Formalism Resurgent? Seila Law v. CFPB

The Supreme Court has a new mixed drink: it’s five parts formalism to four parts functionalism, with a dash of Humphrey’s Executor. This new drink was on full display in Seila Law LLC v. CFPB, in which five Justices concluded that Congress violated the separation of powers when it placed limits on the president’s power to fire the CFPB’s director. Those five Justices used what’s called the “formalist” approach, prevailing over the competing “functionalist” approach adopted by the four dissenting Justices. Throughout history, the Court has oscillated between formalism and functionalism, especially in cases involving the president’s power to remove public officials. For the latter half of the 20th century, functionalism appeared to be the dominant approach to removal-power cases—until two recent decisions from the Roberts court. Might formalism now be seeing a resurgence?

A Puerto Rican Parley: Weekly Brief for June 1

This week, the Supreme Court decided five cases. In Financial Oversight & Mgmt. Bd. for Puerto Rico v. Aurelius Investment, it held that appointments to the board overseeing Puerto Rico’s financial recovery were constitutional. In Banister v. Davis, it concluded that a defendant’s motion under Rule 59(e) of the Federal Rules of Civil Procedure does not count as a “second or successive” habeas petition. In Nasrallah v. Barr, it determined that 8 U.S.C. §1252(a)(2)(C) does not cabin federal appellate courts’ jurisdiction over factual challenges to a finding of removal under the Convention Against Torture. In Thole v. U.S. Bank, it ruled that a certain participant in U.S. Bank’s defined-benefit pension plan lacks standing to sue U.S. Bank for fiduciary misconduct. And in GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, the Court held that the New York Convention does not conflict with equitable estoppel doctrines permitting a nonsignatory to compel arbitration. Here’s your recap of this past week at the Supreme Court.