First congress on each occasion the founders coated for a single individual rather than a plurality of the presidency of the structure best calculated to ensure a strong and vigorous and accountable executive the president alone shall take care of the law shall be faithfully executed that obligation according to James Madison in the Supreme Court just seven years ago with Free Enterprise and powers of president to keep them accountable to hold the power to remove them from office. Didnt that change with humphreys executor . That case that i just quoted was Free Enterprise that was many years later than humphreys executor but the Free Enterprise fund made it clear that there have been exceptions that the court has determined not to revisit with the Free Enterprise fund but there has been exceptions under narrow circumstances but that experiment by congress to take power away from the president are limited to those exceptions. And those that are uniquely diminished. Tavis is any worse than that . Humphries executor to examine the agency that was described by the Supreme Court in the case to have limited jurisdiction with quasi legislation and it did not have the powers of the fcc to enforce the law. That was later described as executive power. There is a distinction with the ftc and humphreys executor they are both executives. Examining the ftc in 1935 with limited powers subsequent it was the inferior officer it with the Free Enterprise fund says we will win intrusions with the exclusive power of the president to be accountable faithfully to execute the laws. But im asking how was this different to diminish the power of the president . Spinning disk goes further than Anything Congress has ever attempted to do in history. How is the president s power with the same removal removal . And to recognize it was going further than it ever thought before. In limiting the president s power and first of all, the removal power is limited first is a Single Person. And some of which would be appointed. If you only have to get rid of one person. But with that debate 1787 focuses when you concentrate power on one individual you have a concentration of power, humphreys executor recognized and this gore recognized in the Panel Decision if you disbursed the power among five individuals the director of this bureau in the home office yet cannot be replaced by the president without the Senate Congressional authority. A bad is different than all of the other in agencies and how they operate. They all have multiple members with staggered terms as well as the president s ability to with most of those independent agencies. So the ftc, sec all within the inauguration and that fcc. Is important here in answer to your question to put this agency into context the power to appoint every Single Person from the agency without the Senate Involvement that the director has restricted by statute from even communicating. How does that further diminish the president s removal power . All of the statutes one of them takes the power of the president what the director says to interpreting statutes and retrospect to looking and regulations and with that exclusive power to decide what to prosecute. And there was day constitutional flaw. But with respect to that is not it at all the context that was stated by congress with respect to this agency. And get this director one individual but that is not the only thing. That is by a series of statutes of love which are intended by congress to make this Agency Completely independent and completely unaccountable so the president. As the chief justice said it diffuses accountability. And it is not as though there is accountability for appropriations they have to go before different committees every year and they dont understand the role or the argument. It is the accumulation of power. This agency does not. But most agencies do not have annually appropriated budget. Executive agencies. Banking regulatory agencies have annual appropriations . Or self funding mechanism . Each of them are different some of them do not have to go because there is a separate way so each one is different. In this on the director is more accountable. How was this director accountable to anyone . A the president wishes to say so anything this bureau does dont look at me. That that is an attack on all independent agencies that means we cannot do that that is a serious problem we cannot do that i know you have preserved your arguments from another court but we cannot do that but isnt the fact the president can replace the frequency will get to replace this person had only a fiveyear term . Or cause could be found the individual could be removed so that is no different so where is humphreys executor with these multi member . Many of them specified so many from each party so it is an intrusion of president ial power to say you can make an appointment for you have to appoint somebody from the opposite party that isnt happening here. The president has more authority. Actually this transition ends next year with respect to this director but unless the senate decides to approve the president ial appointment this director could serve another 10 or 15 years. The Panel Decision in this case talked about various ways the body such as the ftc or the others have to diffuse because they have to talk to one another in their individual staggered so the president has employed over a period of time with respect to selecting the chairman and the responsibility for individuals to talk to one another before making decisions. I sanders than the principal restricting it isnt interested in real object to that we make that point but the court cannot change humphreys executor but we wish that it could. Get also cannot change morrison verses olson. But you say it is different because of the in the vessel independent counsel . But the core itself to the Administrative Agency that have Civil Enforcement power just like this one just like the ftc. So what could be more powerful to indict the highest officials . That is correct and is the jurisdiction it is much more powerful in terms of the ability to impair the power of the president the independent counsel was much more threatened and this zero. Judge tatel, we simply object to restricting of a president s power faithfully to execute in the independent counsel statute from the cftc but what they said with a Free Enterprise fund whenever those limitations were, they are not before us because they have not asked us. Were the Appeals Court and bound by Supreme Court precedent. And i have not seen an argument in your brief, even if i did read that there is a serious risk for the removal provisions. Even if i agreed with you i dont see how as a judge on the Appeals Court found by morrison and humphries i can go there. I dont see where this court to gets that. I understand the point and i understand the restriction were faced with because this is the intermediate Appellate Court so what it comes down to is unless you say this decision is dictated by humphreys executor or more since morrisons everything this director is given all love the power is subsumed in no power just like morrison then we are bound by that. But i have not heard from you yet the argument how i can conclude that we are not bound by that the independent counsel was tenure limited. As a superior officer of the United States and the limited tenure with respect to one investigation. But the question is what is the effect to what extent does it in power compare the power of the president . It doesnt make any difference how long the tenure is but the independent counsel had to indict and prosecute those ties officials of government i cannot imagine anything to more significantly impair than that. I submit to you the invitation of the narrow limitation with respect to the powers of that. I understand the power to indict is serious that the cftc cfpb does that have but to impose for violation and that is a serious problem goes letter given to you cfpb. You keep saying it is serious but how seriously it limits the president s power. That is the question. I will put it this way because i think you have to look at the broad powers given to this agency to decide if theyre only within the scope of humphreys executor. The Supreme Court was very serious seven years ago when it said we will not go any further or any further experimentation has to be looked at carefully in the context of history and this agency has more power. There are three things. That were analyzing i think , uh the contour is of the of countries countries exception. The Free Enterprise fund says look at history at the historical roots. Laddie a fact of those individuals and president ial power so is there a further diminishment of president ial power by humphries executor . They said yes maybe arithmetic from humphries executor alone and from that further diminishment. That is what judge tatel is asking but it seems we have to compare to the multi member agencies operate and under president ial control day turned over quickly with the new president we have seen that with the independent agencies they have staggered terms. This does not turn over quickly so does that matter . Thank you for answering my question. [laughter] i am trying. It takes it as far as it goes. But the statute went further than that to limit the president s ability to control or have communications with congress and took away power with respect to the budget and the process of appropriation and power from the president to have anything to do. Be more specific look at the ftc today that is not going on with the sec or the sec or nlrb. Why . The way congress has structured these independent agencies all the studies and academics have shown there is . Turnover with a new administration. This will not after this appointment will be the third year of the next president and that the fourth year of that president if they win on a platform of Consumer Protection has to live with president johnson appointee. President trumps appointee. That is the point. Does that matter with the agency that you dont control. It does matter is here and now that restriction and diminishment of the president s power and in the future for those points are absolutely correct. So staggered terms are constitutionally required . What i think it gore is saying in the Free Enterprise fund but not to be narrowly constrained. But it seems like it has to be in a way that matters with the diminished and the president ial power i am not quite sure ive understand the situation to remove 100 percent of officers. He can. Vendor states ended his five years so there is the 80 percent chance. But my question is if you have a fairly robust authority to remove the one person that everybody gets to do that but some are. If you compare that to raise situation of multiple members and a greater likelihood each president can remove one but perhaps a lesser likelihood each president can remove a majority, and then that is a wash everything is else is weld constant been the only difference is to remove one person and that is everybody and that may or may not be a majority. Is there room the a difference . I believe what the Supreme Court said in a Free Enterprise fund is that the baseline was decided in 1777, 78 and 79 congress has decided to restrict the power and created an individual that a president can appoint. So the reserve board goes down because those are 14 year terms so no president has the authority to appoint the majority to have policy preferences. But the chairman does not. I understand that but you dont have president ial control so this is a pattern in the financial regulatory agencies to have some amount of separation and i am thinking that is consistent with the constitution and the executive authorities to be faithfully executed to have those removable with malfeasance. But not have the removal because it is a policy matter. You cannot avoid the financial cronyism the you say that is out of bounds . It is. We elected a unitary president i looked at the debates between june 1st of 77 it was debated the vote was seven three because execution of the law is not just enforcement of laws for indictment is policy decisions with how they are enforced. But july 2018 the president has the ability to replace the director of the bureau with anyone he wants. Through Senate Confirmation so lets imagine a democratic seat opens up on the cfpb commission the president can fill that one but by statute passed to a point somebody from the democratic party. So my question to you so what is the greater intrusion . The replacement of some one of your choice or forcing a president to appoint someone of another party for the commission . On that date you refer to the president may or may not be able to appoint a new director. If the senate does not give permission. That is the same for the Federal Reserve board and a number of other agencies. But to get back to my question so when the president exercised his power of the people which is the greater intrusion . If you take the decisions that were made and reaffirmed seven years ago by the United StatesSupreme Court is the power of appointment is extremely important for the court goes on to say. A power to remove is the same for the commissioners and the director of the bureau the or not answering my question. Could you agree the president has more of that power to replace the director than replacing a number of the commission . A particular president at a particular point and time with the right circumstances may have more power with respect to the individual but the next president may not so that power may not be there. I would like to reserve the remainder of my time for rebuttal. So to return to my perspective, this debate about the difference of multi member agencies is fascinating. But i dont understand how Orson Morrison not only up held but excess up exercises power is analogous so you need to go back to the Supreme Court and say take a more careful look how these agencies are very different but from where we sit, i dont see how this can go beyond the court. If you feel or you conclude this goes no further bin humphries executor bin the next up is the Supreme Court. But i submit this agency with its collective power one individual to appoint everybody can hire and fire nowhere else in the federal government is very limited proposal answer it this way judge tatel. If the powers and given to the epa and the treasury in the antitrust agencies are all vested in one individual then why not . If it can be done with his name can be done with other people then what is left . Are like to reserve the balance of my time. If it may please the court judge griffith that the function of executive in nature is a critical observation because it tells us the rationale of humphries executor cannot be based on function of the ftc. Lusby based on Something Else and we submit that is the structural features of the ftc because what the court was concerned about what is the multi remember bodies. And never framed the analysis in those terms but they never made these arguments of the multi member. Panel think that is fair from the entire opinion if you read it not just the section that discusses the analysis but why congress made it the way it was they did emphasize it was a multi member body. Why wouldnt they discuss that if it was relevant . It is there, your honor into sentences the first sentence that part of the opinion start says it is the administrative body so when they talk about it being the administrative body they are getting at the multi member delivered in the body at the end of that analysis it says officers of this type for character so what that has to be getting at is the courts rationale that these are different. So that is the body they were dealing with. It was a multi member body. Exactly. Those are the facts that were before them just not widely assume. So what is the constitutional provision mistake . What are we looking at . The point is the removal power and must we removed that will that humphries executor is a narrow exception and of rationale of that exception has to be based. How does that tell us if you are even correct . Because under Free Enterprise the Supreme Court assumes those sec commissioners that could cause provisions the Supreme Court also held that was sufficient control that indirectly gave sufficient control. So if there was an exception that was created, it was at least recognized in Free Enterprise. It is a multi member body so the rationale to be limited to this deliberative body that could be characterized by the Supreme Court as cause ive legislative we dont take issue with that. But we are suggesting that to that structural feature there is no living principle to countries humphries executor the function that the ftc had is the exact same function of the treasury. So what to do with morrison verses olson . We are bound by that. Yes you are. That case did not involve principal and if you look at Free Enterprise that is exactly how it was described it starts by talking about the general rule in says humphries executor is the exception for principal bin turns the Free Enterprise fund precludes morrison as a sweeping exception and if it were otherwise been the position to just there would be a restriction fo