PHH Corp. v. Consumer Financial Protection Bureau

with whom Senior Circuit Judge Randolph joins, dissenting:

Introduction and Summary

This is a case about executive power and individual liberty.

To prevent tyranny and protect individual liberty, the Framers of the Constitution separated the legislative, executive, and judicial powers of the new national government. To further safeguard liberty, the Framers insisted upon accountability for the exercise of executive power. The Framers lodged full responsibility for the executive power in a President of the United States, who is elected by and accountable to the people. The first 15 words of Article II speak with unmistakable clarity about who controls the executive power: “The executive Power shall be vested in a President of the United States of America.” U.S. Const, art. II, § 1. And Article II assigns the President alone the authority and responsibility to “take Care that the Laws be faithfully executed.” Id. § 3. The purpose “of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom.” Morrison v. Olson, 487 U.S. 654, 727, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (Scalia, J., dissenting).

Of course, the President executes the laws with the assistance of subordinate executive officers who are appointed by the President, often with the advice and consent of the Senate. To carry out the executive power and be accountable for the exercise of that power, the President must be able to supervise and direct those subordinate officers. In its landmark decision in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926), authored by Chief Justice and former President Taft, the Supreme Court recognized the President’s Article II authority to supervise, direct, and remove at will subordinate officers in the Executive Branch.

In 1935, however, the Supreme Court carved out an exception to Myers and Article II by permitting Congress to create independent agencies that exercise executive power. See Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935). An agency is “independent” when the agency’s commissioners or board members are removable by the President only for cause, not at will, and therefore are not supervised or directed by the President. Examples of independent agencies include well-known bodies such as the Federal Trade Commission, the Federal Communications Commission, the Securities and Exchange Commission, the National Labor Relations Board, and the Federal Energy Regulatory Commission.

Those and other independent agencies exercise executive power by bringing enforcement actions against private citizens. Those agencies often promulgate legally-binding regulations pursuant to statutes enacted by Congress, and they adjudicate disputes involving private parties. So those agencies exercise executive, quasi-legislative, and quasi-judicial power.

The independent agencies collectively constitute, in effect, a headless fourth branch of the U.S. Government. They hold enormous power over the economic and social life of the United States. Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.

To mitigate the risk to individual liberty, the independent agencies historically have been headed by multiple commissioners or board members. In the Supreme Court’s words, each independent agency has traditionally been established as a “body of experts appointed by law and informed by experience.” Humphrey’s Executor, 295 U.S. at 624, 55 S.Ct. 869. Multi-member independent agencies do not concentrate all power in one unaccountable individual, but instead divide and disperse power across multiple commissioners or board members. The multi-member structure thereby reduces the risk of arbitrary deci-sionmaking and abuse of power, and helps protect individual liberty.

In other words, the heads of executive agencies are accountable to and checked by the President; and the heads of independent agencies, although not accountable to or checked by the President, are at least accountable to and checked by their fellow commissioners or board members. No independent agency exercising substantial executive authority has ever been headed by a single person.

Until now.

In the Dodd-Frank Act of 2010, Congress created a new independent agency, the Consumer Financial Protection Bureau. As originally proposed by then-Professor and now-Senator Elizabeth Warren, the CFPB was to be another traditional, multi-member independent agency. The initial Executive Branch proposal from President Obama’s Administration likewise envisioned a multi-member independent agency. The House-passed bill sponsored by Congressman Barney Frank and championed by Speaker Nancy Pelosi also contemplated a multi-member independent agency.

But Congress ultimately departed from the Warren and Executive Branch proposals, and from the House bill sponsored by Congressman Frank. Congress established the CFPB as an independent agency headed not by a multi-member commission but rather by a single Director.

The Director of the CFPB wields enormous power over American businesses, American consumers, and the overall U.S. economy. The Director unilaterally implements and.enforces 19 federal consumer protection statutes, covering everything from home finance to student loans to credit cards to banking practices.

The Director alone may decide what rules to issue. The Director alone may decide how to enforce, when to enforce, and against whom to enforce the law. The Director alone may decide whether an individual or entity has violated the law. The Director alone may decide what sanctions and penalties to impose on violators of the law.

Because the CFPB is an independent agency headed by a single Director and not by a multi-member commission, the Director of the CFPB possesses more unilateral authority—that is, authority to take action on one’s own, subject to no check— than any single commissioner or board member in any other independent agency in the Ü.S. Government. Indeed, other than the President, the Director enjoys more unilateral authority than any other official in any of the three branches of the U.S. Government.

That combination—power that is massive in écope, concentrated in a single person, and unaccountable to the President— triggers the important constitutional question at issue in this case.

The petitioner here, PHH, is a mortgage lender and was the subject of a CFPB enforcement action that resulted in a $109 million sanction. In seeking to vacate the CFPB’s order, PHH argues that the GFPB’s novel structure—an independent agency headed by a single Director—violates Article II of the Constitution.-1 agree with PHH.

Three considerations inform my Article II analysis: history, liberty, and Presidential authority.

First, history. In separation of powers cases, the Supreme Court has repeatedly emphasized the significance of historical practice. See, e.g., NLRB v. Noel Canning, — U.S. —, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014); Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010). The single-Director structure of the CFPB represents a gross departure from settled historical practice. Never before has an independent agency exercising substantial executive authority been headed by just one person. That history matters. In Free Enterprise Fund, in invalidating the novel structure of another newly created independent agency, the Public Company Accounting Oversight Board, the Supreme Court stated: “Perhaps the most telling indication of the severe constitutional problem with the PCAOB is the lack of historical precedent for this entity.” Id. at 505, 130 S.Ct. 3138. Here too: Perhaps the most telling indication of the severe constitutional problem with the CFPB is the lack of historical precedent for this "entity.

Second, liberty. The CFPB’s concentration -of enormous power in a single unaccountable, unchecked Director poses a far greater risk' of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than a multi-member independent agency does. The overarching constitutional concern with independent agencies is that the agencies exercise executive power but are unchecked by the President, the official who is accountable to the people and who is responsible under Article II for the exercise of executive power. In lieu of Presidential control, the multi-member structure of independent agencies operates as a critical substitute check on the excesses of any individual independent agency head. This new agency, the CFPB, lacks that critical check,, yet still wields vast power over American businesses and consumers. This "wolf comes as a wolf.” Morrison, 487 U.S. at 699, 108 S.Ct. 2597 (Scalia, J., dissenting).

Third, Presidential authority. The Single-Director CFPB diminishes the President’s Article II authority to control the Executive Branch more than traditional multi-member independent agencies do. In comparable multi-member independent agencies such as the Federal Trade Commission (to which the CFPB repeatedly compares itself), the President ordinarily retains power to designate the chairs of the agencies and to remove chairs at will from the chair position, As a result, Presidents can maintain at least some influence over the general direction of the agencies. Soon after a new President enters office, the new President typically designates new chairs. Those independent agencies therefore flip to control by chairs who are aligned with the new President. For example, shortly after he took office on January 20, 2017, President Trump designated new Chairs of the Federal Trade Commission, the Federal Communications Commission, the Securities and Exchange Commission, and the National Labor Relations Board,, among others. President Obama did. the same within a few weeks of taking office in 2009.

A President possesses far less influence over the single-Director CFPB. Thé single CFPB Director serves a fixed five-year term and, absent good cause, may not be replaced by the President, even by a newly elected President.' The Upshot is that a President may be stuck for years with a CFPB Director who was appointed by the prior President and who vehemently opposes the current President’s agenda. To illustrate, upon taking office in January 2017, the President could not appoint a new Director of the CFPB, at least absent good cause for terminating the existing Director. It will get worse in the future. Any new President who is elected in 2020, 2024, or 2028 may spend a majority of his or her term with a CFPB Director who was appointed by a prior President. That does not happen with the chairs of the traditional multi-member independent agencies. That dramatic and meaningful difference vividly illustrates that the CFPB’s novel single-Director structure diminishes Presidential power more than traditional multi-member independent agencies do.

In sum, because of the consistent historical practice in which independent agencies have been headed by multiple commissioners or board members; because of the serious threat to individual liberty posed by a single-Director independent agency; and because of the diminution of Presidential authority caused by this single-Director independent agency, I conclude that the CFPB violates Article II of the Constitution. Under Article II, an independent agency that exercises substantial executive power may not be headed by a single Director. As to remedy, I agree with the United States as amicus .curiae: The Supreme Court’s Free Enterprise Fund decision and the - Court’s other severability precedents require that we sever the CFPB’s for-cause provision, so that the Director of the CFPB is supervised, directed, and removable at will by the President.

I. History.

I begin by describing the history of independent agencies in general and of the CFPB in particular. That history demonstrates that, in order to comply with Article II, independent agencies exercising substantial executive power must be structured as multi-member agencies.

A

As the Supreme Court has explained, our Constitution “was adopted to enable the people to govern themselves, through their elected leaders,” and the Constitution “requires that a President chosen by the entire Nation Oversee the execution of the laws.” Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, 499, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010). Article II of the Constitution provides quite simply: “The executive Power shall be vested in a President of the United States of America.” U.S. Const, art. II, § 1. And Article II assigns the President alone- the authority and responsibility to “take Care that the Laws be faithfully executed.” Id. §' 3. Article II makes “emphatically clear from stárt to finish” that the President is “personally responsible for his branch.” Akhil Reed Amar, America’s Constitution; A Biography 197 (2005).

To exercise the executive power, the President must be assisted by subordinates. The Framers anticipated and provided for executive departments, and for officers (principal and inferior) in those departments who would assist the President. See U.S. Const, art. II, § 2. In 1789, soon after being sworn in, the First Congress established new executive Departments of Foreign Affairs, War, and Treasury, and created various offices in those new Departments.

In order to control the exercise of executive power and take care that the laws are faithfully executed, the President must be able to supervise and direct those subordinate executive officers. As James Madison stated during the First Congress, “if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” 1 Annals Of Congress 463 (Madison) (1789) (Joseph Gales ed., 1834); see also Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev. 1205, 1215 (2014) (“The text and structure of Article II provide the President with the power to control subordinates within the executive branch.”).

To supervise and direct executive officers, the President must be able to remove those officers at will. Otherwise, a subordinate could ignore the President’s supervision and direction without fear, and the President could do nothing about it. See Bowsher v. Synar, 478 U.S. 714, 726, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (“Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey.”).

The Article II chain of command therefore depends on the President’s removal power. As James Madison explained during the First Congress: “If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.” 1 Annals of Congress 499 (Madison).

In 1789, the First Congress confirmed that Presidents may remove executive officers at will. As the Supreme Court has explained: “The removal of executive officers was discussed extensively in Congress when the first executive departments were created. The view that ‘prevailed, as most consonant to the text of the Constitution’ and ‘to the requisite responsibility and harmony in the Executive Department,’ was that the executive power included a power to oversee executive officers through removal.” Free Enterprise Fund, 561 U.S. at 492, 130 S.Ct. 3138 (quoting Letter from James Madison to Thomas Jefferson (June 30, 1789), 16 Documentary History of the First Federal Congress 893 (2004)). That Decision of 1789 “soon became the settled and well understood construction of the Constitution.” Free Enterprise Fund, 561 U.S. at 492, 130 S.Ct. 3138.

To summarize: “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 buck would stop somewhere else.” Id, at 513-14,130 S.Ct. 3138.

But that bedrock constitutional principle was challenged in the late 1800s and the early 1900s. As part of the Progressive Movement and an emerging belief in expert, apolitical, and scientific answers to certain public policy questions, Congress began creating new agencies that were independent of the President but that exercised combined powers: the executive power of enforcement, the legislative power of issuing binding legal rules, and the judicial power of deciding adjudications and appeals. The heads of those independent agencies were removable by the President only for cause, not at will, and were neither supervised nor directed by the President. Some early examples included the Interstate Commerce Commission (1887) and the Federal Trade Commission (1914). Importantly, the independent agencies were multi-member bodies: They were designed as non-partisan expert agencies that could neutrally and impartially issue rules, initiate law enforcement actions, and conduct or review administrative adjudications.

The constitutionality of those independent agencies was called into doubt by the Supreme Court in the 1926 Myers decision written by Chief Justice and former President Taft. In that case, the Supreme Court ruled that, under Article II, the President must be able to supervise, direct, and remove at will executive officers. The Court stated: When “the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal.” Myers v. United States, 272 U.S. 52, 122, 47 S.Ct. 21, 71 L.Ed. 160 (1926).

The Myers Court’s articulation of the President’s broad removal power appeared to mean that Congress could no longer create independent agencies. Indeed, Congress itself read Myers that way. For several years after Myers, Congress therefore did not create any new agencies whose heads were protected by for-cause removal provisions.

In the 1930s, based on his reading of Article II and buoyed by Myers, President Franklin Roosevelt vigorously challenged the notion of independent agencies. President Roosevelt did not necessarily object to the existence of the agencies; rather, he objected to the President’s lack of control over the agencies.

The issue came to a head in President Roosevelt’s dispute with William E. Humphrey, a commissioner of the Federal Trade Commission. Commissioner Humphrey was a Republican holdover Jfrom the Hoover Administration who, in President Roosevelt’s view, was too sympathetic to big business and too hostile to the Roosevelt Administration’s regulatory agenda. Asserting his authority under Article II, President Roosevelt fired Commissioner Humphrey. Humphrey contested the removal (and after Humphrey’s death, his representative continued the litigation in order to obtain back pay). Humphrey’s representative argued that Humphrey was protected against firing by the statute’s for-cause removal provision, and further argued that Congress could create independent agencies without violating Article II. The case reached the Supreme Court in 1935.

At its core, the Humphrey’s Executor case raised the question whether Article II permitted independent agencies. Representing President Roosevelt, the Solicitor General contended that Congress could not create independent agencies. The Solicitor General relied on the text and history of Article II, as well as the Supreme Court’s 1926 decision in Myers. But notwithstanding Article II and Myers, the Supreme Court upheld the constitutionality of independent agencies—an unexpected decision that incensed President Roosevelt and helped trigger his ill-fated court reorganization proposal in 1937. See Humphrey’s Executor v. United States, 295 U.S. 602, 631-32, 55 S.Ct. 869, 79 L.Ed. 1611 (1935).

In allowing independent agencies, the Humphrey’s Executor Court'emphasized that the Federal Trade Commission was intended “to be non-partisan” and “to exercise the trained judgment of a body of experts appointed by law and informed by experience.” Id. at 624, 55 S.Ct. 869. Those characteristics, among others, led the Court to conclude that Congress could create an independent agency “wholly disconnected from the executive department,” except in its selection. Id. at 630, 625, 55 S.Ct. 869. According to the Court, Congress could limit the President’s power to remove the commissioners of the Federal Trade Commission and, by extension, Congress .could limit the President’s power to remove the commissioners and board members of similar independent agencies. Id. at 628-30, 55 S.Ct. 869.

Ever since the 1935 Humphrey’s Executor decision, independent agencies have played a significant role in the U.S. Government. The independent agencies possess extraordinary authority over vast swaths of American economic and social life—from securities to antitrust to telecommunications to labor to energy. The list goes on.

Importantly, however, each of the independent agencies has traditionally operated—and each continues -to operate—as a multi-member “body of experts appointed by^ law and informed by experience.” Id. at 624, 55 S.Ct. 869. Independent agencies are not headed by single Directors. ■ As Professor Amar has explained, “the Decision of 1789” has remained controlling, at least to the extent that the Decision “es-' tablished that in all. one-headed departments, the department head must be removable at will by the president.” Akhil Reed Amar, America’s Unwritten Constitution 323 (2012).

The independent agency at issue here, the CFPB, arose out of an idea originally advanced by then-Professor and now-Senator Elizabeth Warren. In 2007, concerned about balkanized and inconsistent federal law enforcement of consumer protection statutes, Professor Warren encouraged Congress to create a new independent agency, a Financial Product Safety Commission. This new agency would centralize and unify federal law enforcement efforts to protect consumers. See Elizabeth Warren, Unsafe at Any Rate: If It’s Good Enough for Microwaves, It’s Good Enough for Mortgages. Why We Need a Financial Product Safety Commission, Democracy, Summer 2007, at 8,16-18,

The agency proposed by Professor Warren was to operate as a traditional' multi-member independent agency. The subsequent Executive Branch proposal'by President Obama’s Administration likewise contemplated a multi-member independent agency. See Department of the Treasury, Financial Regulatory Reform: -A New Foundation: Rebuilding Financial Supervision And. Regulation 58 (2009). The originally passed House bill sponsored by Congressman Barney Frank and supported by Speaker Nancy Pelosi-similarly would have created a multi-member independent agency. See H.R. 4173, 111th Cong. § 4103 (as passed by House, Dec. 11, 2009).

But Congress'ultimately departed from the Warren and Executive Branch proposals, from the House bill, and from historical practice by creating an indépendent agency with only a single Director. See Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L, No. 111-203, Title X § 1011, 124 Stat. 1376, 1964 (codified at 12 U.S.C. § 5491). The single Director of the CFPB is removable only for cause—that is, for “inefficiency, neglect of duty, or malfeasance in office”—during the Director’s fixed five-year term. See 12 U.S.C. § 5491(c)(3); cf. Humphrey’s Executor, 295 U.S. at 620.

Congress’s choice of a Single-Director CFPB was not an especially considered legislative decision. No committee report or substantial legislative history delved into the benefits of single-Director independent agencies versus multi-member independent agencies. No congressional hearings studied the question/ Congress apparently stumbled into this 'single-Director structure as a compromise or landing point between the original Warren multi-member independent agency proposal and a traditional executive agency headed by a single person.

Under the law as enacted, the President may not supervise, direct, or remove at will the CFPB Director. As a result, a Director appointed by a President may continue to serve in office even if the President later .wants to remove the Director based on a policy disagreement, for example. More importantly, a Director may continue to serve as Director under a new President (until the Director’s statutory five-year tenure has elapsed), even though the new President might strongly disagree with that Director about policy issues or the overall direction of the agency.

Congress insulated the CFPB’s Director from Presidential influence, yet also granted the CFPB extraordinarily broad authority to implement and enforce U.S. consumer protection laws. Under the Dodd-Frank Act, the "CFPB may “implement[] the Federal consumer financial .laws through rules, orders, guidance, interpretations, statements of policy, examinations, and ■ enforcement actions.” 12 U.S.C. § 5492(10). The CFPB may “prescribe rules or issue orders or guidelines pursuant to” 19 distinct consumer protection laws. Id. § 5581(a)(1)(A); see also id. §§ 5481(14), 5512(b). That rulemaking power was previously exercised by seven different government agencies. See id. § 5581(b) (transferring to the CFPB certain “consumer financial protection functions” previously exercised by the Federal Reserve, the Comptroller of the Currency, the Office of Thrift Supervision, the Federal Deposit Insurance Corporation, the National Credit Union Administration, the Department of Housing and Urban Development, and the Federal Trade Commission).

The CFPB may pursue enforcement' actions in federal court, as well as before administrative law judges. The agency may issue subpoenas requesting documents or testimony in connection with those enforcement actions. See, id. §§ 5562-5564. The CFPB may adjudicate disputes. And the CFPB may impose a wide range of legal and equitable relief, including restitution, disgorgement, money damages, injunctions, and civil monetary penalties. Id. § 5565(a)(2).

All of that massive power is ultimately lodged in one person—the Director of the CFPB—who is not supervised, directed, or removable at will by the President.

Because the Director acts alone and without Presidential supervision or direction, and because the CFPB wields broad authority over the U.S. economy, the Director enjoys significantly more unilateral power than any single member of any other independent agency. By “unilateral power,” I mean power .that is not checked by the President or by other commissioners or board members. Indeed, other than the President, the Director of the CFPB is the single most powerful official in the entire U.S. Government,' at least when measured in terms of unilateral power. That is not an overstatement. What about the Speaker of the House? The Speaker can pass legislation only if 218 Members agree. The Senate Majority Leader? The Leader typically needs 60 Senators to invoke cloture, and needs a majority of Senators (usually 51 Senators or 50 plus the Vice President) to approve a law or nomination. The Chief Justice? The Chief Justice must obtain four other Justices’ votes in order to prevail. The Chair of the Federal Reserve? The Chair often needs the approval of a majority of the Federal Reserve Board. The Secretary of Defense? The Secretary is supervised and directed and removable at will by the President. On any decision, the Secretary must do as the President says. So too with the Secretary of State, and the Secretary of the Treasury, and the Attorney General.

To be sure, the Dodd-Frank Act requires the Director to establish and consult with a “Consumer Advisory Board.” See id. § 5494. But the advisory board is just that: advisory. The Director need not heed the Board’s advice. Without the formal authority to block unilateral action by the Director, the Advisory Board does not come close to the kind of check provided by the multi-member structure of traditional independent agencies.

The Act also, in theory, allows a super-majority of the Financial Stability Oversight Council to veto certain regulations of the Director. See id. §§ 5513, 5321. But by statute, the veto power may be used only to prevent regulations (not to overturn enforcement actions or adjudications); only when two-thirds of the Council members agree; and only when a particular regulation puts “the safety and soundness of the United States banking system or the stability of the financial system of the United States at risk,” a standard unlikely to be met in practice in most cases. Id. § 5513(c)(3)(B)(ii); see S. Rep. No. 111-176, at 166 (“The Committee notes that there was no evidence provided during its hearings that consumer protection regulation would put safety and soundness at risk.”); see also Todd Zywicki, The Consumer Financial Protection Bureau: Savior or Menace?, 81 Geo. Wash. L. Rev. 856, 875 (2013) (“[Sjubstantive checks on the CFPB can be triggered ... only under the extreme circumstance of a severe threat to the safety and soundness of the American financial system. It is likely that this extreme test will rarely be satisfied in practice.”); Recent Legislation, Dodd-Frank Act Creates the Consumer Financial Protection Bureau, 124 Harv. L. Rev. 2123, 2129 (2011) (“[T]he high standard for vetoing regulations ... will be difficult to establish.”). In this case, for example, the veto power could not have been used to override the CFPB’s statutory interpretation or its enforcement action against PHH.

The Act also technically makes the CFPB part of the Federal Reserve for certain administrative purposes. See, e.g., 12 U.S.C. § 5491(a); see also id. § 5493. ' But that is irrelevant to the present analysis because the Federal Reserve Board may not supervise, direct, or remove the CFPB Director.

In short, when measured in terms of unilateral power, the Director of the CFPB is the single most powerful official in the entire U.S. Government, other than the President. Indeed, within his jurisdiction, the Director of the CFPB is even more powerful than the President. The Director’s view of consumer protection law and policy prevails over all others. In essence, the Director of the CFPB is the President of Consumer Finance.

The concentration of massive, unchecked power in a single Director marks a dramatic departure from settled historical practice and makes the CFPB unique among independent agencies, as I will now explain.

B

As a single-Director independent agency exercising substantial executive authority, the CFPB is the first of its kind and an historical anomaly. Until this point in U.S. history, independent agencies exercising substantial executive authority have all been multi-member commissions or boards. A sample list includes:

• Interstate Commerce Commission (1887)

• Federal Reserve Board (1913)

• Federal Trade Commission (1914)

• U.S. International Trade Commission (1916)

• Federal Deposit Insurance Corporation (1933)

• Federal Communications Commission (1934)

• National Mediation Board (1934)

• Securities and Exchange Commission (1934)

• National Labor Relations Board (1935)

• Federal Maritime Commission (1961)

• National Transportation Safety Board (1967)

• National Credit Union Administration (1970)

• Occupational Safety and Health Review Commission (1970)

• Postal Regulatory Commission (1970)

• Consumer Product Safety Commission (1972)

• Nuclear Regulatory Commission (1974)

• Federal Energy Regulatory Commission (1977)

• Federal Mine Safety and Health Review Commission (1977)

• Federal Labor Relations Authority (1978)

• Merit Systems Protection Board (1978)

• Defense Nuclear Facilities Safety Board (1988)

• National Indian Gaming Commission (1988)

• Chemical Safety and Hazard Investigation Board (1990)

• Surface Transportation Board (1995)

• Independent Payment Advisory Board (2010).1

Have there been any independent agencies headed by a single person? In an effort to be comprehensive, the three-judge panel in this ease issued a pre-argument order asking the CFPB for all historical or current-examples it could find of independent agencies headed by a single person. The CFPB found only three examples: the.Social Security Administration, the Office of-Special Counsel, and the Federal Housing Finance Agency. At the en banc stage, the CFPB cited no additional examples.

None of the three examples, however, has deep historical roots. Indeed, the Federal Housing Finance Agency has existed only since 2008, about as long as the CFPB. The other two are likewise relatively recent. And those other two have been constitutionally contested by the Executive Branch, and they do not exercise the core Article II executive power of bringing law enforcement actions or imposing fines and penalties against private citizens for violation of statutes or agency rules.

For those reasons, as I will explain, the three examples are different-in kind from the CFPB. Those examples therefore do not count for much when compared to the deeply rooted historical practice of independent agencies as multi-member agencies. To borrow the words of Justice Breyer in Noel Canning, as weighed against the settled historical practice, “these few scattered examples” are “anomalies.” NLRB v. Noel Canning, — U.S. —, 134 S.Ct. 2550, 2567, slip op. at 21, 189 L.Ed.2d 538 (2014); see also Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, 505-06, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010).

First, the CFPB cited and primarily relied on the example of the Social Security Administration, which is an independent agency headed by a single Social Security Commissioner. See 42 U.S.C. §§ 901(a), 902(a). But the current structure of the- agency is relatively recent. The Social Security Administration long existed first as. a multi-member independent agency and then as a Single-Director executive agency within various executive departments, most recently the Department of Health and Human Services, Only in 1994 did Congress change the Social Security Administration tó a single-; Director independent agency. Important-ly, when the agency’s structure was altered in 1994,' President Clinton issued a signing statement pronouncing that the change in the agency’s structure was constitutionally problematic. See President William J. Clinton, Statement on Signing the Social Security Independence and Program Improvements Act of 1994, 2 Pub. Papers 1471, 1472 (Aug. 15, 1994). That agency’s structure- therefore is constitutionally contested. In those circumstances, the- historical precedent counts for little because it is not settled. Cf. Noel Canning, 134 S.Ct. at 2563-64, 2567, slip op. at 14-15, 20-21 (discounting example of appointments during particular inter-session recess because of Senate Committee’s strong opposition to those appointments); INS v. Chadha, 462 U.S. 919, 942 n.13, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (discounting prior legislative veto provisions' because Presidents had objected to those provisions). If anything, when considered against the “settled practice,” the Social Security example only highlights the anomaly of an independent agency headed by a single person. Noel Canning, 134 S.Ct. at 2567, slip op. at 21.

Moreover, the Social Security Administration is not a precedent for the CFPB because the Social Security Commissioner does not possess, unilateral authority to bring law enforcement actions against private citizens, which is the core of the executive power and the primary threat to individual liberty posed by executive power. See Morrison v. Olson, 487 U.S. 654, 706, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (Scalia, J., dissenting). The Social Security Administration does not have power to impose fines or penalties on private citizens in Social Security benefits cases. Instead, the bulk of the Social Security Administration’s authority involves adjudication of private claims for benefits. Although the agency does possess limited power to seek civil sanctions against those who file improper claims, the Commissioner may initiate such a proceeding “only as authorized by the Attorney General,” who is an executive officer accountable to the President. 42 U.S.C. § 1320a-8(b).'

Second, the CFPB cited the example of the Office, of Special Counsel, an independent agency headed by a single Special Counsel. The Office has a narrow jurisdiction and mainly enforces certain personnel rules against government employers and employees, such as the prohibition against improper political activity by government employees. Like the Social Security. Administration, the Office of Special Counsel lacks deep historical roots. It became a single-Director agency in 1978. And like the Social Security Administration, the constitutionality of the Special Counsel has been contested since its creation. Under President Carter, the Department of Justice op