One of the Constitution’s chief protections for liberty is the separation of powers. The legislative power is granted to Congress, the judicial power to the courts, and the executive power to the president. This division cannot be altered by anything short of a constitutional amendment. Still, since the beginning of the 20th century, Congress has enjoyed considerable success in limiting the president’s executive power through the creation of what are known as “independent agencies.”
One of the main differences between independent agencies and traditional executive departments is that while officers of the latter serve at the pleasure of the president, the heads of independent agencies are insulated from presidential removal except “for cause.” This structure denies the president the ability to exert control over independent agencies, even though they exercise significant executive power by enforcing laws and pursuing investigations.
In 2010, Congress added another independent agency to the ever‐expanding administrative state: the Consumer Financial Protection Bureau. The CFPB is even less accountable to the democratically elected branches because, unlike every independent agency created in the 20th century, all of which are headed by multi‐member commissions, the CFPB is headed by a single director, removable only for cause. The CFPB director has near‐unilateral authority to enforce 19 federal laws, without answering to anyone. This is a problem.
Supporters of the CFPB’s constitutionality—a group that doesn’t now include the CFPB itself, as the Trump administration has changed sides—seek refuge in a 1935 Supreme Court case called Humphrey’s Executor. In that case, the Court, flying in the face of history and precedent, declared that limitations on the president’s ability to remove the heads of independent agencies were constitutional.
Read more at https://www.cato.org/blog/put-end-unaccountable-fourth-fifth-branches-government
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