Justice Kavanaugh would make the greatest difference in relatively non-political cases about executive power.
Tomorrow will be the second anniversary of the Court’s decision in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 130 S. Ct. 3138 (2010). I intended to mark the occasion by posting these thoughts on June 28th itself, but quite understandably, all of us will be completely preoccupied by Florida v. HHS tomorrow. (In fact, on Thursday morning, I will be on a panel analyzing the Florida v. HHS decision at an event sponsored by AEI. Readers are invited to use this link for details about attending in person or watching the live video feed.)
So here goes, one day earlier than anticipatedy:
1. Except for GMU’s Neomi Rao, no one over the past two years seems to have read the Chief Justice Roberts’ opinion in Free Enterprise Fund with all the care and attention it deserves. That is their loss, because the opinion is at least as thought-provoking as I expect the decision in Florida v. HHS is likely to be. (By the way, Professor Rao’s excellent paper on the Free Enterprise Fund decision and some of its potential implications for federal administrative law is available here. I cannot recommend it highly enough. )
2. Reading Chief Justice Roberts’ opinion in Free Enterprise Fund convinced me that a majority of the Court has reached at least a de facto consensus on an important analytic framework potentially applicable to a broad array of constitutional issues. The foundation of that analytic framework is the perception that each of many individual clauses in the Constitution reflects each of three basic values: (1) reliance on structural features to create sustained impediments to the exercise of governmental power as a general matter (not just exercises touching on particular interests or undertaken under particular circumstances); (2) individual liberty (in contradistinction to individual rights, to say nothing of individual “entitlements”); and (3) popular accountability of elected public officials.
However, there seems to be more than just that shared perception behind Free Enterprise Fund and several other significant decisions in the recent past. I am tempted to say that the perception described above is becoming a shared analytic framework because of an additional factor: a majority of the Justices do not regard it as a coincidence that they repeatedly encounter the three-part linkage described above. One might say that at least five of the Court’s members have seen that linkage often enough that they have a more open mind than some of their predecessors about its presence elsewhere in the document.
3. Free Enterprise Fund holds that an act of Congress is unconstitutional to the extent it provides that a principal officer of the United States wielding executive power may be removed only for cause and only by another principal officer of the United States, who himself may be removed only for cause. The holding is formulated as a rule that any officer of the federal executive other than an inferior officer must be removable by the President at will or removable by an officer who is removable by the President at will. As Professor Rao has explained, the logic behind this formulation, if accepted, is sufficient to support the conclusion that any officer of the United States (other than an inferior officer) who wields any part of the executive power must be removable at will by the President or removable at will by another officer removable at will by the President.
As an aside, the shade of Franklin Delano Roosevelt soon may be at peace, because the days of Humphrey’s Executor v.United States (1935) may well be numbered. (Humphrey’s Executor, touted to us as a pillar on which the New Deal rests, positively infuriatedRooseveltand was one source of the animus toward the Court that led to his ill-fated Court packing scheme.)
If you have any doubt about what might be in store for Humphrey’s Executor, compare Free Enterprise Fund’s account of Myers v. United States (1926) with its account of Humphrey’s Executor. The style of the latter bespeaks the drudgery of the task. With its clinical accuracy and lack of engagement it resembles nothing so much as an autopsy report. By contrast, the description of Myers is not only animated, but even livened up with President Truman’s “The buck stops here” aphorism. I take this as more than just adding a dash of folksiness to the discussion. In the context of describing Myers, the sign that graced President Truman’s desk is an anachronism. Their presence makes sense only insofar as they represent an endorsement of Myers.
4. The opinion in Free Enterprise Fund is quite literally dazzling. At times it seems to rest on one or both of two discrete provisions of Article II, the Faithful Execution Clause and the vesting of federal executive power in a unitary executive. But at other times it seems that the rationale depends on a single principle deduced from the presence of both clauses in Article II, i.e., the President’s accountability to the voters.
We hold that the dual for-cause limitations on the removal of Board members contravene the Constitution’s separation of powers. . . .
[The double “for cause” protection] arrangement is contrary to Article II’s vesting of the executive power in the President. Without the ability to oversee the Board [through the removal power] . . . [h]e can neither ensure that the laws are faithfully executed, nor be held responsible for a Board member’s breach of faith.
The diffusion of power carries with it a diffusion of accountability. . . . Without a clear and effective chain of command, the public cannot “determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.” . . . That is why the Framers sought to ensure that “those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.” . . .
The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so.
5. I think it is interesting to re-read Citizens United v. Federal Election Commission (2010) keeping the flow of the argument in the Free Enterprise Foundation opinion in mind. Free Enterprise Fund (decided about six months later) is in some ways an elaboration of the very first sentence in Citizens United addressing the merits of the First Amendment issue:
Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.
6. Then, to round out the picture, there is Bond v. United States (2011), decided last June, where similar themes are sounded, both as to the precise question presented and in an analogy based on the Presentment Clause that Justice Kennedy uses to illustrate his reasoning.
State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’” . . .
Some of these liberties are of a political character. The federal structure . . . enables greater citizen “involvement in democratic processes,” . . . Federalism secures the freedom of the individual. . . .
[T]he dynamic between and among the branches is not the only object of the Constitution’s concern. The structural principles secured by the separation of powers protect the individual as well. . . . For example, the requirement that a bill enacted by Congress be presented to the President for signature before it can become law gives the President a check over Congress’ exercise of legislative power. See U. S. Const., Art. I, §7. Yet individuals, too, are protected . . .
7. Naturally, I may be reading entirely too much into these opinions, but my conclusions at least give me high hopes about what tomorrow may bring.