By Randolph May
In Chapter 5 of the book of Daniel, it is reported that
"when the fingers of a human
hand appeared and wrote on the plaster of the wall," as King Belshazzar
watched, "his face turned pale and
he was so frightened that his
legs became weak and his knees
were knocking."
I don't know whether anyone's knees are knocking at FCC headquarters, but the handwriting may be on the wall – or in this case in the words contained in a February 12 letter from Acting Solicitor General Sarah Harris to Senator Dick Durbin, Ranking Member of the Senate Judiciary Committee. The first sentence declares: "I am writing to advise you that the Department of Justice has determined that certain for-cause removal restrictions that apply to members of multimember regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality." Solicitor General Harris states that DOJ specifically has determined that the statutory tenure protections for members of the FTC, National Labor Relations Board, and Consumer Product Safety Commission are unconstitutional.
The Solicitor General then explains why she believes, in accord with the Supreme Court's current jurisprudence, her view is correct. She relies most heavily on the Supreme Court's decision in Seila Law LLC v. Consumer Fin. Protection Bureau, where the Court held that CFPB's "for-cause" statutory tenure protection is unconstitutional. You should read the entire Seila Law opinion, but, for present purposes, the relevant point is the Court's dicta to the effect that the statutory tenure protection provisions applicable to multi-member agencies – here's looking at you FCC – may be constitutional only if such agencies "do not wield substantial executive power." The SG concludes that the FTC, NLRB, and CPSC all wield substantial executive power, so, therefore, any for-cause statutory restrictions on a president's removal power are unconstitutional.
I've addressed this question of the constitutionality of the president's removal power, in light of the seminal case of Humphrey's Executor v. FTC, for many years – well, decades – and I'm sure I'll continue to do so. My point here is to call attention to the SG's letter, and to offer these brief observations regarding what "the handwriting on the wall" may portend for the FCC.
First, in key respects, the FCC's structure as a multi-member agency and the powers it exercises are very much like those of the FTC, NLRB, and CPSC – a blend of legislative, executive, and judicial-like powers. For example, to take just one power, it's difficult to suggest that in carrying out its enforcement regime, the FCC does not wield substantial executive power. So, if the SG's view of the president's removal power regarding the three identified agencies is correct, it may be difficult to distinguish the FCC.
Second, unlike the statutes governing the FTC, NLRB, and CPSC, the Communications Act does not actually contain any "for-cause" limitation on presidential removal. The notion of the FCC as an "independent" agency is dependent on its multi-member composition, fixed and staggered terms, and bipartisanship requirement – in other words, on its structure. It's possible that, if put to the test, these structural features may be sufficient if the Supreme Court does not fully embrace Seila Law's implications. But I have my doubts, especially in light of the little noticed fact that the Communications Act contains no "for-cause" restriction on the president's removal power. That statutory omission could possibly make all the difference.
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