General Sauer (00:00):
Those nine decisions is going back to 1789.
Justice Sotomayor (00:02):
You still haven't answered my question. Where else have we so fundamentally altered the structure of government?
General Sauer (00:09):
I think the fundamental alteration of the structure of the government was ushered in by Humphreys. And then the Congress kind of took Humphreys and ran with it in the building of the monastery administrative state and the proliferation of independent agencies that are insulated from Democratic control.
Justice Sotomayor (00:23):
Independent agencies have been around since the founding, the sinking fund, the war commission. We've had independent agencies throughout our history, so this is not a modern contrivance.
General Sauer (00:37):
We disagree with that. As in our brief, we disagree with that characterization of those agencies. The Sinking Fund Commission, for example, was composed of three officers who are cabinet sectors is clearly removable.
Justice Sotomayor (00:45):
And you have an amicus that shows us how the President's will could have been thwarted by that structure. We have an amicus brief that shows us how the President's will by that structure could have been thwarted.
General Sauer (01:02):
These kinds of historical examples I think have been considered in its court's cases from a free enterprise fund and sealed law and so forth. There's been a lively debate about that and the court is come-
Justice Sotomayor (01:11):
So, what do we do with Morrison? What do we do with Morrison and Wiener and Perkins?
General Sauer (01:15):
Well, Morrison, for example, I think is a really critical precedent here because what Morrison did is it repudiated the entire logic that supported the holding of Humphrey's executor. It repudiated correctly the idea that there are these quasi-judicial and quasi-legislative powers that are outside the executive power. And yet they're wandering around the executive branch and not in-
Justice Sotomayor (01:34):
Yet you answered the Chief Justice by saying that maybe we just need to look at each agency individually. So, we can't leave that area. By the way, your logic, you're putting at risk. By this, you're saying there's uncertainty. I think the uncertainty in the lower courts was not over Humphrey's executor. It has been over the court's most recent decisions, not because of Humphrey's executor. But you're putting at risk the independence of the tax court, of the Federal Claims Court, Article 1 courts. You're putting at risk the Civil Service. I don't see how your logic could be limited.
General Sauer (02:20):
As to the non-Article 3 courts, we haven't challenged the removal restriction as to the-
Justice Sotomayor (02:23):
Not yet.
General Sauer (02:24):
… non-Article 3 court in this case.
Justice Sotomayor (02:25):
Not yet. Not yet.
General Sauer (02:26):
And we recognize that there are some line drawing issues as to those that came up in cases like Freytag and Ortiz. Again, those aren't presented here, those aren't briefed here, [inaudible 00:02:36].
Justice Roberts (02:35):
There's a difference, I suppose, between Humphreys and Wiener, right? In terms of whether you overrule one or overrule the other, in terms of the consequences with respect to modern agencies. What the War Commission, the Moore Commission in Wiener, if you think that that's more like something like the Court of Appeals or the Armed Forces or the tax court or all those others, strikes me that Humphreys may be the issue. And that doesn't mean that Wiener falls with it or that the other agencies fall with it as well.
General Sauer (03:10):
We have a footnote about this in our brief, footnote one, and we invite the court to overrule Wiener as well. Part of Wiener we think has been overruled by Braidwood, which is Wiener interpreted, found a removal restriction that was not in the plain text of the statute. And that contradicts case law from Shurtleff until Braidwood. The other aspect of Wiener that we think is destructive is the phrase the philosophy of Humphrey's executor. That philosophy of Humphreys executors seems to have a very firm hold on Congress and a firm hold on the lower courts. And that's why there's been a proliferation of litigation.
Justice Roberts (03:38):
Well, there's one thing about… And I'll be brief. There's one thing about philosophy and there's another thing about holdings. Certainly, the holdings of Humphrey's executor doesn't necessarily support Wiener to its fullest extent.
General Sauer (03:50):
We agree with that.
Justice Kavanaugh (03:51):
General Sauer, can I ask you about the Federal Reserve? The other side says that your position would undermine the independence of the Federal Reserve. And they have concerns about that and I share those concerns. So, how would you distinguish the Federal Reserve from agencies such as the Federal Trade Commission?
General Sauer (04:12):
We recognize and acknowledge what this court said in the Wilcox-Harris stay opinion, which is that the Federal Reserve is a quasi-private, uniquely structured entity that follows a distinct historical tradition of the first and second banks of the United States. There's two adjectives there, or adjective and an adverb, unique and distinct. The Federal Reserve has been described as [inaudible 00:04:32]. Any issues of removal restrictions as a member of the Federal Reserve would raise their own set of unique, distinct issues, as this court said in Wilcox against Harris. We have not challenged those, either in this case or any other case. And so, it's not before the court. I think what-
Justice Kagan (04:45):
But I think the question, General… Did you want to…
Justice Kavanaugh (04:47):
Go ahead.
Justice Kagan (04:49):
I think the question that these questions go to is, if you take your logic at face value, it seems to include a great many things. If I were to say your fundamental proposition in your briefs is that the Vesting Clause, how many times do you say in your brief, gives the executive power all of it to the President? And so if you believe that, the fact that you can say, "Well, this has a history and that has a tradition." doesn't much go to the rationale that you are asking this court to accept. So once you're down this road, it's a little bit hard to see how you stop. And I think that that's one question. I mean, there's another question about whether you should start at all. But one question is, if you accept that proposition, which is the fundamental proposition of your brief, it does not seem as though there's a stopping point.
General Sauer (05:53):
Yeah, I think it's a proposition of our brief, but those are obviously quotes from these court's opinions. So, it isn't that we have gone down this road. I think the court has been down this road, the country has been down this road since the decision of 1789. Again, Ex Parte Hennen describes this as settled beyond doubt. Again, Parsons, which anticipates all the analysis of Meyers, says the very same thing. And this is beyond question that there's this removal power. And keep in mind, that's 1897. It's well after the bitter interbreach disputes about the Tenure of Office Act. It's after Congress started engaging this proliferation of restrictions on the removal of inferior officers.
Justice Kagan (06:25):
Well, let me ask you how you would justify, and how you would justify consistent with the proposition that all executive power is vested in the President. Let's start with Article 1 courts. How would you justify keeping those courts?
General Sauer (06:43):
Well, those courts, the determination have to be made on a court by court basis, so to speak, as to whether or not they're engaging in the executive power. There may be tough line drawing questions there.
Justice Kagan (06:53):
I mean, I thought that one of the things that we've said, again, in many, many cases, is that even though they're engaging in adjudicative functions, they have to be executive by their nature.
General Sauer (07:03):
There's a dispute about this. I think basically lurking beneath the surface and the discussions in Ortiz. If they are indeed exercising executive functions, then this logic would apply.
Justice Kagan (07:16):
Go ahead, please. No, go ahead.
Justice Jackson (07:17):
[inaudible 00:07:20].
Justice Roberts (07:20):
Well, I'll go. Is it a possibility, let's say you have an agency that is, I don't know, pick a number, 85% is judicial. Some of the judicial entities that have been talked about in the briefs. And a smaller percentage is some executive function that they do, whether it's issuing rules or whatever. Is there a principle that you would sever out the smaller little tail on the dog and allow the judicial functions to go on?
General Sauer (07:51):
Quite possibly that would be I think a unique severability question that would be distinct from the merits. So if there was an agency that kind of straddles the line between two branches, and that may raise a different severability question. But for the mine run of these multi-member executive agencies, they're clearly exercising executive power. They're doing stuff that what the NLRB does, that the MSPB does, that the [inaudible 00:08:13] the FBC does.
Justice Kagan (08:16):
So, how about those two? So, you are here saying the NLRB goes down, the MSPB goes down, not withstanding that they do all their work or almost all their work in judicial type proceedings.
General Sauer (08:32):
I wouldn't say goes down. I would say they were restored to Democratic accountability and the constitutional structure. But we have contended on the [inaudible 00:08:39] those.
Justice Kagan (08:39):
The current versions of those agencies goes down.
General Sauer (08:42):
We have challenged those in this court, MLRB and MSPB, and there are others at this court Seila Law. I mean, there's various lists out there. But this-
Justice Jackson (08:49):
But General, you keep-
Justice Kagan (08:50):
How about inferior officers?
General Sauer (08:52):
We haven't challenged any restrictions on inferior officers in the United States.
Justice Kagan (08:55):
Why wouldn't that also have to go?
General Sauer (08:57):
Certainly restrictions on inferior officers of the United States would be problematic because of course Meyer is involved in an inferior officer. Logic of Myers extends to inferior officers. We acknowledge that-
Justice Kagan (09:06):
And obviously, there are all kinds of inferior officers wielding executive power all over the place. Yeah?
General Sauer (09:12):
There are many.
Justice Kagan (09:13):
Yeah. So, it seems as though executive officers. How about employees?
General Sauer (09:18):
Again, we haven't challenged the restrictions on [inaudible 00:09:20] but-
Justice Kagan (09:20):
I know you haven't challenged it. It's really, the question is, where does this lead? What does it take you to, given what your primary rationale is? Employees are wielding executive power all over the place, and yet we've had civil service laws that give them substantial protection from removal for over a century. How about those?
General Sauer (09:43):
Well, we do not challenge-
Justice Kagan (09:45):
I know what you don't challenge. You're missing the point.
General Sauer (09:48):
Well, then let me point the court to, if I could, to 7511B of the Civil Service Laws, the CSRA that we cite in our brief. That is a series of exceptions in it that provides no judicial relief at all to classes of employees they're called. Now, some of those employees are clearly officers, some aren't, but for example, presidentially appointed officers, Senate confirmed officials, those who exercise substantial policymaking or have confidential responsibilities, members of the CIA, for employees of the CIA and the foreign service. So, there's already been a… The political branches have in many ways already addressed issues with employees. Now, this court obviously dealt with employee issue in Lucia, and there was a dispute about that. Various proposed lines between employee and inferior officers.
Justice Jackson (10:37):
General-
Justice Alito (10:38):
But could I ask you the-
General Sauer (10:38):
… The court didn't decide those.
Justice Alito (10:40):
Could I ask you the same question or maybe just a very similar question in a different way? You've been asked about a number of different agencies. A few of them are likely to come before us in the near future because of actions that the President has taken. Others, as you point out, have not been featured in litigation, of which I'm aware up to this point. So suppose we were to decide this case in your favor without reaching some of the agencies that have been mentioned, like the tax court and the claims court, and the court of appeals for the armed forces, to name the three. Suppose we were to decide the case in your favor, but we did not want to address those other agencies. On what ground, one way or the other, to express a view that would affect those agencies either, as I said, one way or the other, on what would you propose that we say? So as to reserve a decision on those agencies that may not come before us in the near future or perhaps at any time in the future.
General Sauer (12:12):
I would, I think, use the language that the court used in free enterprise fund when it said, "We do not decide the status of lesser functionaries." It pointed out that the dissent in that case and itself pointed out that the federal bureaucracy is vast. And it said, "We don't want to [inaudible 00:12:28] given the size and variety of the federal government, that discourages general pronouncements on matters that are not briefed and argued." Now, as to, for example, non-Article 3 courts, I'm not even aware of litigation about those removal restrictions for any of those. So, it's an issue that may not arise.
Justice Kagan (12:40):
[inaudible 00:12:41] our logic has consequences. Once you use a particular kind of argument to justify one thing, you can't turn your back on that kind of argument if it also justifies another thing in the exact same way. And so putting a footnote in opinion saying, "We don't decide X, Y, and Z because it's not before us." doesn't do much good if the entire logic of the opinion drives you there.
General Sauer (13:06):
I'm not sure that's true when it comes to non-Article three courts because they are the question would be, what are they doing? Is it judicial power or executive power? That's a totally different set of questions. Those are hard questions.
Justice Jackson (13:16):
But I think Justice Kagan's point is that you're asking us to ask that question. And so we have to understand, you're asking us to ask the question with respect to each agency, what are they doing? That's the necessary result of the argument that you're making in this case. And I guess my point is one way to avoid these difficult line drawing problems would be to let Congress decide. I mean, I sort of thought that we have Article 1, which I think you agree, gives Congress some authority to set up these agencies, to determine their structure, to create the offices that we're talking about.
(13:57)
So it seems to me that that greater power, we should at least think about whether it should include the power to determine the term of office, the extent to which people can be removed. And I appreciate that Article 2 has some language in it that you're pointing to. But as Justice Sotomayor pointed out, the Constitution does not speak specifically to removal. You're asking us to infer this based on the Constitution's structure. And I don't know why we'd make that inference when the power to create agencies and set everything up lies with Congress.
General Sauer (14:33):
I agree with very much of what you said, and so did James Madison. So he made the point in the decision of 1789, that Congress has authority to create the office and set its emoluments and structure that office. But once Congress has done that, its power there stops.
Justice Jackson (14:49):
Is that because of your democratic accountability? I'm trying to understand why you think that Congress is somehow less democratically accountable for the way in which it constructs these agencies and determines the term of office of the officers. You seem to think that there's something about the President that requires him to control everything as a matter of democratic accountability. When on the other side we have Congress saying, "We'd like these particular agencies and officers to be independent of presidential control for the good of the people." We're exercising our Article 1 authority to protect the people by creating this independent structure. And I don't understand why it is that the thought that the President gets to control everything can outweigh Congress's clear authority and duty to protect the people in this way.
General Sauer (15:48):
Congress has a broad authority in structuring the federal government. But what it lacks authority to do is to create these headless agencies, agencies who have no boss and are not answerable to the voters-
Justice Jackson (15:59):
Why?
General Sauer (15:59):
… [inaudible 00:16:00].
Justice Jackson (16:00):
Why does it lack the… The Constitution does not say that Congress cannot create an independent agency. So, what is it about your argument that requires us to reach that result?
General Sauer (16:11):
We disagree with that. We think the text of the Constitution confers the executive power all of it on the President. As Madison argued compellingly in the decision of 1789, the power to remove is an aspect of the executive power. Further, the text of the Constitution includes the Take Care Clause, the Take Care Clause as the court has said virtually every time is discussed this reinforces that conclusion.
Justice Jackson (16:29):
The text of the Constitution includes the necessary and proper clause, which gives Congress the authority to determine, set up, et cetera, these agencies to protect the interests of the people. So we have a conflict, I guess, and I'm just wondering why the President's interests in the way that you've described them win.
Justice Roberts (16:49):
You can answer the question.
General Sauer (16:50):
It is not proper under the necessary and proper clause for Congress to peel away executive power from the President and give it to someone who's not answerable to the voters.
Justice Roberts (16:58):
Thank you. Justice Thomas? Justice Alito?
Justice Alito (17:02):
Let me follow up on two things that have come up thus far. It certainly is an interesting argument. It's an interesting constitutional argument, it's an interesting political science argument about the advantages and disadvantages of allowing Congress to impose removal restrictions on executive branch officers. When would you say the court crossed that bridge? And what have we said about that bridge in recent decisions?
General Sauer (17:35):
Recently the court, and in many decisions, the court has pointed out that the framers of the constitution were not trying to prioritize efficiency or convenience. They were deliberately creating a separation of powers where the branches would check each other. And that's why the court should have sharpened rather than blunted review of encroachments by Congress that involve peeling away executive [inaudible 00:17:57].
Justice Alito (17:56):
Well, I mean, there's an argument that the Constitution doesn't say anything about the President's removal authority. And therefore Congress should have free rein in that error on that question. When did the court cross that bridge?
General Sauer (18:11):
If you're saying cross that bridge, I mean, when did the court adopt that view?
Justice Alito (18:14):
When did the court say that, "No, Congress doesn't have plenary power to impose removal restrictions on executive branch officers."?
General Sauer (18:20):
No later than Ex Parte Hennen in 1839 when the court said that, referring to the decision of 1789, "That this is the settled and well understood construction of the Constitution, that the President alone has the removal power."
Justice Alito (18:32):
How about Myers?
General Sauer (18:34):
Myers was also very clear on that in 1926. And in fact, Humphrey's executor itself paid lip service to it, even though its heart was far from it.
Justice Alito (18:41):
It's been suggested that if we were to rule in your favor about the Federal Trade Commission, put aside these other agencies, just about the Federal Trade Commission, which is the issue that's before us, the entire structure of the government would fall. Do you want to take a minute to address that?
General Sauer (18:57):
The court in, I think, free enterprise fund or Seila Law talked about these kinds of predictions of doom. And the sky did not fall when the removal restrictions were removed from the CPSC and the PCAOB. So also if the FTC, the MSPB, the NLRB are made subject to political process and the political discipline of being accountable to the President, the sky will not fall. In fact, our entire government will move towards accountability to the people.
Justice Roberts (19:22):
Thank you. Justice Sotomayor?
Justice Sotomayor (19:27):
Council Meyers, which you rely on, was signed by a number of judges. One of them was Justice Sutherland, and he was the author of Humphrey's executor. So, four out of the nine justices who signed on to Meyers signed on to Humphreys. So, you're thinking or you're arguing that the reasoning of the more current justices on this court have more purchase than the views of renowned jurists like Holmes and Brandeis who dissented admirers of people like Justice Story who disagreed with this proposition. You're suggesting that we have a better view than either Congress or all of those previous justices about what absolute executive power means. That's basically your argument. All those justices in the past have been wrong and the current ones are right, or at least the current ones of the [inaudible 00:20:47] law majority.
General Sauer (20:49):
I'd say two things in response to that. I think the court was correct in the following decisions, Ex Parte Hennen, Parsons, Shurtleff, Meyers, Seila Law.
Justice Sotomayor (20:58):
Those all involve different and distinguishable situations. Now, with respect to the one component of government that you're not speaking about, when the FTC was created, as has been the case with most of these independent agencies like the Federal Reserve, particularly there, but not that much lesser with the FTC, Congress emphasized the importance of independency. And the prestige that that independence would give to the decisions of agencies who are going to subject the public to rules and regulations of which there might be burdens. And that independence is being taken out or undercut completely.
(21:51)
Why are you so sure that Congress would have preferred to have the independence narrowed, than not to have the agency at all? Some of my colleagues have suggested in prior cases, that we shouldn't be engaged in the severability actions at all. But here you are arguing that, no, we should be doing that. Are you going to be consistent?
General Sauer (22:23):
I would say two things in response to that. The prestige of independency is not a constitutional value. The constitutional value is the separation of powers and the vesting of all the executive power in the presidents. That is the constitutional value [inaudible 00:22:35].
Justice Sotomayor (22:35):
According to the laws that Congress makes, and that's the point Justice Jackson was emphasizing. What you're saying is the President can do more than what the law permits.
General Sauer (22:50):
I think I would repeat what I said before. There's a strong line of precedent recognizing that the text and structure of the Constitution confer on the President the exclusive and illimitable power to remove executive officers. And as a result of that, Humphrey should be overruled.
Justice Roberts (23:05):
Justice Kagan?
Justice Kagan (23:06):
General, would you agree with me? And I hope you will agree with me, because this seems to be the one thing on which everybody can agree, that if there's one thing we know about the founders, it's that they wanted powers separated. They wanted the executive, the legislative, the judicial. They didn't want them all in one place, they wanted them separated across the government, across the different branches. Easy enough to agree with, right?
General Sauer (23:32):
I agree with an important caveat that the court said in Seila Law that the one sort of exception to all this division was the presidency itself, where the framers consciously adopted a unified and energetic executive.
Justice Kagan (23:45):
Well, that's not a caveat.
General Sauer (23:50):
Or [inaudible 00:23:51].
Justice Kagan (23:50):
That's like the not X to my X. Because what I was saying was, and maybe you knew where this was going, so you had to have this caveat, which is really a fundamental contradiction. But the idea is that the President was supposed to do the executing. But he wasn't supposed to do the legislating and he wasn't supposed to do the judging.
(24:15)
And here's like my next proposition, which I think you have to agree with because we just look around the government and it's obviously true. Some people think it's a real distortion from what the founders thought. But what you think of as executive branch agencies, including independent agencies, they do a lot of legislating and they do a lot of judging. And you listed it a bunch of times. You said, "This is obviously executive power. Why is it obviously executive power?" Because they're doing a lot of rulemaking and they're doing a lot of adjudications leading to enforcement.
(24:57)
And those are, although we've said that this is executive power in some sense, but they're legislative functions. That's what rulemaking is. They're adjudicative functions. And isn't it problematic, given what we know about the founder's vision, that what this is going to amount to at the end of the day is putting not only all executive power in the President, but an incredible amount of legislative/rulemaking power and judging in the President's hands?
General Sauer (25:34):
I disagree. I got off the… I started disagreeing very early in that question. And I think I can pinpoint it this way. The mere fact this court held, I think every justice agreed in FCC against Arlington. It's been reassorted, it was the vision of Morrison, it was recognized in Morrison, it was reasserted again in Seila Law. The mere fact that things that some of these agencies do have the form of rulemaking or adjudication does not make that legislating or judging for constitutional purposes. That is execution.
Justice Kagan (26:04):
Yeah.
General Sauer (26:04):
And as the court said-
Justice Kagan (26:05):
But we can all admit that for, whether you want to call it for constitutional purposes, that in a real world kind of way, that's what they're doing. Now, some people think that we should never have gone down that road, but that's what we're doing. So, let me put the proposition in a sort of different way.
(26:21)
Here's been the bargain over the last century, and I think it has been a bargain. Congress has given these agencies a lot, a lot of work to do that is not traditionally executive work, that is more along the lines of make rules when we issue broad delegations. And do lots of adjudications that set the rules for industries and entire bodies of governance. Right? And they've given all of that power to these agencies largely with it in mind that the agencies are not under the control of a single person of the President, but that indeed Congress has a great deal of influence over them too.
(27:08)
And if you take away a half of this bargain, you end up with just massive uncontrolled, unchecked power in the hands of the President. And it's really hard to affect both sides of this bargain because it's already been done. So, the result of what you want is that the President is going to have massive, unchecked, uncontrolled power, not only to do traditional execution, but to make law through legislative and adjudicative frameworks.
General Sauer (27:44):
The President is going to have all the executive power, which the Constitution dictates. And the way you framed it there, I think makes the separation of powers problems in the alternative view here even worse. Because you have just described these rulemakings and adjudications as really judging
General Sauer (28:00):
… and legislating. If they really were that -- which this court has unanimously said they must not be, they cannot be --but if they were that, then Congress is not just affecting the Executive, it's creating junior varsity legislatures, which would be unconstitutional under Justice Scalia's dissent in Mistretta. It's peeling away adjudicative authority, the judicial power from Article III courts under the Separation-
Justice Kagan (28:21):
I understand that is a formal argument. And obviously formal arguments play a significant role in this area, but they shouldn't blind us to the real world realities of what our decisions do. And the real world reality of this one is that when you put all of these agencies under complete presidential control, given what Congress has already done and will not be able to take back with respect to the powers that have been delegated to the agencies, what you are left with is a president that maybe your first sentence to me, "This is the kind of president you want," but a president with control over everything, including over much of the law making that happens in this country.
General Sauer (29:10):
He would have control over the Executive Branch, which he must and does have under our constitution. And again, if that's really legislating, then it's a separate constitutional problem that the legislative power has also been taken away from Congress. Now, this court has not adopted that in a series of decisions, including Morrison, including FCC against Arlington, including Seila Law. The Court has correctly recognized that all this stuff that agencies like the FTC is doing is an exercise of the Executive power. That is fundamental to our Separation of Powers, which is the bastion of individual liberty in our constitutional structure.
Justice Kagan (29:44):
Thank you, General.
Chief Justice Roberts (29:45):
Justice Gorsuch.
Justice Gorsuch (29:47):
General, let me suggest to you that perhaps Congress has delegated some legislative power to these agencies. Let's just hypothesize that. And let's hypothesize, too, that this court has taken a hands-off approach to that problem through something called the Intelligible Principle Doctrine, which has grown increasingly toothless with time. Is the answer, perhaps, to reinvigorate the Intelligible Principle Doctrine and recognize that Congress cannot delegate its legislative authority? Is the water warm, General?
General Sauer (30:27):
Sorry, what was the last… I couldn't hear the last bit.
Justice Gorsuch (30:31):
Is the water warm?
General Sauer (30:33):
Is the water warm?
Justice Gorsuch (30:33):
Warm.
General Sauer (30:35):
Suffice to say, let me say one thing in response to that. It is much easier to cure. Obviously, members of this court have debated the scope of the non-delegation doctrine. The challenge of finding the right standard there is something we've discussed in the past. Here though, this wolf comes as a wolf, right? I mean, the restriction on Executive power is right there in the statute. It's easy to remedy by excising the removal restriction in the [inaudible 00:30:58] cases.
Justice Gorsuch (30:58):
There are a lot of wolves around here, General. That one thing our framers knew is that every political actor seeks to enhance its own power. We all know that to be true from our own experiences. And this court, as part of this bargain, has allowed these agencies to exercise both Executive and Legislative. Justice Sutherland, whose name hasn't been invoked around here in quite a while, his language about quasi-legislative and quasi-judicial and quasi-this powers. And this court has allowed that for a very long time. But if we're not going to allow it any longer, I take the point, I take the point that this has allowed a bargain where a lot of legislative power has moved into these agencies, but if they're now going to be controlled by the president, it seems to me all the more imperative to do something about it.
General Sauer (31:52):
I agree with that. And I can't address all the wolves in the world, but this wolf when it comes to constitutional structure is Fenris, the most dangerous wolf in the history of Norse mythology.
Justice Gorsuch (32:03):
And let me ask you about the Judicial power. To the extent we're worried about the Tax Court or the Court of Claims, maybe despite what people think, maybe some of them might be, I don't know, but maybe they're Article III courts and the removal restrictions are impermissible. Thoughts?
General Sauer (32:23):
There definitely could be arguments on that. Really, I'm not taking a position on the validity or non-validity of any of those, which are not presented here, but certainly commentators have argued that things like the federal magistrate judges and the bankruptcy courts seem to be real adjuncts to Article III courts and an argument might be made of that nature.
Justice Gorsuch (32:39):
The adjuncts.
General Sauer (32:40):
There are line drawing problems there. We haven't addressed them here. I don't have the federal government's concerted answer to that, but certainly those line drawing problems would go to whether what is going on is Judicial power or Executive power. And if it is Executive power, the logical [inaudible 00:32:54]-
Justice Gorsuch (32:53):
The adjudication of private rights is different, we have said, than the adjudication of public rights.
General Sauer (32:59):
And again, yes, those would implicate all those line drawing problems.
Justice Gorsuch (33:01):
Thank you.
Chief Justice Roberts (33:02):
Justice Kavanaugh.
Justice Kavanaugh (33:05):
In response to Justice Sotomayor's question, you have Taft and Scalia, right? That's not too shabby.
General Sauer (33:12):
I think those are outstanding jurists, and with respect to Justice Scalia in particular, one of the greatest jurists in the history of the Court.
Justice Kavanaugh (33:18):
I thought your two exceptions that you've had a lot of questions about, but I thought the two exceptions, the categories were, one, the Federal Reserve based on history and tradition and function, and the other were the non-Article III courts, which starts in Marbury. Marbury itself discusses this. Taft discusses Marbury at length in Myers on this exact point of non-Article III courts being different. Taft leaves that open in Myers. And so for Court of Federal Claims, Tax Court, the DC local courts, you mentioned this at page 23 of your brief, it would seem to me that Marbury itself says that is a line that distinguishes the non-Article III courts from the position that you're taking here. I know you may not agree with that, but is that a principled sensible line we could draw?
General Sauer (34:17):
Certainly it is something that the Court could look at. I don't want to take a position on them. To be clear, I am not taking a position on whether that line is valid, but certainly there are arguments that could be made and debated in an appropriate case about where those lines should be drawn. And you do, I think, correctly reference both Myers and Marbury itself as teeing up some of those issues.
Justice Kavanaugh (34:38):
There's been debate about Marbury, was that about DC or was that about judicial office, but I read it to be some of both, so for what that's worth. Why did no president challenge this structure from 1935 to 2025? We've had a lot of presidents who've had very strong views of Article II, yet for 90 years it stood not directly challenged, why do you think that is?
General Sauer (35:02):
It'd be speculative to answer that. I mean, one reason might be that presidents are fairly comfortable with taking away tough political decisions. So as the Court has said in multiple cases, I believe, one president cannot bind the hands of his successors and the president, there's a kind of responsibility that goes with the authority here, the president sometimes may have a political incentive to allow tough decisions to be outsourced, so to speak, to agencies that he doesn't have direct control over. However, our constitutional structure dictates that the president cannot do so. He cannot bind the hands of his successors or the encroached upon branch cannot consent to the encroachment and therefore disrupt our constitutional structure.
Justice Kavanaugh (35:42):
One thing you've said, but I want to make it crystal clear, that overruling or narrowing Humphrey's Executor would not threaten the existence of these agencies, but only would alter how the heads of those agencies can be removed, correct?
General Sauer (36:00):
Correct. They'd be politically accountable to the president. And this court has in three different decisions addressed these kinds of broader implications, severability arguments, and come down there.
Justice Kavanaugh (36:10):
The way we've done it is to sever the removal restriction, not to destroy the agency, correct?
General Sauer (36:15):
That's exactly right.
Justice Kavanaugh (36:17):
On stare decisis, you used the word "dangerous," I think, in your opening about the independent agencies. One of the things we consider are the not only how wrong it was and reliance interests, but the real world impacts. And I think just give you a little bit to explain why you use the word dangerous when talking about independent agencies, if I heard that correctly.
General Sauer (36:43):
Yeah. And maybe to return to the exchange I had with Justice Kagan, the real world consequences here are human beings exercising enormous governmental authority with a great deal of control over individuals and business, small and large businesses and so forth, who ultimately do not answer to the president. That's a power vacuum. The president is answerable to the voters. They have no boss. And regardless of what happens when there's a power vacuum, somebody's going to come into that power vacuum. So is it Congress that many commentators have noted actually exercise substantial control over these independent agencies through budgetary functions and through oversight functions? Is it industries engaging in industry capture of the agencies? The point is that power vacuums should not exist in our constitutional structure because, as Madison said, there's a line of accountability, a chain of dependence that runs from the officers to the president, and he's answerable to the community, which is the voters, every four years.
Justice Kavanaugh (37:38):
I want to return to what Justice Kagan and Justice Gorsuch were talking about with you in terms of the bargain. And I think broad delegations to unaccountable independent agencies raise enormous constitutional and real world problems for individual liberty, as you just mentioned. I've obviously said that many times in prior opinions. I thought one aspect of that that we've taken great steps to correct has been the Major Questions Doctrine over the last several years to reign in what Justice Kagan was talking about, these broad delegations, to make sure that we are not just being casual about assuming that Congress has delegated major questions of political or economic significance to independent agencies or to any agencies for that matter. You want to speak to the Major Questions Doctrine, and how that fits into your answer?
General Sauer (38:40):
Suffice to say that the Major Questions Doctrine is not a substitute for the president's removal power. It may have done some work in backstopping the fact that we do have these independent agencies without a political discipline, but the president's removal power is what is dictated by the Constitution, that the president must have the power to control, and that these agencies, the one who has the power to remove is the person that they have to fear and obey.
Justice Kavanaugh (39:05):
Sorry to prolong this, but on your second question presented, on the second question presented, I just want to touch on that quickly. This is about the reinstatement argument that you make. I have some real doubts about that argument. We don't need to reach it, of course, if we agree with you on the first question. I have some doubts about that because that really would be an end run around the exceptions you had identified earlier for the Federal Reserve or for the non-Article III courts. In other words, you could just remove those people and so long as you continue to pay their salary, you wouldn't have to reinstatement. That strikes me as really destroying the categories that you had identified as potential exceptions. So I'm concerned about your reinstatement argument on question two and just want to give you a chance to address that.
General Sauer (39:52):
Maybe I could just say two things. I think that this court in its Wilcox Harris Stay opinion said something very telling --it's not binding on this issue, but it's very persuasive -- when it talks about how when it comes to the balancing of harms, the injury to the government from being forced to take back into the fold an executive officer that the president's really already ejected from the fold outweighs the interest of even a wrongfully removed officer, as I read that sentence, wrongfully removed officer from continuing to exercise their statutory authority.
Justice Kavanaugh (40:23):
Don't you have a problem again here with Marbury on recognizing mandamus? I mean, I know a lawyer never wants to hear you have a problem with Marbury, but I think you have a problem with Marbury.
General Sauer (40:32):
Well, I think the fact that it's a judicial officer there doesn't raise all the Separation of Powers questions.
Justice Kavanaugh (40:36):
I mean, the other side says that's completely gerrymandered answer to the… I mean, yeah, but what's the principle on page, what is, 43?
General Sauer (40:43):
The principle I think is the Separation of Powers, right? Because-
Justice Kavanaugh (40:47):
Well, there are exceptions.
General Sauer (40:47):
… these removals of the Executive branch, if you're moving a judicial officer, it just doesn't raise all these issues. And that's why the answer to that concern when it comes to Article III courts is not, "Oh, the president doesn't have removal power." It's that, are these Article I or are these Article II? If they're in Article II, the president has control. If they're in Article I, then it may look very different.
Justice Kavanaugh (41:07):
Thank you.
Chief Justice Roberts (41:09):
Justice Barrett.
Justice Barrett (41:11):
So, General Sauer, you argue that the removal power comes from the Vesting Clause. And I understand why you make that argument because that would be the broadest authority because that would be the full Unitary Executive Theory, but there are other theories of where the power could be located. For example, if it was part of the Take Care Clause, then it might be more limited because it might apply only or give removal authority only over those officers who exercise significant discretion, or it might be an adjunct to the power of appointment, which would mean that inferior officers didn't come within it. And I don't read our cases to this point to really be very specific, they mention all three. And they could be mutually reinforcing. Is there any reason for us to be specific about it in this case?
General Sauer (42:01):
I think the Court ought to adopt, as I read the cases, virtually every time the Court has decided this, certainly in Seila Law and Free Enterprise Fund, but also going back to the 19th century cases, the Court looks to both the Vesting Clause and the Take Care Clause. And then in other cases, it also refers to the Appointments Clause and how the power to remove also flows with the power to appoint. So you have three kind of mutually reinforcing textual basis to place what, again, the Court's decisions from Ex parte Hennen through Humphrey's Executor decided as a settled beyond doubt, exclusive and illimitable power of removal. So I think the text of the Constitution supports what you've referred to as the strong theory. And that's, I think, repeated again and again in this court's decisions where it started with the Vesting Clause. And of course, it's the logic of Madison's statements on the floor of Congress in the decision of 1781.
Justice Barrett (42:47):
Well, let's see, I know that… Obviously I understand that's your first line position and I do think that you could go back through the cases and find that. And I agree with you that we mentioned the Vesting Clause, I agree with you it comes up in the decision of 1789, et cetera. But what I'm asking is is there any reason that we have to? Because it seems to me that there are very hard questions, Justice Kagan in particular was pushing you on them, about what the limits of your logic would be. And it seems to me that, and there's some dispute among this in the amicus briefs and the scholarship, about which portion of Article II, or if it's in the Appointments Clause, would be the source of this authority. And is there any reason we have to decide that here, given that it might be relevant to some of the harder questions about limiting principles?
General Sauer (43:30):
I don't dispute that there might be narrower grounds on which the Court could rule, but we'd encourage the Court to adhere to the logic of all those decisions. Again, I've discussed nine decisions from 1839 to 2024 that talks about this removal power as exclusive and illimitable, conclusive and preclusive, and so forth. I mean, that really is the line of this jurisprudence. It's a compelling logic that Madison successfully advocated on the floor of the first Congress and we would-
Justice Barrett (43:56):
So we have to do Vesting Clause.
General Sauer (43:57):
We think the Vesting Clause provides at least the clearest textual basis for it. I mean, when Madison said, for example, the power of overseeing controlling those who execute the laws is the quintessential Executive power, that's the logic of it. Could the Court devise a holding that based solely on the Appointments Clause? That's possible, but-
Justice Barrett (44:17):
Well, I wasn't proposing devising that holding. I was just proposing, not being very specific about it, which I think some of our prior decisions have been. But let me move on.
(44:27)
And actually, this is a question I truly don't know the answer to, and I just thought of it during the argument as we were talking about bargains. So both Justice Gorsuch and Justice Kagan were asking you about the bargain that Congress has made in creating these independent agencies. And I was struck by, I remember Justice Gorsuch brought up in the tariff's argument, the fact that the tariff statute had a legislative veto originally. I don't know whether the original 1935 FTC Act from Humphreys did or did not. But I guess the question that I have is that part of the bargain? Because legislative vetoes were pretty ubiquitous throughout the 20th century. And of course, we held them unconstitutional in Chadha.
(45:08)
And if you had a legislative veto, even if Congress wasn't exerting itself the authority to fire the head of or one of a multi-member board, it could override decisions that the agency made. But I think I gather your point, part of your response to Justice Jackson about why these agencies are different, is it's not like they're answering to Congress either. Congress creates them and it might put the removal restriction on them and that might limit the president's authority, but they're not answering to either the president or to Congress. But when the legislative veto was in place, there was some measure of Congressional control that is perhaps more significant than budgetary restrictions.
(45:47)
I just wondered if you could speak to that.
General Sauer (45:49):
Two things. INS against Chadha correctly recognized that there was legislative control-
Justice Barrett (45:53):
I wasn't questioning Chadha.
General Sauer (45:55):
Yeah, yeah, yeah. And Chadha, I think very powerfully explains that that's terrible. That is a huge Separation of Power's problem when Congress is attached a string to its delegation of control that Executive officers are doing. And then the historical point that in Chadha, by the time of Chadha, legislative vetoes had been in place since 1932, over 50 years. There were 196 statutes with 295 legislative vetoes and this court said they're unconstitutional. And the fact that Congress likes this encroachment power so much sharpens rather than blunts the Court's review.
Justice Barrett (46:26):
But that's not quite the question that I had. I guess what I was wondering is, do you think it's part of the reason Congress was willing to infuse agencies with a lot of the broad powers? Justice Kagan was pointing out, they now exercise a lot of rulemaking power. There's a lot of adjudicatory power. And I'm not questioning Chadha. I think Chadha rightly, as you said, made the Separation of Powers point that Congress can't retain this power for itself. But I guess what I'm saying is having lost that check, maybe these independent agencies have become something that Congress didn't intend or anticipate even at the point that it set it up, which is a point that Justice Gorsuch made in the tariff argument with respect to IEEPA.
General Sauer (47:09):
May I just say this? I believe the FTC Act, I'm not aware of it having a legislative veto at any point in its history. I could be wrong about that. But as Chadha points out, legislative vetoes started coming in vogue in 1932 and the FTC Act goes back to 1913.
Justice Barrett (47:18):
I don't [inaudible 00:47:22] that.
General Sauer (47:21):
So I'm not sure if that's part of the dynamic.
Justice Barrett (47:24):
Let me ask you a question about stare decisis. How should we think about reliance interests when it comes to reliance interests in government structure? Justice Sotomayor was pushing you about had we ever overruled a case that was this old? And you gave lots of examples, and frankly examples that came… I mean, Erie kind of came out of nowhere in overruling Swift, right? And here I would say there's been an eroding of Humphrey's Executor over the years. But I think what Justice Sotomayor was really trying to get is not at was there an age gap, but this kind of decision. And I'm not asking you whether there's been another analogous decision, but I think when we think about stare decisis interests, this kind of structural interest, which is really the interest that's been identified on the reliance side, can you think of a case that talks about how the reliance factor of stare decisis plays in here?
General Sauer (48:16):
I think Justice Gorsuch's opinion for the plurality in Ramos addresses this when he talks about how you're weighing… Here you're weighing an injury to the constitutional structure. That's not a valid reliance interest. The relevant reliance interest is the reliance of the American people in Separation of Powers in defending our liberties. If you look at actual like human reliance interests like entering in a marriage, starting a small business and so forth, you don't see a lot of people making decisions in reliance on the fact that there are multi-member agency commissions have removal restrictions. The only actor here who's arguably relying is Congress, and Congress's act of reliance is itself the violation of the Separation of Powers. And where that's the case, this supposed Congressional reliance interest should be given little or no weight in our view. And then… Yeah, I think I'll say that.
Chief Justice Roberts (49:04):
Justice Jackson?
Justice Jackson (49:04):
So I guess I really don't understand why the agencies aren't answering to Congress. Congress established them and can eliminate them. Congress funds them and can stop. So to the extent that we are concerned that there's some sort of entity that is out of control and has no control, I guess I don't understand that argument.
General Sauer (49:29):
We would say the constitutional actor on the hypothetical who is controlling these agencies is Congress, and that is a huge Separation of Powers problem.
Justice Jackson (49:36):
No, I understand, but I'm just talking about as a practical matter. Part of your argument seemed to revolve around this notion that there's some kind of thing happening with the independent agency, that the reason why the president needs to control it is because they don't answer to anybody. And what I guess I don't understand is why they don't answer to Congress, which establishes the law that they are bound to follow and determines whether these agencies exist, funds these agencies? All of those things, it would seem to me, would be methods or mechanisms of control.
General Sauer (50:10):
The Constitution requires clear lines of political accountability. So if Congress is sort of informally actually controlling these agencies through like oversight hearings-
Justice Jackson (50:21):
Not informally, we have a statute. But let me ask you another question. I guess I have a very different view of the dangers and real world consequences of your position than what you explored with Justice Kavanaugh. My understanding was that independent agencies exist because Congress has decided that some issues, some matters, some areas should be handled in this way by nonpartisan experts, that Congress is saying that expertise matters with respect to aspects of the economy and transportation and the various independent agencies that we have.
(51:03)
So having a president come in and fire all the scientists and the doctors and the economists and the PhDs and replacing them with loyalists and people who don't know anything is actually not in the best interest of the citizens of the United States. This is what I think Congress's policy decision is when it says that, "These certain agencies, we're not going to make directly accountable to the president." So I think there's a pretty significant danger that Congress has actually identified and cares about when it determines that these issues should not be in presidential control. So can you speak to me about the danger of allowing, in these various areas, the president to actually control the transportation board and potentially the Federal Reserve and all these other independent agencies?
General Sauer (52:00):
I think the Court said it well in Free Enterprise Fund when it said that we can have a government that functions without rule by functionaries, we can have a government that benefits from expertise without being ruled by experts.
Justice Jackson (52:11):
No, we can have, but I'm asking you about Congress's choice, Congress's decision that in these particular areas we would like to have independence, we don't want the president controlling. I guess what I don't understand from your overarching argument is why that determination of Congress, which makes perfect sense given its duty to protect the people of the United States, why that is subjugated to a concern about the president not being able to control everything. I mean, I appreciate there's a conflict between the two, but one would think under our constitutional design, given the history of the monarchy and the concerns that the framers had about a president controlling everything, that in the clash between those two, Congress's view that we should be able to have independence with respect to certain issues should take precedence.
General Sauer (53:05):
The constitutional design sets up three branches of government. It forbids Congress from controlling what the Executive branch does, and it also forbids Congress from shaving away the president's control over the unitary Executive Branch.
Justice Jackson (53:16):
And what I'm positing is that Congress's decision here is not shaving away the president's control. You cast it as that, and I appreciate that, but instead what Congress is doing is saying, "We'd like to have independent, nonpartisan experts working on certain issues for the good of the American people." And I understand that the president would rather control them, but it's not really his decision in the overall scheme of things, I say. Why am I wrong about that?
General Sauer (53:43):
Under the constitutional design-
Justice Jackson (53:45):
It is the president's decision as to how the government is structured and who should be doing what?
General Sauer (53:50):
No, that is largely Congress's decision with certain exceptions. Congress cannot violate the Separation of Powers and threaten all of our liberties in the way that it structures the government, and it has done so here.
Justice Jackson (53:59):
One last question. I appreciate the effort to try to make this not seem as big a deal as it might be by focusing only on the FTC and saying this is really just about what happens and we'll cross the bridge of the other agencies when we get to it. But can you just give us a sense, because I'm sure you must know this, of what other agencies there are that have the kind of removal protections that are at issue here. There's some, what, two dozen?
General Sauer (54:27):
That's what Seila Law said. That's probably a good accounting. And obviously we have challenged four of them in this court and we're challenging a handful of others in other courts, as well.
Justice Jackson (54:35):
But you could challenge the National Labor Relations Board, the Nuclear Regulatory Commission, the Commission on Civil Rights, potentially the Sentencing Commission, the Occupational Safety and Health Review Commission, the Consumer Product Safety Commission. All of these have that kind of structure.
General Sauer (54:53):
I don't know if all of those are on the list, certainly some of them are. And many of these agencies, we are litigating, including in this court.
Justice Jackson (55:01):
Thank you.
Chief Justice Roberts (55:02):
Thank you, counsel. Mr. Agarwal.
Amit Agarwal (55:11):
Mr. Chief Justice, and may it please the Court, the president's constitutional duty to execute the law does not give him the power to violate that law with impunity, but petitioners claim that the president was free to fire Commissioner Slaughter without cause in violation of the FTC Act as authoritatively construed by this court. And, they urge, even if that firing was illegal, there is nothing that any court, anywhere, at any time could do to remedy that violation. The district court correctly rejected both arguments and its judgment should be affirmed. On the merits, multi-member commissions with members enjoying some kind of removal protection have been part of our story since 1790. So if petitioners are right, all three branches of government have been wrong from the start. Congress
Amit Agarwal (56:00):
And prior presidents have been wrong to jointly create early founding-era commissions and more than two dozen traditional independent agencies since 1887, and this court was wrong to repeatedly bless those laws and to unanimously uphold the exact same removal provision at issue here and Humphrey's Executor almost a century ago.
(56:22)
Reasonable people can and do disagree about first principles, but any abstract theory that would wipe away so much history and precedent should be a nonstarter. At a minimum, petitioners would need an airtight theory to justify the radical change that they now seek, and they don't have one.
(56:39)
No tool of interpretation clearly supports the President's assertion of an unrestricted and indefeasible authority to fire the heads of traditional independent agencies like the Federal Elections Commission and the Nuclear Regulatory Commission. Plus, petitioner's theory cannot be reconciled with their own apparent position on the Federal Reserve and Article I courts.
(57:02)
Finally, stare decisis militates against overruling a century of precedent at this late date. The political branches are more than up to the task of finding reasonable legislative solutions that strike an appropriate balance. That kind of legislative solution is far preferable than abandoning a foundational precedent on which so much of modern governance is based. I welcome the court's questions.
Justice Thomas (57:30):
Was Humphrey's Executor an executive branch case?
Amit Agarwal (57:36):
It was an executive branch case, Justice Thomas, insofar as the FTC is an entity that is not operating under the auspices of Articles 1 and 3, but it is also a case in which Congress and the President coming together have determined that it's not part of a traditional executive department and-
Justice Thomas (57:57):
Did the court and Humphrey's Executor distinguish it from its earlier precedent in Meyers?
Amit Agarwal (58:06):
The court, yes, absolutely distinguished-
Justice Thomas (58:08):
And didn't this-
Amit Agarwal (58:09):
… the FTC from its earlier-
Justice Thomas (58:09):
Wasn't that-
Amit Agarwal (58:10):
… precedent in Meyers.
Justice Thomas (58:11):
… distinction based on its function more as a quasi-legislative, quasi-judicial agency as opposed to an executive branch agency?
Amit Agarwal (58:20):
It was based in part on functions, Justice Thomas, but it was also based on the placement of the agency and the considered determination of Congress and the President together that this was the kind of agency that should be insulated from presidential at-will removal.
Justice Thomas (58:36):
Now, you rely on the reliance interests of Congress and reliance interests, I guess, of others, of the agency heads on the structure of this agency for so many years. What is it? 70 years, you say? The-
Amit Agarwal (59:01):
The FTC is 111 years old.
Justice Thomas (59:04):
But from Humphrey's Executor?
Amit Agarwal (59:07):
90 years.
Justice Thomas (59:08):
And how would you have applied that in the overruling of Swift v. Tyson, your reliance interest?
Amit Agarwal (59:17):
Yeah. So Swift v. Tyson deals with a completely different kind of situation with respect to the Erie doctrine.
Justice Thomas (59:23):
But-
Amit Agarwal (59:23):
It was not-
Justice Thomas (59:24):
… so there was no reliance interest?
Amit Agarwal (59:27):
So reliance interest with respect to choice of law determinations?
Justice Thomas (59:30):
Yeah. Mm-hmm.
Amit Agarwal (59:31):
I haven't thought through that systematically, Justice Thomas, to tell you the truth. I do think that there is a reliance interest here that is both immense and undeniable, and that is the fact that Congress and the President have determined that there are certain statutory authorities, not constitutional authorities.
(59:47)
That statutory authorities that the executive branch would never have in the absence of congressional legislation, that Congress and prior presidents thought should not be under the sole control of just one person. And that reliance interest would be completely destroyed by retroactively destroying the independence of traditional agencies.
Justice Thomas (01:00:06):
I don't know what a traditional executive administrative agency is, but could Congress limit the removal authority of the President in a newly created executive branch agency?
(01:00:21)
Let's say, for example, a few years ago, EPA became an executive branch agency. It was more of an administrative agency, a subcabinet. Could it, in doing that, limit the removal authority of the President, of the head of the EPA, or homeland security?
Amit Agarwal (01:00:40):
I think it is within the realm of possibility, Justice Thomas, and I don't think that the court ex ante should adopt any kind of categorical rule precluding that-
Justice Thomas (01:00:48):
No.
Amit Agarwal (01:00:48):
… process.
Justice Thomas (01:00:49):
Again, the SG was asked about the logic of his argument. What's the logic of yours? How far does it carry you? If this is an executive branch agency, and your distinction is this is a multi-member agency, why doesn't the logic take you to a single-head agency also?
Amit Agarwal (01:01:10):
So you're asking whether a single-headed agency could be converted into-
Justice Thomas (01:01:13):
No. Well, I haven't gotten there yet, but that would be the next step in order to make them removable, to make the heads of the agency or the principles removable.
Amit Agarwal (01:01:27):
So there are constraints. One of the constraints is that the creation of the agency and the insulation from presidential control cannot interfere with the President's conclusive and preclusive constitutional authorities.
Justice Thomas (01:01:39):
But you still haven't told me, why can't tomorrow morning, Congress decide that the Secretary of Congress should be removable and should limit the President's authority to remove the Secretary of Commerce?
Amit Agarwal (01:01:55):
That would be squarely foreclosed by this court's decision in Seila Law as we understand it. And that is to say this court in Seila Law held that there is a particular serious threat to individual liberty that is posed by single-headed agencies that wield significant executive power-
Justice Kavanaugh (01:02:11):
Could Congress convert all these-
Justice Thomas (01:02:17):
To multi-members.
Justice Kavanaugh (01:02:18):
… departments into multi-member commissions? The commerce, EPA, Department of Homeland Security, Department of State, convert them all into multi-member commissions and make them removable only for cause?
Amit Agarwal (01:02:32):
No. I think, Justice Kavanaugh, that we're looking at three buckets here. In one bucket, including the Department of State, you would have departments that under no conceivable circumstance could practicably be converted to-
Justice Kavanaugh (01:02:43):
Why?
Amit Agarwal (01:02:43):
… a multi-member commission, because they are wielding so many of the President's conclusive and preclusive constitutional authorities. But that is a relatively small bucket, let's say-
Justice Kavanaugh (01:02:53):
That's State-
Amit Agarwal (01:02:53):
… Department of State-
Justice Kavanaugh (01:02:53):
… Justice, and Defense.
Amit Agarwal (01:02:54):
… Justice, Defense, Homeland Security probably.
Justice Gorsuch (01:02:57):
Are you saying, though, that they're limited by practical concerns or constitutional concerns?
Amit Agarwal (01:03:03):
Constitutional concerns, and then practical concerns will come up as well.
Justice Gorsuch (01:03:06):
Well, let's put aside the practical concerns. I'd like to understand just the answer to Justice Kavanaugh, why tomorrow Congress couldn't transform every cabinet official into a multi-member group? What's the constitutional problem with that, I think is what my colleague was getting at.
Amit Agarwal (01:03:28):
Absolutely. And the constitutional problem in our view is that Congress cannot limit the President's authority over officers who are wielding the President's conclusive and preclusive constitutional powers. And that is a line that goes all the way back to Marbury v. Madison. It's a through line through this court's jurisprudence.
Justice Gorsuch (01:03:47):
Does it include-
Justice Barrett (01:03:47):
But the FTC-
Amit Agarwal (01:03:47):
Sorry.
Justice Barrett (01:03:49):
The FTC has the authority to enter foreign agreements, right? I mean, how do you decide what's conclusive and preclusive?
Amit Agarwal (01:03:55):
It does not have the authority to enter into foreign agreements on its own, Justice Barrett. The statute expressly provides that the Secretary of State's approval is required before any kind of agreement is executed, and the Secretary of State, of course, is subject to the President's plenary removal power.
Justice Kavanaugh (01:04:12):
You talked about-
Justice Roberts (01:04:12):
So-
Justice Kavanaugh (01:04:12):
I'm sorry.
Justice Roberts (01:04:15):
I just want to make sure I understand because it's fairly basic. I mean, are there some cabinet departments that you say Congress could just take over? Department of Veterans Affairs, Department of Education, they think, "Well, experts can do a better job of it"?
(01:04:29)
" And so, we're going to say there is now an agency, the agency for education, and it will be run by whether it's a multi-member group or not, we think it's important for Congress to have greater control over education. So we're creating this new agency, and its authorities will be everything that the current Department of Education has, except it will be run by a commission, and they can only be removed for cause." Is that all right?
Amit Agarwal (01:04:59):
Yeah. I think that it is probably within the realm of possibility for agencies, yes, Chief Justice Roberts. And the constraint historically has been that these types of determinations have been made through a process of political accommodation between Congress and the President. And over the course of more than 200 years, we have not seen-
Justice Roberts (01:05:18):
Well, I'm sorry to interrupt, but sometimes that accommodation is greater than in other times. I mean, we have situations, let's say, where the Congress, both houses are controlled by one party, and the President is of the same party, and they may decide that if the government would be structured better by taking over these entities. And so which departments could Congress impose a multi-member commission instead of a secretary?
Amit Agarwal (01:05:44):
Yeah. So if you're asking about which ones could be converted today, I think it's probably a pretty small universe in terms of the numbers that could be wholesale transformed as they are currently constituted.
(01:05:56)
Why? Because it appears that the vast majority of executive departments wield at least some powers that this court would deem to be conclusive and preclusive, including under the standard that this court enunciated-
Justice Kavanaugh (01:06:08):
Well, how are those? I'm sorry. Keep going.
Amit Agarwal (01:06:11):
… including under the analysis that this court set out just last term in Trump v. United States, where at pages 620 to 621, the court explained that the President does have a conclusive and preclusive authority with respect to certain criminal investigations and prosecutions, and that informed the court's determination about whether the acting attorney general was subject to at-will presidential removal.
(01:06:32)
It turns out that the vast majority of these executive departments do have some kind of criminal investigative authority, including armed law enforcement agents authorized to make arrests. Now, that's a significant bucket. You probably have a very-
Justice Gorsuch (01:06:46):
Every agency in the government today has armed their own police force. Is that really the test of what's conclusive and preclusive?
Amit Agarwal (01:06:55):
So we're not saying-
Justice Gorsuch (01:06:56):
I mean, that rhymes, but I don't know what it means.
Amit Agarwal (01:06:59):
Justice Gorsuch, I think you're making a good point insofar as Your Honor's point is that there's a lot of what these agencies do that would not be deemed conclusive and preclusive, and we absolutely acknowledge that. And-
Justice Gorsuch (01:07:12):
So the answer to the Chief Justice's question is tomorrow we could have the Labor Commission, the Education Commission, the Environmental Commission, rather than departments of interior and so forth?
Amit Agarwal (01:07:25):
So I don't know that you could do it tomorrow because, like I said, for the vast majority of agencies, there are at least some conclusive-
Justice Gorsuch (01:07:31):
So what's the percentage, then?
Amit Agarwal (01:07:35):
So I don't want to pretend, Justice Gorsuch, that-
Justice Gorsuch (01:07:38):
I want to know where the threshold of preclusive and conclusive comes in.
Amit Agarwal (01:07:41):
Yes. And so what we would say is that if the-
Justice Gorsuch (01:07:43):
Is it a mere scintilla?
Amit Agarwal (01:07:45):
I think you would have a separation of powers problem if an agency, even if it's a vast agency, wielding a broad panoply of powers. If one of those powers is the President's conclusive and preclusive authority and the officers who are exercising that power are insulated-
Justice Gorsuch (01:08:02):
So, so long as one person of the agency is exercising conclusive and whatever that means, that's enough?
Amit Agarwal (01:08:09):
So it's enough to have a separation, and I wouldn't just say a person, I would say a principal officer. It's enough to generate a separation of power's problem. And what is the remedy for that problem, I think, is an analytically more difficult question.
Justice Gorsuch (01:08:20):
What's the different-
Justice Kagan (01:08:21):
It strikes me, Mr. Agrawal, as I listen to this, if you go back to, let's say, the Education Department, which the Chief Justice raised, that the more realistic danger here is that we'll have an education department as authorized by Congress, by law, that won't have any employees in it.
Amit Agarwal (01:08:41):
I think you're absolutely right, Justice Kagan, that there are competing dangers here, and it makes a whole lot of sense to us to weigh the real-world dangers that we know are a virtual certainty that would result from adopting petitioner's constitutional theory and to contrast those with purely hypothetical risks that have never materialized over the course of American history.
(01:09:03)
And even in the unlikely event that Congress tomorrow was to try to start taking cabinet departments that have been around for a long time and to convert them wholesale into multi-member agencies, which they have never tried to do before. But even if they tried to do that, of course that would be subject to a presidential-
Justice Barrett (01:09:18):
Well, I think there's one thing history shows is that we can't anticipate what might happen. And so we might be able to predict what is likely to happen in the very short-term, but we don't know.
(01:09:28)
I mean, if we decide this case in your favor now, we don't know what a Congress in 15 or 20 or 30 years might do. We might be able to predict what's likely in the short-term. So I mean, this is going to have longer-term implications.
Amit Agarwal (01:09:42):
So, absolutely, but let me make two points on that. First, there is currently no case that has ever held that Congress cannot give for cause removal protections to principal officers serving to a single layer of for cause removal protection for principal officers serving on a multi-member commission. And nevertheless, notwithstanding the absence of any such precedent throughout American history, we have not seen an epidemic of these problems.
(01:10:08)
In fact, we haven't seen this problem materializing at all, but let me make one other point about the real-world danger that is imminent right now that we know will happen. And that is that if petitioners get their way, everything is on the chopping block. And we're not just talking about the FTC.
(01:10:23)
Opposing counsel said, "We're not challenging right now the Federal Reserve, we're not challenging Article I courts," but there is absolutely no principled basis for carving those very important institutions out of their rule-
Justice Alito (01:10:35):
Well, you're right that the solicitor general was pressed quite legitimately about things like the tax court and the claims court, et cetera, et cetera. But I don't know that you can make the argument that the logic of his argument is going to cause these allegedly revolutionary results without being prepared to explain more concretely than you have the limits of your own argument.
(01:11:03)
I mean, I could go down the list with you of the cabinet officers and ask you whether you think they could be headed by a multi-member commission whose members are not subject to at-will removal by the President. Shall we do that? How about Veterans Affairs? How about Interior? Labor, EPA, commerce, education? What am I missing?
Justice Gorsuch (01:11:30):
Agriculture.
Justice Alito (01:11:31):
Agriculture.
Justice Jackson (01:11:32):
Mr. Agarwal, are you prepared to-
Justice Alito (01:11:34):
Well, there was a question there.
Amit Agarwal (01:11:37):
Yes. So I don't want to pretend to greater certainty than I have about the full gamut of statutory authorities vested in all those other departments. I will say that based on a very quick preliminary analysis, it appeared to us that the vast majority of executive departments wield at least some of the conclusive and preclusive authorities that this court has recognized in the past, including criminal investigative and prosecutorial authorities, and also authorities implicating national security and foreign relations.
(01:12:02)
Now, that is not to say, Justice Alito, I think you're absolutely right to say for a lot of those, you could probably take those out. And at that point, there's going to be a fair question about whether Congress and the President acting together could determine at some point that there is a need for a multi-member body of experts to preside over certain government functions.
(01:12:23)
And what I would say is I don't think that you should categorically rule out that possibility as a matter of constitutional law. And I can't sit here today and tell you that there's a distinction of constitutional proportions, for example, between the Department of Labor and the National Labor Relations.
Justice Alito (01:12:37):
Well, how about the post office at the time of Meyers? How does your exclusive and preclusive theory account for Meyers? How can it be that the postmaster at that time exercised exclusive Article II power, but a federal trade commissioner does not?
Amit Agarwal (01:12:53):
So I would say three things about that. First, the conclusive and preclusive standard does not have to be the sole and exclusive limiting factor. Second, there is a provision that Justice Barrett referred to in the colloquy with opposing counsel about the Take Care Clause. And it is conceivable that at least in some circumstances, the Take Care Clause might itself, not always, but sometimes impose a conclusive and preclusive standard.
(01:13:19)
For example, with respect to officers like the postmaster in Meyers who are deemed to possess purely executive functions, as this court unanimously, and Humphrey's Executor, and then again in Wiener, unanimously characterized the functions of the postmaster in Meyers as purely and obviously just executive. So that's a second constraint.
Justice Kavanaugh (01:13:38):
When you answered Justice Alito about the agencies exercising investigative power, and thus there'd be a question whether they could be made independent multi-member commissions, don't a lot of the now-independent agencies also exercise that kind of investigative power?
(01:13:58)
At least from my experience, it's very hard to get into the weeds of the particular powers exercised by the FTC and distinguish it from some of the powers exercised by some of the other cabinet agencies that we traditionally think of as executive, or the FCC or the SEC, FERC, NLRB when you get into them all. So what's your answer to that?
Amit Agarwal (01:14:24):
So my answer is the criminal investigative authority is different, and certainly a lot of these agencies have civil investigative authority, including the FTC. As we understand this court's precedent just from last term in Trump v. United States, criminal investigations and prosecutions are in a different category, at least as a general matter.
(01:14:43)
And if the logical import of that analysis is that there are certain functions that cannot be wielded even by traditional independent agencies, then so be it. That's the law of the land.
Justice Kavanaugh (01:14:53):
Can I-
Justice Gorsuch (01:14:53):
That's right. I'm sorry.
Justice Kavanaugh (01:14:54):
Go ahead.
Justice Gorsuch (01:14:55):
Go ahead. Please, go ahead.
Justice Kavanaugh (01:14:56):
No. Go ahead.
Justice Gorsuch (01:14:57):
All right. I understand conclusive and preclusive entirely as we used it. And when you're speaking about executive power, can the President control what's done in his departments? I get that, and a criminal prosecution's a good example.
(01:15:17)
I do not understand it as you use it. Why isn't it just as conclusive and preclusive to decide whether to bring charges under the FTCA Act-
Justice Kavanaugh (01:15:30):
Civil-
Justice Gorsuch (01:15:30):
… against somebody?
Justice Kavanaugh (01:15:30):
Civil versus criminal. It's a conclusive and preclusive decision about enforcement decision of the power of the federal government against individuals across the country.
Amit Agarwal (01:15:42):
So there's a legal answer and there's an historical answer, and they might blend, Justice Gorsuch. And the legal answer is that we don't have any controlling authority that has ever held that civil enforcement as a categorical matter is the kind of thing that can never be vested in a multi-member agency that enjoys a modicum of insulation from political pressure.
(01:15:59)
And we know that, for example, from this court's unanimous decision in Humphrey's Executor, where you had that kind of civil enforcement taking place, and a unanimous court, including all four justices from Myers, said, "That's okay." And the kind of civil enforcement that was going on there, you had complaints being issued, you had cease and desist orders.
Justice Gorsuch (01:16:16):
Cease and desist orders, but not lawsuits in court. They had to go to court. And I'm just curious though, fine, I accept your point. It's a good point about Humphreys.
(01:16:29)
But why isn't that conclusive and preclusive decision whether to use the federal government's full power in a prosecution where you can seek fines and incur all of the penalties that are associated with violating the FTC Act?
Amit Agarwal (01:16:46):
So I think part of the answer is historical and part of the answer is functional. And on the historical part, we have had all kinds of civil enforcement of federal statutes taking place, including just private statutes that authorize private attorney generals as this court has recognized in many, many cases.
(01:17:04)
So you have a long, long history and tradition of private actors kind of enforcing civilly federal statutes. Now, I take the point that civil enforcement on behalf of the government of the United States-
Justice Gorsuch (01:17:17):
That's not the executive power, but criminal actions is the executive power?
Amit Agarwal (01:17:22):
Yeah. I would not say that-
Justice Gorsuch (01:17:23):
That's what you're asking us to-
Amit Agarwal (01:17:24):
No, I would not put it that way. I would not say it's not executive. And in fact, in Seila Law-
Justice Gorsuch (01:17:29):
So it is executive?
Amit Agarwal (01:17:29):
Yeah. In Seila Law, this court said it's not only executive. It's quintessentially executive. And that's okay, because agencies like the FTC also engage in adjudicative activities, and that would be deemed quintessentially judicial. And nevertheless, they're not subject to plenary removal on the part of the judiciary. They engage in rulemaking that could be considered quintessentially legislative. And nevertheless, they're not subject to plenary control on the part of the legislature.
(01:17:53)
The issue is not whether it's executive in some sense. The issue is whether it's constitutionally committed to the President's sole and exclusive discretion. And as a matter of history and precedent, we haven't gotten there yet.
Justice Gorsuch (01:18:05):
So even some quintessentially executive functions in your view are not vested in the President of the United States?
Amit Agarwal (01:18:17):
Yes. I would say they're not-
Justice Gorsuch (01:18:19):
I think you have to say yes to that based on what you've just given us.
Amit Agarwal (01:18:22):
They're not constitutionally committed to the person of the President and to his sole and exclusive discretion.
Justice Jackson (01:18:28):
Didn't-
Amit Agarwal (01:18:28):
Yes.
Justice Jackson (01:18:28):
… we suggest as much in Humphreys? I mean, didn't we? We have some lines in Humphreys that say to the extent that it exercises any executive function as distinguished from executive power in the constitutional sense, it does so to discharge. It does so in the discharge and effectuation of his quasi-legislative or quasi-judicial powers.
(01:18:49)
So I thought that in Humphreys, we recognize this idea that you could have an agency that's exercising legislative or judicial powers still engaging in some executive function, and that doesn't make it an executive agency.
Amit Agarwal (01:19:03):
That is exactly right. And on top of that, we have a lot of agencies over a long period of time engaging in all manner of civil enforcement of federal statutes, and yet we do not have a single example of any case from this court in more than two centuries that has ever held that a single layer of for cause removal protection cannot apply to a principal officer of an agency wielding that kind of civil enforcement function.
Justice Jackson (01:19:24):
And so I think that's your real point. In other words, you're not asking for some sort of conclusive or preclusive rule. That's not your burden in this situation.
(01:19:34)
You were just saying that the way the law has been interpreted by the court here, the existence of Humphreys and Congress's reliance on these kinds of multi-member agencies for something like 90 years-plus, that's the background rule. And so now it's up to the government and the Solicitor General to come in to suggest that there's a constitutional problem with that.
Amit Agarwal (01:19:57):
That is absolutely right. We have a 111-year-old statute that was enacted by the people's elected representatives. It was signed into law by a President of the United States, it was unanimously affirmed by this court, and it's been followed by every single president since 1935 until the present.
(01:20:13)
We don't need an abstract theory to tell us that the FTC Act is okay. It's the other side that needs to give you a really compelling theory to explain why in our view, 200-plus years of precedent and history need to be abandoned. But in any event, even according by their own acknowledgement, we're talking about the modern era of traditional independent agencies, which spans more than half the life of the Republic.
Justice Kavanaugh (01:20:35):
Can I ask you about some other limits of your argument? So most of the independent agencies by statute must include members of both major political parties. Is that a constitutional requirement?
Amit Agarwal (01:20:47):
I don't think so.
Justice Thomas (01:20:47):
[inaudible 01:20:49].
Justice Kavanaugh (01:20:48):
Could Congress create independent agencies with, let's say, 10- or 15- or 20-year terms?
Amit Agarwal (01:20:56):
I do think at some point, Justice Kavanaugh, that if there is not-sufficient mechanisms of adequate presidential supervision, that you could have a problem. My advice to the court-
Justice Kavanaugh (01:21:09):
This is important. Why? You got to have a theory on that.
Amit Agarwal (01:21:13):
Yeah, absolutely. So there is a Take Care Clause in Article II, Section 3, and we don't dispute that the activities of these agencies are operating within the purview of the executive branch and they should be subject to constitutionally appropriate presidential-
Justice Kavanaugh (01:21:27):
So do-
Amit Agarwal (01:21:27):
… supervision.
Justice Kavanaugh (01:21:28):
… they have to turn over with each new president, then?
Amit Agarwal (01:21:30):
So in the case of the FTC, I don't think you want to-
Justice Kavanaugh (01:21:35):
And if they don't have to turn over with each new president, what's the difference between seven years and 20 years, constitutionally speaking?
Amit Agarwal (01:21:43):
I think our position is that the FTC, no matter what kind of rule that you articulate would be okay, because we have the staggered terms, and presidents have the opportunity as a practical matter to influence the composition of the FTC, you start to get into more difficult line drawing problems if you imagine hypothetical scenarios where presidents, you have longer terms and maybe fewer officers, and maybe presidents in that circumstance don't have-
Justice Kavanaugh (01:22:11):
What about the chair? Usually, the chair has been removable at will as chair by presidents, but that's been a matter of statute for most of these. Is that constitutionally required?
Amit Agarwal (01:22:22):
No. And we know that from Humphrey's Executor, actually, because at the time of Humphrey's Executor, the chair of the FTC was not removable by the President. And now it was in the Reorganization Act that took place some 15 years later, the President now has that designation.
Justice Kavanaugh (01:22:37):
So I think putting those three together, your position would allow Congress to create independent agencies, maybe converting some of the existing executive agencies into independent agencies with no political balance requirement, with a long-term, say, 10 or more years, and with the chairs not subject to removal as chair.
(01:23:01)
So you can imagine a situation, and just want to give you a chance to deal with the hard hypothetical, when both houses of Congress and President are controlled by the same party, them creating a lot of these independent agencies with or extending some of the current independent agencies into these kinds of situations, so as to thwart future presidents of the opposite party. And to Justice Barrett's point, I don't think we can just say, "Oh, that hasn't happened, so it'll never happen."
Amit Agarwal (01:23:29):
Absolutely. And I don't think that you should articulate a rule that categorically rules out the possibility that some statute in the future might not provide for adequate tools of presidential supervision. This is not that-
Justice Kavanaugh (01:23:42):
Well, what would be the theory? I mean, that's what I'm getting at. Just picking something out of thin air, what is the theory?
Amit Agarwal (01:23:49):
One textual basis in the constitution for that would be the Take Care Clause of Article II, Section 3, which does require the President to take care of that the laws be faithfully executed, and
Amit Agarwal (01:24:00):
And this court could hold that that requires that the president have constitutionally adequate means of supervision, such as those that are adverted to in part 3C2 of Seila Law that discusses exactly the types of considerations to which Your Honor is referring the designation of the chair, the staggered terms provision and the opportunity to influence the composition of the commission, budgetary tools, all of those the FTC has. And so we're on the right side of the line wherever you draw that line. But I guess the bigger point is that historically this is a problem. This is a problem that has been resolved through a process of political accommodation. And there's no reason to believe that that process, which has been adequate for a very long time, will not be adequate in the future. But if it is, the court can keep open the possibility that there will be time enough to decide on new constitutional rules.
Justice Kavanaugh (01:24:50):
How do you answer the accountability theme, which I think is the theme of the other side, is that independent agencies are not accountable to the people. They're not elected as Congress and the president are, and are exercising massive power over individual liberty and billion dollar industries, whether it's the FCC or the FTC or whatever it might be.
Amit Agarwal (01:25:14):
May I answer?
Speaker 1 (01:25:14):
Sure.
Amit Agarwal (01:25:15):
It is an entirely legitimate concern, but there are countervailing accountability and liberty concerns on the other side. And so for example, you have an amicus brief that is submitted by the Reporters Committee for Freedom of the Press in this very case that talks about real dangers to freedom of the press, to individual liberty, to free speech rights that would result from saying that agencies like the FCC are all of a sudden subject to at-will presidential removal. And they discuss the history, just as one example, this precious First Amendment right that could in every meaningful sense be jeopardized if we abandon longstanding history and retroactively invalidate the independence of independent agencies. The last thing I would say, if I may, Justice Kavanaugh, response to that point on political accountability, is that I think it would be a really unfortunate way to vindicate the principle of Democratic accountability for this court to effectively invalidate.
(01:26:06)
We're not talking about one or five or 10 or even 15. We're talking about more than two dozen traditional independent agencies that have been established by statutes enacted by the people's elected representatives and signed into law, all of them by democratically elected presidents. If it is really true that these kinds of for cause removal protections, which after all authorized the president to fire commissioners just for good cause, if they really pose this fundamental threat to the Republic, petitioners could take their argument across the street and Congress could solve the problem tomorrow. They're not willing to do that.
Justice Roberts (01:26:38):
Thank you. Thank you, counsel. You mentioned Humphrey's Executor quite a bit and also Seila Law. And the one thing Seila Law made pretty clear, I think, is that Humphrey's Executor is just a dried husk of whatever people used to think it was because in the opinion itself, it described the powers of the agency it was talking about, and they're vanishingly insignificant, has nothing to do with what the FTC looks like today. And yet it seems to be your primary authority. It was addressing an agency that had very little, if any, executive power. And that may be why they were able to attract such a broad support on the court at the time. I mean, putting Humphrey's Executor aside, what's your next good case?
Amit Agarwal (01:27:36):
We have two other cases in which the court has had occasion to assess the constitutionality of a single layer of for cause removal protection applicable to a multi-member commission. And those two cases are Wiener v. United States and Free Enterprise Fund. In both of those cases, the court unanimously concluded that a single layer of for cause removal protection does not offend the separation of powers even with respect to agencies that were wielding what everybody today would consider significant executive authority.
Justice Roberts (01:28:09):
Well, certainly Wiener is sort of a protege of Humphrey's and does exercise significant authority, but of an adjudicative nature. And I don't know if that, again, should be considered in a direct line from Humphrey's or an entirely different situation involving adjudicative authority that the court did not say in deciding Humphrey's was at issue.
Amit Agarwal (01:28:37):
A couple of responses to that, Mr. Chief Justice. First, petitioner's theory is based on the assumption that anytime you have an officer who is acting outside the auspices of Articles I and III, no matter what kind of function they are discharging, what they are doing "is and must be deemed an exercise of the executive power." And if that is true, that sweeps in the commissioners of the War Claims Commission, it sweeps in the Federal Reserve, it sweeps in the Court of Appeals for the armed forces. Their constitutional theory cannot be distinguished on that basis.
Justice Roberts (01:29:12):
Well, what about regarding them, as I think Justice Gorsuch was discussing at one time, as adjuncts to the judicial authority, which would be something that would cover the court, I think would think in Wiener.
Amit Agarwal (01:29:28):
If this is a viable distinction to say that there are certain functions that are being performed that are of an adjudicatory nature and that some kind of exception should be carved out for that, then why not for the FTC, which after all does exercise adjudicative powers. Indeed, as this court explained in Axon Enterprise v. FTC, the FTC-
Justice Roberts (01:29:50):
Well, sure. Go ahead.
Amit Agarwal (01:29:52):
The FTC stands in the shoes of the district court. In such cases, it's doing exactly the type of thing that district courts do. It's finding facts and reaching conclusions of law.
Justice Roberts (01:30:00):
Yeah, but it does a lot of stuff in addition to that the court in Wiener did not do. And many of these other entities that you've been talking about with exercise judicial responsibilities might properly be considered in adjuncts to the judicial power in Article III as opposed to purely executive power, which was not at issue in Humphrey's or Wiener.
Amit Agarwal (01:30:27):
Two responses to that, Mr. Chief Justice, in Wiener, the claims commission members were making final and unreviewable determinations with respect to claims for compensation and they were getting no judicial review. That was final determination. But the more important point is that in Free Enterprise Fund, there was all manner of executive authority that was being wielded by the two that… We're not talking about the 1935 FTC, we're talking about the 2010 Securities and Exchange Commission and the 2010 Public Company Accounting and Oversight Board. This court characterized the board's functions as involving enormous power to regulate an entire industry. Nobody would say that that was not executive. And nevertheless, the court unanimously concluded that a single layer for cause removal protection, exactly what we have here, is constitutionally permissible. On top of that, we don't again have a single case that has ever struck down the kind of removal protection that we have here in more than 200 years.
Speaker 2 (01:31:21):
Thank you. Justice Thomas.
Justice Thomas (01:31:26):
When I asked you or when a number of us asked you about making some of the currently the executive branch cabinet level agencies, multi-member agencies, you resorted to the functionality of the current agencies such as commerce as precluding that, or at least as being a basis for not doing that. Now, moving the other direction, you say that from a functional standpoint, the FTC is not an executive branch agency and you listed some of its functions. Could Congress convert the FTC to a single member head with the same protections because it engaged in the discharging the exact same functions?
Amit Agarwal (01:32:18):
No, under this court's precedent of Seila Law.
Justice Thomas (01:32:21):
Could they, under the logic of your argument?
Amit Agarwal (01:32:25):
No. We accept Seila Law as not only the law of the land, but as being correct. And we embrace the-
Justice Thomas (01:32:32):
What's the limitation? Your argument was functionality before, not necessarily precedent. And I'm interested in why would the FTC functionally be any different as a single member head than it is as a multi-member agency?
Amit Agarwal (01:32:53):
It is because Seila Law is correct, not just because it's precedent, but because it's correct to hold that there is a particular danger to individual liberty that is posed by the single director, highly anomalous circumstance that had no foothold in history and tradition and that vested a massive quantum of power in one person who was not directly accountable to the president.
Justice Thomas (01:33:19):
I don't understand why that's any different from a multi-member agency.
Amit Agarwal (01:33:25):
For all the reasons, Justice Thomas, that this court explicated in Seila Law itself, and in particular in parts 3C1 and 3C2 of the decision where the court talked about basically two categories of considerations. One is the foothold in history and tradition, and the second is whether the configuration of the agency poses a problem for structural separation of powers, principles. And in both of those, the court explained and elsewhere throughout the opinion, the implications for individual liberty of taking massive amounts of governmental power and putting them in the hands of one person who's not accountable to the president. As opposed to where you have the multi-member structure as a practical matter, there needs to be consensus, there needs to be deliberation, there's a safety valve in terms of dissenting opinions can be issued and that can provide an alert to the public that something is going on.
(01:34:14)
So there's a whole variety of reasons why single member agencies have been distinguished from multi-member commissions, and we think that precedent is correct and should be adhered to. And on that point, Justice Thomas, I guess I would say one more thing of that is I think it is a big difference between our position and the position of the petitioners that we are asking the court to adhere to all of its precedents and to give effect to the collective wisdom and experience of all three branches of government. On the other hand, petitioners are asking you to abandon precedent after precedent after precedent. A lot of precedents would go south if their constitutional theory is correct and a whole lot of history and dozens of institutions that have been around for a long time, that have withstood the test of time, that embody a distillation of human wisdom and experience, all of those would go south.
Speaker 2 (01:34:59):
Justice Alito?
Justice Alito (01:35:00):
To follow up on Justice Thomas's question, suppose that the FTC did not have… The commissioners did not serve seven-year terms, staggered seven-year terms. Suppose there was not the requirement that no more than four be members of a single political party. Suppose that they served very short terms. Why does it matter that it's a multi-member body as opposed to a single member body in itself? What is significant about that?
Amit Agarwal (01:35:50):
The significance is the distinction for purposes of individual liberty, the threat that is posed to individual liberty by single- headed agencies that are not accountable to the president. That, as I understand it, Justice Alito, is the logic of this court's decision in Seila Law, and we recognize that intelligent people of goodwill can disagree about that.
Justice Alito (01:36:10):
I mean, Seila Law didn't have to decide the question that's before us here. I mean, suppose that there were two FTC commissioners and they served one-year terms and you would say, "Well, that's okay," but there's a difference between that and an agency that's headed by a single member.
Amit Agarwal (01:36:31):
Making the terms shorter, in my view, would not raise constitutional concerns because that would only increase presidential opportunities to influence the composition of the agency. Reducing the number of commissioners might be a different type of situation. I'm not aware of any two-headed agency that has ever been created in the modern year or throughout American history.
Justice Alito (01:36:54):
Well, okay. What we're looking for are conceptual explanations for the distinctions you're drawing, but let me move on to something else. Suppose the Department of Justice were split into two parts. One part has the authority to enforce the criminal laws and the other part has the authority to enforce civil laws. Could Congress put at the head of the civil component a multi-member commission with removal protection?
Amit Agarwal (01:37:27):
Justice Alito, there is the logically antecedent question with respect to any removal protection of whether Congress has constitutionally enumerated authority to enact the protection in the first place. And as has been suggested in prior colloquies, the relevant source of constitutional authority would appear to be the necessary and proper clause in terms of attaching removal restrictions to a federal office that is created by Congress. I don't think it's obvious that you would comply with all the strictures of the necessary in proper clause ex ante. And so it's not obvious that Congress could do that. And what we know for sure is that Congress has never tried to do that.
Justice Alito (01:38:11):
Well, I know you keep answering it hasn't been done and it's not going to be done in the future, but I want to understand the limits of the principle that you're asking us to accept. So you cannot say, "No, that would not be permitted for this reason." The best you can say is that it might not be necessary and proper.
Amit Agarwal (01:38:32):
If you wanted, that is one source of limiting principle for sure. But also our argument is predicated in part on a long historical tradition pertaining to what our call-
Justice Alito (01:38:43):
Okay. I understand the historical argument. That wasn't what my question was getting at. All of the civil enforcement laws, all of the civil laws that are now enforced by the Department of Justice were enacted by Congress under one of its enumerated powers. Let's assume that they were all constitutional. So the question is whether it would be necessary and proper to the enforcement of those given the understanding of necessary and proper, to entrust that to a multi-member commission as opposed to a single officer like the Attorney General. That would be the question.
Amit Agarwal (01:39:19):
I don't think so. And what I was trying to get at before is not just that there's an historical tradition, it's that the historical tradition we're invoking is for what are called traditional multi-member regulatory commissions. And those historically have never involved just purely executive civil enforcement. They involve a blend of lawmaking, judicatory and enforcement actions where the enforcement authority is deemed to be reasonably ancillary to the other functions. So the kind of hypothetical that you're positing, Justice Alito, I think it's an absolutely legitimate concern. But the historical tradition that we are drawing on for purposes of our constitutional liquidation argument would not require you to affirm the constitutionality of that kind of highly unusual structure that as far as I know has never been attempted.
Justice Alito (01:41:43):
… supervision. And if that were challenged, we would have to decide. We would have to exercise our judgment about how much presidential supervision is necessary to satisfy constitutional requirements.
Amit Agarwal (01:41:54):
Absolutely. The court should not relinquish its authority to establish judicially enforceable outer boundaries in this context. I just don't think that you're going to have to do that anytime soon and you might never have to do it, but you should absolutely not relinquish your authority to do it. And there could be hypothetical scenarios in the future in which there's an arrangement that just palpably does not guarantee adequate presidential supervision. But that hypothetical risk, again, has to be measured against the real world chaos and disruption that will be caused by taking-
Justice Alito (01:42:26):
Okay. One other question about where your argument would lead. So to go back to this issue of the various departments and whether it would be permissible for Congress to convert them into agencies headed by multi-member commissioners, by multi-member commissions, with the members protected from plenary presidential removal authority, the test would be whether some limit on exclusive and preclusive activities was exceeded.
Amit Agarwal (01:43:15):
Our primary…
Justice Alito (01:43:18):
If they're exercising any power that is exclusively and conclusively the presidents, are they exercising too much of that? That would be the test in going through these departments?
Amit Agarwal (01:43:28):
No. No, I think if they're exercising any power that is conclusive and preclusive, then you have a separation of powers problem that's the solution to which is not necessarily to strike down the entire agency or even to eliminate the for cause removal provision. It creates an analytically distinct issue about how you remedy that violation. But I think any conclusive and preclusive power that is vested in an agency that is not sufficiently accountable to the president is a problem.
Justice Alito (01:43:52):
Okay. I thought you had answered in answer to a prior question, you said a mere scintilla would not be enough, but now you say a mere scintilla would be enough to cause a problem.
Amit Agarwal (01:44:01):
I may have misspoken before, Justice Alito, and if I did, I apologize. But our position is that if a multi-member agency is vested with the president's conclusive and preclusive powers and it is insulated from at-will presidential supervision, that is a separation of powers problem.
Justice Alito (01:44:18):
Does…
Amit Agarwal (01:44:39):
… to that is to sever out that power and not to strike down the entire agency.
Justice Alito (01:44:42):
Thank you.
Speaker 2 (01:44:43):
Justice Sotomayor?
Justice Sotomayor (01:44:45):
Counsel, Seila Law involved the CFCP and it relied very heavily on… Focus very heavily on the novelty of the CFPB structure and the fact that it was a historical anomaly, correct?
Amit Agarwal (01:45:05):
Absolutely. It was an anomalous structure that was deemed to pose a significant threat to individual liberty.
Justice Sotomayor (01:45:11):
All right. That's not the case here because we have a precedent of longstanding that says this is okay. The Chief asked a question about whether the additional powers the FTC has gathered create a different situation. As I see it, and as the judge in the district court outlined very clearly, most of the original powers of the FTC when Humphrey's estate…
Amit Agarwal (01:45:40):
… the reply brief, Barr v. AAPC supports that proposition.
Justice Sotomayor (01:46:27):
And so that should be the answer if there's been a difference in the powers or an expansion of the powers inappropriately.
Amit Agarwal (01:46:34):
That is our position. Yes, the parties have not briefed severability at the merit stage of this case. And in the event that the court wants to reach that question, you might consider either supplemental briefing or remanding to the district court to decide that issue in the first instance.
Justice Sotomayor (01:46:50):
Thank you, Counsel.
Speaker 2 (01:46:51):
Justice Kagan.
Justice Kagan (01:46:53):
Mr. Agarwal, it seemed to me that when you were talking to Justice Alito, you had more to say about this question of comparative risks and how we should balance the two kinds of risks and what we should be thinking about now. So I wanted to give you a chance to say that. And within whatever you want to say about that topic, I was wondering if you could comment, a lot of these hypotheticals have been about what if Congress structured an independent agency like this or like that? I mean, most of these independent agencies, Justice Sotomayor is right, that the CFPB was anomalous in this respect, but basically the vast majority of them all use the exact same structure or if not exact, near exact same structure. There are little variations, but they're all set up with bipartisanship. They're all set up with a chair that does have some greater control and that is more controllable by the president.
(01:47:58)
They're all basically set up the same way. So all of these hypotheticals about what if Congress did this, I'm wondering if you could comment in your discussion of comparative risks about how we actually just… Why it is that we actually have just never seen that.
Amit Agarwal (01:48:14):
I think it's because the political branches have learned from experience and experience is the great teacher. There's an insightful discussion of the history and tradition surrounding traditional independent agencies and the separate opinion in the PHH case that has been cited extensively by the parties. And that explains that the structure that the political branches have come up with honors and gives effect to our constitutional values as we explain on the very first page of our brief. We think that the political branches have done a good job of learning from-
Justice Kagan (01:48:48):
I mean, the political branch is Congress, Congress, which is made up of both Democrats and Republicans who are aware that neither Democrats nor Republicans will control the government forever and are structuring these systems with that in mind.
Amit Agarwal (01:49:02):
I think that is exactly right, Justice Kagan, that there is an appreciation and an understanding that folks in power today may not be in power tomorrow and you want a structure that will be able to withstand the test of time. The other kind of interesting thing about this is that it's not just Congress, it's Congress acting together with the president every single time. In the case of the FTC Act, the act has been amended time and time and time again since this court's decision in Humphrey's Executor. Presidents are signing all of those bills into law. They are supporting the FTC in a myriad of ways. They too have read the vesting clause-