibility for administering and enforcing the Act. The 213question that we address in this portion of the opinion is whether, in view of the manner in which a majority of its members are appointed, the Commission may under the Constitution exercise the powers conferred upon it.

* * *

Chapter 14 of Title 2 makes the Commission the principal repository of the numerous reports and statements which are required by that chapter to be filed by those engaging in the regulated political activities. Its duties . . . with respect to these reports and statements include filing and indexing, making them available for public inspection, preservation, and auditing and field investigations. It is directed to “serve as a national clearinghouse for information in respect to the administration of elections.” Federal Election Campaign Act of 1971, 2 U.S.C. § 438(b).

Beyond these recordkeeping, disclosure, and investigative functions, however, the Commission is given extensive rulemaking and adjudicative powers. * * *

The Commission’s enforcement power is both direct and wide ranging. * * *

The body in which this authority is reposed consists of eight members. The Secretary of the Senate and the Clerk of the House of Representatives are ex officio members of the Commission without the right to vote. Two members are appointed by the President pro tempore of the Senate “upon the recommendations of the majority leader of the Senate and the minority leader of the Senate.” Two more are to be appointed by the Speaker of the House of Representatives, likewise upon the recommendations of its respective majority and minority leaders. The remaining two members are appointed by the President. Each of the six voting members of the Commission must be confirmed by the majority of both Houses of Congress, and each of the three appointing authorities is forbidden to choose both of their appointees from the same political party.

Appellants argue that given the Commission’s extensive powers the method of choosing its members  * * * runs afoul of the separation of powers embedded in the Constitution, and urge that as presently constituted the Commission’s “existence be held unconstitutional by this Court.” * * *

Appellants urge that since Congress has given the Commission wide-ranging rulemaking and enforcement powers with respect to the substantive provisions of the Act, Congress is precluded under the principle of separation of powers from vesting in itself the authority to appoint those who will exercise such authority. Their argument is based on the language of Art. II, § 2, cl. 2, of the Constitution, which provides in pertinent part as follows:

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all other Officers of the United States, whose Appointments are not herein 214otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Appellants’ argument is that this provision is the exclusive method by which those charged with executing the laws of the United States may be chosen. Congress, they assert, cannot have it both ways. If the Legislature wishes the Commission to exercise all of the conferred powers, then its members are in fact “Officers of the United States” and must be appointed under the Appointments Clause. But if Congress insists upon retaining the power to appoint, then the members of the Commission may not discharge those many functions of the Commission which can be performed only by “Officers of the United States,” as that term must be construed within the doctrine of separation of powers.

Appellee Commission and amici in support of the Commission urge that the Framers of the Constitution, while mindful of the need for checks and balances among the three branches of the National Government, had no intention of denying to the Legislative Branch authority to appoint its own officers. Congress, either under the Appointments Clause or under its grants of substantive legislative authority and the Necessary and Proper Clause in Art. I, is in their view empowered to provide for the appointment to the Commission in the manner which it did because the Commission is performing “appropriate legislative functions.”* * *

We think that the term “Officers of the United States” as used in Art. II, defined to include “all persons who can be said to hold an office under the government” in United States v. Germaine, 99 U.S. 508 (1879), is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an “Officer of the United States,” and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.

If “all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment,” United States v. Germaine, 99 U.S. 508, it is difficult to see how the members of the Commission may escape inclusion. If a postmaster first class, Myers v. United States, 272 U.S. 52 (1926), and the clerk of a district court, Ex parte Hennen, 38 U.S. (13 Pet.) 225 (1839), are inferior officers of the United States within the meaning of the Appointments Clause, as they are, surely the Commissioners before us are at the very least such “inferior Officers” within the meaning of that Clause.

Although two members of the Commission are initially selected by the President, his nominations are subject to confirmation not merely by the Senate, but by the House of Representatives as well. The remaining four voting members of the Commission are appointed by the President pro tempore of the Senate and by the Speaker of the House. While the second part of the Clause authorizes Congress to vest the appointment of the officers described in that part in “the Courts of Law, or in the Heads of Departments,” neither the Speaker of the House nor the President pro tempore of the Senate comes within this language.

The phrase “Heads of Departments,” used as it is in conjunction with the phrase “Courts of Law,” suggests that the Departments referred to are themselves in the Executive Branch or at least have some connection with that branch. While the Clause expressly authorizes Congress to vest the appointment of certain officers in the “Courts of Law,” the absence of similar language to include Congress must mean that neither Congress nor its officers were included within the language “Heads of Departments” in this part of cl. 2.

Thus with respect to four of the six voting members of the Commission, neither the President, the head of any department, nor the Judiciary has any voice in their selection.

The Appointments Clause specifies the method of appointment only for “Officers of the United States” whose appointment is not “otherwise provided for” in the Constitution. But there is no provision of the Constitution remotely providing any alternative means for the selection of the members of the Commission or for anybody like them.* * *

Thus, on the assumption that all of the powers granted in the statute may be exercised by an agency whose members have been appointed in accordance with the Appointments Clause, the ultimate question is which, if any, of those powers may be exercised by the present voting Commissioners, none of whom was appointed as provided by that Clause. * * *

[T]he Commission’s powers fall generally into three categories: functions relating to the flow of necessary information—receipt, dissemination, and investigation; functions with respect to the Commission’s task of fleshing out the statute—rulemaking and advisory opinions; and functions necessary to ensure compliance with the statute and rules—informal procedures, administrative determinations and hearings, and civil suits.Insofar as the powers confided in the Commission are essentially of an investigative and informative nature, falling in the same general category as those powers which Congress might delegate to one of its own committees, there can be no question that the Commission as presently constituted may exercise them. * * *216

But when we go beyond this type of authority to the more substantial powers exercised by the Commission, we reach a different result. The Commission’s enforcement power, exemplified by its discretionary power to seek judicial relief, is authority that cannot possibly be regarded as merely in aid of the legislative function of Congress. A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3.* * *

We hold that these provisions of the Act, vesting in the Commission primary responsibility for conducting civil litigation in the courts of the United States for vindicating public rights, violate Art. II, § 2, cl. 2, of the Constitution. Such functions may be discharged only by persons who are “Officers of the United States” within the language of that section.

All aspects of the Act are brought within the Commission’s broad administrative powers: rulemaking, advisory opinions, and determinations of eligibility for funds and even for federal elective office itself. These functions, exercised free from day-to-day supervision of either Congress or the Executive Branch, are more legislative and judicial in nature than are the Commission’s enforcement powers, and are of kinds usually performed by independent regulatory agencies or by some department in the Executive Branch under the direction of an Act of Congress. Congress viewed these broad powers as essential to effective and impartial administration of the entire substantive framework of the Act. Yet each of these functions also represents the performance of a significant governmental duty exercised pursuant to a public law. While the President may not insist that such functions be delegated to an appointee of his removable at will, Humphrey’s Executor v. United States, 295 U.S. 602 (1935), none of them operates merely in aid of congressional authority to legislate or is sufficiently removed from the administration and enforcement of public law to allow it to be performed by the present Commission. These administrative functions may therefore be exercised only by persons who are “Officers of the United States.”

* Case adapted from Federal Administrative Law, Cases and Materials, Fourth Edition, Kirstin E. Hickman, Richard J. Pierce, Jr., Christopher J. Walker, Foundation Press (2023).

Lucia v. Securities and Exchange Commission

138 S.Ct. 2044 (2018)

Justice KAGAN delivered the opinion of the Court.

[The Securities and Exchange Commission (“SEC” or “Commission”) has statutory authority to enforce the nation’s securities laws. One way it can do so is by instituting an administrative proceeding against an alleged wrongdoer. Typically, the Commission delegates the task of presiding over such a proceeding to an administrative law judge (ALJ). The SEC currently has five ALJs. Other staff members, rather than the Commission proper, selected them all. An ALJ assigned to hear an SEC enforcement action has the “authority to do all things necessary and appropriate” to ensure a “fair and orderly” adversarial proceeding. After a hearing ends, the ALJ issues an initial decision. The Commission can review that decision, but if it opts against review, it issues an order that the initial decision has become final. 

The SEC charged Raymond Lucia with violating certain securities laws and assigned ALJ Cameron Elliot to adjudicate the case. Following a hearing, Judge Elliot issued an initial decision concluding that Lucia had violated the law and imposing sanctions. On appeal to the SEC, Lucia argued that the administrative proceeding was invalid because Judge Elliot had not been constitutionally appointed. According to Lucia, SEC ALJs are “Officers of the United States” and thus subject to the Appointments Clause. Under that Clause, only the President, Courts of Law, or Heads of Departments can appoint such “Officers.” But none of those actors had made Judge Elliot an ALJ. The SEC and the Court of Appeals for the D.C. Circuit rejected Lucia's argument, holding that SEC ALJs are not “Officers of the United States,” but are instead mere employees—officials who are not subject to the Appointments Clause.]

The Appointments Clause of the Constitution lays out the permissible methods of appointing “Officers of the United States,” a class of government officials distinct from mere employees. Art. II, § 2, cl. 2. This case requires us to decide whether administrative law judges (ALJs) of the Securities and Exchange Commission (SEC or Commission) qualify as such “Officers.” In keeping with Freytag v. Commissioner, 501 U.S. 868 (1991), we hold that they do.

The SEC has statutory authority to enforce the nation’s securities laws. One way it can do so is by instituting an administrative proceeding against an alleged wrongdoer. By law, the Commission may itself preside over such a proceeding. But the Commission also may, and typically does, delegate that task to an ALJ. The SEC currently has five ALJs. Other staff members, rather than the Commission proper, selected them all. 

An ALJ assigned to hear an SEC enforcement action has extensive powers— the “authority to do all things necessary and appropriate to discharge his or her duties” and ensure a “fair and orderly” adversarial proceeding. Those powers “include, but are not limited to,” supervising discovery; issuing, revoking, or modifying subpoenas; deciding motions; ruling on the admissibility of evidence; administering oaths; hearing and examining witnesses; generally “[r]egulating the course of" the proceeding and the “conduct of the parties and their counsel”; and imposing sanctions for “[c]ontemptuous conduct” or violations of procedural requirements. As that list suggests, an SEC ALJ exercises authority “comparable to” that of a federal district judge conducting a bench trial. 

After a hearing ends, the ALJ issues an “initial decision.” That decision must set out “findings and conclusions” about all “material issues of fact [and] law”; it also must include the “appropriate order, sanction, relief, or denial thereof.” The Commission can then review the ALJ’s decision, either upon request or sua sponte. But if it opts against review, the Commission “issue[s] an order that the [ALJ's] decision has become final.” At that point, the initial decision is “deemed the action of the Commission.”

This case began when the SEC instituted an administrative proceeding against petitioner Raymond Lucia and his investment company. Lucia marketed a retirement savings strategy called “Buckets of Money.” In the SEC’s view, Lucia used misleading slideshow presentations to deceive prospective clients. The SEC charged Lucia under the Investment Advisers Act and assigned ALJ Cameron Elliot to adjudicate the case. After nine days of testimony and argument, Judge Elliot issued an initial decision concluding that Lucia had violated the Act and imposing sanctions, including civil penalties of $300,000 and a lifetime bar from the investment industry. In his decision, Judge Elliot made factual findings about only one of the four ways the SEC thought Lucia's slideshow misled investors. The Commission thus remanded for factfinding on the other three claims, explaining that an ALJ’s “personal experience with the witnesses” places him “in the best position to make findings of fact” and “resolve any conflicts in the evidence.” Judge Elliot then made additional findings of deception and issued a revised initial decision, with the same sanctions. 

On appeal to the SEC, Lucia argued that the administrative proceeding was invalid because Judge Elliot had not been constitutionally appointed. According to Lucia, the Commission's ALJs are “Officers of the United States” and thus subject to the Appointments Clause. Under that Clause, Lucia noted, only the President, “Courts of Law,” or “Heads of Departments” can appoint “Officers.” And none of those actors had made Judge Elliot an ALJ. To be sure, the Commission itself counts as a “Head[ ] of Department[ ].” But the Commission had left the task of appointing ALJs, including Judge Elliot, to SEC staff members. As a result, Lucia contended, Judge Elliot lacked constitutional authority to do his job.

The Commission rejected Lucia’s argument. It held that the SEC’s ALJs are not “Officers of the United States.” Instead, they are “mere employees”—officials with lesser responsibilities who fall outside the Appointments Clause’s ambit. The Commission reasoned that its ALJs do not “exercise significant authority independent of [its own] supervision.” Because that is so (said the SEC), they need no special, high-level appointment. 

Lucia’s claim fared no better in the Court of Appeals for the D.C. Circuit. A panel of that court seconded the Commission’s view that SEC ALJs are employees rather than officers, and so are not subject to the Appointments Clause [...] That decision conflicted with one from the Court of Appeals for the Tenth Circuit. 

Lucia asked us to resolve the split by deciding whether the Commission’s ALJs are “Officers of the United States within the meaning of the Appointments Clause.” Up to that point, the Federal Government (as represented by the Department of Justice) had defended the Commission’s position that SEC ALJs are employees, not officers […] We now reverse.

II

The sole question here is whether the Commission’s ALJs are “Officers of the United States” or simply employees of the Federal Government. The Appointments Clause prescribes the exclusive means of appointing “Officers.” Only the President, a court of law, or a head of department can do so [...] 

Two decisions set out this Court’s basic framework for distinguishing between officers and employees. Germaine held that “civil surgeons” (doctors hired to perform various physical exams) were mere employees because their duties were “occasional or temporary” rather than “continuing and permanent.” Stressing “ideas of tenure [and] duration,” the Court there made clear that an individual must occupy a “continuing” position established by law to qualify as an officer. Buckley then set out another requirement, central to this case. It determined that members of a federal commission were officers only after finding that they “exercis[ed] significant authority pursuant to the laws of the United States.” The inquiry thus focused on the extent of power an individual wields in carrying out his assigned functions.

[…] In Freytag v. Commissioner, 501 U.S. 868 (1991), we applied the unadorned “significant authority” test to adjudicative officials who are near-carbon copies of the Commission’s ALJs. As we now explain, our analysis there (sans any more detailed legal criteria) necessarily decides this case.

The officials at issue in Freytag were the “special trial judges” (STJs) of the United States Tax Court. The authority of those judges depended on the significance of the tax dispute before them. In “comparatively narrow and minor matters,” they could both hear and definitively resolve a case for the Tax Court. In more major matters, they could preside over the hearing, but could not issue the final decision; instead, they were to “prepare proposed findings and an opinion” for a regular Tax Court judge to consider. The proceeding challenged in Freytag was a major one, involving $1.5 billion in alleged tax deficiencies. After conducting a 14-week trial, the STJ drafted a proposed decision in favor of the Government. A regular judge then adopted the STJ's work as the opinion of the Tax Court. The losing parties argued on appeal that the STJ was not constitutionally appointed.

This Court held that the Tax Court’s STJs are officers, not mere employees. Citing Germaine, the Court first found that STJs hold a continuing office established by law. They serve on an ongoing, rather than a “temporary [or] episodic[,] basis”; and their “duties, salary, and means of appointment” are all specified in the Tax Code. The Court then considered, as Buckley demands, the “significance” of the “authority” STJs wield. In addressing that issue, the Government had argued that STJs are employees, rather than officers, in all cases (like the one at issue) in which they could not “enter a final decision.” But the Court thought the Government’s focus on finality “ignore[d] the significance of the duties and discretion that [STJs] possess.” Describing the responsibilities involved in presiding over adversarial hearings, the Court said: STJs “take testimony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders.” And the Court observed that “[i]n the course of carrying out these important functions, the [STJs] exercise significant discretion.” That fact meant they were officers, even when their decisions were not final.

Freytag says everything necessary to decide this case. To begin, the Commission’s ALJs, like the Tax Court’s STJs, hold a continuing office established by law. Indeed, everyone here—Lucia, the Government, and the amicus—agrees on that point. Far from serving temporarily or episodically, SEC ALJs “receive[ ] a career appointment.” And that appointment is to a position created by statute, down to its “duties, salary, and means of appointment.” 

Still more, the Commission’s ALJs exercise the same “significant discretion” when carrying out the same “important functions” as STJs do. Both sets of officials have all the authority needed to ensure fair and orderly adversarial hearings—indeed, nearly all the tools of federal trial judges. Consider in order the four specific (if overlapping) powers Freytag mentioned. First, the Commission's ALJs (like the Tax Court's STJs) “take testimony.” More precisely, they “[r]eceiv[e] evidence” and “[e]xamine witnesses” at hearings, and may also take pre-hearing depositions. Second, the ALJs (like STJs) “conduct trials.” As detailed earlier, they administer oaths, rule on motions, and generally “regulat[e] the course of” a hearing, as well as the conduct of parties and counsel. Third, the ALJs (like STJs) “rule on the admissibility of evidence.” They thus critically shape the administrative record (as they also do when issuing document subpoenas). And fourth, the ALJs (like STJs) “have the power to enforce compliance with discovery orders.” In particular, they may punish all “[c]ontemptuous conduct,” including violations of those orders, by means as severe as excluding the offender from the hearing. So point for point— straight from Freytag’s list—the Commission’s ALJs have equivalent duties and powers as STJs in conducting adversarial inquiries.

And at the close of those proceedings, ALJs issue decisions much like that in Freytag—except with potentially more independent effect. As the Freytag Court recounted, STJs “prepare proposed findings and an opinion” adjudicating charges and assessing tax liabilities. Similarly, the Commission’s ALJs issue decisions containing factual findings, legal conclusions, and appropriate remedies. And what happens next reveals that the ALJ can play the more autonomous role. In a major case like Freytag, a regular Tax Court judge must always review an STJ’s opinion. And that opinion counts for nothing unless the regular judge adopts it as his own. By contrast, the SEC can decide against reviewing an ALJ decision at all. And when the SEC declines review (and issues an order saying so), the ALJ’s decision itself “becomes final” and is “deemed the action of the Commission.” That last-word capacity makes this an a fortiori case: If the Tax Court’s STJs are officers, as Freytag held, then the Commission’s ALJs must be too. […]

For all the reasons we have given, and all those Freytag gave before, the Commission’s ALJs are “Officers of the United States,” subject to the Appointments Clause.

[...]

We accordingly reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

 ■ Chief Justice Roberts delivered the opinion of the Court.

 Our Constitution divided the “powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.” INS v. Chadha, 462 U.S. 919, 951 (1983) [p. 831]. Article II vests “[t]he executive Power . . . in a President of the United States of America,” who must “take Care that the Laws be faithfully executed.” In light of “[t]he impossibility that one man should be able to perform all the great business of the State,” the Constitution provides for executive officers to “assist the supreme Magistrate in discharging the duties of his trust.” 30 Writings of George Washington 334 (J. Fitzpatrick ed. 1939). Since 1789, the Constitution has been understood to empower the President to keep these officers accountable-by removing them from office, if necessary. This Court has determined, however, that this authority is not without limit. In Humphrey’s Executor v. United States, 295 U.S. 602 (1935) [p. 920], we held that Congress can, under certain circumstances, create independent agencies run by principal officers appointed by the President, whom the President may not remove at will but only for good cause. Likewise, in United States v. Perkins, 116 U.S. 483 (1886), and Morrison v. Olson, 487 U.S. 654 (1988) [p. 934], the Court sustained similar restrictions on the power of principal executive officers—themselves responsible to the President—to remove their own inferiors. The parties do not ask us to reexamine any of these precedents, and we do not do so.

We are asked, however, to consider a new situation not yet encountered by the Court. The question is whether these separate layers of protection may be combined. May the President be restricted in his 923 ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the laws of the United States? We hold that such multilevel protection from removal is contrary to Article II’s vesting of the executive power in the President. The President cannot “take Care that the Laws be faithfully executed” if he cannot oversee the faithfulness of the officers who execute them. . . .

 I

A

After a series of celebrated accounting debacles, Congress enacted the Sarbanes-Oxley Act of 2002 (or Act). Among other measures, the Act introduced tighter regulation of the accounting industry under a new Public Company Accounting Oversight Board. The Board is composed of five members, appointed to staggered 5-year terms by the Securities and Exchange Commission. It was modeled on private self-regulatory organizations in the securities industry—such as the New York Stock Exchange—that investigate and discipline their own members subject to Commission oversight. Congress created the Board as a private “nonprofit corporation.” [. . .]

Unlike the self-regulatory organizations, however, the Board is a Government-created, Government-appointed entity, with expansive powers to govern an entire industry. Every accounting firm—both foreign and domestic—that participates in auditing public companies under the securities laws must register with the Board, pay it an annual fee, and comply with its rules and oversight. §§ 7211(a), 7212(a), (f), 7213, 7216(a)(1). The Board is charged with enforcing the Sarbanes–Oxley Act, the securities laws, the Commission's rules, its own rules, and professional accounting standards. §§ 7215(b)(1), (c)(4). To this **3148 end, the Board may regulate every detail of an accounting firm's practice, including hiring and professional development, promotion, supervision of audit work, the acceptance of new business and the continuation of old, internal inspection procedures, professional ethics rules, and “such other requirements as the Board may prescribe.” § 7213(a)(2)(B).

The Board promulgates auditing and ethics standards, performs routine inspections of all accounting firms, demands documents and testimony, and initiates formal investigations and disciplinary proceedings. §§ 7213–7215 (2006 ed. and Supp. II). The willful violation of any Board rule is treated as a willful violation of the Securities Exchange Act of 1934, 48 Stat. 881, 15 U.S.C. § 78a et seq.—a federal crime punishable by up to 20 years' imprisonment or $25 million in fines ($5 million for a natural person). §§ 78ff(a), 7202(b)(1) (2006 ed.). And the Board itself can issue severe sanctions in its disciplinary proceedings, up to and including the permanent revocation of a firm's registration, a permanent ban on a person's associating with any registered firm, and money penalties of $15 million ($750,000 for a natural person). § 7215(c)(4).

Despite the provisions specifying that Board members are not Government officials for statutory purposes, the parties agree that the Board is “part of the Government” for constitutional purposes and that its members are “ ‘Officers of the United States’ ” who “exercis[e] significant authority pursuant to the laws of the United States,” Buckley v. Valeo, 424 U.S. 1, 125–126 (1976) (per curiam).

The Act places the Board under the SEC’s oversight, particularly with respect to the issuance of rules or the imposition of sanctions (both of which are subject to Commission approval and alteration). But the individual members of the Board—like the officers and directors of the self-regulatory organizations—are substantially insulated from the Commission’s control. The Commission cannot remove Board members at will, but only “for good cause shown,” “in accordance with” certain procedures. § 7211(e)(6). . . . The parties agree that the Commissioners cannot themselves be removed by the President except under the Humphrey’s Executor standard of “inefficiency, neglect of duty, or malfeasance in office,” 295 U.S. at 620, and we decide the case with that understanding.

Beckstead and Watts, LLP, is a Nevada accounting firm registered with the Board. The Board inspected the firm, released a report critical of its auditing procedures, and began a formal investigation. Beckstead and Watts and the Free Enterprise Fund, a nonprofit organization of which the firm is a member, then sued the Board and its members, seeking (among other things) a declaratory judgment that the Board is unconstitutional and an injunction preventing the Board from exercising its powers. . . . [T]he District Court determined that it had jurisdiction
924 and granted summary judgment to respondents[, and a] divided Court of Appeals affirmed. . . .

 III
 . . . The landmark case of Myers v. United States reaffirmed the principle that Article II confers on the President “the general administrative control of those executing the laws.” 272 U.S. at 164. It is his responsibility to take care that the laws be faithfully executed. The buck stops with the President, in Harry Truman’s famous phrase. . . . [W]e have previously upheld [in Humphrey’s Executor, Perkins, and Morrison] limited restrictions on the President’s removal power. In those cases, however, only one level of protected tenure separated the President from an officer exercising executive power. It was the President—or a subordinate he could remove at will—who decided whether the officer’s conduct merited removal under the good-cause standard. 

The Act before us does something quite different. It not only protects Board members from removal except for good cause, but withdraws from the President any decision on whether that good cause exists. That decision is vested instead in other tenured officers—the Commissioners—none of whom is subject to the President’s direct control. The result is a Board that is not accountable to the President, and a President who is not responsible for the Board.

The added layer of tenure protection makes a difference. Without a layer of insulation between the Commission and the Board, the Commission could remove a Board member at any time, and therefore would be fully responsible for what the Board does. The President could then hold the Commission to account for its supervision of the Board, to the same extent that he may hold the Commission to account for everything else it does. A second level of tenure protection changes the nature of the President’s review. Now the Commission cannot remove a Board member at will. The President therefore cannot hold the Commission fully accountable for the Board’s conduct, to the same extent that he may hold the Commission accountable for everything else that it does. . . . 

This novel structure does not merely add to the Board’s independence, but transforms it. Neither the President, nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control over the Board. . . .

That arrangement is contrary to Article II’s vesting of the executive power in the President. Without the ability to oversee the Board, or to attribute the Board’s failings to those whom he can oversee, the President . . . can neither ensure that the laws are faithfully executed, nor be held responsible for a Board member’s breach of faith. This violates the basic principle that the President “cannot delegate ultimate responsibility or the active obligation to supervise that goes with it,” because Article II “makes a single President responsible for the actions of the Executive Branch.” Clinton v. Jones, 520 U.S. 681, 712–713 (1997) (Breyer, J., concurring in judgment). . . . 

The diffusion of power carries with it a 925 diffusion of accountability. The people do not vote for the “Officers of the United States.” They instead look to the President to guide the “assistants or deputies . . . subject to his superintendence.” The Federalist No. 72 (A. Hamilton). Without a clear and effective chain of command, the public cannot “determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.” Id., No. 70 (same). By granting the Board executive power without the Executive’s oversight, this Act subverts the President’s ability to ensure that the laws are faithfully executed—as well as the public’s ability to pass judgment on his efforts. The Act’s restrictions are incompatible with the Constitution’s separation of powers.

 Respondents and the dissent resist this conclusion, portraying the Board as “the kind of practical accommodation between the Legislature and the Executive that should be permitted in a ‘workable government.’ ” Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276 (1991) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) [p. 871]). . . .

No one doubts Congress’s power to create a vast and varied federal bureaucracy. But where, in all this, is the role for oversight by an elected President? . . . One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people. This concern is largely absent from the dissent’s paean to the administrative state. . . .

In fact, the multilevel protection that the dissent endorses “provides a blueprint for extensive expansion of the legislative power.” [Metropolitan Washington Airports Auth., 501 U.S. at] 277. In a system of checks and balances, “[p]ower abhors a vacuum,” and one branch’s handicap is another’s strength. 537 F.3d, at 695, n. 4 (Kavanaugh, J., dissenting). . . . Congress has plenary control over the salary, duties, and even existence of executive offices. Only Presidential oversight can counter its influence. . . .

The Framers created a structure in which “[a] dependence on the people” would be the “primary control on the government.” The Federalist No. 51 (J. Madison). That dependence is maintained, not just by “parchment barriers,” id., No. 48 (same), but by letting “[a]mbition . . . counteract ambition,” giving each branch “the necessary constitutional means, and personal motives, to resist encroachments of the others,” id., No. 51. A key “constitutional means” vested in the President—perhaps the key means—was “the power of appointing, overseeing, and
926 controlling those who execute the laws.” 1 Annals of Cong., at 463. . . . The President has been given the power to oversee executive officers; he is not limited, as in Harry Truman’s lament, to “persuad[ing]” his unelected subordinates “to do what they ought to do without persuasion.” In its pursuit of a “workable government,” Congress cannot reduce the Chief Magistrate to a cajoler-in-chief.

 . . . [T]he Government argues that the Commission’s removal power over the Board is “broad,” and could be construed as broader still, if necessary to avoid invalidation. But the Government does not contend that simple disagreement with the Board’s policies or priorities could constitute “good cause” for its removal. Nor do our precedents suggest as much. Humphrey’s Executor, for example, rejected a removal premised on a lack of agreement “ ‘on either the policies or the administering of the Federal Trade Commission,’ ” because the FTC was designed to be “ ‘independent in character,’ ” “free from ‘political domination or control,’ ” and not “ ‘subject to anybody in the government’ ” or “ ‘to the orders of the President.’ ” 295 U.S., at 619. . . . 

And here there is judicial review of any effort to remove Board members, so the Commission will not have the final word on the propriety of its own removal orders. . . . Indeed, this case presents an even more serious threat to executive control than an “ordinary” dual for-cause standard. Congress enacted an unusually high standard that must be met before Board members may be removed. A Board member cannot be removed except for willful violations of the Act, Board rules, or the securities laws; willful abuse of authority; or unreasonable failure to enforce compliance—as determined in a formal Commission order, rendered on the record and after notice and an opportunity for a hearing. . . . The rigorous standard that must be met before a Board member may be removed was drawn from statutes concerning private organizations like the New York Stock Exchange. While we need not decide the question here, a removal standard appropriate for limiting Government control over private bodies may be inappropriate for officers wielding the executive power of the United States.

 Alternatively, respondents portray the Act’s limitations on removal as irrelevant, because—as the Court of Appeals held—the Commission wields “at-will removal power over Board functions if not Board members.” 537 F.3d, at 683 (emphasis added). . . . Broad power over Board functions is not equivalent to the power to remove Board members. . . . Even if Commission power over Board activities could substitute for authority over its members, we would still reject respondents’ premise that the Commission’s power in this regard is plenary. . . . [T]he Board is empowered to take significant enforcement actions, and does so largely independently of the Commission. Its powers are, of course, subject to some latent Commission control. But the Act nowhere gives the Commission effective power to start, stop, or alter individual Board investigations . . .927

Finally, respondents suggest that our conclusion is contradicted by the past practice of Congress. But the Sarbanes-Oxley Act is highly unusual in committing substantial executive authority to officers protected by two layers of for-cause removal. . . . The parties have identified only a handful of isolated positions in which inferior officers might be protected by two levels of good-cause tenure. . . . The dissent here suggests that other such positions might exist, and complains that we do not resolve their status in this opinion. The dissent itself, however, stresses the very size and variety of the Federal Government, and those features discourage general pronouncements on matters neither briefed nor argued here. In any event, the dissent fails to support its premonitions of doom; none of the positions it identifies are similarly situated to the Board. For example, many civil servants within independent agencies would not qualify as “Officers of the United States,” who “exercis[e] significant authority pursuant to the laws of the United States,” Buckley, 424 U.S., at 126 . . . We do not decide the status of other Government employees, nor do we decide whether “lesser functionaries subordinate to officers of the United States” must be subject to the same sort of control as those who exercise “significant authority pursuant to the laws.” . . . Nothing in our opinion, therefore, should be read to cast doubt on the use of what is colloquially known as the civil service system within independent agencies.10 . . . [T]he dissent wanders far afield when it suggests that today’s opinion might increase the President’s authority to remove military officers. Without expressing any view whatever on the scope of that authority, it is enough to note that we see little analogy between our Nation’s armed services and the Public Company Accounting Oversight Board. . . .

 IV
 Petitioners’ complaint argued that the Board’s “freedom from Presidential oversight and control” rendered it “and all power and authority exercised by it” in violation of the Constitution. App. 46. We reject such a broad holding. Instead, we agree with the Government that the unconstitutional tenure provisions are severable from the remainder of the statute. . . . Putting to one side petitioners’ Appointments Clause challenges (addressed below), the existence of the Board does not violate the separation of powers, but the substantive removal restrictions imposed by §§ 7211(e)(6) and 7217(d)(3) do. Under the traditional default rule, removal is incident to the power of appointment. Concluding that the removal restrictions are invalid leaves the Board removable by the Commission at will, and leaves the President separated from Board members by only a single level of good-cause tenure. The Commission is 928 then fully responsible for the Board’s actions, which are no less subject than the Commission’s own functions to Presidential oversight. The Sarbanes-Oxley Act remains “ ‘fully operative as a law’ ” with these tenure restrictions excised. . . .

It is true that the language providing for good-cause removal is only one of a number of statutory provisions that, working together, produce a constitutional violation. In theory, perhaps, the Court might blue-pencil a sufficient number of the Board’s responsibilities so that its members would no longer be “Officers of the United States.” Or we could restrict the Board’s enforcement powers, so that it would be a purely recommendatory panel. Or the Board members could in future be made removable by the President, for good cause or at will. But such editorial freedom—far more extensive than our holding today—belongs to the Legislature, not the Judiciary. Congress of course remains free to pursue any of these options going forward.

V
Petitioners raise three more challenges to the Board under the Appointments Clause. None has merit. First, petitioners argue that Board members are principal officers requiring Presidential appointment with the Senate’s advice and consent. . . . Given that the Commission is properly viewed, under the Constitution, as possessing the power to remove Board members at will, and given the Commission’s other oversight authority, we have no hesitation in concluding that under Edmond [v. United States, 520 U.S. 651 (1997), p. 884] the Board members are inferior officers whose appointment Congress may permissibly vest in a “Hea[d] of Departmen[t].” . . . [Moreover, because] the Commission is a freestanding component of the Executive Branch, not subordinate to or contained within any other such component, it constitutes a “Departmen[t]” for the purposes of the Appointments Clause.11 [Petitioners also] argue that the full Commission cannot constitutionally appoint Board members, because only the Chairman of the Commission is the Commission’s “Hea[d].” The Commission’s powers, however, are generally vested in the Commissioners jointly, not the Chairman alone. . . . As a constitutional matter, we see no reason why a multimember body may not be the “Hea[d]” of a “Departmen[t]” that it governs.
 * * *

The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so. That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties. Without such power, the President could not be held fully accountable for discharging his own responsibilities; the 929 buck would stop somewhere else. Such diffusion of authority “would greatly diminish the intended and necessary responsibility of the chief magistrate himself.” The Federalist No. 70. While we have sustained in certain cases limits on the President’s removal power, the Act before us imposes a new type of restriction-two levels of protection from removal for those who nonetheless exercise significant executive power. Congress cannot limit the President’s authority in this way.

 ■ Justice Breyer, with whom Justice Stevens, Justice Ginsburg, and Justice Sotomayor join, dissenting. [omitted]

Seila Law v. Consumer Financial Protection Bureau

140 S. Ct. 991 (2020)

Chief Justice ROBERTS delivered the opinion of the Court with respect to Parts I, II, and III.

Under our Constitution, the “executive Power”—all of it—is “vested in a President,” who must “take Care that the Laws be faithfully executed.” Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance. Ten years ago, in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 (2010), we reiterated that, “as a general matter,” the Constitution gives the President “the authority to remove those who assist him in carrying out his duties.” “Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.”

[...] Our precedents have recognized only two exceptions to the President’s unrestricted removal power. In Humphrey’s Executor v. United States, we held that Congress could create expert agencies led by a group of principal officers removable by the President only for good cause. And in Morrison v. Olson, 487 U. S. 654 (1988), we held that Congress could provide tenure protections to certain inferior officers with narrowly defined duties.

We are now asked to extend these precedents to a new configuration: an independent agency that wields significant executive power and is run by a single individual who cannot be removed by the President unless certain statutory criteria are met. We decline to take that step [...] 

I

In the summer of 2007, then-Professor Elizabeth Warren called for the creation of a new, independent federal agency focused on regulating consumer financial products. Warren, Unsafe at Any Rate, Democracy (Summer 2007). Professor Warren believed the financial products marketed to ordinary American households—credit cards, student loans, mortgages, and the like—had grown increasingly unsafe due to a “regulatory jumble” that paid too much attention to banks and too little to consumers. To remedy the lack of “coherent, consumer-oriented” financial regulation, she proposed “concentrat[ing] the review of financial products in a single location”—an independent agency modeled after the multimember Consumer Product Safety Commission [...]

In 2010, Congress acted on these proposals and created the CFPB as an independent financial regulator within the Federal Reserve System. Congress tasked the CFPB with “implement[ing]” and “enforc[ing]” a large body of financial consumer protection laws to “ensur[e] that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive.” [...] The CFPB’s rulemaking and enforcement powers are coupled with extensive adjudicatory authority [...] 

Congress’s design for the CFPB differed from the proposals of Professor Warren and the Obama administration in one critical respect. Rather than create a traditional independent agency headed by a multimember board or commission, Congress elected to place the CFPB under the leadership of a single Director. The CFPB Director is appointed by the President with the advice and consent of the Senate. The Director serves for a term of five years, during which the President may remove the Director from office only for “inefficiency, neglect of duty, or malfeasance in office.”

Seila Law LLC is a California-based law firm that provides debt-related legal services to clients. In 2017, the CFPB issued a civil investigative demand to Seila Law to determine whether the firm had “engag[ed] in unlawful acts or practices in the advertising, marketing, or sale of debt relief services.” The demand (essentially a subpoena) directed Seila Law to produce information and documents related to its business practices.

Seila Law asked the CFPB to set aside the demand, objecting that the agency’s leadership by a single Director removable only for cause violated the separation of powers. The CFPB declined to address that claim and directed Seila Law to comply with the demand.

When Seila Law refused, the CFPB filed a petition to enforce the demand in the District Court. In response, Seila Law renewed its defense that the demand was invalid and must be set aside because the CFPB's structure violated the Constitution [...]

We granted certiorari to address the constitutionality of the CFPB’s structure [...] 

III

We hold that the CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers.

Article II provides that “[t]he executive Power shall be vested in a President,” who must “take Care that the Laws be faithfully executed.” The entire “executive Power” belongs to the President alone. But because it would be “impossib[le]” for “one man” to “perform all the great business of the State,” the Constitution assumes that lesser executive officers will “assist the supreme Magistrate in discharging the duties of his trust.” 

These lesser officers must remain accountable to the President, whose authority they wield. As Madison explained, “[I]f any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” That power, in turn, generally includes the ability to remove executive officials, for it is “only the authority that can remove” such officials that they “must fear and, in the performance of [their] functions, obey.” Bowsher, 478 U. S., at 726. 

[...] We recently reiterated the President’s general removal power in Free Enterprise Fund. “Since 1789,” we recapped, “the Constitution has been understood to empower the President to keep these officers accountable—by removing them from office, if necessary.” Although we had previously sustained congressional limits on that power in certain circumstances, we declined to extend those limits to “a new situation not yet encountered by the Court”—an official insulated by two layers of for-cause removal protection. In the face of that novel impediment to the President’s oversight of the Executive Branch, we adhered to the general rule that the President possesses “the authority to remove those who assist him in carrying out his duties.” 

Free Enterprise Fund left in place two exceptions to the President’s unrestricted removal power. First, in Humphrey’s Executor, decided less than a decade after Myers, the Court upheld a statute that protected the Commissioners of the FTC from removal except for “inefficiency, neglect of duty, or malfeasance in office.” In reaching that conclusion, the Court stressed that Congress’s ability to impose such removal restrictions “will depend upon the character of the office.” [...] 

In short, Humphrey’s Executor permitted Congress to give for-cause removal protections to a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power. Consistent with that understanding, the Court later applied “[t]he philosophy of Humphrey’s Executor” to uphold for-cause removal protections for the members of the War Claims Commission—a three-member “adjudicatory body” tasked with resolving claims for compensation arising from World War II. Wiener v. United States, 357 U. S. 349, 356 (1958).

While recognizing an exception for multimember bodies with “quasi-judicial” or “quasi-legislative” functions, Humphrey’s Executor reaffirmed the core holding of Myers that the President has “unrestrictable power . . . to remove purely executive officers.” The Court acknowledged that between purely executive officers on the one hand, and officers that closely resembled the FTC Commissioners on the other, there existed “a field of doubt” that the Court left “for future consideration.”

We have recognized a second exception for inferior officers in Morrison v. Olson. [In] Morrison, we upheld a provision granting good-cause tenure protection to an independent counsel appointed to investigate and prosecute particular alleged crimes by high-ranking Government officials. Backing away from the reliance in Humphrey’s Executor on the concepts of “quasi-legislative” and “quasi-judicial” power, we viewed the ultimate question as whether a removal restriction is of “such a nature that [it] impede[s] the President’s ability to perform his constitutional duty.” Although the independent counsel was a single person and performed “law enforcement functions that typically have been undertaken by officials within the Executive Branch,” we concluded that the removal protections did not unduly interfere with the functioning of the Executive Branch because “the independent counsel [was] an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority.”

These two exceptions—one for multimember expert agencies that do not wield substantial executive power, and one for inferior officers with limited duties and no policymaking or administrative authority—”represent what up to now have been the outermost constitutional limits of permissible congressional restrictions on the President’s removal power.” 

Neither Humphrey’s Executor nor Morrison resolves whether the CFPB Director’s insulation from removal is constitutional. Start with Humphrey’s Executor. Unlike the New Deal-era FTC upheld there, the CFPB is led by a single Director who cannot be described as a “body of experts” and cannot be considered “non-partisan” in the same sense as a group of officials drawn from both sides of the aisle. Moreover, while the staggered terms of the FTC Commissioners prevented complete turnovers in agency leadership and guaranteed that there would always be some Commissioners who had accrued significant expertise, the CFPB’s single-Director structure and five-year term guarantee abrupt shifts in agency leadership and with it the loss of accumulated expertise.

In addition, the CFPB Director is hardly a mere legislative or judicial aid. Instead of making reports and recommendations to Congress, as the 1935 FTC did, the Director possesses the authority to promulgate binding rules fleshing out 19 federal statutes, including a broad prohibition on unfair and deceptive practices in a major segment of the U. S. economy. And instead of submitting recommended dispositions to an Article III court, the Director may unilaterally issue final decisions awarding legal and equitable relief in administrative adjudications. Finally, the Director's enforcement authority includes the power to seek daunting monetary penalties against private parties on behalf of the United States in federal court—a quintessentially executive power not considered in Humphrey’s Executor.

The logic of Morrison also does not apply. Everyone agrees the CFPB Director is not an inferior officer, and her duties are far from limited. Unlike the independent counsel, who lacked policymaking or administrative authority, the Director has the sole responsibility to administer 19 separate consumer-protection statutes that cover everything from credit cards and car payments to mortgages and student loans. It is true that the independent counsel in Morrison was empowered to initiate criminal investigations and prosecutions, and in that respect wielded core executive power. But that power, while significant, was trained inward to high-ranking Governmental actors identified by others, and was confined to a specified matter in which the Department of Justice had a potential conflict of interest. By contrast, the CFPB Director has the authority to bring the coercive power of the state to bear on millions of private citizens and businesses, imposing even billion-dollar penalties through administrative adjudications and civil actions.

In light of these differences, the constitutionality of the CFPB Director’s insulation from removal cannot be settled by Humphrey’s Executor or Morrison alone.

The question instead is whether to extend those precedents to the “new situation” before us, namely an independent agency led by a single Director and vested with significant executive power. We decline to do so [...]

“The Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty.” Bowsher, 478 U. S., at 730. Their solution to governmental power and its perils was simple: divide it. To prevent the “gradual concentration” of power in the same hands, they enabled “[a]mbition . . . to counteract ambition” at every turn. At the highest level, they “split the atom of sovereignty” itself into one Federal Government and the States. They then divided the “powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.” Chadha, 462 U. S., at 951.

They did not stop there. Most prominently, the Framers bifurcated the federal legislative power into two Chambers: the House of Representatives and the Senate, each composed of multiple Members and Senators. Art. I, §§2, 3.

The Executive Branch is a stark departure from all this division. The Framers viewed the legislative power as a special threat to individual liberty, so they divided that power to ensure that “differences of opinion” and the “jarrings of parties” would “promote deliberation and circumspection” and “check excesses in the majority.” By contrast, the Framers thought it necessary to secure the authority of the Executive so that he could carry out his unique responsibilities. As Madison put it, while “the weight of the legislative authority requires that it should be . . . divided, the weakness of the executive may require, on the other hand, that it should be fortified.” [...]

The Framers [...] gave the Executive the “[d]ecision, activity, secrecy, and dispatch” that “characterise the proceedings of one man.”

To justify and check that authority—unique in our constitutional structure—the Framers made the President the most democratic and politically accountable official in Government. Only the President (along with the Vice President) is elected by the entire Nation [...]

The CFPB’s single-Director structure contravenes this carefully calibrated system by vesting significant governmental power in the hands of a single individual accountable to no one. The Director is neither elected by the people nor meaningfully controlled (through the threat of removal) by someone who is. The Director does not even depend on Congress for annual appropriations. Yet the Director may unilaterally, without meaningful supervision, issue final regulations, oversee adjudications, set enforcement priorities, initiate prosecutions, and determine what penalties to impose on private parties. With no colleagues to persuade, and no boss or electorate looking over her shoulder, the Director may dictate and enforce policy for a vital segment of the economy affecting millions of Americans [...]

Because the CFPB is headed by a single Director with a five-year term, some Presidents may not have any opportunity to shape its leadership and thereb y influence its activities. A President elected in 2020 would likely not appoint a CFPB Director until 2023, and a President elected in 2028 may never appoint one. That means an unlucky President might get elected on a consumer-protection platform and enter office only to find herself saddled with a holdover Director from a competing political party who is dead set against that agenda. To make matters worse, the agency’s single-Director structure means the President will not have the opportunity to appoint any other leaders—such as a chair or fellow members of a Commission or Board—who can serve as a check on the Director’s authority and help bring the agency in line with the President’s preferred policies [...]

Because we find the Director’s removal protection severable from the other provisions of Dodd-Frank that establish the CFPB, we remand for the Court of Appeals to consider whether the civil investigative demand was validly ratified [...]

Justice KAGAN, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join, concurring in the judgment with respect to severability and dissenting in part.

[...] The text of the Constitution, the history of the country, the precedents of this Court, and the need for sound and adaptable governance—all stand against the majority’s opinion. They point not to the majority’s “general rule” of “unrestricted removal power” with two grudgingly applied “exceptions.” Rather, they bestow discretion on the legislature to structure administrative institutions as the times demand, so long as the President retains the ability to carry out his constitutional duties. And most relevant here, they give Congress wide leeway to limit the President’s removal power in the interest of enhancing independence from politics in regulatory bodies like the CFPB.

What does the Constitution say about the separation of powers—and particularly about the President’s removal authority? (Spoiler alert: about the latter, nothing at all.)

The majority offers the civics class version of separation of powers—call it the Schoolhouse Rock definition of the phrase. See Schoolhouse Rock! Three Ring Government (Mar. 13, 1979), http://www.youtube.com/watch?v=pKSGyiT-o3o (“Ring one, Executive. Two is Legislative, that's Congress. Ring three, Judiciary”). The Constitution’s first three articles, the majority recounts, “split the atom of sovereignty” among Congress, the President, and the courts. 

[The majority fails to] recognize that the separation of powers is, by design, neither rigid nor complete. Blackstone, whose work influenced the Framers on this subject as on others, observed that “every branch” of government “supports and is supported, regulates and is regulated, by the rest.” So as James Madison stated, the creation of distinct branches “did not mean that these departments ought to have no partial agency in, or no controul over the acts of each other.” To the contrary, Madison explained, the drafters of the Constitution—like those of then-existing state constitutions—opted against keeping the branches of government “absolutely separate and distinct.” [...]

The majority relies for its contrary vision on Article II’s Vesting Clause, but the provision can’t carry all that weight. Or as Chief Justice Rehnquist wrote of a similar claim in Morrison v. Olson, 487 U. S. 654 (1988), “extrapolat[ing]” an unrestricted removal power from such “general constitutional language”—which says only that “[t]he executive Power shall be vested in a President”—is “more than the text will bear.” [...] Historical understandings thus belie the majority’s “general rule.” [...]

As the majority explains, the CFPB emerged out of disaster. The collapse of the subprime mortgage market “precipitat[ed] a financial crisis that wiped out over $10 trillion in American household wealth and cost millions of Americans their jobs, their retirements, and their homes.” In that moment of economic ruin, the President proposed and Congress enacted legislation to address the causes of the collapse and prevent a recurrence. An important part of that statute created an agency to protect consumers from exploitative financial practices. The agency would take over enforcement of almost 20 existing federal laws. And it would administer a new prohibition on “unfair, deceptive, or abusive act[s] or practice[s]” in the consumer-finance sector. 

No one had a doubt that the new agency should be independent. As explained already, Congress has historically given—with this Court's permission—a measure of independence to financial regulators like the Federal Reserve Board and the FTC. And agencies of that kind had administered most of the legislation whose enforcement the new statute transferred to the CFPB. The law thus included an ordinary for-cause provision—once again, that the President could fire the CFPB’s Director only for “inefficiency, neglect of duty, or malfeasance in office.” That standard would allow the President to discharge the Director for a failure to “faithfully execute[ ]” the law, as well as for basic incompetence. But it would not permit removal for policy differences.

[...] In the midst of the Great Recession, Congress and the President came together to create an agency with an important mission. It would protect consumers from the reckless financial practices that had caused the then-ongoing economic collapse. Not only Congress but also the President thought that the new agency, to fulfill its mandate, needed a measure of independence. So the two political branches, acting together, gave the CFPB Director the same job protection that innumerable other agency heads possess. All in all, those branches must have thought, they had done a good day’s work. Relying on their experience and knowledge of administration, they had built an agency in the way best suited to carry out its functions. They had protected the public from financial chicanery and crisis. They had governed.

And now consider how the dispute ends—with five unelected judges rejecting the result of that democratic process. The outcome today will not shut down the CFPB: A different majority of this Court, including all those who join this opinion, believes that if the agency’s removal provision is unconstitutional, it should be severed. But the majority on constitutionality jettisons a measure Congress and the President viewed as integral to the way the agency should operate. The majority does so even though the Constitution grants to Congress, acting with the President’s approval, the authority to create and shape administrative bodies. And even though those branches, as compared to courts, have far greater understanding of political control mechanisms and agency design [...]