• Two justices, however, appeared unreceptive to certain arguments advanced in favor of a narrower holding.
  • Justice Alito asked the Solicitor General to explain the Court’s earlier precedents treating severability clauses as nondispositive, potentially indicating willingness to strike down the entire statute.
  • Justice Gorsuch seemed taken aback by one proposed nonconstitutional resolution, observing that the appointed amicus’s argument that ratification resolves the dispute resembles a request for dismissal of the writ as improvidently granted, even though the ratification argument against certiorari was raised during certiorari briefing.
    
    
• Several justices expressed concern about the rationale and administrability of the rules being proposed.
  • The Chief Justice appeared hostile to a rule that would prohibit removal for particular policy decisions but permit it for broad policy disagreements (an approach Justice Gorsuch likewise seemed to think unworkable), which could necessitate the Court’s refereeing of such questions—a result the Chief Justice called “the worst of all possible worlds.”
  • Justices Alito and Gorsuch both displayed skepticism at the feasibility of the amici’s proposal that removal restrictions be tolerated only where the principal officer is not exercising core powers the Constitution assigns to the President.
  • Justice Breyer focused on whether the facially straightforward rule of permitting removal restrictions on multimember but not single-director structures had an underlying logic or useful guiding principle, compared to a case-by-case approach that would assess each agency’s particular need for independence.
  • Justices Ginsburg and Kagan both suggested that multimember committees are actually harder to influence, and thus more independent, than single-director structures, which arguably cuts in favor of tolerating more removal restrictions for single-director structures.
  • Justice Sotomayor noted that several agencies comparable in power to the CFPB—the Office of Special Counsel and the Social Security Administration—have leaders with similar removal restrictions.
    
    
• The justices also alluded to the practical consequences of the proposed rules.
  • Justice Kavanaugh repeatedly echoed the Solicitor General’s concern that a director, whose tenure may extend into the next President’s term, could saddle that President with unwanted policy priorities.
  • Justices Gorsuch and Kavanaugh both expressed concern that allowing removal for policy differences would effectively overturn Humphrey’s Executor v. United States.[2] Justice Gorsuch appeared to prefer “being honest” about such an overruling, and Justice Kavanaugh observed that watering down the removal restrictions would implicate the independence of other agencies as well.

In sum, those forecasting the CFPB’s demise may have found little at oral argument to dissuade them. Even so, the variety of rationales debated suggests the scope and reasoning of any decision remains up in the air.

[1] Docket No. 19-7.

[2] 295 U.S. 602 (1935).