The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

What's the point of Appointments Clauses challenges?

In every case, the Court refuses to grant any relief that would actually redress the Plaintiffs' injuries.


Over the past decade, the Supreme Court has decided several Appointments Clause cases. In each dispute, the plaintiffs were aggrieved by some agency action. In the short term, the plaintiffs hoped that their suit would nullify that agency action, and allow them to recoup money or marketshare. But optimistically, the plaintiffs hoped to land the kill-shot: because the structure of the agency is unconstitutional, the entire agency is unconstitutional. This strategy has never worked. In each case, the Court found a violation of the separation of powers, but issued a very narrow remedy.

In Free Enterprise Fund, the Court severed the tenure protections. In Seila Law, the Court severed the tenure protections. (And President Biden promptly fired Trump's holdover CPFB director). In Arthrex, the Court made the decisions of the patent judges subject to review by the Senate-confirmed Director. And in Collins, the Court… Well, I don't know exactly what the Court actually did. I am still digesting that remedial holding. But the shareholders will likely never see a penny. (And President Biden promptly fired Trump's holdover director.)

What's the point of these Appointments Clause challenges. In each case, the Court refuses to grant any meaningful relief. Moreover, the Court's conservatives are so helplessly fractured on these cases. Ultimately, nothing of merit happens. All of these victories are symbolic.

Justice Gorsuch alluded to the problem:

The only lesson I can divine is that the Court's opinion today is a product of its unique context—a retreat prompted by the prospect that affording a more traditional remedy here could mean unwinding or disgorging hundreds of millions of dollars that have already changed hands. Ante, at 32–33. The Court may blanch at authorizing such relief today, but nothing it says undoes our prior guidance authorizing more meaningful relief in other situations.

The Court is unwilling to actually take actions that changes the status quo. So we are left with long, messy decisions with no real-world impact. Do we really need to waste our time again to decide the fate of the Civilian and Postal Boards of Contract Appeals?