What We Learned From the Trump v. Slaughter Oral Argument
Having wasted spent two and a half hours of my day listening to yesterday's oral argument in Trump v. Slaughter, I have less time than I typically spend writing up my musings for this blog, so I'll confine my commentary to four bullet points:
• Bottom Line: As I explained yesterday, given the Court's recent actions on the emergency docket, I went into the oral argument expecting that at least five and very likely six Justices intend to overrule Humphrey's Executor and thus invalidate good cause removal protection for Federal Trade Commissioners, with implications for most if not all independent agencies, subject to an ad hoc exception for the Federal Reserve. Nothing that happened during yesterday's oral argument changed that expectation.
• Respondent's Counsel Boxed Himself In: A key piece of the respondent's argument is that Humphrey's Executor is a 90-year-old precedent that should be preserved absent the sorts of considerations that justify a departure from stare decisis. Consequently, attorney Amit Agarwal, arguing for the respondent, seemed constrained to say that he was not asking the Court to overrule any of its other removal power precedents. Otherwise, he would undermine his appeal to stare decisis.
Agarwal could have made that point by saying that the reasons for departing from stare decisis don't apply to any of those other precedents either. Instead, with a half-exception, he said that he thought all of those other precedents were not just deserving of respect pursuant to stare decisis, but rightly decided. The half-exception was Myers v. United States, which he said was correct in its result but wrong in its rationale, although that was hardly a bold position, given that Humphrey's itself qualified the rationale of Myers.
Meanwhile, Agarwal gave his full-throated endorsement to the Court's recent cases cutting back on Humphrey's, especially Seila Law v. CFPB--which held that Congress may not impose a good-cause removal restriction on the head of an agency if that agency head is a single individual rather than a multi-member body--and Free Enterprise Fund v. PCAOB--which held that the members of the governing board of an agency may not be protected by two (or more) layers of good-cause removal restrictions. But, with due respect, those cases are wrongly decided (as I explained here with respect to Seila Law). More importantly, as Justice Thomas pressed during the argument, those cases are not consistent with the non-stare decisis part of the argument for respondent--which is that, given the Constitution's silence regarding presidential removal, it should be up to Congress how to structure agencies.
Agarwal could have conceded that, at a high level of generality, the logical stopping point of his argument renders Seila Law and Free Enterprise Fund problematic, though not formally inconsistent with Humphrey's, but said they should be retained as a matter of stare decisis. That way, he wouldn't have gotten twisted up trying to explain why the principle of deference to Congress didn't apply in those cases as well. That he didn't do so struck me as something of an unforced error--although, to be fair, he was destined to lose regardless of his argument.
• Liquidation: Respondent and various amici argue that presidents beginning with George Washington and going forward until just now have accepted the constitutionality of independent commissions. Agarwal thus contended that whatever ambiguity there may have been regarding the scope of the president's removal power when the Constitution was first adopted, its meaning has been "liquidated" by over 23 decades of experience, borrowing a term used by Madison in Federalist 37.
There is a robust and growing literature about liquidation, including an intriguing recent essay by historian Jack Rakove arguing that, understood in the context of Madison's main concerns, liquidation was not intended to be a recipe for judicial interpretation of the Constitution. Let's put aside the debate about liquidation in general and focus on a point of contention between Agarwal and Justice Barrett.
Justice Barrett asked Agarwal to assume she was not persuaded that the tradition of independent agencies analogous to the FTC dated back to the Founding but rather that: (a) in the early Republic it came to be understood that Congress could not limit the president's power to remove federal officers; although (b) a contrary understanding emerged beginning with the creation of the Interstate Commerce Commission in 1887. Justice Barrett then appeared to take the position that if the Constitution's meaning had been liquidated to mean X at some point after the Founding, it could not later "get a new restart" for an alternative meaning.
During his rebuttal, Solicitor General John Sauer pointed to Powell v. McCormack to support Justice Barrett's contention that liquidation is a one-and-done affair, subject to no re-liquidation. I'm not sure that's right, however. It's true that in Powell the Court treated earlier practices as more relevant than later ones, but that appears to be because the Powell Court was after what it thought was a determinate original meaning. It said that "the precedential value of the[ cited] cases tends to increase in proportion to their proximity to the Convention in 1787." That's original meaning talk, not liquidation talk.
What's the difference? Post-enactment history can shed light on original meaning--or at least on original expected applications--because evidence of what people were doing is informative of what they thought the Constitution allowed, required, or forbade. If the goal is to figure out the original meaning, then yes, as in Powell, the closer in time to just after (or, subject to some qualifications, just before) the adoption of the Constitution, the more relevant the practice is.
Liquidation assumes that the Constitution is unclear about some point, not because we don't have sufficient evidence of what the words meant or what people at the time thought they implied, but because it's just profoundly unclear. Experience, however, can impact our constitutional understanding. I took Justice Barrett to be saying that once that happens, the Constitution is no longer unclear on the relevant point. But I don't think that's necessarily correct, because additional experience can provide additional information.
Again, the respondent argues that even in the early Republic it was accepted that Congress could restrict presidential removal of commissioners, pointing to the Sinking Fund as exhibit A. However, even if Justice Barrett thinks that this is a mistaken reading of the pre-1887 history, she needs some reason to prefer the first century of experience to the next century-plus. Coming first might bear on original meaning (of no particular text, mind you, because the constitutional text does not mention any method at all by which a president can remove federal officers), but coming first does not bear on liquidation--even if one takes the metaphor literally: a substance can go from solid to liquid to gas and back again many times over.
• Hyperopia Strikes Again: There were many things wrong with the Supreme Court's grant of extraordinarily broad immunity to former presidents in Trump v. United States, but perhaps the most fundamental flaw in the opinion was the Court's hyperopia--which is the opposite of myopia. Someone who suffers from myopia sees only what is directly in front of them, ignoring what lies on the horizon. A court can be myopic by failing to give sufficient attention to the long-term consequences of its decision. A hyperopic Court worries about the potential long-term impacts of its rulings while paying insufficient attention to the immediate stakes.
The immunity ruling was hyperopic because the majority worried about a hypothetical future president being over-deterred by the prospect of criminal liability, barely noticing that it had before it a former and would-be-future president who had tried to subvert democracy. The oral argument yesterday was likewise hyperopic. The conservative Justices worried about the fanciful possibility that Congress would strip existing federal executive agencies of their core executive functions and replace Cabinet secretaries with commissions staffed by personnel with long terms, thus entrenching their co-partisans against a hypothetical future president of the other party. At the same time, they projected willful blindness to the danger of giving an all-too-real mendacious, racist, vindictive, and corrupt president the opportunity to displace competent professionals on independent commissions with the sort of lackeys and cranks he has tapped to run the executive agencies he already controls.
-- Michael C. Dorf