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The Chief Justices Battle over the Removal Power

Roberts and Kagan present two very different conceptions of the separation of powers.

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Seila Law was the Court's most significant separation of powers case since Noel Canning. Yet, this decision is–at best–a symbolic victory for conservatives; not nearly enough to staunch the June gloom. I don't think people will embroider "Overrule Humphrey's Executor" on red baseball hats.

As a practical matter, this case will have little impact. Whether the President can fire the CFPB Director for cause, or at will, will not make much of a difference. (Had the Court broadly read the phrases "inefficiency, neglect of duty, or malfeasance in office," we could have see significant shifts in administrative law.) The more likely course is to simply wait for the Director's five-year term to expire. Recall that President Trump chose not to fire Richard Cordray. (Conveniently, Cordray resigned to embark on a failed gubernatorial campaign.)

Perhaps the most significant–and rewarding–aspect of the case was the battle royale between the actual and de facto Chief Justices: John Roberts and Elena Kagan. They are the two leaders of the Court. And from my vantage point, the two best writers on the Court. It is a joy to read their prose.

Roberts writes with a level of surgical precision that every lawyer should emulate. There is seldom a wasted word. When I edit a Roberts opinion, there is very little to remove. He puts so much care and thought into every syllable. Meticulous and polished.

Kagan writes with a delightful conversational flair. I found myself chuckling at several of her quips. I adore her rhetorical questions:

  • What does the Constitution say about the separation of powers—and particularly about the President's removal authority? (Spoiler alert: about the latter, nothing at all.)
  • The analysis is as simple as simple can be. The CFPB Director exercises the same powers, and receives the same removal protections, as the heads of other, constitutionally permissible independent agencies. How could it be that this opinion is a dissent?

I encourage people to emulate Roberts's style. But don't try to fake Kagan's style. This type of wit cannot be forced. It must come naturally, and from within.

Justice Kagan name-dropped to great effect. In one spot, she relied on Justice Frankfurter's attack on Chief Justice Taft's Myers decision:

Expressing veiled contempt as only he could, Justice Frankfurter wrote for the Court that Chief Justice Taft's opinion had "laboriously traversed" American history and that it had failed to "restrict itself to the immediate issue before it."No wonder Humphrey's had "narrowly confined the scope of the Myers decision." Justice Frankfurter implied that the "Chief Justice who himself had been President" was lucky his handiwork had not been altogether reversed.

Kagan referred to Taft as "a judicial presidentialist if ever there was one."

Kagan criticized Roberts for misreading the FTC's power. She name-dropped big names.

The majority's reply that a court including Charles Evans Hughes, Louis Brandeis, Benjamin Cardozo, and Harlan Stone somehow misunderstood these powers lacks all plausibility

Roberts crushes on Chief Justice Hughes. That burn was personal.

Though, one name was surprisingly lacking in a case about the removal power: Scalia. In Bostock, the Justices fell over themselves to claim Nino's mantle. But here, his famous dissent was barely mentioned. The majority didn't cite Scalia's dissent. And here is how Kagan described Morrison:

The Morrison Court, over a one-Justice dissent, upheld for-cause protections afforded to an independent counsel with power to investigate and prosecute crimes committed by high-ranking officials.

"A one-Justice dissent." That's it? A lone wolf, perhaps. Kagan previously praised Scalia's writing in Morrison. But she did not praise its reasoning. (I, for one, would wear a red cap that said "Make Scalia Great Again.").

Justice Kagan also cited her famous article, Presidential Administration, twice. I previously criticized Justice Kavanaugh for citing himself. Here, the Kagan citations are against interest. In her article, she articulated a broad understanding of executive power. But in her Seila dissent, she defers to congressional limits on executive powers. Kagan was trying to signal that this dissent does not necessarily reflect her priors. Consider the cites:

And debates about the prudence of limiting the President's control over regulatory agencies, including through his removal power, have never abated. FN1

FN1: In the academic literature, compare, e.g., Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001) (generally favoring presidential control over agencies), with, e.g., Strauss, Overseer, or "The Decider"? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 704, 713–715 (2007) (generally favoring administrative independence).

She is contrasting her own work favoring presidential control, with Peter Strauss, who favors independence. Kagan makes this point later with a snappy signal:

The President's engagement, some people say, can disrupt bureaucratic stag- nation, counter industry capture, and make agencies more responsive to public interests. See, well, Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2331–2346 (2001). At other times, the arguments favor greater independence from presidential involvement.

"Some people" is her. She says that. And then she rules in the opposite direction. Kagan But cf.'d herself! (Justice Kavanaugh cited himself again in Agency for Int'l Development v. Alliance for Open Society–this time to Bluman v. FEC (D.D.C. 2011)).

Alas, Kagan flew too close to the rhetorical sun. In two spots, she made not-so-veiled attacks of President Trump. First, consider this comment about the Federal Reserve:

Insulation from political pressure helps ensure impartial adjudications. It places technical issues in the hands of those most capable of addressing them. It promotes continuity, and prevents short-term electoral interests from distorting policy. (Con- sider, for example, how the Federal Reserve's independence stops a President trying to win a second term from manipulating interest rates.)

I wonder what President she could possibly be talking about?! Here, she is obviously alluding to the President's never-ending badgering of the Fed to lower interest rates to help his re-election campaign. But her next barb in Footnote 11 was much worse.

Second, the majority complains that the Director's five-year term may prevent a President from "shap[ing the agency's] leadership" through appointments. Ante, at 24. But again that is true, to one degree or another, of quite a few longstanding independent agencies, including the Federal Reserve, the FTC, the Merit Systems Protection Board, and the Postal Service Board of Governors. (If you think the last is unimportant, just ask the current President whether he agrees.)

Here, Kagan is referring to the fact that Trump recently appointed a political donor to become the next Postmaster General. And, this appointment was closely related to Trump's opposition to mail-in ballots. Of course, the Court already decided RNC v. DNC from Wisconsin. Moreover, Kagan broke the fourth-wall (or is it the third branch!?) by speaking to "the current President." In Trump v. Hawaii, Roberts expressly distinguished "a particular President" from "the Presidency itself." I really wish Kagan dropped this line. It sullied an otherwise pitch-perfect dissent. I suspect Justice Breyer was not too keen about signing onto this footnote.

Kagan had one other topical reference, though it probably hit closer to home. In footnote 12, she discusses the Independent Counsel statute at issue in Morrison:

The majority, seeking some other way to distinguish Morrison, as- serts that the independent counsel's "duties" were more "limited" than the CFPB Director's. Ante, at 17–18. That's true in a sense: All (all?) the special counsel had to do was decide whether the President and his top advisers had broken the law. But I doubt (and I suspect Presidents would too) whether the need to control those duties was any less "central to the functioning of the Executive Branch" than the need to control the CFPB's.

Of course, Morrison did not involve an investigation of the President. But her former boss was investigated for years by Ken Starr. Another statement against interest.

One final detour. Roberts alluded, indirectly to special counsel Robert Mueller. He noted that the Office of Special Counsel (OSC, a federal investigatory agency) is different from the Special Counsel's Office:

The OSC should not be confused with the independent counsel in Morrison or the special counsel recently appointed to investigate allegations related to the 2016 Presidential election. Despite sharing similar titles, those individuals have no relationship to the OSC

After sitting through the impeachment trial, I would have thought Roberts could have avoided this citation. But he didn't.

I will have more to say about the specific moves in Seila Law in due course. Now, we wait. Opinions in about 7.5 hours.

NEXT: Blue June Glooms On

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9 responses to “The Chief Justices Battle over the Removal Power

  1. I thought the two Chief Justices line was a little snarky. But I definitely enjoyed this post overall, so I give it a pass.

    Besides, is snark so bad?

    1. It’s like anything- good when a leftist especially a Jewish one like Kagan or Jon Stewart née Leibowitz does it and shitty and passive agressive when an moderate or conservative uses it.

      I’m a simple Princeton man myself but this seem a lot like that white privilege I’m always hearing about. However I’m informed that leftist privilege is good because leftists are good and white privilege is bad because white people are bad.

      1. I’m not impressed with Kagan’s “humor” — I can do far better and I’m neither Jewish nor leftist.

    2. What I don’t understand is why Presidents appoint Chief Justices rather than elevate a known Justice to the CJ.

      1. In theory, you could. But then you’d have to spend political capital in two confirmation hearings – the first to promote your new Chief Justice and the second to get the new Justice accepted. And the political fallout if your proposed Chief fails to win confirmation… Well, that would be bad.

        Easier to avoid the issue and deal with only one confirmation.

    3. I agree…. Kagan’s particular brand of politics-first judicial theory is refreshing. The court is much better off when justices use politics to guide their decision-making and back into their legal reasoning.

  2. My law Professor was definitely a unitary executive theorist (although I seem to remember he made some kind of distinction between policy-making positions and administrative positions – sort of along the lines of Secretary of Defense vs. Treasury that I didn’t intuitively understand at the time). Either way, I left Law School thinking the unitary executive made the most sense, Morrison was an aberration that’s basically dead, etc. That being said, Kagan’s dissent is very powerful there. I didn’t realize just how badly gutted Myers based on those later cases.

    All that being said, two thoughts: First, Free Enterprise seems to be the big case to pick a fight with, not Myers. Kagan does her best to minimize that case as the weird one, but each side seems to have weird cases they can only dismiss as weird. Second, I’m absolutely going to push back on this being a minor case. In terms of overall precedent, its reach is narrow (although it could open the way to a lot more challenges on administrative independence). However, the CFPB has been something openly attacked for years by the GOP and this decision entirely removes its independence. I don’t think that’s a small thing. I think blue June is more purple than previously argued.

    1. Yes.

      Roberts writes well but rules erratically. It helps if you keep your expectations low. June could have been a lot worse.

  3. I like Ginsburg’s trademarked Ginsburns…and that’s a Ginsburn!!