Justice Kagan Does Not Like INS v. Chadha

Another interesting aside in the Royal Canin oral argument.

Another interesting tidbit from the oral argument in Royal Camin USA v. Wullschleger concerned what weight the Court should give unanimity on a question among the lower courts of appeals. (In this case, the lower courts of appeals have treated the post-removal amendment of a complaint in one way, but there is an argument the relevant statutory requires a different result.)

In the exchange, Justice Kagan suggests she is not a fan of INS v. Chadha (the decision in which the Court held that a unicameral legislative veto is unconstitutional).

From the transcript:

CHIEF JUSTICE ROBERTS: Counsel, we have had cases where we came out the other way than every court of appeals had come out, right?

MR. KELLER: Yes, you have, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Like what?

MR. KELLER: I think there are -- that's a great question.

(Laughter.)

MR. KELLER: And none spring to mind, but I am positive that I can find some.

JUSTICE KAVANAUGH: Central Bank?

CHIEF JUSTICE ROBERTS: Well, I mean, it's pretty bold to take the position without knowing one.

MR. KELLER: Fair. Mea culpa.

CHIEF JUSTICE ROBERTS: Was that -- was that the case in Chadha?

MR. KELLER: INS versus Chadha?

CHIEF JUSTICE ROBERTS: Yes.

MR. KELLER: I -- I don't know. I apologize.

CHIEF JUSTICE ROBERTS: Somebody will check. I just --

JUSTICE KAGAN: Gosh, I'm not sure which way that cuts.

(Laughter.)

CHIEF JUSTICE ROBERTS: I'm not sure that's true. I just have it in the back of my
mind, but -- okay.

Comments

[Dan Schiavetta]

Sotomayor is correct. Chadha was mindless formalism.

[Noscitur a sociis]

Sotomayor?

[Dan Schiavetta]

Sorry — Kagan! (thinking of the other post)

[Noscitur a sociis]

.

[Area Man]

Funny thing is, while this case is usually supported by conservatives, arch-liberals Brennan and Marshall—who Kagan clerked for—were in the majority, while arch-conservative Rehnquist dissented.

[Krayt]

I seem to recall one of the arguments to get around casting off lawmaking to the executive branch was that Congress kept a tight leash on it, and literally members could “call up” the regulators to discuss things.

I would think an entire house could do this directly. On the other hand, you supine members, who out of the other side of your mouth tout “it removes politics from it by not voting directly — a feature!” get what you deserve. There’s the wages of your casting off to the executive branch, now do your work the official way and change the law.

It doesn’t matter where you sit on the philosophy of meta laws empowering the exec to create actual laws, you know, the words that pull fines from your pocket and put you in jail? Congress tries to have its supine cake and eat it, too (standing up finally like a big boy. Well, one foot at a time, anyway. Baby steps.)

[JesusHadBlondeHairBlueEyes]

Exactly. Congress complaining about Executive overreach is exactly like Kamala saying she wants to "turn the page" from the past 4 years.

Bitch, you gave the Executive Branch all that power, then just use it to politik over, yet never resolve.

Just like you, bitch, you and Joe ARE the past 4 years. Idiot.

[Dan Schiavetta]

Another misogynist muted.

[Noscitur a sociis]

A notable example for Mr. Keller is Rehaif v. United States, 588 U.S. —, 139 S. Ct. 2191 (2019).

[JoeFromtheBronx]

Earlier this month, we had a day in SCOTUS history:

"10/7/1982: I.N.S. v. Chadha was argued."

But, following the link, we see:

"Argued February 22, 1982
Reargued December 7, 1982"

[Lee Moore]

INS v. Chadha (the decision in which the Court held that a unicameral legislative veto is unconstitutional).

Is that what it decided ? It was a unicameral veto of executive action that they decided was uncionstitutional, as a violation of the separation of powers. That might be a "veto by the legislature" but it's not a legislative veto.

Suppose Congress passed a law to make the maximum tax rate on capital gains 42%, but further provided that it would revert to 20% as soon as either House passed a resolution to that effect. Chadha isn't precedent for that being unconstitutional.