Steve Bannon got his wish.
One month after Donald Trump was sworn into office, then–White House chief strategist Steve Bannon spoke to a gathering of conservative activists about the new president’s agenda. One of the three pillars of that agenda,, was “the deconstruction of the administrative state,” or the system of regulations and services that carries out the bulk of government’s work, largely through administrative agencies. While the strategist may be gone, the strategy remains in place.
In Monday’s decision, the court said that the CFPB’s single-director structure was more of an intrusion on the president’s powers than a multimember commission. But as Justice Elena Kagan pointed out at argument and in her dissent, that reasoning is precisely backward. A president would havecontrol over an agency if he only had to deal with or convince one person than an agency where he had to go through several individuals.
Yet the Supreme Court relied on that small difference—the distinction between a single-director agency and a multimember one—to conclude that the CFPB was unconstitutionally structured. In doing so, the court mimicked the legal strategy for chipping away at legal protections for abortion.
The legal strategy of whittling away at cases or principles that are disfavored can seem more minimalist than outright overruling those cases. In the CFPB case, for example, the court said that Congress cannot limit the president’s ability to fire the director of a single-director agency rather than declaring all restrictions on presidents’ authority to remove agency heads unconstitutional. But that minimalist appearance can be deceiving.
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