Vollständiges Transkript von Always Already

only if you don't believe in change. But originalism is a theory of legal change, Dan. It's just legal change that's lawful and grounded in the proper origin. Anyway, I missed that whole set of metaphors and it's been eating up at me. 00:05:23.000 --> 00:05:32.000 This is why you shouldn't listen to the podcast. I mean, you shouldn't. Other people should. Yeah. That's why I don't listen to it. There's always going to be things you wish you could have said differently. 00:05:32.000 --> 00:05:47.000 I liked it because I was able to— Occasionally when we're titling them, I'll take something that wasn't a literal direct quote. I kind of took those two words. Which were from the same sentence. But I thought it made for a nice little custom image. 00:05:47.000 --> 00:05:57.000 I hope someone out there appreciates these custom images we do for each episode. I'm not sure if anybody even notices, but they give me a lot of pleasure. They're my favorite thing about doing a new episode. 00:05:57.000 --> 00:06:02.000 One of the things I'm always excited to see is what's the image going to look like. 00:06:02.000 --> 00:06:23.000 Yeah, I was telling Will, listeners, before we started recording about this new workflow I set up where Claude will reach out to OpenAI and Gemini and produce a bunch of different candidate images for every episode title we give it and then pick one, and then we get to pick one. 00:06:23.000 --> 00:06:32.000 So I'm really looking forward to the next time we have an episode to publish, so hopefully shortly, to figure out what that looks like. 00:06:32.000 --> 00:06:37.000 But just for the record, we're still not letting Claude handle the text of the podcast. That's still us until such time as— 00:06:37.000 --> 00:06:39.000 There is no text to the podcast. 00:06:39.000 --> 00:06:41.000 Well, I mean the words, the things we're saying. 00:06:41.000 --> 00:06:42.000 That's true. 00:06:42.000 --> 00:06:43.000 Not written words. 00:06:43.000 --> 00:06:49.000 This is not scripted. I mean, there are some podcasts that have scripts, and we are pretty far away from that. 00:06:49.000 --> 00:07:00.000 That's how we stay unpredictable. Okay, so on June 29th, the penultimate day of the term, the Supreme Court has given us 4 opinions, right? 00:07:00.000 --> 00:07:01.000 Yes. 00:07:01.000 --> 00:07:13.000 And basically, it's a huge win for the liberals today. The court has 2 cases about Trump's removal of executive officials, Trump v. Cook and Trump v. Slaughter, that I assume we're going to talk about. 00:07:13.000 --> 00:07:21.000 It has a Fourth Amendment case, Chatrie, that the criminal defendant won, and an election law case, Watson v. 00:07:21.000 --> 00:07:38.000 RNC, about whether or not the federal Election Day statute preempts the counting of late or seat-of-absence ballots, where it said no in a 5-4 opinion written by Justice Barrett and dissented by 4 of the more conservative Justices. Yeah. 00:07:38.000 --> 00:07:51.000 I mean, whether

this counts as— I think that Slaughter, which we'll talk about, is obviously not a win for liberals, pretty big loss. And maybe the most important case of those? 00:07:51.000 --> 00:07:54.000 Oh, absolutely the most important case. 00:07:54.000 --> 00:07:59.000 But you're saying that because we already knew what was going to happen and it had been sort of priced in years ago. 00:07:59.000 --> 00:08:02.000 Yeah, priced in decades ago. 00:08:02.000 --> 00:08:03.000 Well, I don't know about that. 00:08:03.000 --> 00:08:07.000 Humphrey's Executor has been overruled for 45 years and we're only just learning it. 00:08:07.000 --> 00:08:23.000 Well, maybe. I mean, I think it's going to change practice on the ground a little bit. I'm not sure. Yeah. I mean, I think that the— we'll talk about Chatrie, the Fourth Amendment case, and what that looks like for Fourth Amendment law going forward. 00:08:23.000 --> 00:08:30.000 Watson, I mean, obviously it has— I guess we say it's a win for liberals whenever the liberals are in the majority. 00:08:30.000 --> 00:08:41.000 There's already some chatter online about whether this reasoning will somehow end up being really bad for Democrats in future elections, for some other reason I'm just not deep enough into it to know. 00:08:41.000 --> 00:08:47.000 Because federalism is bad when it's states we don't like doing it, I think. 00:08:47.000 --> 00:08:48.000 Yeah, maybe. 00:08:48.000 --> 00:09:02.000 I make the joke only because the last opinion day last week had 4 opinions with a similar 3-1 Monsanto in one direction, and then 3, sort of 6-3 conservative wins in the other direction. And there was some talk about how the conservatives were winning. 00:09:02.000 --> 00:09:08.000 Monsanto was not like a liberal win. It was a fractured court in both directions. 00:09:08.000 --> 00:09:09.000 Yeah, that's true. 00:09:09.000 --> 00:09:12.000 It was 7-2 with Gorsuch, Jackson in dissent. 00:09:12.000 --> 00:09:14.000 That's true. 00:09:14.000 --> 00:09:33.000 Yeah, I mean, it's interesting because the narratives were already forming, and having a day like that that looks like a huge win for conservatives in the final penultimate week of the term, everyone starts writing their end-of-term recaps early. 00:09:33.000 --> 00:09:52.000 I think if the court was a little bit more strategic, they would've flipped the order of one of these. So that they could have had 2 conservative, 1 more surprising liberal or whatever. One just moved one of these cases back. 00:09:52.000 --> 00:10:06.000 My impression, and you feel free to tell me I'm naive, is that the court is entirely unstrategic about the timing of these cases. They just come out when they come out. It's not like they are intentionally waiting to make birthright citizenship last because you've got to. 00:10:06.000 --> 00:10:13.000 It's just the hardest decisions are the ones that are the most likely to still be going through footnote wars or whatever. 00:10:13.000 --> 00:10:28.000 I think in the big picture, yes. I mean, I don't think they delay opinions by a whole month for strategic reasons. I do think there is some discretion at the very end. As my memory is, the Chief Justice sends out a proposed memo. 00:10:28.000 --> 00:10:43.000 He's like, "What if we do these on next Tuesday and these the following week?" And it's possible there could be some kind of institutional considerations that are brought to bear in that decision-making process. Okay. It's at least possible, right? 00:10:43.000 --> 00:10:49.000 It's possible. I don't think so, but I empirically don't think it happens. 00:10:49.000 --> 00:11:03.000 But it does always appear that at the very end, the last day, there's usually something that— things that cut both directions. And maybe it just works out that way, but it does seem like the court— 00:11:03.000 --> 00:11:08.000 I don't know. There's that term that ended in Dobbs and Bruen. Did it end in anything else? 00:11:08.000 --> 00:11:11.000 I don't think Dobbs came out the last day of the term that year. Okay. 00:11:11.000 --> 00:11:13.000 Because Bruen came out the last day? 00:11:13.000 --> 00:11:17.000 Well, I think— Didn't Dobbs come out earlier? Yeah. 00:11:17.000 --> 00:11:20.000 Okay. Maybe you're right. 00:11:20.000 --> 00:11:26.000 Oh, no. Now we've got to go check. Was that OT02? 00:11:26.000 --> 00:11:30.000 2022, yeah. I mean, it came out, it was leaked, so I've just— 00:11:30.000 --> 00:11:37.000 Yeah. Was that 2022? No, okay, it was OT21, right? 00:11:37.000 --> 00:11:38.000 Yes, right. 00:11:38.000 --> 00:12:04.000 Okay. Yeah. Okay, your memory is faulty because Bruen came out June 23rd and Dobbs came out June 24th. And then there were a few more cases a few days later. So the final day was Biden v. Texas and West Virginia v. EPA. Okay. 00:12:04.000 --> 00:12:07.000 Well, that's a good example of a mixed bag, as you say. 00:12:07.000 --> 00:12:18.000 And then the penultimate day was Oklahoma v. Castro-Huerta, which is the tribal Oklahoma jurisdiction case. 00:12:18.000 --> 00:12:19.000 Yeah. 00:12:19.000 --> 00:12:35.000 And Torres v. Texas Department of Public Safety, which is about military and immigration stuff. I've sort of forgotten that one. That one was a Breyer opinion. Yeah. 00:12:35.000 --> 00:12:36.000 Okay. 00:12:36.000 --> 00:12:37.000 So I don't know. 00:12:37.000 --> 00:12:38.000 All right. 00:12:38.000 --> 00:12:45.000 I mean, obviously, Dobbs and Bruen were the big marquee cases. All right. 00:12:45.000 --> 00:12:57.000 But just as a quick counterexample, in 2023, the last day cases were the two student loan cases and 303 Creative. So there's not a mixed message there. 00:12:57.000 --> 00:12:58.000 Yeah, that's reasonable. 00:12:58.000 --> 00:13:11.000 I mean, you could count the second student loan case, which the government has a win for the other side because it was a standing decision against the plaintiffs, but it didn't matter at all because the program was

enjoined by— Yeah. —by University of Nebraska. 00:13:11.000 --> 00:13:31.000 That would be interesting empirically to see whether there is, looking at the last day or the last two days, is there some way to measure whether we see more division among ideological wins for either side than we might based on the— 00:13:31.000 --> 00:13:42.000 If you use the rest of June as a control group, so you just take every decision date in June and ask how many are uniform versus how many are mixed and then see if they're a disproportionate number in the last days. 00:13:42.000 --> 00:13:47.000 Also controlling for date of argument and division. I mean, yeah. 00:13:47.000 --> 00:13:55.000 Well, you've seen everything, or the last week, you've seen everything the last week of June could plausibly come out at any time. Yeah. Okay. 00:13:55.000 --> 00:13:55.000 Okay. 00:13:55.000 --> 00:14:02.000 So I assume you're going to make us talk about Slaughter before we can talk about Cook. 00:14:02.000 --> 00:14:07.000 I mean, why do you frame it that way? I'm going to insist on it. This is some pet peeve of mine. 00:14:07.000 --> 00:14:10.000 I have nothing to say about Slaughter. I was hoping we could start with Cook. 00:14:10.000 --> 00:14:11.000 You have nothing to say about Slaughter? 00:14:11.000 --> 00:14:15.000 That's what I said, but obviously I will say something. It's fine. 00:14:15.000 --> 00:14:29.000 I feel like we should, right? Because Slaughter is going to give us a general rule, and then Cook is going to give us an exception to that general rule, plus a bunch of other interesting legal wrinkles. I agree that there's ultimately going to be more to say there. There's a lot of moving pieces. 00:14:29.000 --> 00:14:34.000 Yeah. But shouldn't we at least get the basic framework out? Sure. 00:14:34.000 --> 00:14:34.000 It's fine. Yeah. 00:14:34.000 --> 00:14:39.000 You've been sort of saying nothing to see here for quite some time. Yes. 00:14:39.000 --> 00:14:42.000 I think when we talked about— For like a year. Yeah. 00:14:42.000 --> 00:14:59.000 When we talked about some of the times this has come up on the shadow docket, I think it was Wilcox, you were just like this— That's the one where the court functionally sort of practically overruled Humphrey's Executor via the shadow docket, and then it came back up in Slaughter, right, on the shadow docket. 00:14:59.000 --> 00:15:08.000 Right. I think all along, you were just sort of like, "Eh, this has been coming." "Totally fine. This has been briefed over the years. 00:15:08.000 --> 00:15:22.000 Totally fine to do all this in the shadow docket." Yeah, there's this phrase from Heidegger, "always already," to describe the human experience. And I guess my view is that Humphrey's Executor has always already been overruled, Dan. 00:15:22.000 --> 00:15:33.000 I didn't think of you as a continental philosopher. I'm definitely not. Yeah. I read Being and Time once. 00:15:33.000 --> 00:15:34.000 Your way out of me. 00:15:34.000 --> 00:15:49.000 Yeah, I took literally nothing away from it. There's this period in my early 20s when I was trying to work through a bunch of these dense texts. And I think I've gained nothing intellectually, at least I retain nothing intellectually from any of these projects. 00:15:49.000 --> 00:15:56.000 I read the entire Critique of Pure Reason. I think maybe there's a sentence worth of content I have left from that. 00:15:56.000 --> 00:16:00.000 My freshman year of college, one of the best things that happened to me was I read A.J. Ayer's Language, Truth, and Logic. 00:16:00.000 --> 00:16:01.000 That's a classic. 00:16:01.000 --> 00:16:13.000 That's short. A short foundation of analytic philosophy, and it convinced me there were sound intellectual reasons to never read continental philosophy, and so I never have. Mm-hmm. 00:16:13.000 --> 00:16:16.000 Mm-hmm. I mean, Kant isn't continental philosophy though. 00:16:16.000 --> 00:16:21.000 Well, Kant counts. As what? Bad. Hume over Kant. 00:16:21.000 --> 00:16:34.000 I mean, he's still important. I mean, he's before the branching off into continental philosophy, but you know. I think that's a defensible position. So you're a non-Kantian? 00:16:34.000 --> 00:16:38.000 Yes, I'm a Humean. Yeah, that's fine. 00:16:38.000 --> 00:16:52.000 But you still have to grapple with them. I think you don't really have to grapple with Heidegger. You can just treat all that as after this division where it just doesn't— for the kind of legal theory you and I might be involved in, it just doesn't really matter. 00:16:52.000 --> 00:17:03.000 In my middle age, I have come to believe there is a non-zero amount of wisdom in Kant. In my youth, I thought it was zero. Okay. 00:17:03.000 --> 00:17:12.000 I'm sure when I teach criminal law, we talk about deontology and Kant. You don't have to agree with them, but it's a data point to talk about. 00:17:12.000 --> 00:17:24.000 I've never taught Kant in constitutional law. No, that's not true, actually. We do talk about the categorical imperative in conflict of laws in Maryland v. Wynne and the dormant commerce clause's application to taxation. We talk about Kant. 00:17:24.000 --> 00:17:26.000 There you go. So there you go. 00:17:26.000 --> 00:17:27.000 Take it back. Okay. 00:17:27.000 --> 00:17:36.000 Okay. So yeah, we are only going to talk about the removal cases. So back to Slaughter, and we'll get to more later in the week. 00:17:36.000 --> 00:17:52.000 Okay. The question in these cases is whether the President, under his executive power in Article II, can fire a commissioner of the FTC or of the Federal Reserve Board, notwithstanding the statutes that say that they have to be removed only for cause. 00:17:52.000 --> 00:18:00.000 In one of them, the answer is yes, and the other one, the answer is no. Yes. Okay. 00:18:00.000 --> 00:18:24.000 So as you said, Slaughter, these issues have been thoroughly discussed and presaged by past opinions, but what is the

basic idea here? Is this fair to say this is something that originalists and folks in your camp and conservatives have wanted for a very long time? Sure. 00:18:24.000 --> 00:18:29.000 Hasn't everybody wanted this, Dan? No. 00:18:29.000 --> 00:18:31.000 Some people like independent agencies. 00:18:31.000 --> 00:18:35.000 Well, who? Okay. I like them okay, yeah. 00:18:35.000 --> 00:18:51.000 In the New Deal, the Supreme Court decided this case, Humphrey's Executor, that said there are some agencies that are quasi-executive, quasi-legislative, and quasi-judicial, and because they are only quasi-executive, they only need to be quasi-answerable to the executive. 00:18:51.000 --> 00:19:02.000 And so Congress is allowed to give them some kind of independence for removal, such as a rule that they can only be removed for cause. At some point, this doctrine has come under some pressure. 00:19:02.000 --> 00:19:19.000 My impression of it is that it was roughly in the start of the Reagan presidency, which you could call the beginning of the conservative legal movement or whatever, but starting roughly then. So by late in the Reagan presidency, we get Justice Scalia's dissent in Morrison v. Olson. Mm-hmm. 00:19:19.000 --> 00:19:26.000 Which is one of the founding texts for skepticism of this kind of independence and in favor of the unitary executive. 00:19:26.000 --> 00:19:33.000 Maybe or maybe not chanted at Federalist Society meetings. There's a factual dispute about that we discussed in a prior episode. Yeah. 00:19:33.000 --> 00:19:49.000 I'm going to put one on or something for the— maybe now actually. For chanting? Today. I feel like today there should be Federalist Society chapters across the country chanting the Morrison v. Olson dissent. I hope they are. I guess they're all probably distributed to their summer jobs. 00:19:49.000 --> 00:20:05.000 And then that skepticism grows even more, especially once the Roberts Court starts. I think starting with PCAOB versus Free Enterprise Fund in 2010, made even stronger in Seila Law in 2020, Collins versus Yellen. 00:20:05.000 --> 00:20:28.000 PCAOB was about two layers of for-cause removal. Yes. Right? The Public Company Accounting Oversight Board, that was a regime set up by Sarbanes-Oxley. Right. Which you had this board that was removal only for cause that was appointed by, gosh, was it the SEC? 00:20:28.000 --> 00:20:32.000 The SEC, which people assumed was removal only for cause even though the statute doesn't say that. 00:20:32.000 --> 00:20:35.000 Yeah, it doesn't say that, which was weird. 00:20:35.000 --> 00:20:45.000 Then Seila Law had, well, what if it's one layer of for-cause removal, but it's not a multi-member agency, it's a single-member agency? And the court said, oh yeah, Humphrey's Executor doesn't apply to single-member agencies. 00:20:45.000 --> 00:20:48.000 Yeah, for reasons that don't totally make sense. 00:20:48.000 --> 00:21:02.000 If you wanted to get really functionalist about it, they

cooked up a just fine functionalist explanation that nobody really believed. Collins v. Yellen said so again. And then we get these cases. But in a way, also, Morrison v. 00:21:02.000 --> 00:21:13.000 Olson, which was a case that upheld the independent prosecutor, sort of already began the death of Humphrey's Executor because Morrison v. Olson was dealing with a prosecutor who's very executive. 00:21:13.000 --> 00:21:27.000 So if you're just applying the quasi-executive, quasi-legislative test, you'd say, "Oh boy, the prosecutor doesn't seem quasi-executive, they seem executive-executive." And so it had to do a kind of reframe of the whole doctrine and turned Humphrey's Executor v. 00:21:27.000 --> 00:21:39.000 United States into a rule that, well, you can have some insulation from executive power as long as it's not too much, as long as the executive still has enough executive power to supervise things enough. And even Morrison v. 00:21:39.000 --> 00:21:50.000 Olson talks about this, relevant to the other case, that for cause can't be a super demanding standard because if it were, then it might stop the president from removing people he wants to remove. Yeah. Justice Scalia says in his dissent in Morrison v. 00:21:50.000 --> 00:21:59.000 Olson, this is a totally dishonest reading of Humphrey's Executor, but it's hard to get too upset about it because Humphrey's Executor was bad. 00:21:59.000 --> 00:22:12.000 I think it produces the line, "He who lives by the ipse dixit dies by the ipse dixit." So I would say since at least 1987, the reasoning of Humphrey's Executor has not been endorsed in the Supreme Court. That's fair. 00:22:12.000 --> 00:22:38.000 Although the fact of independent agencies has been assumed and believed in. And you know presidents the thing that's interesting about this is that I feel like you're right that there's always been some uncertainty about how durable is this really? Does this really hold up if the issue is really pressed? 00:22:38.000 --> 00:22:46.000 But there's been residual uncertainty about that. And so it's kind of like encouraged people to not force the issue? It could be. 00:22:46.000 --> 00:22:51.000 I mean, the other thing in this period is it's not like presidents have been trying to remove people anyway. 00:22:51.000 --> 00:22:52.000 Well, that's sort of what I mean. 00:22:52.000 --> 00:23:01.000 Although I'm not sure whether that's because of— I'm not sure why exactly. Even under a for-cause scheme, for instance, I think nothing since Morrison v. 00:23:01.000 --> 00:23:22.000 Olson would've stopped any president from saying, "This person—" Stop President Biden from saying, "This guy on the FTC believes in markets." "I don't. I need to remove him because he is obstructing the proper execution of the laws." Maybe, maybe you know and nobody tested it. 00:23:22.000 --> 00:23:30.000 So how much that's fear of litigation, how much that's just conventions of independence is unclear to me. 00:23:30.000 --> 00:23:50.000 Yeah. I think that's truly right. I mean, also it struck me as not really necessary because the way these things usually work, Seila Law scheme obviously different, is you have these multi-member commissions and the president who's in power, his party gets a majority. Right. 00:23:50.000 --> 00:24:03.000 So it's sort of like, well, what's the big deal? Just leave the Democrats on there and they can write dissents. I mean, in some ways, it has a legitimating function to have the other party's appointees. 00:24:03.000 --> 00:24:16.000 Now, if you want to deny the agency a quorum, that's different, but if you want the agency to pursue— if you're the president and you have the ability to appoint your own people, let's assume you have the Senate. 00:24:16.000 --> 00:24:25.000 It's obviously more complicated if the Senate is held in the other party's hands, but then I don't know, you get a majority. What's the big deal? Right. 00:24:25.000 --> 00:24:39.000 Right. So that's where I'm genuinely uncertain what the effect of this will be. It's possible that the decision itself will now move the equilibrium, so it becomes common for the executive to get rid of everybody in the independent agencies they don't like. 00:24:39.000 --> 00:24:54.000 It's possible that even though they could have done that before in various ways, this just shifts the norm in some way that causes that to happen, like many post-Trump norm shifts. But it's just not clear to me this actually affects the functioning of the independent agencies that much. 00:24:54.000 --> 00:25:09.000 Yeah, we'll see. I don't know. We're recording this late afternoon on Monday. Has there been any news? I certainly haven't seen any about the Trump administration relying on this to now fire more people? 00:25:09.000 --> 00:25:13.000 I haven't seen it, because I was sort of wondering. 00:25:13.000 --> 00:25:18.000 Yeah, I don't see anything, but we'll see what happens later in the week, right? 00:25:18.000 --> 00:25:29.000 And certainly I don't mean to rule out the possibility of a new— yeah, new round of firings various places. Okay, so what do you want to say about this opinion, Dan? 00:25:29.000 --> 00:25:47.000 Well, should we just, you know, very briefly work people through it, the basics, right? We've got an opinion by Chief Justice Roberts. He always takes cases like this, right? The really big structural separation of powers cases, right? Most of the time. 00:25:47.000 --> 00:25:52.000 Let's see. I mean, he took PCAOB. He took Seila Law. My memory is that he did not take Collins v. Yellen, the Seila Law sequel. 00:25:52.000 --> 00:25:57.000 Yeah. 00:25:57.000 --> 00:25:59.000 Which maybe wasn't big. 00:25:59.000 --> 00:26:05.000 Yeah, I certainly feel like it's not as big, but maybe that's because he didn't take it. 00:26:05.000 --> 00:26:09.000 They're big when he takes them, Dan. 00:26:09.000 --> 00:26:25.000 But I think that was not going to be a surprise that he was going to take

these. I think nobody was surprised by that. So joined by other conservatives, except for a small slice of it that Justice Thomas doesn't join, but it's got a minimum of 5 votes for the entire thing. 00:26:25.000 --> 00:26:41.000 So this is all opinion of the court. So predictably, dissent by Justice Sotomayor, joined by Justices Kagan and Jackson. So this is your classic 6-3 conservative-liberal marquee case. Yeah. 00:26:41.000 --> 00:26:49.000 Although you say predictably, are you surprised it's not a Kagan dissent? I feel like this is one of her core issues. 00:26:49.000 --> 00:27:02.000 Yeah, it did seem like the kind of one that she would want to write. So that is a good question. I was wondering about that because she did write the dissent in Seila Law. 00:27:02.000 --> 00:27:14.000 I guess on the seniority principle, does this apply that Justice Sotomayor is the senior-most Justice in dissent by a year? Yeah. So maybe Justice Sotomayor gets to assign the dissent. 00:27:14.000 --> 00:27:17.000 Yeah, she may have just said she really wanted it. Right. 00:27:17.000 --> 00:27:23.000 And then only one separate opinion, a concurrence by Justice Gorsuch and nothing else. So pretty clean. 00:27:23.000 --> 00:27:28.000 Which I think is the most interesting thing about it, which we'll talk about. Yeah. 00:27:28.000 --> 00:27:30.000 The concurrence or the lack of concurrence? The concurrence. 00:27:30.000 --> 00:27:37.000 Yeah. Okay. Not the fact of it, but the actual text substance of the concurrence. Yeah. 00:27:37.000 --> 00:27:56.000 So yeah, both of these opinions, majority and dissent, spend a lot of time going over the history and the so-called decision of 1789, where it was politically resolved that the president did have the power to fire appointees without the consent of the Senate. 00:27:56.000 --> 00:27:57.000 Well, was it? 00:27:57.000 --> 00:28:16.000 Well, I mean, I think that it was the firing power was resolved, but not— there's a debate in the case about whether that also resolved the question about whether restrictions on that power would be permissible. Is that Is that fair? Yeah. 00:28:16.000 --> 00:28:31.000 My view, which is not the view the court puts forward, is that there were 4 camps, 1 of which was like 2 of which were rejected. One of which is like, "Is impeachment the only option?" Textually, actually the most logical answer, but obviously wrong. 00:28:31.000 --> 00:28:34.000 Or do you need advice and consent by the Senate or something to fire? 00:28:34.000 --> 00:28:38.000 Yeah, because do you have to go out the way you went in? Yeah. 00:28:38.000 --> 00:28:40.000 Those are both rejected for sure. 00:28:40.000 --> 00:28:47.000 Those are both rejected because the statute setting up the First Cabinet Agency says they can be removed when the president wants to remove them. Yeah. 00:28:47.000 --> 00:29:00.000 The phrasing many people think was a compromise to allow both the Congress decides people, like the Congress can decide by statute people and the president people could both be happy with that because Congress decided by statute to go to the president. Yeah. 00:29:00.000 --> 00:29:11.000 There are some things about the wording that tilt a little towards the presidential view, and there's a Sai Prakash article where he tries to go through and count noses and figure out if there really was a consensus. 00:29:11.000 --> 00:29:22.000 But yeah, the first view is in the presidential direction, and over time, the decision comes to be seen as standing for the proposition that the president has the power and it's up to him. 00:29:22.000 --> 00:29:23.000 Yeah. 00:29:23.000 --> 00:29:24.000 There's some interesting stuff about that in the majority too. 00:29:24.000 --> 00:29:42.000 But does not clearly resolve the question here, right? I mean, the opinion is written as if it is totally clear over the long run of history that Congress can't limit presidential removal power, and yes, we maybe got a little bit wacky in the middle of the 20th century. 00:29:42.000 --> 00:29:50.000 But everybody, that was kind of an aberration and it's been clear for a while that that's not really right. Is that fair? 00:29:50.000 --> 00:30:03.000 I mean, that's in the majority's story. And I think any one piece of it doesn't necessarily line up with that story, but I do think over time that is the conventional wisdom that emerges. 00:30:03.000 --> 00:30:13.000 And that's why when the Supreme Court finally decides this case for the first time in 1926 in Myers, that's sort of why the core lands there. But yes, we could fight about the history a lot. 00:30:13.000 --> 00:30:22.000 There's a whole cottage industry of originalism and counter-originalism about who has the better view of this and what about the sinking fund and what about the control of the currency. 00:30:22.000 --> 00:30:29.000 And that's been, I feel like, a pretty heated debate. Yes. Across ideological divides. 00:30:29.000 --> 00:30:41.000 One of the things that I've gotten into the most trouble for in the past year was in one of these not on the podcast, but on one of these other things, I think I said that there were good arguments on both sides. 00:30:41.000 --> 00:30:52.000 And another law professor called me and was like, "Will, you usually have a reputation for being an honest broker, but I think you've just created your reputation here. 00:30:52.000 --> 00:31:04.000 You've really got to retract that." Just the claim that there were good arguments on both sides was enough to make me seem like a witless hack. That wasn't me, right, that said that? No, it's not. Yeah. 00:31:04.000 --> 00:31:11.000 I would've denied that you had that reputation to begin with, right? Just to mess with you. You know I'm incorrigible. 00:31:11.000 --> 00:31:22.000 Yeah. Yeah, I know. And allegations of scholarly perfidy and all this, yeah, there's been a lot in this area, maybe out of proportion too. 00:31:22.000 --> 00:31:34.000 And so this

will end that. This will end the debate, right? It's over now. Everyone's going to go along and accept the resolution and conclude that one side was right. 00:31:34.000 --> 00:31:51.000 Well, you're joking. But here's one interesting question. Is the supply there's been a huge supply of purportedly originalist articles by people claiming on the other side, all the articles that Justice Sotomayor cites in her dissent, many of which are quite good. 00:31:51.000 --> 00:31:58.000 And I guess my question is, do you predict the supply of those articles to dry up now? There's some people who are kind of like, this is what they do, I guess. Yeah. 00:31:58.000 --> 00:32:07.000 But were those articles being written in part because the issue had not been conclusively resolved by the court and people were hoping— I don't know. That was a reason to write about them? 00:32:07.000 --> 00:32:19.000 I think that there's more impetus to write them when the issue hasn't been resolved. I don't think that you have to say that they're writing them to influence the court, but when there's an open question, it's more worth writing about. 00:32:19.000 --> 00:32:29.000 Why is that? The originalist question is just as open now as it was yesterday, because the court doesn't resolve the truth. 00:32:29.000 --> 00:32:50.000 Yeah, that's true, but it just I guess it seems more like this is an issue that will get a lot of attention in the short term, and so it's great to be part of that conversation, rather than you could pick anything the court has decided and say, "The court was wrong about this," but maybe that seems less pressing, less exciting. 00:32:50.000 --> 00:33:03.000 This is why I went up the influence thing. One option would be to pick the things the Supreme Court has just said and figure out whether they're true and then tell people. Another option is to pick things the Supreme Court hasn't said yet and try to say what it should say. 00:33:03.000 --> 00:33:16.000 The obvious reason to do this, the first, is actually like, now we know what the Supreme Court thinks and we have arguments we can respond to. And we're sure it's important because the court's just said it. But the argument for the other one is maybe you're going to influence the court. 00:33:16.000 --> 00:33:19.000 I'm not sure how people decide which one to write about. 00:33:19.000 --> 00:33:41.000 Well, there will be another round of scholarship about this decision, surely. But then the debate may move elsewhere. It may move to the implications of the decision. Of civil service, what are the other possible limitations and carve-outs, which is something that this opinion leaves open. 00:33:41.000 --> 00:33:50.000 So the part that Justice Thomas does not join, so this is I think 3B. Yeah. 00:33:50.000 --> 00:34:16.000 Says, "Because the FTC's activities fall well within the heartland of executive power, we have no occasion today to define the bounds of what such power entails." "As our Presidents recognize, not all offices created by Congress necessarily come with executive or even sovereign power attached," and mentions Boy Scouts of America, Society of American Florists, and Ornamental Horticulturalists. 00:34:16.000 --> 00:34:39.000 I guess these are congressionally chartered organizations. Mm-hmm. The court says very clearly— Georgetown University. Yeah, I had no idea. Also notes that they're leaving open questions about removability limitations for judges of non-Article III courts, so the Tax Court, Court of Federal Claims. 00:34:39.000 --> 00:34:50.000 That's still preserved. Yep. And obviously, the court says in the next case we'll talk about that the Fed is an exception to this too. 00:34:50.000 --> 00:34:54.000 Right, which I assume is why Justice Thomas doesn't join it, is because that part is the basis of the statute. Yeah. 00:34:54.000 --> 00:34:58.000 He may disagree that there should be other carve-outs as well. 00:34:58.000 --> 00:35:13.000 Right. No, I'm curious when Justice Thomas writes a dissent from denial in 3 years about the removal of Eduardo Penalver and Liz McGill from their posts at Georgetown. That would be funny. Sorry. They're both friends. I don't mean to— 00:35:13.000 --> 00:35:16.000 You're not trying to encourage that, I hope. 00:35:16.000 --> 00:35:19.000 Well, they're safe. 00:35:19.000 --> 00:35:38.000 They're clearly safe. I hope so. All right. So there's that big historical debate. Both sides, majority and the dissent, really try to paint the history in the best light for them. Mm-hmm. I don't have a ton to say about that debate. 00:35:38.000 --> 00:35:47.000 You know if people are really interested in it, they can go read the secondary literature or the primary sources themselves. 00:35:47.000 --> 00:36:06.000 I think the kind of I find the questions about prudential discretion and stare decisis maybe a little bit more compelling, right which is, is there something to be said for maybe almost leaving this question a little bit unresolved? 00:36:06.000 --> 00:36:12.000 I think we've had a political equilibrium on these issues that has been somewhat stable for a while. Yeah. 00:36:12.000 --> 00:36:43.000 Doesn't strike me as that bad, because the one of the themes of the majority and of some of these other cases is basically, "Oh, these removal restrictions are bad because they deprive the president and the American people of the opportunity to influence policy." But I mean, I don't think that's really been true of independent agencies under the regime under which most of them work, where there's, like I said, there's a majority appointed by the president. 00:36:43.000 --> 00:36:44.000 Yeah. Right. 00:36:44.000 --> 00:36:55.000 And that's where the question becomes, does that mean this case was already meaningless and we haven't done anything to it? And maybe another example of the phenomenon you described is like Rucho, right? 00:36:55.000 --> 00:37:05.000 One might have said for the decades leading

up to Rucho, political gerrymandering is already constitutional. Everybody does it, and the court has had many opportunities to stop it and has never taken the opportunity. 00:37:05.000 --> 00:37:15.000 And nonetheless, in hindsight, it does seem like saying definitively, okay, "Game on, do whatever you want," did dramatically change practice. 00:37:15.000 --> 00:37:24.000 This is unfortunate because I've had for weeks a half-written blog post for the blog about this that sort of uses that example and how you've seized it. 00:37:24.000 --> 00:37:30.000 Well, you can also do Edwards v. Illinois and the ATS case to bring them all together. 00:37:30.000 --> 00:37:49.000 Oh, okay. Those are good. Yeah. The other thing that's maybe a tiny bit irritating about this is part of the reason the court explains why it's so necessary to overrule Humphrey's Executor, is that its precedent has left it in tatters. 00:37:49.000 --> 00:38:07.000 And some of the main exhibits in that case are decisions written by Chief Justice Roberts. Yes. It's like, "Look at our precedent that I wrote." Well, this is one of my favorite— Where I tried to draw these distinctions, and those distinctions obviously don't work. 00:38:07.000 --> 00:38:18.000 This is one of my favorite and least favorite things about the workability component of stare decisis, because this used to come up a lot in the abortion cases too. It's like, does Roe v. Wade establish a workable rule? 00:38:18.000 --> 00:38:34.000 And then Justice Scalia would always say, no, look at all these decisions narrowing Roe. And I think that actually there is a deep truth there, which is like, yeah, if the court really doesn't want a precedent to be workable, it will make it unworkable and then overrule it. 00:38:34.000 --> 00:38:47.000 And there is a way— I mean, to be clear, Brown v. Board of Education does the same thing. Brown says, Plessy's proved unworkable because look at all these cases we decided. Under the auspices of the NAACP eroding it. So it's just true that's a way the court overrules precedent. Yeah. 00:38:47.000 --> 00:38:54.000 But it's funny when the court then describes it as if the unworkability is not coming from inside the house. 00:38:54.000 --> 00:39:12.000 Yeah. I mean, it maybe is more justified when the unworkability happens over many decades, including with a bunch of people who are not on the court anymore. But when it's the same Justice citing his own opinions, it seems a little bit rich to me. Yeah. 00:39:12.000 --> 00:39:22.000 But I mean, again, maybe its a better way to say this is just like, "We have already overruled everything that made sense about this opinion, and all we're left with is the parts that don't make sense." Yeah. 00:39:22.000 --> 00:39:41.000 But it kind of paints it as our hands are totally tied here. Right. Even though those other cases were like, "Oh, we're not doing that, of course." It's a way you can sort of basically at no point does the court actually take responsibility. 00:39:41.000 --> 00:39:56.000 It's like at time one, it's like, "Okay, no, no, we're not overruling it. We're just cabining it, or we're just not extending it to this new situation where it's two layers." Then you get to time two, and they're like, "Oh, well, we kind of already dealt with this, right? Of course we can't. 00:39:56.000 --> 00:40:00.000 We didn't leave it standing with those other decisions." I agree. 00:40:00.000 --> 00:40:04.000 I just think this is— Justices do this a lot. 00:40:04.000 --> 00:40:16.000 Fair enough. Then the only other thing that's worth talking about, I think, is the Gorsuch concurrence, which is kind of interesting. 00:40:16.000 --> 00:40:31.000 It also has a little bit of the "this is rich" kind of flavor to it because he's like, "Look, we just got rid of for-cause removal protections for independent agencies, and that's going to have all these dramatic consequences. 00:40:31.000 --> 00:40:52.000 It's going to create this administrative state under the control of the president that Congress didn't intend." So because we did that, we have to do a bunch of other stuff, basically, like do a bunch of follow a bunch of doctrines down a rabbit hole that would change the administrative state even further. 00:40:52.000 --> 00:41:07.000 So he wants to bring back non-delegation, right? Yes. In a major way. So significantly limit— Yes. Substantially limit the power of administrative agencies now fully under presidential control, whether they're formally independent agencies or not. 00:41:07.000 --> 00:41:15.000 He wants to bulk up the Seventh Amendment as the court did in Jarkesy. Anything else? 00:41:15.000 --> 00:41:32.000 So I'm curious what you think. The concluding paragraph has a little bit of this distinctive Gorsuch style. "From here, the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong, in Congress and the courts. 00:41:32.000 --> 00:41:39.000 We have tolerated adventurous theories long enough. It is time to return all the way to the Constitution." 00:41:39.000 --> 00:41:41.000 I don't have any objection to that. 00:41:41.000 --> 00:42:00.000 Yeah. I kind of like this opinion. I actually thought of all of the radical separation of powers Gorsuch opinions, which I feel like start maybe with the Gundy dissent on nondelegation and have had many other variations, this and the Loper Bright concurrence, just my favorite. 00:42:00.000 --> 00:42:09.000 I thought the way it delves into the sort of construction of the administrative state under Woodrow Wilson and talks about the moving parts. I just thought it was well done. 00:42:09.000 --> 00:42:27.000 I haven't had a lot of criticisms of Justice Gorsuch's writing style in quite some time. I found his first opinion a little tedious, but he's had some good lines. I do find his tone a little bit annoying sometimes, like his tone in Learning Resources v. Trump, the tariffs case.

00:42:27.000 --> 00:42:46.000 He comes off as just such a know-it-all and kind of snide, which is not my favorite. I think some of the others do a better job tonally. Justice Gorsuch, I mean, clearly is somebody— One theme in his jurisprudence is I think he really doesn't care what other people think. 00:42:46.000 --> 00:42:52.000 I wish that didn't come across quite so clearly in some of his writing. I think it's great. 00:42:52.000 --> 00:42:58.000 I think he reminds me a lot of Justice Douglas. 00:42:58.000 --> 00:43:01.000 In style? Perhaps not in substance. 00:43:01.000 --> 00:43:06.000 Well, some ways in. I mean, just the whole thing. All right. 00:43:06.000 --> 00:43:20.000 So I want to talk about Cook. You want to talk about Cook. Yeah. We have finite amounts of time, so let's talk about Cook. All right. So we've got a general rule. President gets to remove people, no for-cause restrictions. Those are unconstitutional. Yes. 00:43:20.000 --> 00:43:28.000 So we have another case presenting basically that same fact pattern. Yes. And yet it's going to come out differently. Okay. 00:43:28.000 --> 00:43:41.000 Well, so Cook is different in a couple of ways. So one— It's procedurally different. Cook is procedurally different. It is formally a case on the interim docket. The court did not grant cert. 00:43:41.000 --> 00:43:56.000 The President ordered Lisa Cook removed on the basis of some allegations about misstatements in her mortgage application. The district court, the lower courts disagreed and enjoined that, gave a preliminary injunction against the removal. 00:43:56.000 --> 00:44:12.000 And so Trump filed a request for a stay of the injunction from the Supreme Court back in December, I think, maybe longer ago. And the Supreme Court deferred it and set it for oral argument. So this is formally just a ruling on a stay request. Yeah. 00:44:12.000 --> 00:44:17.000 But I mean, it got the same amount of consideration as a true merits case. Yes. 00:44:17.000 --> 00:44:29.000 Although, well, we know from Mullin v. Doe, a case we're going to talk about later that different legal principles apply to such cases. Yes, fair. Yeah. And it's also different. 00:44:29.000 --> 00:44:37.000 So in that briefing, the Solicitor General actually never questioned the constitutionality of the tenure protections of the Federal Reserve. 00:44:37.000 --> 00:44:41.000 Taking a lead from an earlier shadow docket decision in Wilcox. 00:44:41.000 --> 00:44:53.000 The questions presented to the court by the parties were assuming that Lisa Cook does have for-cause removal protection, unlike Rebecca Slaughter, has cause been proven here and has there been enough process? 00:44:53.000 --> 00:45:04.000 And so the question was sort of, is what she's accused of enough to constitute cause and has there been enough of a hearing about that? Now the court decides to also answer the big constitutional question. 00:45:04.000 --> 00:45:04.000 Yeah. 00:45:04.000 --> 00:45:19.000 One of

the most interesting things about the opinion, but it came to the court as sort of more of a follow-on and indeed an argument that Justice Kavanaugh, who's in the majority, but an argument that Justice Kavanaugh proposed what sounded like a one-paragraph opinion, which they could just say. 00:45:19.000 --> 00:45:23.000 Process required, process not received, denied. Yeah. Yeah. 00:45:23.000 --> 00:45:36.000 And so they go in totally the other direction, right? They write something quite maximalist that just settles these questions. It doesn't answer the question about was this okay here under these facts? Yeah. 00:45:36.000 --> 00:45:53.000 But it settles the constitutional question, says that she has a cause of action, and so the only thing left is to figure out what specifically kind of process she's entitled to and whether the President has made the requisite showing to satisfy. 00:45:53.000 --> 00:45:58.000 Well, I think it's clear that she hasn't had enough process yet. I think the President basically has to try again. 00:45:58.000 --> 00:46:01.000 Yeah. But just how much more does she get? 00:46:01.000 --> 00:46:16.000 Yeah. Right. So I will say, as I started reading this opinion, it has several pages of— I mean, it begins with the Bank of North America before the establishment of the Constitution. And then you go through and you get Hamilton. 00:46:16.000 --> 00:46:32.000 You get Jackson's response to the bank, and you get a footnote about how Jackson had an advisor, Jay Hamilton, who was Alexander's fourth child and who was also an accomplished yachtsman, a last-minute addition to the crew that won the first America's Cup, who later came to regret his support of Jackson. 00:46:32.000 --> 00:46:44.000 At about this point, I was like, "What are we doing?" I was sort of enjoying this tour through our history, but I was like, "Why is this even here?" The Chief Justice does this a lot, right? 00:46:44.000 --> 00:46:46.000 I mean, he sort of did that in Slaughter. 00:46:46.000 --> 00:46:56.000 Well, but in Slaughter, I understood what the history was for. Here was before I realized quite what the court was going to be doing with the merits of the Federal Reserve. So the history is there for a reason. 00:46:56.000 --> 00:47:04.000 Wasn't it clear though? I mean, hadn't the court already kind of tipped its hand to say maybe there's unique history here and that's why the Fed is different? 00:47:04.000 --> 00:47:10.000 Well, yeah, but again, here's how I thought that independence of the Federal Reserve was going to work. I thought this was an incredible piece of sleight of hand by the court. 00:47:10.000 --> 00:47:18.000 I thought the way it was going to work was in two previous footnotes, the court said the Fed might be different for reasons, for history. Yeah. 00:47:18.000 --> 00:47:27.000 And that was sufficiently strong to scare the Trump administration away from even questioning the Fed, because they don't really want to question the Fed, and

it's clear the court's not going to say it's independent. 00:47:27.000 --> 00:47:38.000 And thus, the court would never have to actually explain why the Fed is independent, because they hinted it strongly enough that nobody ever questioned it, and thus the court never have to answer it. And that satisfies both the pragmatic and formal account. 00:47:38.000 --> 00:47:49.000 This is the way legal tender survives, right? Everybody knows legal tender will survive, thus nobody questions legal tender, thus the court never has to figure out what a enumerated power is, what's legal tender. 00:47:49.000 --> 00:47:55.000 And so they could have done that here, right? They could have just said it wasn't argued, and so let's just do the statutory question. 00:47:55.000 --> 00:48:08.000 It worked, and then they decided not to do it anyway. Now, Justice Thomas questions it, because Justice Thomas's dissent takes on the constitutional question. And that does, I think, arguably put the question in play, depending on what you think about the party presentation principle. 00:48:08.000 --> 00:48:14.000 If there's a principle that's not debated by the parties, but is questioned by the dissent, it's sort of fair game for the majority to respond. 00:48:14.000 --> 00:48:20.000 Yeah. Although we don't know when drafting was happening, who went first, right? 00:48:20.000 --> 00:48:34.000 No, although the opinion is structured as if— Yeah. Now again, I think they seem to be happy to have it happen. They and Justice Kavanaugh write separately to say, like, it's good that we do this, and they have reasons for doing it. But it is— they didn't have to do it. 00:48:34.000 --> 00:48:52.000 Now having done it, they have to come up with a reason the Fed is different. Yeah. History. Yeah. So I mean, there is history about the bank. Which is not the Fed, just for the record. Right. 00:48:52.000 --> 00:49:00.000 The Fed is neither the first nor second bank of the United States. In fact, those banks have been defunct for nearly a century. 00:49:00.000 --> 00:49:03.000 I guess it's now the third bank of the United States. Yeah. 00:49:03.000 --> 00:49:26.000 And there is a theory, which I don't think the majority ever cites, by Aditya Bamzai and Aaron Nielson, "Article II and the Federal Reserve," that's kind of a leading quasi-defense of Federal Reserve independence that concludes that most of the Federal Reserve's monetary functions are things that you could vest independently from the president. 00:49:26.000 --> 00:49:32.000 Mm-hmm. Because those are enough like the core thing that the banks could do. I said this at lunch. 00:49:32.000 --> 00:49:47.000 It drove several of my colleagues crazy because they're like, "What the Bank of the United States did is totally different from what the Federal Reserve did." There are various arguments whether they really even are the same kind of monetary policy, but you could at least put it in a box called monetary policy that's not executive power. 00:49:47.000 --> 00:49:53.000 Now, the actual Fed also has a bunch of regulatory power. And the dissent points this out. 00:49:53.000 --> 00:50:06.000 So to explain how to say the actual Fed is complicated, and the Bamzai-Nielson article says, "Well, yeah, the actual Fed is partly unconstitutional." All we're saying is you could, if you tried, restructure the Fed to make it okay. Make some of its functions okay. 00:50:06.000 --> 00:50:25.000 So I'd always sort of thought, boy, if they ever get to the Fed, it's going to be complicated. You'd have to cook up a weird severability theory and get rid of the regulatory functions or something. or kind of but they just didn't do anything. They just— They just say it's different. Okay. 00:50:25.000 --> 00:50:43.000 So there's so many things the court has to decide to get here, or at least chose to decide to get here. Let's try to go through them. So one, the court has to decide whether this is the president's determination of cause, whether that's reviewable at all. 00:50:43.000 --> 00:50:44.000 Yes, and they say it is. 00:50:44.000 --> 00:51:00.000 It's reviewable. The court says, "Look at the statute. It's not committed to the president." Right? Okay. Yeah. And then we have to figure out what cause means. Yep. Right? And the parties, the government says incredibly low. 00:51:00.000 --> 00:51:20.000 Cook says it's incredibly high and the court sort of says— takes a Goldilocks approach. It says, "They're both wrong. It's something in between. We're going to look to the common law to determine cause. We're going to treat that as a kind of term of art." Yeah. 00:51:20.000 --> 00:51:25.000 And then we're going to tell you not what it means. We're going to just tell you it doesn't mean the other two. 00:51:25.000 --> 00:51:39.000 Well, I think— They say, "We need not fully demarcate." It is sufficient to observe that any definition of cause in this context must reflect the Federal Reserve's unique historical status and role. Right. 00:51:39.000 --> 00:52:05.000 And they say, "This requires a substantial threshold for cause, and the key issue is whether the cause assigned truly implies an unfitness for the place or whether it simply represents an effort to secure a more congenial replacement." I think I guess the way I'd say it is, Cook pushed for almost a technical term of art— that there were these technical terms of art about malfeasance, inefficiency, neglect, plus maybe committing a bank crime. 00:52:05.000 --> 00:52:18.000 And the Court says it's not a term of art. It's a broader term than that. But it still is— the point is cause is not just like, "I don't like you. I wish you were doing the job differently." It's like you've got to show unfitness for the place. 00:52:18.000 --> 00:52:28.000 Yeah. And it's interesting because the Court says, "Well, we've got to look to the common law to define this." Yeah. But then it turns out that the definition is Fed-specific? 00:52:28.000 --> 00:52:30.000

Kind of. Right? 00:52:30.000 --> 00:52:35.000 I mean, the definition has to reflect the Federal Reserve's unique historical status and role? 00:52:35.000 --> 00:52:40.000 Right. But that's because the common law rule is cause has to keep in mind the purpose of the office. 00:52:40.000 --> 00:52:42.000 Yeah, yeah, yeah. Fair. 00:52:42.000 --> 00:52:54.000 And so the court says, without these constraints, any perceived or alleged misstep, past or present, could provide a ready pretext for governor's removal— a fact that he would truly know and that would surely weigh on him as he decided what to say and how to vote. 00:52:54.000 --> 00:53:05.000 Nothing could be more corrosive of the independence that Congress sought to preserve. So I think this is hotter than Goldilocks, but— Okay. Then the equity question. Yeah. 00:53:05.000 --> 00:53:11.000 Do courts have the power to block this removal or reinstate the person? Mm-hmm. 00:53:11.000 --> 00:53:22.000 The court says yes, relying in part on Sam Bray, Remedies in the Officer Removal Cases. Published in record time by the Journal of Legal Analysis. 00:53:22.000 --> 00:53:23.000 Of which you're an editor, right? 00:53:23.000 --> 00:53:29.000 Of which I'm an editor. Happy to say I helped facilitate the acceptance of that piece. That's great. 00:53:29.000 --> 00:53:32.000 Is that the first Supreme Court citation for that journal? That is a good question. 00:53:32.000 --> 00:53:35.000 I don't know the answer. Quite possibly. 00:53:35.000 --> 00:53:56.000 And it is tricky because there were all these old cases about equity not intervening in trial to office, and Sam says, no, it's mostly about The point is that quo warranto or mandamus were the right legal remedies, but equity could intervene to protect the de facto officer at the time. 00:53:56.000 --> 00:54:10.000 Then there's a kind of related equity question. I think it's very important. The court deals with in footnote 2. Footnote 2. You'll surely teach in fed courts next year. Mm-hmm. Because Justice Thomas says, well, there's no private right of action. What about private rights of action? 00:54:10.000 --> 00:54:22.000 And the court says, I don't know. No, that's not a problem because we've often held that plaintiffs can sue in equity without a congressionally provided cause of action to prevent an injurious act by a public officer. And here it cites Armstrong v. 00:54:22.000 --> 00:54:38.000 Exceptional Child Center and the latest edition of Hart and Wechsler. That's not wrong, but whether that is what Ex parte Young says is one of these great ambiguities. And just last term in Trump v. CASA, the court said some stuff about Ex parte Young. 00:54:38.000 --> 00:54:59.000 That caused a lot of people to wonder if it had a much different and narrower view. And why Ex parte Young creates just like an all-purpose federal cause of action to stop things by federal officers when on the Bivens side, we like never create causes of action for damages. 00:54:59.000 --> 00:55:07.000 It's like one of these great mysteries. So here the court is like once again picked up the— Yeah. The Ex parte Young end of the stick. Yeah. 00:55:07.000 --> 00:55:28.000 And actually— I think it's a hard question, right? Because I remember puzzling over this as a young law student taking fed courts, and I remember coming across, and I saved it. It was so helpful to me, I saved it, and it's no longer on the internet as far as I can tell, because blogs are not. 00:55:28.000 --> 00:55:47.000 I think maybe it was on TypePad, which has now gone defunct, but it was a post on— the Con Law blog that was a post of an email that Doug Laycock sent to the listserv. 00:55:47.000 --> 00:56:01.000 And sort of explaining that Ex parte Young is about sovereign immunity and it's separate from the question of does the plaintiff have a cause of action. 00:56:01.000 --> 00:56:16.000 I don't know if I agree with that. But I mean, Ex parte Young is about sovereign immunity, and that is a separate question from the plaintiff as a cause of action. But I think Ex parte Young is also about if there's a cause of action, although at the time, equity didn't care about causes of action. 00:56:16.000 --> 00:56:20.000 Do you think there is an Ex parte Young cause of action? You agree with this? 00:56:20.000 --> 00:56:28.000 I think that question is so impossible to answer. No, it's more like in Free Enterprise Fund, the two levels of removal case, there's a similar footnote. 00:56:28.000 --> 00:56:43.000 Footnote in Free Enterprise Fund, the SG said, "Why is there a private right of action here?" And the court drops an almost identical footnote, except without the Armstrong citation, because Armstrong hadn't been decided yet. It was like, "What are you talking about? We do this all the time." Yeah. 00:56:43.000 --> 00:56:58.000 Surely aware that actually it's a hard question. Then you get to Armstrong, where Justice Scalia really explicitly adopts this very broad view of Ex parte Young. It's just like, in equity, there's always a cause of action against unlawful executive action. It's the way it's always been. 00:56:58.000 --> 00:57:09.000 That's not obviously correct about Ex parte Young or equity, but he says that. And then for 10 years, people cite that and then other people say, "Well, it can't really mean that. There's got to be an exception. 00:57:09.000 --> 00:57:27.000 What about this?" And also, all along, there have been two different views of Ex parte Young. One is Ex parte Young created a kind of new constitutional cause of action as a response to the rising constitutional litigation and the need to create one to get around Hans v. Louisiana. 00:57:27.000 --> 00:57:36.000 And the other, which is like John Harrison, is no, no, Ex parte Young is nothing new. This was always just like a growth out of the anti-suit injunction that always been part of equity. And so there's always been a kind of like— 00:57:36.000 --> 00:57:38.000 Which is

what CASA seemed to endorse. Yes. 00:57:38.000 --> 00:57:51.000 CASA seems to endorse the Harrison view, which would seem to be inconsistent with the Trump v. Cook view. Trump v. Cook now re-endorses the Armstrong view, which seems to be inconsistent with the Harrison view. 00:57:51.000 --> 00:57:56.000 And all these happen without quite explicitly taking this position without acknowledging the other. 00:57:56.000 --> 00:58:10.000 So I love that while the court is willing to overrule a 90-year-old precedent in Humphrey's Executor and ipse dixit a Federal Reserve carve-out to save the bond markets, Ex parte Young just like escapes the court's grasp. 00:58:10.000 --> 00:58:15.000 I mean, it is in the footnote, right? But yet there is a lot more to say. It's there. 00:58:15.000 --> 00:58:25.000 It's not obvious why they think this. I mean, it's tremendously important, even more clearly important now. Okay. 00:58:25.000 --> 00:58:32.000 So either that will be very generative and cited a ton, or the court will flip-flop on it later and not cite this. Yeah. 00:58:32.000 --> 00:58:41.000 But even making clear that CASA did not sound the death knell for the broad jurisprudence of Young is already enough, even if all it does is maintain the duality ambiguity again for a while. 00:58:41.000 --> 00:59:03.000 Yeah. Okay. So having rejected, done those things, which all seem— They say, the Court says, "Having rejected the government's view that the courts are to play no role in assessing the validity of a governor's removal, we may decide this application on narrow grounds," which I think is not accurate. 00:59:03.000 --> 00:59:17.000 For reasons we've discussed and will discuss. The purportedly narrow grounds are that we're not going to totally give you definition of cause. We're not going to totally tell you the scope of review of cause. 00:59:17.000 --> 00:59:34.000 And we're not going to totally tell you exactly what procedure is required, but basically there wasn't enough procedure here. She wasn't clearly told what she supposedly did. A post on Truth Social is not adequate. Yeah. 00:59:34.000 --> 00:59:40.000 And she wasn't given an opportunity to respond and a fixed deadline, et cetera, et cetera. Yes. 00:59:40.000 --> 00:59:55.000 They rely partly on a friendly, some kind of a hearing about the minimum requirements. At a minimum, she's entitled to some explanation of the evidence, some avenue for a response, and a deadline by which a response would be due. 00:59:55.000 --> 01:00:05.000 We still don't know for certain like what would happen after that and what quantum of evidence would be sufficient and whether this would qualify, right? 01:00:05.000 --> 01:00:18.000 Assuming that those steps happen and the President still goes forward and fires her, which I imagine he's going to want to do, this doesn't doom his efforts to do that, right? 01:00:18.000 --> 01:00:24.000 I'm very curious what happens next. You think he's going to try again? 01:00:24.000

--> 01:00:36.000 I think that it's quite possible. I think people in the administration might just try to convince him to let this one go rather than continue fighting it, but I think his inclination would be to not let it go. 01:00:36.000 --> 01:00:41.000 Yeah. I really can't venture a prediction of what happens. What happens next? 01:00:41.000 --> 01:00:55.000 Okay. And as we said, the court claims that it's doing something narrow, even though it is, as you said, resolving the constitutional question, which is not narrow. 01:00:55.000 --> 01:01:10.000 One last thing about the majority opinion before we talk about the separate opinions. The majority also uses an interesting phrase that I believe has been used at by the Supreme Court for the first time to refer to the docket on which it decided this case. 01:01:10.000 --> 01:01:19.000 The court says on page 23— Ah, the interim docket. How much to say on our interim docket and how much to say in response to a dissent is not rebuttal. Here we go. 01:01:19.000 --> 01:01:29.000 I think that's the first use of interim docket in any Supreme Court opinion, and it's in a Supreme Court opinion of the court by Chief Justice Roberts. That's official now. 01:01:29.000 --> 01:01:32.000 It's the interim docket. Yeah. 01:01:32.000 --> 01:01:40.000 Now, you really can't call this opinion the shadow docket. Yes, this is not shadowy. Or even the emergency docket, because it sure doesn't seem like an emergency given how long it's been. 01:01:40.000 --> 01:01:42.000 They treat it like an emergency. Right. 01:01:42.000 --> 01:01:44.000 Yeah. Okay. 01:01:44.000 --> 01:01:50.000 All right. So I feel like there's a lot going on in that majority and probably other things buried in there that we haven't even talked about. 01:01:50.000 --> 01:01:52.000 Yeah, it's amazing. Okay. 01:01:52.000 --> 01:02:13.000 But so we've got the Kavanaugh concurrence, which is pretty short. He's got two points he wants to emphasize. First, basically, maybe the president still can fire her. We're not answering that question. Second, he wants to confirm that history shows the Fed is an independent agency. Yes. 01:02:13.000 --> 01:02:29.000 He thinks that's very important and explaining that we need to answer this now because stock market. More or less. Yeah. Or political upheaval. Right. Be bad for the economy. 01:02:29.000 --> 01:02:42.000 I would not risk destabilizing the US economy just so that we can further mull over an issue that in various permutations we have been thinking about for many years. So there you go. Okay. 01:02:42.000 --> 01:03:02.000 So then we have an kind of interesting concurrence by Justice Jackson. Mm-hmm. This is interesting, because she's been someone on the interim docket who has pushed relying on some of the other factors. Here's why there's no irreparable injury. The court shouldn't be granting relief here. 01:03:02.000 --> 01:03:17.000 She says, "We could decide this case on those other factors." Yeah. Equities, no irreparable injury, and so forth. So kind of like showing consistency with her overall approach. 01:03:17.000 --> 01:03:32.000 Yeah. I don't think she builds it this way, but I see this as also a good response to some of the dissents, for reasons we can talk about in a second. But yeah. Okay. Then we have the big dissent by Thomas. Yeah. 01:03:32.000 --> 01:03:43.000 And it's a big dissent, except it is a solo dissent, right? You might have thought in a case like this, there would be a principal dissent joined by 4 Justices, but there's not. 01:03:43.000 --> 01:03:58.000 Yeah. Justice Thomas thinks that the President has plenary power to do this, and the statute can't be read this broadly, and so on and so forth. The full executive power view. 01:03:58.000 --> 01:04:08.000 He also addresses the due process argument that the court didn't need to address. The court didn't go down that path. Yeah. This is a 30-plus-page dissent. 01:04:08.000 --> 01:04:13.000 Footnote 6, he rejects the majority's view of Ex parte Young. 01:04:13.000 --> 01:04:23.000 And so he doesn't get other joiners, I guess, just because they want to decide this case more narrowly too. 01:04:23.000 --> 01:04:36.000 Yeah, right. I mean, saying that Federal Reserve independence is unconstitutional and that that means the President can fire people with the Truth Social post, yeah. Even though that hasn't even been fully argued by the— 01:04:36.000 --> 01:04:45.000 Yeah, and even though the constitutional question was conceded, right? Or at least not challenged by the government in this case. Yes. 01:04:45.000 --> 01:05:01.000 So then the Alito-Gorsuch dissent, which is the lead dissent in the sense that it's the only dissent that has more than one person joining it. More than one, yeah. Goes with the, "This case presents many thorny legal questions. What is for cause? How much judicial review? 01:05:01.000 --> 01:05:17.000 What kind of rebuttal entry do you need? Does this Truth Social post count? Can courts do this?" Also, a question that's not mentioned by the majority, "Can the President appeal an injunction that no enjoined party challenges?" Because I guess he was not actually the subject of the injunction. 01:05:17.000 --> 01:05:33.000 That is interesting. And Justice Alito says, "Many of these are questions of first impression without obvious answers, so I wouldn't get into all those. I would just say the district court is clearly wrong and go from there." And only on the issues that the district court reached. Right. 01:05:33.000 --> 01:05:46.000 And I will say, so this is where I had— I agreed with everything about this dissent other than its outcome. I think you could take this dissent plus the Jackson concurrence and do the opposite. 01:05:46.000 --> 01:05:59.000 You could say, boy, this case presents a ton of hard questions that we're not really in a position to get through at this stage. So all I can say is I don't think I would intervene in a grant of stay

yet. It's all too muddy. It's not sufficiently clear. 01:05:59.000 --> 01:06:13.000 There's some equities pointing against the president here. And this is what reminds me a bit of the Trump v. Illinois National Guard litigation, where we had some of the same things going on, where the court had a number of hard questions about the structure of the militia statute. 01:06:13.000 --> 01:06:28.000 And then some Justices were like, "Oh, these are hard questions, therefore the President wins." Or, "Wait, these are hard questions, therefore the President loses." Because which questions you decide to ask and which ones you regard as too hard could be enough to shape the outcome. Yeah. Okay. 01:06:28.000 --> 01:06:44.000 And so he would've just said, "Look, the District Court adopted this really restrictive vision of kind of cause for cause removal. Yes. That's wrong. Really restrictive in the sense of tying the President's hands to only removing someone for in-office misconduct, basically. 01:06:44.000 --> 01:07:01.000 That was wrong, and also the District Court was wrong in its due process holding, and then send it back down. They can deal with the other issues and figure it out. Yeah. And then Justice Barrett, slightly different, sort of similar, wants to go more narrowly. Why does she not join Alito? 01:07:01.000 --> 01:07:18.000 So I don't totally understand. I think she's more concerned than anything about the constitutionality of the Federal Reserve question. Yeah. I mean, there are other questions, but more than anything, she's concerned about that one. And then I think she has a more specific and technical reason. 01:07:18.000 --> 01:07:20.000 And I think that she's skeptical of it, right? 01:07:20.000 --> 01:07:24.000 Skeptical of? Of the carve-out. Yes. 01:07:24.000 --> 01:07:39.000 She says, "Slaughter announces a categorical rule, yet here the court claims a special exception. How can history support both a categorical rule and a carve-out?" I mean, she frames it as a question, right? But at least it comes across as a skeptical question. 01:07:39.000 --> 01:07:48.000 I read her as directionally sympathetic, but she says, "Even assuming it's right, it warrants more than a few paragraphs." Sympathetic to what? Sympathetic to the carve-out. 01:07:48.000 --> 01:07:49.000 Okay, interesting. 01:07:49.000 --> 01:07:56.000 As Justice Thomas points out, the differences between the Federal Reserve and our early national banks are more significant than the majority lets on. What do we do about these things? 01:07:56.000 --> 01:07:58.000 I read this as sympathetic to Thomas, but— 01:07:58.000 --> 01:08:04.000 Do all the Federal Reserve's existing regulatory powers have a requisite connection to monetary policy? If not, are they grandfathered in. 01:08:04.000 --> 01:08:20.000 I guess I read her as with Bamzai and Nielson in thinking there probably is a monetary policy exception, but what is the monetary policy exception and do all the powers count as part

of the monetary exception are liike real questions you have to work through. 01:08:20.000 --> 01:08:34.000 And as she says, is the Federal Reserve unique or might history sanction other exceptions too? I read her as probably willing to say that some version of the Federal Reserve is an exception, but sweating the details much more. Yeah. 01:08:34.000 --> 01:08:57.000 I forgot to say that one of the funny parts of the exception is the majority doesn't really grapple with the fact the Federal Reserve has a mix of monetary and regulatory powers, except to drop in a footnote saying, "In upholding the Constitution of the Federal Reserve as currently structured, we do not suggest that Congress could assign the Federal Reserve additional regulatory powers that are attenuated from monetary policy." It already has ome. 01:08:57.000 --> 01:09:04.000 The current ones are okay for secret reasons, and additional ones would not be okay for also secret reasons. 01:09:04.000 --> 01:09:18.000 It's amazing. There's also this issue about how to read the scope of the earlier injunction by the district court, which is another thing from the footnotes, buried in the footnotes of the majority opinion, which is the majority reads it kind of narrowly. Right. 01:09:18.000 --> 01:09:33.000 And I think that's her sort of best, sort of like formalist argument for why if you think all these questions are hard, you have to reverse the district court. Yeah. The district court injunction is sort of too broad on any interpretations. You've got to reverse that and sort the rest out later. 01:09:33.000 --> 01:09:46.000 So maybe this is the right place. So Justice Barrett's dissent left me with two kind of questions about the Federal Reserve carve-out in Slaughter v. Cook and how to think about them. 01:09:46.000 --> 01:09:53.000 And one is— and I've been somebody who's been more sympathetic to this carve-out than many and the sort of Bamzai-Nielson view. 01:09:53.000 --> 01:10:10.000 But right, as structured here, you do wonder, if the Federal Reserve is special because it does something so important that to have not even the appearance of independence would jeopardize the economy and cause all this cataclysm, et cetera, et cetera, how do we know there aren't other things like that? 01:10:10.000 --> 01:10:15.000 Yeah. I mean, now again, maybe the Federal Trade Commission is not like that because nobody cares about the Federal Trade Commission. 01:10:15.000 --> 01:10:38.000 But if we thought that an independent DOJ, that actually doesn't engage in spite prosecutions of politicians on either side and forces neutral principles and the rule of law, would do a lot to bolster like property and the safety of things. Could that also be different? Or And if not, why not? 01:10:38.000 --> 01:10:46.000 Why does the fact that the court feels like monetary policy is too important to be left to the political process not allow other things to be put in that category? 01:10:46.000 --> 01:10:56.000 And why is the court much more sympathetic to technocracy here and very deeply skeptical of it in Slaughter. Right. 01:10:56.000 --> 01:11:06.000 And again, this may be history, some of it, but you just sort of wonder. And then the other part that's funny is in Slaughter, part of what they say is that Humphrey's Executor was relying on a fictional account of the Federal Reserve. 01:11:06.000 --> 01:11:20.000 Humphrey's Executor said the Federal Reserve wasn't really executive, and that was obviously false. Yeah. And so now we can overrule it. I just want to say, the Court is here relying on a fictional account of the Federal Reserve. Almost failing to grapple with it. 01:11:20.000 --> 01:11:26.000 One day, one could say, "Well, just as in Slaughter..." Anyway. Yeah. 01:11:26.000 --> 01:11:43.000 I'm impressed. Okay. Well, the markets hopefully will be comforted by this outcome, which Justice Kavanaugh seemed worried about. So all good. All right. Well, we will keep recording. There's tons more we could say about this one. There's so much buried in the majority, but I got to go home. 01:11:43.000 --> 01:11:47.000 You've got to keep doing originalism or whatever it is you do when we're not recording. 01:11:47.000 --> 01:11:52.000 Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. 01:11:52.000 --> 01:12:12.000 And please visit our website, dividedargument.com, blog.dividedargument.com for commentary, store.dividedargument.com for merchandise. Email us, pod@dividedargument.com. Leave us a voicemail, 314-649-3790, or a voice message on our website. 01:12:12.000 --> 01:12:42.000 And if there's a long delay between this and our next episode, it will be because we have lost any protection from removal and we are no longer in our offices. The case is submitted.