Conservative Minimalism and the Consumer Financial Protection Bureau

University of Chicago Law Review Online (2020 Forthcoming)

Case Legal Studies Research Paper No. 2020-10

16 Pages Posted: 15 Aug 2020

See all articles by Jonathan H. Adler

Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Date Written: August 2020

Abstract

The October 2019 Term offered further confirmation that Chief Justice Roberts is a conservative minimalist. This jurisprudential approach was on display in Seila Law v. Consumer Financial Protection Bureau, where the Chief Justice wrote the opinion for the Court invalidating a for-cause requirement for removal of the CFPB Director. Chief Justice Roberts’ decision embraced a conservative conception of separation of powers, closely aligned with the “unitary executive” theory. Yet his application of this theory was quite restrained. While embracing principles that would seem to have broader application, the Chief Justice eschewed any questioning of prior precedent and provided the plaintiffs with minimal relief, adopting a surgical approach to severability. Whatever the substantive merits of the Chief Justice’s Seila Law opinion, it was quite consistent with his overall jurisprudence since joining the Court.

Keywords: Independent Agencies, Chief Justice John Roberts, Consumer Financial Protection Bureau, Removal Power, Appointments Clause, Executive Power, Supreme Court

JEL Classification: K49

Suggested Citation

Adler, Jonathan H., Conservative Minimalism and the Consumer Financial Protection Bureau (August 2020). University of Chicago Law Review Online (2020 Forthcoming), Case Legal Studies Research Paper No. 2020-10, Available at SSRN: https://ssrn.com/abstract=3671887

Jonathan H. Adler (Contact Author)

Case Western Reserve University School of Law ( email )

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