The Volokh Conspiracy

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The Remedies in Arthrex and Collins

In both cases, the Court made up a remedy that none of the parties requested. And Justices Gorsuch and Thomas are engaged in a deep and profound jurisprudential debate.


Last week, the Court decided two important Appointments Clause cases. Arthrex v. United States held that the tenure protections of Administrative Patent Judges were unconstitutional. And Collins v. United States held that the tenure protections of the single director of the Fair House Finance Agency were unconstitutional. In both cases, the Court could have cured the constitutional defect by declaring the tenure protections unconstitutional, and severing those protections from the remainder of the statute. As a result, the APJs and the FHFA Director would be removable at will. However, the Court did not take this approach. Instead, it got creative. Indeed, as far as I can tell, in both cases the Court made up a remedy that none of the parties requested.

In Arthrex, the Court created a new structure in which the Senate-confirmed Director could review the decisions of the Administrative Patent Judges.

We conclude that a tailored approach is the appropriate one: Section 6(c) cannot constitutionally be enforced to the extent that its requirements prevent the Director from reviewing final decisions rendered by APJs. Because Congress has vested the Director with the "power and duties"of the PTO, §3(a)(1), the Director has the authority to provide for a means of reviewing PTAB decisions. See also §§3(a)(2)(A), 316(a)(4). The Director accordingly may review final PTAB decisions and, upon review, may issue decisions himself on behalf of the Board. Section 6(c) otherwise remains operative as to the other members of the PTAB.

In Collins, the remedy was even stranger. The shareholders asked the Court to undo Amendment 3, and return the payments. The Court turned down this option because "the Acting Director who adopted the third amendment was removable at will." The Court would only consider the actions taken by the confirmed Director, who was not removable at will. Still, the Court observed that there was no problem with how the confirmed Directors were appointed–they were confirmed by the Senate. In other words, the Directors had the power to take the actions they did. The Court refused to declare as void actions taken by the confirmed Directors.

At this point, one might think that the case is over. The structure of the agency is unconstitutional, but the Plaintiffs are not entitled to any relief. But no. On pages 35 of the slip opinion, Justice Alito puts forward a possible path for relief:

That does not necessarily mean, however, that the shareholders have no entitlement to retrospective relief. Although an unconstitutional provision is never really part of the body of governing law (because the Constitution automatically displaces any conflicting statutory provision from the moment of the provision's enactment), it is still possible for an unconstitutional provision to inflict compensable harm. And the possibility that the unconstitutional restriction on the President's power to remove a Director of the FHFA could have such an effect cannot be ruled out.

In an earlier post, I explained the relationship between tenure protections and the injury in fact. Generally, people are not injured by tenure protections. Rather, in Appointments Clause cases, people are injured by the enforcement of constitutional authority that cannot be severed from unconstitutional tenure protections. I hedged somewhat, because Justice Alito's Collins decision puts this principle to the test. In theory, it is possible that a person is injured by tenure protections. The majority gives two possible hypotheticals:

Suppose, for example, that the President had attempted to remove a Director but was prevented from doing so by a lower court decision holding that he did not have "cause" for removal. Or suppose that the President had made a public statement expressing displeasure with actions taken by a Director and had asserted that he would remove the Director if the statute did not stand in the way. In those situations, the statutory provision would clearly cause harm.

In these hypotheticals, the Plaintiff could claim that the tenure protections injured them. But even then, what would the remedy be? Amendment 3 still would not be set aside. This closing is a punt. The Court simply wanted to rid itself of the case. But in the process, it created a new framework that requires a creative re-imagination of never-before-seen executive branch communications.

Justice Gorsuch wrote separately in both Arthrex and Collins. And, in both cases, Justice Gorsuch disagreed with the majority's remedy. He favored the approach that he and Justice Thomas followed in Seila Law:

Instead, when the application of a statute violated the Constitution, courts simply declined to enforce the statute in the case or controversy at hand. See Seila Law, 591 U. S., at ___ (THOMAS, J., dissenting in part) (slip op., at 15); see also Walsh, N. Y. U. L. Rev., at 769. I would follow that course today by identifying the constitutional violation, explaining our reasoning, and "setting aside" the PTAB decision in this case.

In Arthrex, Justice Gorsuch explains that the Court's reimagining of congressional intent borders on mysticism:

But any claim about "congressional intent" divorced from enacted statutory text is an appeal to mysticism. Short of summoning ghosts and spirits, how are we to know what those in a past Congress might think about a question they never expressed any view on—and may have never foreseen? Let's be honest, too. These legislative séances usually wind up producing only the results intended by those conducting the performance.

Justice Gorsuch suggested a similar remedy in Collins. He would void the actions taken by the Director:

For my part, rather than carve out some suit-specific, removal-only, money-in-the-bank exception to our normal rules for Article II violations, I would take a simpler and more familiar path. Whether unconstitutionally installed or improperly unsupervised, officials cannot wield executive power except as Article II provides. Attempts to do so are void; speculation about alternate universes is neither necessary nor appropriate. In the world we inhabit, where individuals are burdened by unconstitutional executive action, they are "entitled to relief." Lucia, 585 U. S., at ___ (slip op., at 12).

Justice Gorsuch doesn't say it directly, but he would set aside Amendment 3.

Justice Thomas dissented in Arthrex. He explained that the remedy awarded does not actually redress the Plaintiffs' injuries:

Perhaps the majority thinks Arthrex should receive some kind of bounty for raising an Appointments Clause challenge and almost identifying a constitutional violation. But the Constitution allows us to award judgments, not participation trophies. 

Justice Thomas concurred in Collins. His opinion is deeply thought-provoking. I am still digesting some of his arguments. Here I will try to sketch the major points.

First, Justice Thomas recognizes the linkage between injury and fact and traceability. He actually cites California v. Texas:

For the shareholders to prevail, identifying some conflict between the Constitution and a statute is not enough. They must show that the challenged Government action at is-sue—the adoption and implementation of the Third Amendment—was, in fact, unlawful. See California v. Texas, 593U. S. ___, ___–___ (2021) (slip op., at 4–9). Modern standing doctrine reflects this principle: To have standing, a plaintiff must allege an injury traceable to an "allegedly unlawful"action (or threatened action) and seek a remedy to redress that action. Allen v. Wright, 468 U. S. 737, 751 (1984); accord, Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 392 (1988); contra, 938 F. 3d, at 586 (tracing injury to the removal restriction).

Though I am perplexed by Footnote 2 of Justice Thomas's concurrence:

FN2: Because the shareholders allege the Government acted unlawfully, because their alleged injury can be traced to those allegedly unlawful actions, and because this Court might be able to redress that injury, I agree with the Court that they have standing.

In Footnote 2, Thomas appears to endorse the standing-through-inseverability theory from Part III-A-I of Justice Alito's majority opinion. Yet Justice Thomas rejected that theory in California v. Texas. I need to stew over this footnote a bit.

Second, Justice Thomas explains that it is not enough to allege that a tenure protection is unlawful. The Plaintiff must show that the actual action taken is unlawful–in other words, the action that causes the injury in fact must be illegal.

But in the future, parties and courts should ensure not only that a provision is unlawful but also that unlawful action was taken. . . .

Third, Justice Thomas explains that the tenure protections do not render unconstitutional the actions taken by the Director

Here, "[a]ll the officers who headed the FHFA during the time in question were properly appointed." Ante, at 33. There is thus no barrier to them exercising power in the first instance.

Fourth, Justice Thomas raises something of an existential question. If the tenure protections are unconstitutional, then they should be treated as if they never existed. Thus, for practical purposes, the Director was never subject to tenure protections. Chew on that premise for a few moments.

The mere existence of an unconstitutional removal provision, too, generally does not automatically taint Government action by an official unlawfully insulated. It is true the removal restriction here is unlawful. But while the shareholders are correct that the Constitution authorizes the President to dismiss the FHFA Director for any reason, no statute can take that Presidential power away.

This existential question leads to something of a paradox: if the unconstitutional tenure restrictions never existed, then there is nothing for the Court to do. Why? Because in reality, the President always had the power to remove the Director at will.

That the Constitution automatically trumps an inconsistent statute creates a paradox for the shareholders. Had the removal restriction not conflicted with the Constitution, the law would never have unconstitutionally insulated any Director. And while the provision does conflict with the Constitution, the Constitution has always displaced it and the President has always had the power to fire the Director for any reason. So regardless of whether the removal restriction was lawful or not, the President always had the legal power to remove the Director in a manner consistent with the Constitution

Here, Justice Thomas favorably cites an amicus brief from Professor John Harrison. Harrison explains that if the tenure protections are severable, there is nothing for the Court to do:

If the statutory grants of power to the FHFA at issue in this case are severable from the removal restriction, the grants have been operative since the statute was adopted. . . . No official is ever insulated from removal by an unconstitutional statutory provision. The Constitution's self-executing effect invalidates statutory rules that are unconstitutional. Invalidity does not wait for a judicial act. Courts find invalidity when appropriate in deciding cases. They do not make it. The Constitution does. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

The Court declaring the statute unconstitutional is a mere formality. The statute has been unconstitutional since its inception. And thus, the tenure protections were never enforceable.

In short, the Director was always removable at will. The President simply never knew it:

So every Director is a lawfully appointed executive officer whom the President may remove in a manner consistent with the Constitution but did not attempt to do so.

That statement would certainly be news to President Biden, who only fired the Director after the Court rule.

Fifth, Justice Thomas concluded:

That being said, I seriously doubt that the shareholders can demonstrate that any relevant action by an FHFA Director violated the Constitution. And, absent an unlawful act, the shareholders are not entitled to a remedy. 

He rejects the two counterfactuals that Justice Alito flags. Justice Thomas would not hold a seance.

Justice Thomas parts ways with Justice Gorsuch on a narrow, but important point:

However, I respectfully part ways with JUSTICE GORSUCH, because, on the merits, I am uncertain whether the unlawful removal restriction here combines with any other statutory provision in a way that renders the Government action at issue unlawful. 

Justices Thomas and Gorsuch are engaged in a deep and profound jurisprudential debate. We all need to study these positions carefully. Any future separation of powers debates need to go through these two jurists. Alas, the majorities simply went through the motions, and phoned in meaningless remedies.