by Jeff Sovern
Earlier this month, Allison posted a link to a story about the PHH case in which the D.C Circuit heard arguments about whether the CFPB's structure is constitutional (CFPB Monitor reports on the oral argument here). The Wall Street Journal has now run an editorial (behind a paywall) arguing that the Bureau is unconstitutional because it is headed by a single director who cannot be removed by the president except for cause. The editorial distinguishes agencies run by multimember commissioners; it specifically mentions the FTC, which has five commissioners who also cannot be removed except for cause, and plenty of other agencies have similar structures. The editorial also noted that the Social Security Administration has a single administrator, but the WSJ argues that the SSA has less power than the CFPB. That last strikes me as somewhat subjective, but I don't know enough about the SSA to express an opinion. But here's the part that particularly confuses me: if the commissioners can't be removed except for cause, why does it matter for purposes of the constitution how many there are? If the problem is that an agency is exercising an unconstitutional amount of power, why does sharing that power among, say, five people make it ok but concentrating it in one person does not? When an agency has five commissioners, and divides in a 3-2 tie, doesn't the exercise of power still come down to that fifth vote? And a problem with more decision-makers is that they become less accountable, while with one person, it is clear who is responsible and so accountability becomes easy. And all this ignores the fact that other agencies are headed by a single person who cannot be removed excerpt for cause; in the financial arena, for example, the Comptroller of the Currency, who can't be removed without cause, arguably wields as much power as the CFPB's director (remember how the OCC declared state anti-predatory lending laws preempted as to national banks–something that might have contributed to the Great Recession?); is that office also unconstitutional? I'm not a constitutional law expert so I am hoping those who know more on the subject can enlighten me in the comments.