Remedies Revisited in the Removal Case
My latest Verdict column assesses President Trump's proposal to use tariff revenue to fund $2,000 payments to Americans earning under $100,000. I chose to write about this topic now because last week Trump claimed, falsely, that payments of $1,776 to U.S. military service members were being funded by tariffs, when in fact the money comes from a supplemental housing fund appropriated by Congress as part of the "Big Beautiful Bill" it enacted over the summer. That fund is taken from general revenues, not from tariffs in particular.
After parsing the legality of Trump's other plan to spend tariff revenue on rebates to the American public, I offer various reasons why it's a bad idea. Among those reasons is the reasonable likelihood that the Supreme Court will invalidate the tariffs as not authorized by the International Emergency Economic Powers Act. If so, and if rebate checks (or their refundable tax credit equivalent) have already gone out, that would create a fiscal gap. It would also pose substantial logistical and remedial problems.
The problems posed by delivering money the government does not have due to a SCOTUS decision in the tariff case pale in comparison with the problems that will be created by a SCOTUS decision for the administration in Trump v. Slaughter, which, based on the oral argument, looks likely. That issue is not so much logistical as normative.
Congress delegated the powers it did to the Federal Trade Commission (FTC) and other independent agencies on the assumption that they would be . . . uhm . . . independent. Had Congress known that commissioners would serve at the pleasure of the president, it might have given the FTC (and other commissions) less power or different powers; it also might have built in other oversight mechanisms, including stricter budgetary limits. Thus, the worry is that by invalidating the removal restrictions but leaving intact all the powers Congress granted the FTC, the Court would in effect be creating a statutory scheme Congress did not adopt and one that gives the president power it did not delegate. Professor Vik Amar elaborates this point (and more) in a recent Verdict article.
During the oral argument in Slaughter, attorney Amit Agarwal, arguing for respondent Rebecca Slaughter, gestured in the direction of the point made by Professor Amar. Mr. Agarwal suggested that to the extent that the FTC exercises purely executive powers and the Court deems that unconstitutional in the hands of commissioners with good-cause removal protection, the Court should hold that the FTC cannot exercise those particular powers. In other words, the Court should invalidate the powers, not the removal restriction.
That's a good solution, in my view, but I doubt the Court will adopt it, because a majority of justices seem intent on a broader invalidation of good-cause removal protection, subject only to a carveout for the Fed. Accordingly, it appears that the only remedial option other than invalidating the good-cause removal protection (and thus giving the president power that Congress didn't intend to delegate) would be to invalidate the FTC entirely.
However, there is at least one other option--one that relies on a mechanism that Professor Buchanan and I discussed at length in our article on delayed judicial remedies for constitutional violations. The Court could invalidate the FTC in toto but delay the implementation of its ruling for some period (such as six months or a year). In the interim, Ms. Slaughter would be restored to her position, no other commissioners could be dismissed without good cause, and the FTC would exercise its full powers. That would give Congress enough time to restructure the FTC as an executive branch agency subject to other kinds of constitutionally valid accountability mechanisms or give the president full power over the FTC with the powers it has, but if Congress did nothing, the FTC would then be invalid. (In an amicus brief in Slaughter, Professor Michael Morley makes just this suggestion.)
The root of the remedial problem here is that severability is an inadequate tool for dealing with partial unconstitutionality. Even when a statute contains a severability clause, if the combination of factors A and B renders a law invalid but A or B alone is permissible, it is unclear whether a reviewing court should invalidate A and sever B or vice-versa. Thus, ideally, Congress should specify a backup plan--what I've described in another article as a "fallback" provision. It does so occasionally but not nearly often enough.
To be fair, though, it only occurs to Congress to include fallback provisions in statutes that could plausibly be challenged as unconstitutional. In recent years, the Supreme Court has frequently adopted as constitutional rules positions that just a few years earlier would have been seen as off the wall. Hence, it did not occur to anyone in Congress that there could be a need for fallback provisions in many contexts. In that sense, the uncertainty about Congress's backup intentions is chiefly a product of the Court's willingness to abandon longstanding precedent. Put differently, the remedial problem in Slaughter is really of the Court's own making.
-- Michael C. Dorf