S. Ct. Agrees to Hear Merits Case on Whether President Has Power to Remove "Independent" Agency Heads (the Humphrey's Executor Overruling Question)

From today's order in Trump v. Slaughter:

The application is also treated as a petition for a writ of certiorari before judgment, and the petition is granted. The parties are directed to brief and argue the following questions: (1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey's Executor v. United States, 295 U.S. 602 (1935), should be overruled. (2) Whether a federal court may prevent a person's removal from public office, either through relief at equity or at law.

Justice Kagan, joined by Justices Sotomayor and Jackson, dissented from the Court's staying the lower court decision, which had temporarily ordered FTC Commissioner Rebecca Slaughter reinstated.

Comments

[MollyGodiva]

There is nothing in the Constitution that says the president can fire non-political federal employees at will. And don't try that "The executive Power shall be vested in a President" because the powers of the president are enumerated in Article II, and firing people is not there. However the president is "he shall take Care that the Laws be faithfully executed".

[Rossami]

So every president from Washington on down has been in violation of the Constitution? Because every one of them has fired federal employees at one point or another.

Since that's an absurd conclusion, it follows that your starting premise is wrong and that hiring and firing is an inherent part of the execution of executive power.

[JoeFromtheBronx]

I don't think even MG denies that if legislative authorization exists, a president can fire "at will," but the second paragraph still doesn't follow from the first.

[Gregory]

I think the take care clause necessarily means that hiring and firing shall be done, but the idea that the laws themselves can't impose guardrails on hiring and firing seems much weaker to me. It's just not outlined as an article ii power.

[John 4]

Well the cultists, or most of them, do not seem to understand that Congress writes the laws and POTUS enforces them. They seem to legitimately not get that at a fundamental level.

[Jazzizhep]

Well, you know the Constitution trumps laws, right? Or at least should.

I know progs aren’t real fond of that theory.

[SRG2]

And Trump trumps the Constitution. Yes, we know.

[Stupid Government Tricks]

Funny how many times he's actually done what the Supreme Court says.

[SRG2]

You have the causation backwards

[John 4]

Absolutely. Now, where do you see the Constitution giving the President the power to fire the FTC Commissioner?

[Widmerpool]

The FTC enforces laws. It decides what the relevant laws mean, and who to enforce (or not enforce) them against. That's an executive function. The executive function is vested solely in the President. Humphrey's Executor relies on the view that these bodies are "quasi judicial" or "quasi legislative", whatever that means.

[Sarcastr0]

The executive function is vested solely in the President

"The executive Power shall be vested in a President of the United States of America"

Huh. I don't see a 'solely.'

Also, for those originalists out there:
https://repository.law.umich.edu/articles/2258/
And
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1614&context=jcl

[Widmerpool]

Ah. And Article III does not say judicial power is vested "solely" in the Supreme Court. So Trump can decide some of this stuff on his own I guess.

[Stupid Government Tricks]

No, that interpretation is solely up to Sarcastr0.

[Sarcastr0]

Yes that’s right!

There are other courts contemplated in Article III. They also have and exercise the judicial power.

[Sarcastr0]

taking a very textual approach

Except the unitary executive doesn't fall out of the text. You need to read in an 'only' for it to work.

Did you read Humprey's? It doesn't read like you have.

They're gonna do what they're gonna do, but that doesn't obviate actually looking at the text and the past precedent.

[Macy's Window]

The deed to my house doesn't say that I am the sole owner. But my name is the only one on the deed. Therefore I am the sole owner.

[Patrick Henry, the 2nd]

Given it says "The" and "Shall" its rights there. They didn't need to add solely.

[Kazinski]

So there is no separation of powers?

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

"The executive Power shall be vested in a President of the United States of America."

Those seem pretty definitive, and this shows how they would add qualifiers to grants of power:

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

And how to limit powers too:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

[Sarcastr0]

I said nothing like there is no separation of powers.

What a dumb false choice you set up.

The j Italy executive is not required for there to be separation of powers. My evidence is the history of the US in the modern era.

Your quoted excerpts don’t have the word in them, and are not exercised as though they do. Delegation of rulemaking power, and the lower courts are both examples when it comes to the other 2 branches

[Kazinski]

But this same Supreme Court is at work constraining the legislative power delegated by Congress to the executive, with the major questions doctrine, and constraining Chevron, and its undisputed Congress still has the power to claw back any delegations of legislative power whenever it chooses.

The Constitution itself gives Congress some authority over lower courts and their jurisdiction.

The power to fire executive officers is executive, I don't think there is any doubt, and thus must reside in the president, but congress always has the power to impeach officers of the United States whether high or low.

[David Nieporent]

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

"The executive Power shall be vested in a President of the United States of America."

If you want to play the "infer complex arrangements by hyperfocusing on word choices" game, note that Article I says all legislative power, while Article II does not say all executive power.

[Sarcastr0]

"But this same Supreme Court is at work constraining the legislative power delegated by Congress to the executive, with the major questions doctrine, and constraining Chevron, and its undisputed Congress still has the power to claw back any delegations of legislative power whenever it chooses."

So now you've changed tactics. From Constitutional analysis to vibes about the Supreme Court's agenda.

Kind of a telling concession, pivoting away from Constitutional analysis to political vibes. Yeah, in the end the analysis may not matter; the law will be the law.
But that's not really much of an argument. That's just an appeal to authority.

[Riva]

Enlighten everyone David Nieporent, what other branch of government is vested with the executive power under the Constitution? Where are those other vesting clauses, exactly? On the back?

[Lee Moore]

Riva : what other branch of government is vested with the executive power under the Constitution?

The judicial branch.

Where are those other vesting clauses, exactly? On the back?

No, Article 2, Section 2 :

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The power of appointment, which is executive in nature, may be weilded by the courts of law in some circumstances and if Congress says so. This is an explicit exception, in the constitution to the President's monopoly on "the executive power." And since it is in the constitution, it's constitutional.

But it's the exception which proves the rule.

[Kazinski]

Dave, it says "The Executive power", that seems as exclusive as all.

[Kazinski]

Sarcastro, I am not changing tactics, I am pointing out that this Supreme Court is taking a very textual approach to separation of powers issues.

And correcting what they see are lapses in previous courts in allowing a bluring of the lines between the 3 branches, like Humphrey's.

[Sarcastr0]

Moved from above....
taking a very textual approach

The unitary executive doesn't fall out of the text. You need to read in an 'only' for it to work.

Did you read Humprey's? It doesn't read like you have.

They're gonna do what they're gonna do, but that doesn't obviate actually looking at the text and the past precedent.

[Riva]

To clear up your confusion Lee, the judicial branch is vested with the judicial power and Congress with the legislative power. Yes there are some checks and balances in the nomination process. Those processes are clearly delineated and do NOT redistribute the executive power, which, getting back to that Constitution thing, is vested in the Chief Executive.

And even if the nomination process is an exception to the vesting of full executive authority in the president, if for the sake of argument that's what it is, then this only tends to reaffirm that the executive power is otherwise firmly under the control of the Chief Executive apart from these quite specific and limited "exceptions." How exactly does this provide any support for additional Congressional or Judicial exercise of executive authority?

[Harvey Mosley]

Can you tell us where the Constitution vests executive power in anyone besides the President? And who that might be? I can't find it.

[Patrick Henry, the 2nd]

Correct, but Congress cannot pass a law limiting the Presidents Executive Power. That's the point.

[Sarcastr0]

And here you beg the question.

[David Nieporent]

Congress defines the president's executive power.

[Rossami]

Subject to the limits of the Constitution, yes. Congress cannot, however, simply "define away" the executive branch. Your implied theory of legislative supremacy would be just as destructive to separation of powers as absolute executive supremacy.

[Sarcastr0]

Wow, it sure doesn't take much to be a theory of legislative supremacy!

[John 4]

Good thing that’s not happened then.

[Riva]

"Congress defines the president's executive power"

Citation needed.

[Kazinski]

There has been quite a bit of discussion on that topic over the years, and that is a decidedly minority view.

https://books.google.com/ngrams/graph?content=%22inherent+executive+power%22&year_start=1800&year_end=2022&case_insensitive=true&corpus=en&smoothing=3

However there is no doubt in any test of wills between a united Congress and the President then Congress would win, but thats not the same as claiming, as you seem to be, that Congress could regulate the President's veto or pardon powers.

[Sarcastr0]

Love it when Kaz tells a lawyer what the legal community thinks. Based on Google Ngram.

[David Nieporent]

I mean, a united Congress essentially nullifies the President's veto power.

[Reallynotbob]

You say that, but a unanimous (and conservative) 9-0 court in Humphrey's Executor held that Congress's power to limit the executive prerogative "cannot well be doubted."

[Kazinski]

That's a somewhat yruncated quote:

"The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted, and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime."

That's actually a bery narrow ruling not a broad principle.

It certainly can be doubted that the FTC, or the Fed for that matter are quasi-legislative or quasi-judicial, and instead wield executive power.

[Sarcastr0]

It certainly can be doubted

Jesus Christ.

There's a context and history behind the use of quasi-legislative or quasi-judicial agencies. They're not what they used to be!
And additional history behind the activity of Humphrey's Executor as a precedent.

You're just ipse dixiting that it's narrow, and then using weird constructions to pretend it's not your personal opinion.

[Kazinski]

Roberts clearly states in Seila that Myers is the rule, and Humphrey's and Morrison are the exceptions to the rule, and not to be repeated:

"The President’s power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States, 272 U.S. 52 (1926). Our precedents have recognized only two exceptions to the President’s unrestricted removal power. In Humphrey’s Executor v. United States, 295 U.S. 602 (1935), we held that Congress could create expert agencies led by a group of principal officers removable by the President only for good cause. And in United States v. Perkins, 116 U.S. 483 (1886), and Morrison v. Olson, 487 U.S. 654 (1988), we held that Congress could provide tenure protections to certain inferior officers with narrowly defined duties.

We are now asked to extend these precedents to a new configuration: an independent agency that wields significant executive power and is run by a single individual who cannot be removed by the President unless certain statutory criteria are met. We decline to take that step."

Are we supposed to ignore Myers, Seila, and now an expedited grant of cert before judgement and a stay of the injunction to reinstate Slaughter to the FTC, and pretend Humphrey's isn't dead, "its just resting"?

https://youtu.be/4vuW6tQ0218?si=JbKd9yemTTilKNQ5

[Sarcastr0]

New goalposts.

From Humphrey's, and claiming it was a narrow holding to Selia Law and claiming that was a very broad ruling.

And you added a 'clearly' just to really drive home you're vibing here.

Selia law didn't overrule Humphrey's. The Court could have, and didn't. It didn't narrow Humphrey's to it's facts. It could have, and didn't.

The Supreme Court will have to make new law here. It seems poised to, but it granted cert for a reason, and not so it could summarily reverse.

[Kazinski]

What kind of reading comprehension scores did you get?

Is English your first language?

I quoted Humphrey's itself saying that it only applied to a narrow set of agencies, quasi-judicial and quasi-legislative only.

I quoted Roberts In Selia basing his ruling on the 3 legged stool of text, history at the founding, and precedent.

Myers is the broad rule, Roberts called it a "landmark decision", Seila was its application, and Slaughter is going to confirm the rule.

I didn't say Seila was the rule, neither did Roberts, but its a good bet that's the way the Seila majority will rule in Slaughter.

[Lee Moore]

Well the cultists, or most of them, do not seem to understand that Congress writes the laws and POTUS enforces them.

I don't think that's controversial. The point is that there are constitutional limits on what laws Congress is permitted to enact. It can't pass a law banning gun ownership. Or strictly it can pass such a law, but if the courts do their job right, the law will be found to be unconstitutional and so not a law at all, as being ultra vires.

And so if Congress purports to pass a law granting some part of the executive power of the United States to someone other than the President, and insulating that person from Presidential commands, or Presidential dismissal, then the law that Congress purported to pass is unconstitutional. Because it seeks to put some part of the executive power outside the President's control.

The question is - what then ? What's the remedy ? Practically the obvious remedy is that the President can order any executive branch official as to how to do their job, or can dismiss any executive branch official if he is dissatisfied with them, or doesn't trust them to perform their job as he would wish.

But if you want a delicate, angels dancing on the head of a pin, minimalist remedy, you might say that the President should be allowed to do no more than furlough the officer. But that isn't really adequate, because if the President is dissatisfied with Mr P, he doesn't need merely to stop Mr P acting, he needs to get somebody else in place to act as the President wishes*. That requires a new officer, and the continuing officeholding of the old furloughed officer is in the way. It is true that a new officer would require Senate consent, but that's the constitutional rule and not something interposed by Congress.

* just to be clear, the President's wishes need to be consistent with those parts of the law that are constitutional. Not any old wishes.

[John 4]

This doesn’t address any of the issues and is essentially just repeating “eXECuTiVe PoWeR” over and over again.

We all understand the essential idea of separation of powers; we are arguing over what the Constitution seems to say about it. Why does it give Congress the power to determine inferior officers’ appointments, etc.

Not helpful!

[Lee Moore]

Why does it give Congress the power to determine inferior officers’ appointments, etc.

Presumably because the drafters thought that the President might become busy and so might not get around to appointing the small fry. Hence they slotted in a practical workaround.

A workaround what, you cry ? A workaround the obvious fact that in default of this little sub clause, the President would have to do all the appointing and Congress would not have the constitutional power to enact a mere statutory workaround later. Because except as otherwise stated in the constitution itself, "the executive power" is vested in the President.

Kinda shot yourself in the foot there.

[John 4]

Presumably!

[Kazinski]

FTC appointees are not inferior officers, they are nominated by the President and confirmed by the Senate.

[wvattorney13]

Right. The laws themselves cannot reserve for Congress or some other entity with what is exclusively an executive function: the firing of employees in the executive branch.

[Martinned]

Indeed. If Congress purported to fire a member of the FTC, that would definitely be weird.

[Mr. Bumble]

As weird as Congress attempting to "fire" the President as the past Democrat Congress (House) tried to do twice?

[Reallynotbob]

Not really. Congress can remove positions from agencies and even destroy them at will. They don't even need the Executive to agree if the majority is veto-proof.

Agencies don't become immune to Congressional action once birthed into the executive pantheon.

[Kazinski]

Congress does have power to fire any executive or judicial officers via impeachment, but that is a legislative power, not executive.

The President can fire a Cabinet officer with a tweet, it takes a vote of both houses to achieve the same result.

[Hyronymous]

You could class this under the Zone of Twilight/Political Questions territory where the branches have some authority to work on their own, without input from the other branches, even where the other branch might be the official owner of the question at hand.

That is to say, the Executive is generally free to manage his employees as he will, minus law to the contrary. But, because of law, the Executive is bound to things like paying overtime, offering pensions, etc. That maintains consistency for employees, through different administrations.

There's no particular reason to think that the Executive couldn't be superseded by the Legislature, up to the point where the Legislature was interfering in the President's ability to make his own choices, within his own domain.

[David Nieporent]

Since that's an absurd conclusion, it follows that your starting premise is wrong and that hiring and firing is an inherent part of the execution of executive power.

Hiring is obviously not an inherent part, since the constitution vests that power with both the executive and legislative, jointly.

[Lee Moore]

I beg to differ.

The appointment of a (principal) officer is the sole responsibility of the President. It is an executive power. But the power may not be exercised absent Senate consent. The Senate has no power of appointment, it merely has the power to allow or refuse the President permission to proceed with the appointment.

In the same way the President's power to sign or not sign Bills is not a legislative power. It is the power to allow or refuse Congress in the exercise of its legislative power.

In each case, the executive power of appointment, and the legislative power of writing law, the power is conditional on permission from somebody else.

The government is not a builder - it does not build your house. It just issues building permits.

[Riva]

Correction, there are no "pseudo" vesting clauses that empower Congress to make certain subordinate executive employees immune from removal by the Chief Executive.

[Reallynotbob]

It's not a function of creating status for subordinate employees. It's a function of Congress's right to constrain the power of the Executive to take certain actions against them.

Asking the Executive to make decisions that are consistent with the boundaries established by Congress shouldn't be controversial. What's the alternative short of "monarch"?

[Riva]

Recognizing that federal laws cannot contravene the constitution shouldn't be controversial. The Constitution vests the president with the executive power, not Congress. That's "the" executive power. Not some or just a portion thereof. There are no "pseudo" or "quasi" vesting clauses on the back of the Constitution redefining separation of powers. The president manages the executive branch, not Congress.

[wvattorney13]

That's nonsensical. If "the" executive power is vested in a President, and he is powerless to fire a person in the executive branch, then by implication either that person or some other entity is exercising executive power apart from and greater to that of the President.

It would be like saying that a person is hired for "janitorial services" and then smugly pointing out that nothing in the contract says anything at all about mopping floors. It is inexorably a part of executive power to control executive branch employees.

[MollyGodiva]

" It is inexorably a part of executive power to control executive branch employees."
That is not enumerated in the Constitution. Again you are reading a very broad and dictatorial power out of a few vague words.

[Riva]

What the Constitution does is vest all executive power in the President. The President manages the executive branch not Congress. The President can't manage Congressional staff and Congress cannot limit the power of the president to manage executive staff. There are no "quasi" vesting clauses redistributing the separation of powers as devised under the Constitution.

[David Nieporent]

See, this is why it's obvious that Riva is a bot; Riva cannot actually engage with other commenters, but can only repeat the same programmed talking point (in this case, some gibberish about "'quasi' vesting clauses") over and over.

[Riva]

I would suggest that you actually read Humphrey's Executor before embarrassing yourself further but we're way past that point already.

[Patrick Henry, the 2nd]

It is, that is what "executive power" and "vested" means.

[Macy's Window]

LOL. You are really reaching hard.

[Aubrey LaVentana]

The RKBA is explicitly enumerated, yet here we are.

[SykesFive]

The Framers thought they had to specify in the Constitution that the President "may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices."

[bernard11]

That's nonsensical. If "the" executive power is vested in a President, and he is powerless to fire a person in the executive branch,

But he's not powerless. He can obviously fire someone for cause. But he can't, in fact, fire anyone he feels like firing for any reason.

Equal protection aside, it is clear that Congress has the power to prohibit firing for some reasons, hence the power to limit grounds for firing.

[Patrick Henry, the 2nd]

But he can, in fact, fire anyone he feels like firing for any reason. That's what "executive power" means.

[MollyGodiva]

Not according to the enumerated executive powers.

[David Nieporent]

That's what "executive power" means.

[Citation needed.]

[Riva]

I would recommend not responding to Crazy Dave. Sealions are amusing from a distance but best not to get too close to them.

[Martinned]

It would be like saying that a person is hired for "janitorial services" and then smugly pointing out that nothing in the contract says anything at all about mopping floors. It is inexorably a part of executive power to control executive branch employees.

It really isn't.

[Reallynotbob]

Steve is hired to be the Janitor for the high school. The janitor's job is to manage and perform all janitorial services at the high school. The school board passes a policy that the janitor may not clean any of the stained glass windows.

Is Steve authorized to clean stained glass windows at the high school? (5 points)

Is Steve authorized to declare "teaching math" a janitorial service and teach calculus to seniors? (10 points)

Is Steve authorized to not mop the floors? (15 points)

[Patrick Henry, the 2nd]

There is and it is that exact clause. You don't like it, but "executive power" includes "hiring and firing". It's really easy, sorry.

[Michael P]

But if we call the dog's tail a leg, how many legs has the dog?

[Kazinski]

Myers v US settled that question about a century ago, based not only on the constitution but extensive debate in the first Congress by the framers on the very question of the Presidents inherent authority to fire Officers of the United States at will.

Humphrey's was a narrow exception to Myers and the court looks like its decided the exception has been narrowed out of existence.

[Darwinnie]

Tell us you’re going to overrule it without telling us you’re going to overrule it. Foregone conclusion.

[JoeFromtheBronx]

They are slaughtering the proper division of executive and legislative powers. The second question also tosses in judicial:

"Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law."

[John F. Carr]

"Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law."

That surprised me. I think courts should be able to offer at least a declaratory judgment, Pam Bondi is or is not the Attorney General. Kind of an inverse quo warranto.

The Trump administration has one traditional quo warranto case pending that I know of: https://www.courtlistener.com/docket/70806414/united-states-v-ross/

[ah....Clem]

Let's review: Congress created the Federal Trade Comission (FTC) giving the president the authority to remove an FTC commissioner from office for "inefficiency, neglect of duty, or malfeasance in office". Congress did not grant the president the authority to fire a commissioner for "whatever the fuck the president wants to do". At least not in writing.

But it appears that these "originalists" have developed sufficient mind-reading skills to conclude that obviously the founders meant to grant the president the ability to "do whatever the fuck he wants, because he's the president".

Do I have this right?

[Bored Lawyer]

Why don't you study Myers v. United States, 272 U.S. 52 (1926) https://supreme.justia.com/cases/federal/us/272/52/
You might learn something.

PS -- the case was decided 20 years before Donald Trump was born.

PPS. Congress can be limited by the Constitution even in offices it creates. All federal courts except the Supreme Court are creatures of statutory enactments by Congress. Could Congress condition an appointment to the bench that the judge may be removed if he rules the wrong way? Or limit the term to some finite term? Or mandatory retirement at some age?
A: No, it can't.

[JoeFromtheBronx]

Now do Humphreys Executor.

I do think, along with Justices Holmes, Brandeis, and McReynolds (he had his moments), that Myers was wrongly decided.

[MollyGodiva]

SCOTUS was wrong then and wrong now. The dissent got it right. The Constitution does not hide board grants of authority between the lines.

[epsilon given]

SCOTUS should have declared all quasi-departments that blend lawmaking, execution of law, and judgement of law as unConstitutional.

The Constitution vests Executive power into the President, Judicial power in the Judiciary, and Lawmaking power in a Congress, and anything that blends these things interfere with the checks and balances of power.

[SykesFive]

Holding this one in my back pocket for when an Article I judge gets something wrong!

[Rossami]

That would be the cleanest solution. It would also be the death knell of the Administrative State.

Unfortunately, it would also require Congress to do their damned jobs so it's got no chance of passage.

[M L]

Rossami, a ruling by SCOTUS doesn't involve "passage."

The administrative state is an unconstitutional monstrosity. Philip Hamburger made the case here: https://press.uchicago.edu/ucp/books/book/chicago/I/bo17436684.html

Returning to a correct constitutional framework doesn't necessarily require that Congress do their jobs, per se.

It just requires that Congress face up to the real choice before them: either do their jobs, or face the fact that they are ceding their jobs to the executive. And this is the whole point, that's how the system was designed to work. There is no other way to motivate Congress to do it.

[John 4]

"Could Congress condition an appointment to the bench that the judge may be removed if he rules the wrong way?"

No, and Congress couldn't condition an appointment based on anything that is an actual violation of the separation of powers.

But those possible actions are not the facts of this case. And the Constitution clearly gives some powers re: appointments to Congress. To me that makes the analogy to an extreme, different action not very convincing.

[ah....Clem]

Thanks for the pointer.

It is notable that Taft determined that the constitution was silent on dismissals of appointed officials. To fill in the gaps, Taft performed an exhaustive analysis of the historical context along with quotes from members of the Constitutional Convention. So did the dissenting justices, reaching opposite conclusions. And early case of "originalist" mind-reading?

I think the dissenters had the better argument i.e. if the Senate confirms someone for a fixed term, under the "advise and consent" decree, removing an appointee requires Senate approval. The dissent' usage of the word "caprice" (..it is impossible for me to accept the view that the President may dismiss, as caprice may suggest, any inferior officer whom he has appointed with consent of the Senate, notwithstanding a positive inhibition by Congress.) seems particularly apt today. I understand that this view did not prevail and Myers is settled precedent. And that my opinion on this is totally irrelevant in the greater scheme of things.

Humphrey, about ten years later, seems to have undone some of the damage. But just as Taft, as a former president, was likely biased towards expansive presidential powers, so are the current members of the Supreme Court, for whatever reason they may have. So, I don't have high hopes for Humphrey.

[epsilon given]

I can't help but think that it's damaging to the will of the People to forbid the Executive from firing Executive people -- it prevents the President from making reform that the People may want. It doesn't really matter if the Senate set a fixed term for the position -- that just means there's a maximum length a person can serve, before having to be re-approved -- and forbidding the Executive from removing people from Executive offices forces the term of the previous President -- who may very well have been defeated in their attempt for re-election -- onto the current Presidential term.

[bernard11]

it prevents the President from making reform that the People may want.

Or may not want. But your argument is worse that that. Any law that restricts the President's power prevents him doing things the "People" may want. Did winning the election make him king?

Also, just because he won the election doesn't mean the "People" want him to do what ever he feels like.

[Patrick Henry, the 2nd]

No but winning the election game his all the "executive power" like firing people.

Congress still has power to approve replacements, and whether the office exists at all.

[epsilon given]

How much do we want to hamstring the President, to keep him from reforming the Executive in his image, which is something the Constitution kindof implies should be his ability to do?

If you hamstring the President too much, and hem and haw over "but did the People really want this particular President?" and so on, and so forth ... one might begin to question whether we should even have elections for a President at all.

[MollyGodiva]

Where does it imply this? It makes zero sense to give the president such raw power on an implication that is read between the lines.

[M L]

Yes and in fact, with the way the US government works in recent decades, some have posited that you don't even need a President or a Congress. The administrative state actually runs the government. If the office of the President and the body of Congress no longer existed tomorrow, the government as a whole (some 4-5 million employed persons plus contractors) could perhaps hum right along.

[Reallynotbob]

Congress is acutely aware of this dynamic. Some agencies get protection from partisanship (the Fed, FTC, etc.) Some don't.

My problem is that if we give the President all of the following, then what remains as a check on his power?
1) Right to not spend money Congress wants spent (impoundment)
2) Right to summarily replace all non-elected administrative, agency, and non-Article III judges
3) Right to levy taxes or tariffs
4) Right to spend money without challenge (because standing is exceptionally difficult for a taxpayer to obtain)
5) Right to initiate military operations or murder extra-national actors without a declaration of war

Who works the brakes in this brave new world?

[M L]

Sure. But the alternative of saying that the unelected bureaucrat has the decision making power doesn't solve any of these problems you describe. It only makes them worse.

[Sarcastr0]

That's not the alternative though.

We've lived with an administrative state that includes civil service protections for the entire modern era of this country.

Elections have been a big deal that whole time. Congress sill mattered a ton more than any civil servant. The President even more than that.

You're angry at a thing, but not the actual thing the version in your head.

[Krayt]

forbidding the Executive from removing people from Executive offices forces the term of the previous President -- who may very well have been defeated in their attempt for re-election -- onto the current Presidential term.

There it is. Terms are used to extend a previous administration' reach, and take it out of the hands of the next, thwarting democracy.

The perverse inanity is those who do this claim it honors democracy, extra special-like!

Legion are the presidents of both sides who complain the fed is being too tight, when they're surpressing inflation.

Trump does it right now. A few years ago, Congress felt they needed to stimulate things, so borrowed an extra six trillion dollars and threw it all over the economy, and inflation robbed 20% over 2 and a half years.

They are all shits deserving of jail. Or maybe we do, for electing them, and being bought out so easily.

[Voize of Reazon]

Caprice came up in the 1789 House debates over the bill to establish the Department of Foreign Affairs, the 1st Congress debates Taft references. South Carolina Rep. William Loughton Smith's remarks seem prescient 236 years later:

I imagine, sir, we are declaring a power in the President which may hereafter be greatly abused; for we are not always to expect a chief magistrate in whom such entire confidence can be placed as in the present[VoR: Washington, who was universally admired at least in public]. Perhaps gentlemen are so much dazzled with the splendor of the virtues of the present President, as not to see into futurity. The framers of the constitution did not confine their views to the first person who was looked up to fill the Presidential chair. If they had, they might have omitted those checks and guards with which the powers of the Executive are surrounded. They knew, from the course of human events, that they could not expect to be so highly favored of heaven as to have the blessing of his administration more than seven or fourteen years; after which, they supposed a man might get into power, who, it was possible, might misbehave. We ought to follow their example, and contemplate this power in the hands of an ambitious man, who might apply it to dangerous purposes. If we give this power to the President, he may, from caprice, remove the most worthy men from office. His will and pleasure will be the slight tenure by which an office is to be held, and of consequence you render the officer the mere state-dependant, the abject slave of a person who may be disposed to abuse the confidence his fellow-citizens have placed in him.

Indeed.

[Sarcastr0]

Damn, that's on point.

I hope it's in some amicus or something!

[Variant]

I think the "originalists" may believe that the Constitution prohibits Congress from establishing a second Executive branch.

[Sarcastr0]

And the only thing that differs between cool and good delegation and a terrifying second executive branch is…no for cause firing.

Nonsense.

Also check out early practice when it came to land surveyors and postmasters.

Not that most originalists actually care about original practice. A political means to a political end. And if you try and to real scholarship you get shown the door.

[M L]

No, you don't have it right. Time for a third grade civics lesson.

The founders created a system of self-government of sorts where representatives would be elected. The powers of the government were divided into three areas, legislative, executive, and judicial. This separation of powers would make "ambition to counteract ambition" and cause each branch to jealously guard its powers.

Congress passes laws. The President executes those laws. Congress can't say, "Eh, ya know, we would rather have someone else execute these laws." Sorry Congress.

On top of that, this is usually happening in a context where Congress says, "Well, we really don't know exactly what kind of trade practices we want to outlaw, we can't tell our ass from a hole in the ground, much less write clear and fair laws whose application can be readily ascertained. So we're just going to pass a law that says "do what's fair" and punt all accountability over to some administrator responsible for executing that law, and by executing we mean writing lengthy regulations in their discretion, but also we're not going to be ceding any of our power to the executive, no siree."

[John 4]

This isn’t helpful as it lacks any of the nuance under discussion.

[y81]

Really, the Supreme Court has been utterly lawless and swollen with arrogance: they regularly instruct, in their best schoolmarmish tone, that lower courts MUST follow S.C. precedent; when lower courts do that, they summarily overrules them without explanation; and now, finally, they will deign to finalize, with a post hoc explanation, the rule they have already declared.

[wvattorney13]

I disagree. Even if we assume, correctly I think, that lower courts have to still follow Humphrey's Executor, it does not follow that a federal employee is entitled to injunctive relief to prevent his or her removal from the position as opposed to backpay once the suit follows the usual process through appellate review (wherein the Supreme Court gets the opportunity to overruled Humphrey's Executor).

What you are claiming is some entitlement to a form of relief prior to a decision on the full merits that is not clear that is available at all even after a complete victory by the Plaintiff.

And when the lower courts are repeatedly reversed on this point, it is disingenuous for them to keep pleading ignorance as if they are stuck in an impossible posture.

[David Nieporent]

But that cuts both ways. It doesn't follow that the government is entitled to emergency interim relief from the lower court's order.

[wvattorney13]

I agree. But the government litigated the issue and the higher court ruled that it was entitled to emergency interim relief. The Court found that the ability of the government to hire its preferred personnel outweighed the right of the employee to the job.

There's certainly room for disagreement there, but when the lower courts keep pushing back against these rulings they shrug their shoulders and wonder what to do. The answer is simple: employees don't get emergency relief even if they might win at the end of the day.

[y81]

I understand that Humphrey was not entitled to injunctive relief, being dead, but I didn't understand that to be the holding of the case. Nor do I understand the Supreme Court's "emergency" decisions to be based on the principle that money damages would be an adequate remedy. That would seem to be clearly incorrect if Humphrey's Executor is good law, as the various plaintiffs would have a high probability of success on the merits and will suffer the irreparable harm of being excluded from exercising their lawful powers. Is it your theory that Lisa Cook has been validly, even if illegally, removed from the Federal Reserve Board of Governors, and can seek back pay but can no longer vote in Federal Reserve meetings?

(I'm aware that the Court said that the Federal Reserve is different, but without any cogent explanation of why. That decision is equally lawless, in my view, and appears to be based primarily that on the presupposition that the work of regulatory agencies isn't that important to the upper middle class, but the soundness of the currency is.)

[wvattorney13]

"I understand that Humphrey was not entitled to injunctive relief, being dead, but I didn't understand that to be the holding of the case."

It wasn't. The question of whether injunctive relief was available was not addressed because, as you said, Humphrey was dead and it wasn't a live issue.

"Nor do I understand the Supreme Court's "emergency" decisions to be based on the principle that money damages would be an adequate remedy. "

I agree as well. The emergency docket rulings have simply said that an injunction against the government in a pre-enforcement posture does not pass the test for pretrial relief. It doesn't speak to what should happen at the end of the day.

"as the various plaintiffs would have a high probability of success on the merits and will suffer the irreparable harm of being excluded from exercising their lawful powers."

I think that's an unsupported step. It is not clear that these individuals have the right to anything other than backpay. An amorphous satisfaction from performing their job duties is not something that is typically allowed in this context. In breach of contract law in employment, an employee typically gets back pay. Even if he got satisfaction from his job, the courts typically don't reward that by ordering specific performance.

Of course, this is different, but I think you assume too much by automatically making that a part of the calculation. Plus, SCOTUS has held in the emergency docket that the government's interest in firing people outweighs any of these interests: At least in a preliminary posture.

"Is it your theory that Lisa Cook has been validly, even if illegally, removed from the Federal Reserve Board of Governors, and can seek back pay but can no longer vote in Federal Reserve meetings?"

If you want to attack the Court for its ipse dixits about the Fed, then you will get no pushback from me. That distinction is empty and it smacks of results oriented judging. I think the solution is to propose a constitutional amendment making the Fed special. That should pass rather handily.

[Area Man]

See a lot of feet stomping on here. But Humphrey’s Executor does not require that the official keep their job. It only requires backpay if they’re illegally removed. So no precedent requires the relief given by the district court and DC Circuit. Thus, the Court was acting within the confines of its precedent when it stayed the order to reinstate. You may not like that result, but there was nothing preventing it.

[ah....Clem]

But Humphrey’s Executor does not require that the official keep their job. It only requires backpay if they’re illegally removed.

IANAL, but that's not my reading. Humphrey plainly states that it is constitutional for congress to create agencies that are independent of executive control i.e. a for-cause removal provision to limit the President's removal power is constitutional.

How this would have affected the remedy had Humphrey still been alive when the case was decided is perhaps open for debate, but my reading is that the firing would have been declared illegal and Humphrey (but not his corpse) would be reinstated.

[Area Man]

Maybe. But Humphrey was dead, so the opinion didn’t require reinstatement. Thus, when people say it does, they’re wrong. Therefore, the Court today didn’t act outside Humphrey’s Executor when it stayed the reinstatement order.

[Sarcastr0]

I'm not at all sure that fact about the remedy in Humphrey's is part of the holding.

[wvattorney13]

I agree. But it is equally not part of the holding that an employee subject to the ruling is entitled to injunctive relief. That question remained open. And SCOTUS seems to have closed it.

[CDL]

The relief in the Order was a *prohibitory injunction* consequent on a *declaration* of unlawfulness.

The Dist. Ct. didn't order any "reinstatement". It ordered no mandamus, nor any mandatory injunction, whose effect wld be to cause a "reinstatement".

The purport of its declaration - itself an auxiliary remedy - is (and remains) that the Executive's purported discharge (or termination) of the Commissioner was, at law, no
discharge at all. No order to "reinstate" was & is necessary - even if there be a power to issue such an order.

[wvattorney13]

That's too clever by half. It still purports to order the executive to open the doors and let the purportedly discharged employee back into the office, reactivate the email account, etc. It acts as an injunction and mandamus. The labels don't matter.

Such a maneuver defeats the whole idea that specific performance is not a remedy in the employment context. Suppose I had an employment contract and my employer breached it. Also suppose that the court was bound not to order specific performance.

Could the court work around that by simply declaring that my firing was void ab initio and that I was never really fired? Can it get through the back door what it cannot get through the front?

[CDL]

The injunction has the effect of prohibiting the Exec. from omitting or failing to act contrary to the capacity of the unlawfully discharged officer from discharging the duties of the statutory office. The injunction is in aid of the declaratory order.

I don't grasp the basis in principle of the analogy you draw with the bar on equitable relief in specific performance. That bar is conditional on a contract for personal services (including a contract b/w a master and servant =/= an "employment contract:).

The material issue here is that - assuming the correctness of the declaration - the occupancy by a statutory officer of her statutory office has been discharged without compliance with the conditions which the statute itself expressly sets down for removal.

The *source* of the power to establish the office is statutory. That any regularly appointed officer might also be a party to a contract of employment is, I should think, quite irrelevant.

[CDL]

The operative duties of the terminated officer are also sourced in statute. The proper performance of those duties isn't by the statute made conditional on that officer's maintaining the express confidence of the officer's appointor [=President] to his office.

Undeniably, there is *no* material master/servant relation in contract, as to make the appointor and the appointee privies.

Now:

1. There may be questions of equitable discretion when it comes to decreeing a remedy binding on the Executive in respect of its acts which go to high policy decisions.

2. That question can't but be affected materially by the legal context in respect of which the equitable remedy is sought (in the auxilliary jurisdiction). The relevant legal context here is *statutory*. It isn't in the common-law of private contract. Equity doesn't prevail over statute.

3. The statutory terms which purportedly condition the Executive appointor's power to discharge an officer from his office, may well not, on their proper construction, abrogate an *independent Executive power to remove without cause*. This is a question of statutory construction.

4. The statutory provision which imposes [unexceptional & peremptory] conditions on the Executive in respect of its power to discharge from office one of its statutory appointees, may well (in this instance of high policy) violate the Const. separation of powers.

[Voize of Reazon]

We have Chief Justice Taft to thank for this. His opinion in Myers relies mainly on the argument that the President's duty under the Take Care clause requires that he be able to fire at will any executive branch official who he feels isn't performing. It's necessary that he have that power to fulfill his duty, the argument goes, so by imposing that duty the Constitution implicitly grants the power.

But faithfully executing the laws also takes money. If Congress passes a law commanding some project the President can't just raid the Treasury, he has to wait for an appropriation. He isn't in breach of his duty if Congress doesn't give him the tools he needs to do it.

There is, after all, no Necessary and Proper clause in Article II. There is one in Article I, so the drafters clearly knew how to write one. If it is Necessary and Proper that the President be able to remove officers, and in most situations it is, then what Taft should have concluded isn't that the President has that power but that Congress has the authority to grant it to him.

[MollyGodiva]

It is absurd to say the Take Care clause which mandates compliance with federal law gives the president the power to violate federal law.

[Area Man]

An unconstitutional law is no law at all. So if the removal provision is unconstitutional, it’s not a violation of federal law. Indeed, to enforce it would be a violation of the Constitution.

[EllaWilson]

McConnel slapped down garland.
President Trump filled the court with justices that can read (and know what a woman is).
All is flowing beautifully.

[F.D. Wolf]

(2) Whether a federal court may prevent a person's removal from public office, either through relief at equity or at law.

This is an important question too. After President Trump fired Hampton Dellinger from his position at the Office of Special Counsel, and Senior District Judge Amy Berman Jackson issued an injunction ordering he be restored to his position, I wrote that I had never heard of a judge purporting to do such a thing. Well, I was wrong, and it turns out it had happened ONCE, in the unreported case of Berry v. Reagan, No. 83-3182, (D.D.C. Nov. 14, 1983). Berry was a member of a temporary commission, and while that case was on appeal, the statutory term of the existence of the commission expired, and the injunction was vacated and the case dismissed as moot. 732 F.2d 949 (D.C. Cir. 1984).

Since the Dellinger case, district judges have repeatedly issued such injunctions, which I believe they have no authority to make. A wrongfully discharged employee can always be awarded backpay, but the danger of allowing a hostile, disgruntled employee to remain in office should be apparent. The landmark cases of Myers v. United States (1926) and Humphrey's Executor v. United States (1935) were only over pay owed. Neither Myers or Humphrey asked to have his position restored, nor is it particularly likely any judge would have purported to have the authority to order it.

[OpinionsVary]

If that is true, doesn't that mean Trump can fire the Fed board as long as he just agrees to keep paying them? How is the SCOTUS going to square that with their obvious desire (see the bizarre 'distinct historical tradition' dicta) to protect the Fed? It's one thing to argue the Fed is an island for removal protection. It's quite another to argue it's an island to the basic principles of equity relief.

[wvattorney13]

I think it is clear that the Court is going to issue ipse dixits to protect the Fed in these cases. You have a preview of the principle and it is unavailing to most people.

[pts]

The questions presented by the Supreme Court indicate, to me at least, an attempt to bring these issues back to traditional law and equity. No one has a statutory or constitutional right to have a certain person in a certain government office. The only person with a legal right to challenge a firing by the executive is the person fired. The legal remedy is back pay. The equitable remedy, court ordered reinstatement, is a remedy only available in unique circumstances (under common law). The right of an appointee to have their opinions carry the day is no more compelling than an employee with a for cause contract being fired, arguing that they have a better understanding of supply chain management than does the employer. The issue is one of remedy. Having your opinion carry the day is not a remedy the court should be involved in.

[David Nieporent]

only person with a legal right to challenge a firing by the executive is the person fired.

Possibly Congress. But it would have to be Congress as an institution, not individual members, and of course this Congress would have no interest in doing so with this President.

[CDL]

The question isn't whether a certain person has a "right" to be appointed to a statutory office, but whether the statutory criteria which condition the power of the statutory appointor to discharge the appointee from an office to which he's been regularly appointed, are or aren't satisfied.

Extraneous to any issue of Fed. Constitutional invalidity, it's the statute, properly construed, which determines this question. "Traditional equity" doesn't prevail over a statutory command. Of course, equitable discretion ought be constrained by mandatorily relevant considerations going to the nature of the office (including that it be a high office whose functions may materially have changed since the findings of Humphrey’s Executor).

The Dist. Ct. didn't order any "reinstatement". Its prohibitory injunction was in aid of its declaration of unlawfulness. The declaration is itself a remedy (if only auxilliary).

[CDL]

It must be observed that appointment to the FTC isn't by statute merely from time to time. Appointment is for an express term. Congress, in setting such a term of office, might surely be taken to have intended that an officer's variable "opinion" ought not alone be grounds to impugn his appointment.

[pts]

Stated otherwise, Humphreys Executor should be limited to its facts. No reason to overrule.

[MollyGodiva]

Trump wants it overruled. That is reason enough for the Republicans on the court.

[F.D. Wolf]

The reason to overrule Humphrey's Executor, as opposed to merely "limiting it to its facts", is to stop lower court's from saying, "the facts in this case are like the facts in Humphrey's Executor." Better to return to the (proper, IMO) rule of Myers that anyone appointed by the President can be removed by the President. Another reason to explicitly overrule it, of course, is because it was incorrectly decided.

In her dissent from the grant of a stay in Trump v. Wilcox, Justice Kagan wrote:

For 90 years, Humphrey’s Executor v. United States, 295 U. S. 602 (1935), has stood as a precedent of this Court. And not just any precedent. Humphrey’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.

I agree completely that "Humphrey’s undergirds a significant feature of American governance", though I would characterize that feature as an administrative state that operates as an unaccountable fourth branch of branch of government that would have appalled the Founders.

[Michael Ejercito]

Are there exceptions to the separation of powers in other contexts?

[F.D. Wolf]

There are a few explicitly delineated in the Constitution. For example, when the President signs (or vetoes) a bill, he is acting in a legislative, rather than an executive, capacity. The Senate's power to advise and consent to Presidential nominations is an executive function, not a legislative one. When the Senate sits as a court of impeachment, it exercises a judicial function. Then there is the curious case of the Vice President, who presides over the Senate.

[Stephen Lathrop]

You do not need to invent an apocryphal fourth branch. You can argue instead on the basis of 3 existing branches.

What your argument must explain is why Congress, using the Necessary and Proper Clause, is not empowered to create agencies which exercise Congressional authority, and hence independent of the Executive. Does anyone assert that Congress, acting by law, lacks all regulatory authority? Nobody does.

I get that the Overton window on this question does not encompass that question. The question ought to be asked anyway. Because coming along right behind it is a question whether regulating the economy is a proper function of the Congress, or of the Executive.

Congress is the inherently better branch for economic regulatory authority. Its advantages include being closer to the people, being more diversely representative of all the people, and facing electoral accountability twice as often as the Executive. All that better suits the Congress than the Executive to the pace of economic change.

Add that economic regulatory authority has implications too sweeping to entrust safely to the Executive branch. The founders wisely recognized the Executive as more dangerous than Congress. Economic regulatory power held exclusively in Executive hands invites myriad abuses, not least of which are risks of bribery and extortion. In Congress, diffuse distribution of power makes those risks less imposing.

Too many comments above depend on arbitrary word games. Sure, if regulating the economy is an exclusive Executive power, then the Executive gets to control it. That's a truism, not an analysis.

What if regulating the economy is more properly a Congressional power? An argument that if regulating the economy is a Congressional power, then the Executive gets to control it is a non sequitur.

[OpinionsVary]

There does seem to be a 'one drop' rule when it comes to executive power (to put it in a provocative way). Lots of orgs wield some combination of executive, legislative and judicial power. They write the rules, enforce the rules and ,at least in the first instance, fines. It seems as soon as there's any amount of executive power, the org needs to be in the executive branch - this despite the fact that it also contains extensive legislative and judicial roles.

[Stephen Lathrop]

An assertion without an explanation. But it may accurately predict what a corruptly partisan Supreme Court will do.

[Keldonric]

Admittedly, I split with Madison here. His “Decision of 1789” logic was that the President needed sole removal power to ensure faithful execution. But the very appointments at issue already require Senate consent. If two branches are needed to put someone into high office, I don’t see why one branch alone should have absolute authority to take them out.

I also notice many argue that the Vesting Clause in Article II means all executive power, even though the word “all” isn’t there. Yet in Article I it explicitly says “All legislative Powers herein granted.” If vesting is to be taken seriously, then the Article I clause should carry even more weight — and that would mean Congress can’t hand off its lawmaking duties to agencies under the banner of delegation.

So if insulation is removed, Congress must be forced to defend its institutional role by having non-delegation strictly enforced. After decades of hearing “we need to see what the President thinks,” I wonder why we even bother having a legislature at all — other than to check a box in the Constitution through rubber stamping.

[Lee Moore]

The alternative reading is that "the executive power" and "the judicial power" include powers that are inherent in executive and judicial activities. Whereas Congress in Article 1 does not get a corresponding "the legislative power" with a similar presumption of inherent powers, but is strictly limited to :

"All legislative Powers herein granted."

With the emphasis on "herein."

[Krayt]

Oh oh. Sounds like the executive and judicial grants are more powerful and exclusive. All, not just all herin granted. They operate under the legislative powers granted to Congress, in the domains of execution and the courts, respectively, for whatever those legislative powers herein granted are.

[Keldonric]

I think that’s right. There’s no need to “scope” executive power in the abstract — it exists to execute laws Congress passes, plus a few direct constitutional powers like treaties and pardons. That’s why Article II doesn’t need “herein granted.” Article I does, because Congress is the only branch that creates new legal authority, and those powers have to be explicitly tied down.

[Lee Moore]

Sounds like the executive and judicial grants are more powerful and exclusive. All, not just all herin granted.

No. The constitution does not say "all conceivable executive power" and neither did I. The "the" in "the executive power" identifies "whatever executive power the United States has" - that does not imply that the United States, and the President in whom the executive power is vested, is omnipotent. It just means that to the extent that there is any executive power, it belongs to the President.

Likewise with "the judicial power" which the judiciary has always concluded includes inherent power over contempt, whether or not Congress has anything to say on the matter.

[Krayt]

I tried to qualify it as all under the legislative grant. I meant "all", under that, as opposed to the ludicrous statements that, by leaving out "all", somehow there were other entities that could exercise executive power, too!

[wvattorney13]

That seems to be consistent with the limited grant of powers to the national government, those being few and defined. If the provision said, "all legislative powers" then it could be argued that Congress had plenary authority over everything so long as what it enacted could be called "legislative."

[Keldonric]

Agreed. I think “herein granted” was mostly a drafting choice — it let the framers keep a consistent structure by vesting power first and then spelling out the details later. But it also serves a limiting function by making clear that any legislative powers not granted in the Constitution aren’t vested in Congress at all. To me, the legislative power is the authority to define the federal government’s structure in detail — laying out what authority exists so the other branches can execute effectively within that framework.

[Stephen Lathrop]

Lee Moore — Famously not so strictly limited. Congress gets the most elastic power of any branch, with the Necessary and Proper Clause.

[Lee Moore]

Would that be the same Necessary and Proper Clause sitting right "herein" the constitution 🙂

You're such a doofus.

[wvattorney13]

"But the very appointments at issue already require Senate consent. If two branches are needed to put someone into high office, I don’t see why one branch alone should have absolute authority to take them out."

I don't see why that necessarily follows. There are reasons that the appointment of someone to a position of power might need different safeguards than his removal.

Say President Adams wanted to load up his cabinet with people from New England. The Senate could step in and say, "Have a few southerners there, John!"

By contrast, if a member of the cabinet, who already had Senate approval, just wasn't working well with Adams, we already know that it is not a pretext to get rid of that person for spite because Adams nominated him initially. Perhaps he needs the flexibility to fire people he can't work with.

[OpinionsVary]

To use your example, say the Senate is refusing Adams suite of nominations because they're all from New England. Under pressure, Adams adds some southerners. The senate then approves. Finally Adams fires all the southerners. Aren't we then back to the case you wanted to avoid?

[wvattorney13]

Not really. Because now presumably Adams is back to square one where the Senate will only confirm southerners. He gets rid of the southerners he doesn't want but he had better appoint more southerners or else they won't get confirmed.

What does Adams win by his obstinance?

[Keldonric]

I see the logic in giving the President flexibility on removal — if someone just isn’t working out, he shouldn’t be stuck. But the real concern is when Congress has deliberately built in insulation against political pressure, like with the Fed. If that safeguard were swept away, you’d risk a wholesale turnover of governors with every new administration, and institutions meant to provide stability could end up volatile. Hopefully the Court would cabin its ruling enough to avoid that, but maybe there’s a middle ground that preserves stability without full insulation.

That said, if insulation really is ruled out, then I don’t think the legislative grant of authority that depended on it should just survive unchanged. The modification would materially alter what Congress set up, and it shouldn’t be severed as if nothing happened. Better to let Congress re-craft the statute to reflect that reality, instead of keeping text that assumes a safeguard the Court has said is invalid.

[wvattorney13]

1) I agree that there is a fundamental disconnect between the administrative state and the separation of powers. Originally Congress was not supposed to delegate these broad swaths of authority to the executive. So a hard question to answer will be whether to enforce the non-delegation doctrine more vigorously or violate the Constitution further by having these 4th branch agencies.

2) That's a classic severance question. Generally the Court has to decide whether the statute could be saved with the provision excised. IOW, would Congress rather not have an FTC at all or have one with the President having full removal powers. I think it is a stretch to say that it would rather not have an FTC at all. Surgically altering the statute would seem the better alternative. Congress can go back an eliminate the FTC if it doesn't want it in this form.

[M L]

"the executive power"

Definitive article, and singular form. There is only one executive power. Unlike the legislative powers, which are plural, and limited to the enumerated powers delegated by the states to the federal government.

And the executive power, being to execute the laws, is defined with reference to something else, which is the laws - those laws properly passed by Congress according to their limited enumerated powers, as well as the Constitution itself.

[Hank Griffin]

The argument that the President has sole control of executive functions has merit, but Humphrey's recognizes that the President doesn't have sole control when Congress delegates legislative functions to executive agencies. If an independent agency is only performing delegated legislative functions (issuing regulations and disbursing funds, for example) then Congress should have some control of the leadership of that agency, including limiting the President's ability to remove them. Conversely, Congress shouldn't be able to limit the President's ability to remove those in charge of agencies (even supposedly 'independent' agencies) when they perform purely executive functions such as the investigation and prosecution of violations of laws/regulations.

[David Emami]

Excellent. Now do Carolene Products and Kelo v New London.

[John F. Carr]

Redo Kelo? OK, here's the Supreme Court's new rule. If the taking is for a public purpose the constitution requires compensation. If the taking is for a private purpose the constitution does not require compensation.

[JoeFromtheBronx]

I think some other, more recent precedents, including Trump v. U.S., have a lot more problems than those two.

The presumption of constitutionality, for instance, was there already. The difference was where the Court decided to be suspicious. Concern about the Bill of Rights, voting rights, and equal protection is acceptable in my book. Upholding the New Deal as a whole was correct. Overall, Carolene Products was okay.

I think Kelo was rightly decided. I am okay if they overrule it, though the net value will be rather low.

The government will still have broad power to take with compensation, bad takings could be addressed politically in many cases anyhow, or treated as a violation of due process in a variety of cases. Plus, states can, on their own (as some have), change the rules to limit so-called economic takings.

Overall, there are a lot bigger problems I would focus on, even if I thought it was wrong.

[OpinionsVary]

>Whether a federal court may prevent a person's removal from public office, either through relief at equity or at law.

If the Court holds there is no injunctive relief for person's removal from public office, what's to stop Trump firing everyone he doesn't like on the Fed's board? The Court seems to really want to keep the removal protections on the Fed. It added a whole nonsense dicta about it - “a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.” Maybe they actually believe that though I doubt it.

But even if they do allow Fed removal protections to remain law, if those protections don't also have the ability to restore someone unlawfully removed, can't Trump just fire everyone as long as he's willing to give them back pay? It's one thing after all to make the Fed an island in government where removal protections are allowed. It's not at all clear how they could make it an island where the basic principles of equity law work differently.

[wvattorney13]

"a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States."

To me, that is just question begging. Maybe Jefferson was right and those banks were unconstitutional.

Assuming the Court won't go that far, it is still a ridiculous contention to say that the Fed today operates like the First Bank of the United States. I mean, the Court hit the similarities: "a uniquely structured, quasi-private entity" but that's where it stops. You might as well say that the Fed is like the local domestic violence shelter.

[John F. Carr]

If the President reduces a commission to less than a quorum, the commission ceases to be able to act. This has happened by attrition in the past. For example, the Federal Election Commission and US Sentencing Commission were unable to take offical action. The President at times may want the FEC to be powerless.

What constitutes a quorum depends on the enabling statute, as interpreted by the courts.

[ah....Clem]

If the Court holds there is no injunctive relief for person's removal from public office, what's to stop Trump firing everyone he doesn't like on the Fed's board? The Court seems to really want to keep the removal protections on the Fed.

My reading of this is that when a country's federal reserve bank loses it's independence the entire economy goes to shit. We've seen this in countless other countries. So, when it comes to the Fed's independence it's "Damn! Shits about to get real." Hence the "nonsense dicta".

As far as I can tell, from a legal standpoint, there's not much difference between the Fed and the FTC, only the dire consequences for the money interests if the former loses independence and a shrug if the latter does since it only affects the "little people".

[OpinionsVary]

I agree that attempts to drive a line between the FTC and the Fed are nonsensical. The idea that the Fed is somehow unique and allowed removal protections, unlike every other public office, just isn't ideological coherent. But that isn't really my point.The court can make an ideological intercohort carve out for the Fed if it wants.

My point is, if they also rule there is not equity or injunctive remedy for someone removed from public office, does it matter if the Fed still has its removal protections? If the only remedy is backpay, why can't Trump (or someone else not respecting central bank independence) not just fire everyone and agree to pay out their terms when the lawsuits come it?

It would turn the Fed removal protections that the SCOTUS wants to keep into dead letter law. Because while the court might be able to pretend they can draw a line between the FTC and the Fed when it comes to the constitutionality of removal protections, I can't see how they can do the same as whether there exists an equity remedy to restore someone to a job.

[F.D. Wolf]

The Supreme Court has time and again said that reinstatement of a government officer is not a traditional remedy in equity, but one in law. So, the short answer is Congress can, by law, allow a court to give any or all of them that remedy if it wants to.

See, e.g, Baker v. Carr, 369 U.S. 186, 231 (1962) (decisions that “withheld federal equity from staying removal of a federal officer” reflect “a traditional limit upon equity jurisdiction”); Walton v. House of Representatives, 265 U.S. 487, 490 (1924) (“A court of equity has no jurisdiction over the appointment and removal of public officers.”); Harkrader v. Wadley, 172 U.S. 148, 165 (1898) (“[T]o sustain a bill in equity to restrain... the removal of public officers is to invade the domain of the courts of common law, or of the executive and administrative department of the government.”); White v. Berry, 171 U.S. 366, 377 (1898) (“[A] court of equity will not, by injunction, restrain an executive officer from making a wrongful removal of a subordinate appointee, nor restrain the appointment of another.”).

[Stephen Lathrop]

If the Supreme Court hands Trump exclusive power over economic regulation, it will be doubling down on the stupidity of Trump v. United States. A historical moment emblazoned with flagrant examples of Executive branch bribery and extortion is no time to multiply and enlarge the Executive's opportunities to succumb to bribery, or to practice extortions.

[John F. Carr]

I see there is some dispute over what constitutes a quorum of the FTC. The FTC has by regulation purported to allow a single member to be a quorum. If these quasi-independent commissions require a majority of the statutory membership to operate, then removing a member without cause does not by itself advance the President's personal agenda. He still has to get a more obedient nominee through the Senate.

The FTC's authorizing statute states "A vacancy in the Commission shall not impair the right of the remaining Commissioners to exercise all the powers of the Commission."

[Michael P]

That statutory language seems limited to a single vacancy, which seems reasonable: an occasional vacancy is inevitable, and Congress might wish the Commission to continue to do business until the Senate gives advice and consent to the President's nomination to fill the vacancy.

[John F. Carr]

In statutory construction, singular words can be read as plural when doing so makes judges feel better.

[Mark In Florida]

Meanwhile at NPR Nina Totenberg is upset that SCOTUS will change over 100 years of settled law. No wonder NPR was defunded. How about a neutral analysis?

[Sarcastr0]

Is that untrue, or do you just not like the sound of it?

[Area Man]

Her being upset about it is the problem because she's supposedly a neutral journalist. She's obviously not--which is her right--but that's why it is perfectly okay to cut off her organization's public funding.

Further, many (if not all) of the Insular Cases are over 100 years old. Yet, I doubt she'd be having a meltdown if the Supreme Court overturned those. Nobody blinked an eye when SCOTUS purported to overturn Korematsu in a highly irregular way (and good riddance, too). It's the very definition of selective outrage, which has become tiresome.

[Sarcastr0]

The length of the precedent is relevant, and true. It's not the only relevant bit of info, as your point about the Insular Cases illustrates. But it's accurate and relevant.

As to her being upset, I do agree that the conflation of opinion-having and journalism doing is not great. I'm one who believes in professionalism - the idea that having an opinion doesn't mean impartiality is impossible. But not at the same time.

Though that kind of reporting has been NPR's house style for a while. One of the reasons I've more or less drifted away. Not that I didn't trust their accuracy, but it's cringe.

[JoeFromtheBronx]

She provides analysis here and sounds straightforward to me:

https://www.npr.org/2025/09/22/nx-s1-5550307/supreme-court-ftc-firing

I am not a regular listener, but news reporting is not simply "just the facts, ma'am" overall. See, for instance, the practice of normalizing what Trump says in news pages.

[Sarcastr0]

Analysis isn't the same as facts, you're absolutely right.

It boils down to a style thing more than a substance thing. I have no issues with NPR's credibility.

For basically my entire 20s post-college, I *loved* NPR's style.
Somehow I just kinda grew out of it. But I don't judge them for it - NPR is really popular, present commentariat aside. And as I said they have good analysis and good credibility.

Best I've heard people on here object to NPR is their choice of stories. Which...coming from a group that's increasingly linking nonsense like gatewaypundit and Tommy Robinson's twitter account is just them not doing well with disagreement.

[Stephen Lathrop]

There is a hazard inherent in this case, that the Supreme Court may send the Necessary and Proper clause down the same trash chute it sent the Militia Clause. If that happens, it will double both the incentive and the propriety for Congress to enlarge the Court. Maybe the corruptly partisan majority on the Court will be able to reflect long enough to notice that.

[Keldonric]

Does the context of the grant of authority matter here? Congress didn’t delegate powers to the Fed in the abstract — it built them into a specific structure, with staggered terms and removal protections. If part of that structure is struck down, should the grant of authority be treated as severable, or does the whole scheme need to go back to Congress?

[John F. Carr]

Whatever makes the judges happy. The Supreme Court in modern times prefers to rewrite a statute rather than kick it back to the legislature to do right.

[M L]

The idea of "independent" agencies is a constitutional anathema.

All of the federal government falls into one of three branches and there isn't anything outside of that.

Nobody is permitted to create additional fourth, fifth, sixth, seventh and so on branches.

[Stephen Lathrop]

M L — A federal grand jury is outside of that.

Which serves as a reminder that the jointly sovereign People of the United States are not merely outside those branches, but superior to all three of them. A federal grand jury acts as a tribune of the jointly sovereign People, a role it could not perform if it were subject to any branch of government.

When citizens act jointly in their sovereign capacity, they can do whatever they decide to do, at pleasure, whenever they want, without constraint by anyone, using whatever means they can manage. Capacity to do that is the defining characteristic of sovereignty. Loss of capacity to do that is a defining indicator of a sovereign overthrown. This nation is presently close to such an overthrow, by reason of a sharp divide which sets factions of the jointly sovereign People against each other.

Any power capable to constrain even slightly a sovereign's ability to act at pleasure has already gone far toward achieving the sovereign's overthrow. It follows that not even the Constitution itself constrains the jointly sovereign People. The Constitution is instead their decree, to empower and constrain only their government.

That, at least, was the bog standard political theory of sovereignty at the time of this nation's founding. Of course, VC commenters and bloggers were taught no such thing in their civics classes. Probably because the full ferocity of the founders' own insight into the nature of sovereign power was deemed paradoxically disruptive to an objective to inculcate the notion of limited government, which was the primary objective of teaching civics.

I have to bring these notions up repeatedly, lest all here cooperate to once again sweep them all under the rug. Problem is, it is not possible to do that without creating unanswerable questions about governance, and unresolved paradoxes about where rights come from, and about the practical means to vindicate rights.

Those questions and paradoxes intrude because both the Declaration of Independence, and the Constitution, were structured to rely upon a notion of an all-powerful, continuously active, joint popular sovereign. Take that out of the picture, and you come acropper on challenges to understand an unconstrained Executive power, which remains mysteriously unchecked by an all-powerful Supreme Court, while supposedly inviolable personal rights go unvindicated.

[David Nieporent]

A federal grand jury acts as a tribune of the jointly sovereign People, a role it could not perform if it were subject to any branch of government.

Repeating this won't make it less dumb. Who elected any of those 23 people to represent the "jointly sovereign People"? Who convened them? Who enforces any decisions they make?

[Stephen Lathrop]

Nieporent — Who enforces any decision the Supreme Court hands down to constrain the Executive, if the Executive bids the Court defiance?

Your questions are less cogent than you suppose. Except by a mythic sense of empowerment widely shared, no government founded on any basis can explain the otherwise mysterious fact that everywhere the many are seen to be governed by the few.

It is assenting belief by the many which empowers every legitimate government however constituted. Wherever that belief falters, governments fall.

So yes, as in the cases of other kinds of sovereignty, a power of joint popular sovereignty is a myth—with the word, "myth," used not in the sense of, "falsehood," but instead in the sense of an explanatory story widely accepted. While that acceptance lasts, the explanations thus believed and animated empower governments. No government anywhere lies on any more legitimate grounds than that.

Only tyrannies efficiently organized can govern on the basis of pure force directly applied. Tyrannies dispense with myth at the cost of instability, and continue in effect only by perpetual war by the governors against the governed. The results are notoriously precarious and unhappy.

The peculiar advantage of joint popular sovereignty as a defining myth of government is that it has proved more widely influential, more generally adopted, and more successful than rival myths have done. Like every other non-tyrannical style of governance, the myth of joint popular sovereignty does not work itself. It must be made to work by the sovereigns themselves, just like any other systems must also do.

[David Nieporent]

Counterpoint: myth does mean falsehood. But in any case your comment completely missed my point: while representative democracy is at least consistent with your popular sovereignty myth, your theories about grand juries are not.

[Sarcastr0]

They aren't a different branch of government.

Not being able to be fired by the President doesn't mean you're not in the executive branch. That is not in the Constitutional text.

But then someone who yearns for antebellum America would have a pretty different take on the government, eh?