Advisory Opinions - Humphrey’s Executor

Episode Date: March 13, 2025

Live from the University of Michigan, Sarah Isgur and David French are joined by law professors Josh Chafetz, Aaron Nielson, Jennifer Mascott, and other special guests, to explain Humphrey's Executor and the executive power of removal. The Agenda: —Myers v. United States —Humphrey's Executor v. United States —Peekaboo —The “illimitable power of removal” —Was Madison right about “liquidation”? —Congressional accountability —Civil service reform —Justice Barrett Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. ["I'm Ready"] ["I'm Ready"] Welcome to an episode of Advisory Opinions here live from the University of Michigan hosting the Federalist Society Student Symposium for 2025. I'm Sarah Isger. And this is fun because when I was the Harvard Federalist Society president as a third year, this is in fact where the student symposium was.

And I met who would become one of my best friends, Matt Owen, who then ended up living next to me and our kids are now in preschool together. So this can be a very, very important symposium for all of you here in the audience. We're so grateful to Michigan Law School for pulling this together and very excited for our topic today, which is basically Humphrey's executor and then

that emoji with its arms up. And to talk about Humphrey's executor, we have Josh Chaffetz from Georgetown University Law Center and Erin Nielsen, who is on break from Brigham Young University as a law professor, currently moonlighting as the Texas Solicitor General. Thank you both for being here. As we continue, we will be added by other law professors, including Jen Mascock from Catholic University

and special guests to be added along the way. We'll just see who pops up here. I see Judge Radler out in the audience. We'll probably drag him up at some point. Who knows? All right, so the first thing I want to do is lay the groundwork with the cases that we're gonna have to talk about during this.

That is Myers from 1925. Postmaster General, Congress passes a law that says, not only are you appointed by advice and consent of the Senate, but you are removed with advice and consent of the Senate. For those who have listened along as we've talked about Andrew Johnson's impeachment after the assassination of Abraham Lincoln because of the Tenure of Office Act. This is basically where the Tenure of Office Act is going to meet its doom here in 1925, many, many decades later. And the Supreme Court is going to gnaw dog

that advice and consent on the way out. So that's Myers in 1925. Humphreys in 1935. This is our big one, right? Mr. Humphrey is appointed to the Federal Trade Commission by President Calvin Coolidge. When FDR comes into office, he decides that Humphrey sucks. Not that Humphrey is incompetent, not that Humphrey, I don't know,

any of the other four cause reasons that Congress has laid out, but just Humphrey's is not a New Deal guy. And so FDR fires him. Humphrey sues and dies. And that's why the case is called Humphrey's Executor, because in fact Humphrey's Executor is the one that goes up. The court unanimously in 1935 says that the for-cause removal protections for FTC commissioners is fine because they are not executive officials, but rather quasi-judicial, quasi-legislative, quasi whatever the hell they

want to be. We'll come back to that. Fast forward a very long time to 1988 when still none of you were alive. And I was alive, you were alive, all of us were alive, just us though, not them. In 1988, there's the Morrison v. Olson case. Fun background on this, right? It's Ted Olson, who we've all heard of. He is the head of the office of legal counsel at that point. He's going to be solicitor general decade later. There's an independent counsel appointed, Morrison, to decide whether he lied at a congressional hearing. And Olson challenges the constitutionality of the independent counsel saying that this is taking away from the executive power. This should be an executive branch official.

That's a seven one opinion. Kennedy doesn't take part. It's better known for Scalia's dissent than it is for the majority opinion at this point, but the court upholds the independent council act, which of course is gonna lapse by the end of the 90s, but it's there just for its legal fun times. Okay, then fast forward again, we've got Peekaboo,

the public company accounting oversight board in 2010, Celia Law in 2020, and Celia Law about the Consumer Finance Protection Bureau. That one's written by the chief and Collins in 2021 about fair housing written by Alito. Now that we've moved into the modern era, will you take Peekaboo, and why we call it Peekaboo, and will you take Celia Law and Collins and tell us where things lie now in those cases? Sure. So Peekaboo, which I assume we call that because nobody can remember public company accounting oversight board, or at least if they can remember it, don't want to have to say it every time, basically says that the structure of the public company accounting oversight board is unconstitutional

because it contains two layers of for cause removal, which is to say the members of that board could only be removed by people who themselves could only be removed by the president for cause. And so the majority there says two levels of for cause removal are the very least one level too many. Nobody can have sort of more than one level of insulation from presidential control at the most. And I think Peekaboo sort of marks this turn in the case law right where the court suddenly starts becoming significantly more skeptical of mechanisms of agency independence. So not a direct attack on Humphrey's executor by any means,

but a sort of turn away from the sort of Humphrey's executor or, or Morrison majority type approach. And so then professor Nielsen, you have Celia law, which is a direct attack on Humphrey's executor, but the chief certainly stopped short of overturning Humphrey's or does he? Or does he? So in CELA law, that is about the CFPB, the consumer financial protection bureau, stop short of overturning Humphreys? Or does he? Or does he?

So in Sela Law, that is about the CFPB, the Consumer Financial Protection Bureau. It's not a direct attack on Humphreys executor. Humphreys executor is the Federal Trade Commission, so it was a multi-member commission. What you had with the CFPB was an agency that had almost the same powers as the Federal Trade Commission, maybe more. But rather than having a multi-member commission, it was a single person who the president could not fire and serve a term that could be beyond any president's term. So in theory, a president could run on, hey, I want to change enforcement priorities for the consumer financial protection industry area and never get the chance to do so because the person sitting in that position

the entire time was pointed on by somebody else. That was challenged as unconstitutional. First in the DC circuit and in a panel decision written by then Judge Kavanaugh found to be unconstitutional. The DC circuit went on bonk on that and said, no, no, no, this is constitutional. Now Kavanaugh is elevated. A case is brought in the Ninth Circuit. Same theory. The Ninth Circuit says, we agree with the en banc court. The Supreme Court grants

review. And then the court says, actually, essentially, Kavanaugh was right all along. This is unconstitutional. And they do it in a way that's pretty significant because their defense of Humphrey's executor as part of their analysis was essentially no defense at all. They define the case of Humphrey's executor in such a way that even the FTC today and probably even in 1935 would not satisfy the test as they articulate it. And then they say, well, obviously the CFPB doesn't satisfy that either. But he did say on the chief, they articulate it. And then they said, well, obviously, the CFPB doesn't satisfy that either. But he did say, the chief, he wrote this.

He also wrote Peekaboo. He said, but it has to at least be significant executive power before the president's removal kicks in. Fast forward to Collins the next year. I know Collins very well. I was court appointed amicus in Collins. Um, so department of justice did not defend the constitutionality of the federal housing finance agency. When that happens, the Supreme court appoints somebody to do that.

I was the one appointed to defend the agency. So I was sitting at home in Utah and I got an email, um, would you like to defend this agency? Sure. Um, he, What do you do? You don't go to Zemos very often in this world. So I put together a team of students. Professor Chris Walker was my co-pilot on that one, up here from Michigan.

And we had two months to put together a merits brief to defend the FHFA. And we took all of the stuff that the chief had left in, say, LaLaw, all the ways to distinguish other agencies like the Social Security Administration, the Office of Special Counsel, and the FHFA, which he said are much less executive power than the CFPB. We used all of that.

We put it all in, and we went to the court and Justice Alito writes, and he essentially says, all those limitations that the chief put in, say the law, they are not actually limitations. So, the chief suggested significant executive power in say the law, and Justice Alito said, that's not the test, that's not workable,

any executive power. And we said, that's not the test. That's not workable in executive power. And we said, well, wait a minute, unlike the CFPB director, the head of the FHFA, the president can fire for cause. That's it, just for cause. So if the president doesn't think anything this person is doing isn't very good, including insubordination to the president,

president can fire that person. And the court says, that's probably what for cause means, but even so, it's not at will. So that's unconstitutional too. So then we said, well, if this is unconstitutional, what are you going to do about agencies that have a multi-member agencies, but the head, you know, the chair is separately appointed and has his or her own statutory powers. In other words, essentially its own little agency within an agency. And the court says that's not in front of us. And that was the extent of the defense of any of it. So, you know, when we say did they

overrule Humbert's executor? Not in so many words, but that's where we are. Okay, so that's the lay of the case law. Now, got one more thing for you each to define before we jump into the meat, the meaty part. Will you, Professor Chafetz, will you define unitary executive theory, both how you understand the theory and where you would lie on a unitary executive theory spectrum?

Sure. So I think there are, I've always understood unitary executive theory as being the idea that the president has to be able to control essentially everything that is not either in Congress or in the judiciary, right? So everything that's not Article 1 or Article 3 has to be sort of executive and all of those things have to fall under direct presidential control, meaning at the very least that the president can remove at will the people carrying

out those decisions. That's how I've sort of always understood the theory. And I think it's absolute nonsense. I think it's a historical, I think it's no way to run a government. And I think it's no way to run a government. And I think it's a terrible idea. Perfect. We will revisit. Professor Nielsen. Yeah, so I'm going to disagree with him on a lot of that. But the description, I think, is pretty close to accurate. The way I think of it is whatever the executive power is, is vested in the president.

And we're going to fight about that. So sometimes a unitary executive says,, is vested in the president. And we're gonna fight about that. So sometimes unitary executive says, oh, the president is king. No, no, no, no, no, no, no. We're not talking about the scope of the president's powers. We're talking about whatever the powers exist within the executive branch, they are vested in the president.

And the president then has people who work for him. And he has to have some ability to control them. The president has to do to take care of the laws are faithfully executed. If people don't do what the president says, how can the president do that? So the president has the ability to control those within the executive branch, whatever the scope of that is. I think it's correct. If you get back to the original argument, which we'll talk about, like the, the framers could have done a better job with this one, um, writing it out clearly what

exactly, how this works. Um, they do it for appointments. They didn't do it for removal. So it kind of leaves us in a mess, but I think probably, um, that's the right answer originally, it's certainly the right answer under stare decisis, which we'll talk about that, um, and as a policy matter, it's 100% correct. It seems absurd to me that somebody can work for the president and say, you know what, actually, though nobody voted for me, I'm not going to do what you say, even though it's within the scope of your lawful authority.

That cannot be correct. Okay. Now for the main course. Professor J. Fitz, was Humphrey's executor correctly decided? Yes. It was terribly reasoned. I think it's really hard to find anyone who will actually defend the way Humphrey's executor is written. First of all, the discussion of quasi-legislative, quasi-judicial is a mess. There's no sort of explanation of exactly what that means. At one point, the opinion Sutherland says, the reason this isn't part of the executive branch is because all that the FTC does is sort of carry out the instructions that Congress has encoded in law or something like that. And I'm like, well, that synonym for that might be execute the laws, right? So it's a mess of an opinion. That said, it comes out the right way. Because at the beginning

and the end of the day, in my view, you know, Aaron was saying that, you know, the Constitution specifies appointments, right? It doesn't say anything about removals. You might think, and indeed I do, that in that situation, you treat it the way you treat everything else about the way that agencies are structured, right? So who gets to decide how agencies are structured? Congress does. Who gets to decide whether they're headed by one people

or multiple people? Congress does, right? This is all under the necessary and proper clause. So if the Constitution itself says absolutely nothing about removals, why wouldn't we treat it the same way we treat issues of agency structure, agency funding, all of those other things and say Congress gets to decide? And if Congress says in a statute that someone is only removable for cause, then they're only removable for cause.

Would you say this applies like it just to narrow our focus. Are we talking here just the independent agency type things like the FTC or CFPB? Are we including things like the Fed, for instance? Are we including things like random civil servants in the bowels of the Department of Energy? Right, so I think this applies, again, however Congress wants it to apply, right? So I think it's worth noting that there's no sort

of official thing that makes an agency either an independent agency or an executive agency today. There's a great law review article on this about a decade ago by Ricky Rives and and Kurti Dattla. But the basic idea is there's no like one thing in law that sort of separates the what we call the independent agencies from what we call the executive agencies. We really just kind of look at their structure and say, oh, that seems kind of independent issue. That seems kind of that seems like it's more directly under the control of the president.

So I would say in some sense, at the answer to this, or the question is almost question begging, because if, I would say, there's no agency that Congress couldn't structure that way if it wanted to. If it wanted to make the attorney general or the Department of Justice an independent agency, fine.

It has chosen not to, right? But I would say that that it applies across the board. Congress gets to structure the administrative state. What do you mean when you say independent? And for those listening at home, Professor Mascot from Catholic University has now joined the chat. Joined it, yes, that's right. Breaking from the airport. But I mean, definitionally to you, what makes it independent? Well, again, I don't think there is any one thing that makes it independent.

I think we use that as a shorthand, right? Because, you know, there are some agencies where we focus on tenure protection. There are some agencies where we focus on independent litigating authority. The tenure protections take different forms in different agencies. So your point is that no agency, period, regardless of its structure, is situated differently from the president than any other. Well, I'm saying, no, I'm saying they're all structured differently, but the structure

comes from their organic statute. But I guess, I mean, but the argument that's been made for decades is that somehow certain types of agencies are supposed to or entitled to be free from presidential supervision. So what is it that would make an agency permissibly like that as opposed to DOJ or Treasury or Commerce that we see as more under his supervision? Right, so my argument is absolutely nothing. My argument is that the Constitution has nothing to do with this, right?

That if Congress in its organic statute wanted to make DOJ, we wanted to make the attorney General removable only for cause, it could do that. If it wanted to make the Secretary of Energy removable only for cause, it could do that. It's chosen not to for reasons of its own, but that those reasons should govern. But you're saying that tenure protection is what makes it independent.

I'm saying that Congress gets to decide all of this stuff, right? Tenure protection, independent litigating authority, all of that, right? It gets to structure the agency however it wants, and that includes removal, but it includes lots of other things too. In that idea, does the president have the power to tell the agency heads what to do, or can Congress take that away?

I think Congress can take that away too. Ooh, ooh, I say. Hey, it's DJ First Dibs. I notice you've been listening to a lot of summer vibes lately. I get it. You're dreaming about vacations. Ooh, baby, that's my jam. With Sunwing's first dibs on summer savings, let us curate something stronger than what

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their best-selling Carver Mat Frame with code ADVISORY. That's A-U-R-A-FRAMES.COM promo code ADVISORY. Support the show by mentioning us at checkout terms and conditions apply Professor Nielsen was Humphreys executor correctly decided no And you're about to use some words like liquidation just define your as you go. Don't be full law professor here He's not he's an SG now. Yeah, so Let me start like the easiest way to say why Humphrey's executive was wrongly decided is it just was not a faithful application of Myers. Myers, the Supreme Court at the time had been the most lengthy scholarly decision the Supreme

Court had done. They had done a lot of briefing on this very, very long, thoughtful opinion written by Chief Justice Taft, and the court did not agree with it and they just tossed it aside. If we did that, you would have outrage because it went this way, because it went for the way that the left likes and not the right. Suddenly we kind of just put Myers aside. The conservatives remembered that, conservatives remembered Myers and said, no, no, no, you're not going to do that to a case written by Chief Justice Taft. So that's the first line of defense where-

Is the Taft part that you really find offensive? Taft had been president of the United States and was- Shockingly took a pro-executive authority view. In our country, there's a few people with more accomplishment than Taft. Taft had been Solicitor General of the United States. He had been a circuit judge. He had been president. And he wrote a very

scholarly opinion, and the court just tossed it aside. So that's the first line, like, just say sorry to CISIS, there we go. Now let's go back to, well, wait a minute, if there never would have been a Myers, was this right or wrong? And it's actually, I think, pretty difficult because the Constitution has a hole in it of what are you supposed to do with this? So very early on, you had the decision sent in 89 and you had a big debate and you had four different camps. One cap was your camp. Maybe you're even more extreme than that cap. But one was Professor Chavis camp, which is essentially Congress has to decide all of this. The other view Madison's camp was, hey, removal is an executive power. That

is executive. What does it do to say, you know, I work here, that's camp was, hey, removal is an executive power. That is executive. What does it do to say, you know, I work here, that's executive. So that's surely within his power. And then you add the take care clause. You put those two together, you end up with something like what we have today would have to recognize as Myers. The other theory floating out there was the constitution speaks to this. It's called impeachment.

Um, so the only way you can get rid of somebody's confirmed is to impeach. And then the other would be if it's the president nominates and the Senate confirms, and the president nominates, essentially denominates, and the Senate de-confirms, would be the other way of doing it. You had a big debate about it. And Madison, who knows a little bit about the Constitution, says, it's this, it's executive power and you take that with the take care clause and you end up with something like that. And then we end up with what I call, it's a law professor term, liquidation. What did people do after that decision?

And that is, how did people understand that debate? And the takeaway was Madison was right. And was Madison right? People fight about that. But Madison, like he had a lot of people who said that he was correct. And for me, when I was preparing for Collins, I looked in 1860 when they create

the Comptroller of the Currency, and they have a debate in Congress. And it's worth reading. It's all in Aditya Bomzai's article, but it's worth reading. And they essentially say what I just said, which was, hey, we're trying to put limits on this comptroller, but didn't we decide we couldn't do that? And they go back and they have a discussion of what happened in 1789. And they said, essentially, Madison was right. Meyers, that's what Taffer lies on. So you put all that together. I say, it's a tough question. I think Madison was right as a terms of constitutional analysis.

But I hear other arguments because the Constitution could have done better. But you put that with liquidation and Myers, I think, is a pretty open and shut case. So how do you explain Marbury versus Madison? So in Marbury, nobody makes the argument. So the question in Marbury is whether William Marbury is entitled to his commission. But if he was serving at the pleasure of the president, the case is irrelevant. Jefferson hands him his commission that says, now give it back your fire.

In fact, what we see is not only does nobody in Marbury versus Madison even raise that possibility, but if you look at the people to whom Thomas Jefferson delivered the commissions that were signed by Adams, sorry, the people who he reappointed, right? They were all the people whose commissions had been delivered. Jefferson clearly thought that this was not liquidated as of 1803, right? Jefferson clearly thought that he was obligated to appoint even fairly staunch federalists to these positions if their commissions had been signed and sealed. Why would he have thought that if it was so clear

that he could fire them? Yeah, so again, I was looking at 1860s, but let's go back to Marbury. I do not claim to be the expert on this. Someone who is an expert on this is Professor Ditchie Bomzi, who's gone back to look at this. And he said, he went back and he read some of the lower court briefing on that, or not, yes, not in the exact case, but the related case. And his argument

is that the position at issue was considered a judicial position. So it just falls outside of the scope. And he goes back and get, maybe I'm wrong, maybe he's right, who knows. But I'm telling you that that is- So that suggests there must be something that's not article one, not article two, and not article three, right? That's, that's inconsistent with the entire sort of reasoning underlying say Myers. No. Um, because we're talking about the district of Columbia, which is its home, its own, you know, kettle of fish.

Um, so anyway, that's Professor Bombside, but I do know, I, so that's, that's the first line, but go to 1860, at least in 1860, Congress sure thought that that was what they had decided in the decision in 1789. And I just think that Madison was right. I mean, that's the part of it is I see smart people and people fight about this, have been fighting about this for 200 years. And at the end of the day, it's a little bit like who was just right about the analysis.

And it's people are going to disagree. But I think the structural analysis that Madison relies on was pretty darn good. Removal is executive, it sure feels executive. There is a take care clause. So the president can't do that duty unless he has some ability to control the people who work for him. You put those two together. That's where we are. But Okay, so I'm going to put you all in these rough camps. I like naming your camp, Congress can do what it wants camp, Professor Jay Fitz.

And I'll name your camp, President can do what he wants camp, Professor Nielsen. What does the constitution allow Congress to do to limit the president's removal power, if anything? All sorts of things. And this is my take on this whole debate, which is a little bit different. So I argue Collins.

And if you ever have a Supreme Court argument coming up, you will read everything under the sun. So that's what we did. We read everything. Me and Professor Walker, I think we read all there is to read from that period and tried to come up with new arguments. But the thing that kind of struck me

as I was reading Hamilton and Madison and some of the others was, what was gonna be the check on this? The check was going to be politics. So if you look at the Federalist Papers, Hamilton essentially says, hey, you're gonna be really careful before you fire somebody who's been confirmed by the Senate, because they're going to have powerful friends, and it's going to be embarrassing

for you unless you have a really good reason to do it. And because of that political check on your ability to fire somebody, unless you have a good argument, you're not going to do it. And Madison would even further. So Madison says, as part of this debate, he's like, and by the way, if the president fires somebody for a bad reason, you know, how about we can impeach the president for that? Now, he also said, again, by definition, almost everybody who has one of these positions is connected with a powerful patron in the Senate. So once you recognize that political dynamic, you recognize that Congress can do a whole bunch of stuff.

So for instance, if Congress really cares about independent agencies, which is a debatable question, it's funny, a lot of professors talk about it as if this is the most important thing in the world. Political science professors are like, this whole argument, what are we talking about? If you are running the Federal Trade Commission because you've been picked by a president to do that,

you're going to agree with that president. That's just how it's going to be. I think the only time it ever really comes up is if you're put in by a president to do that, you're going to agree with that president. That's just how it's going to be. I think the only time it ever really comes up is if you're put in by some other president than the president currently sitting. But let's assume that it matters. They can say, we're going to put in our rules that if you fire this person, we are going to have a hearing. We're going to have a hearing about it and it's going to be a political fight. So just so you know, that's what's going to happen. Or they have even more creative things that they can do.

They can say the cloture vote in the Senate is for this particular person, how about 60 votes? So the president knows that if you fire this person and you wanna replace that person, you're gonna take 60 votes in the Senate to get there. Well, that's extraordinarily difficult to do. Now, Congress hasn't done that, which I suggest to me that

actually this is a big brouhaha that matters to law professors, but the folks who actually know what's happening in Washington, the people closest to it, the revealed preference is this isn't the most important fight, even though it might seem like it is to us. I'm not sure we should look at what Congress does or doesn't do right now and say that this is the healthiest form of Article 1 powers that we've seen. But okay, Professor Mascot, you've heard these two camps, and I'm going to give you the ultimate power to define your camp of whether Humphrey's executor was correctly decided and what limits Congress president or what rather what limits Congress can put on a president's removal powers?

Umphrey's executor was not correctly decided, but I think stepping outside of all of these positions we should think about it as if the people decide and it's really fundamental to step back and figure out why it is that we care, what kinds of limitations are on the president supervising the independent agencies or the departments or whatever's going on under him. Because if they're not accountable to the president, the question is, who are they accountable to? And so in our constitutional system, as we all know, two branches are directly or indirectly elected by the American people.

And so the reason why ultimately it's a really pressing matter to determine the relationship between the president and the agencies that are under him or her is because if the president can't control them adequately, then we have lost our power as the folks who have elected the electoral college and plus the president. So the president's got to be able to direct what people under him do and the president needs to be able to get rid of folks who are not following his instructions. So I think that question frames all of the other more detailed questions that come below it.

Can there be tenure protections? What do those offices have to look like? But there shouldn't really be any construct at all where we think about an independent entity. The president has all the executive power and people who are created by Congress to exercise power under him are simply carrying out different aspects of it. Okay. So let me give you a hypothetical, which is that Congress has created a Department of Energy. And in that act, there is contemplated a Secretary of Energy. Can a president simply decline to fill roles?

As in we're talking about the removal power, but what about the creation power that Congress has? And that feels tied up with the removal power to me as well. Okay, so I actually think that's a separate line of questions. So your first question about the Federal Reserve, I think that if there are powers or people running around DC doing things that we feel uncomfortable with the president directing, then we should first sit back and ask whether it should be a federal governmental power in the first place. So Congress's role, Congress has an amazing amount

of power. And I actually think the extent of Congress's power, and obviously, some of the things that Professor Nielsen was talking about, but we don't spend a ton of time in constitutional debates talking about all the power that Congress has to first, as you point out, have to create the agencies, specify what positions are going to exist or not exist. Actually, my Article 2018, who are officers of the United States, if that's correct, if most officials, almost all officials are officers, that means there can't really be a position that exists if Congress hasn't decided

that it should exist, given it duties, given it salary, determined what criteria somebody has to meet to fill the office. And so I think there's a lot of power on the front end. Does the president have to fill that position? I mean, ultimately, I think that would come down to in any given case, whether the president is being consistent with his or her duty

to take care that the law be faithfully executed. So I mean, I guess it really ultimately... Which it a little dicey. Like imagine a world in which they say, you must give grants to people who are doing good work in energy. And the president's like, I can do that, but I want to do it inside the White House. I just don't want to have the secretary of energy doing that. So he is taking care that the law, the underlying substance of the law is being done, but he just doesn't want someone with that title doing that. So he is taking care that the law, the underlying substance of the law is being done, but he just doesn't want someone with that title doing it. I mean, all of that comes down to ultimately how the statutes are written. I mean, with

the particular hypothetical, what if the president just doesn't think there's any good energy work being done? I don't know. I mean, someone did have to answer that question, right? Yeah. But that's a little far field from Humphrey's executor, which is I think the concern that I have that's similar to Professor Nielsen is what happens to the president being in charge ultimately. And all I'm making trying to make the larger point, which is that the stakes of it are great because we're not so concerned so much about the president versus Congress duking

it out. We're concerned about this idea that there could ever be a nonpartisan, totally good, innocent moral actor who in our systems exercising power outside of electoral constraints. So I think that you absolutely put your finger on the key issue, right? It's the one that Taft sort of spends a lot of time hammering

in Myers, right? This question of sort of lines of accountability and if someone isn't fireable by the president, how can we say that, you know, have we the people sort of lost control over the government? I think there's a couple things I wanna say in response to that.

One is I think that's thinking about politics and about accountability in too much of a sort of temporal snapshot, right? That if at the very moment the president can't control something, then somehow we the people have lost control through electoral mechanisms. But actually it should be fairly familiar to most of us

from sort of our everyday lives that one of the things we often do is sort of create structures that are meant to sort of bind us to certain outcomes in the future, right? And so if Congress chooses to create an agency and structure it in such a way that it is not immediately responsive to the results of the last election for the presidency, right? That doesn't mean that we the people have lost control of our government. What that means is that we the people have chosen at time one to structure our government in such a way that at time two, it is

not immediately responsive to the will of the president a way that at time two, it is not immediately responsive to the will of the president. Now that may be a good decision or a bad decision in any particular case, but it's not an inherently undemocratic decision any more than not having a new election every single day is an undemocratic decision. The other thing I'd want to suggest is that if we really take that line of reasoning seriously, then all of civil service reform starting with the Pendleton Act in 1883 has got to go too. Now Myers is very careful. There's a long passage in Myers saying this isn't about civil service reform, but I just don't think that can be taken seriously. If you truly believe

that unless you have, unless your view is that every federal employee, so not officers, but employees, unless your view is that they don't exercise any discretion ever, they never make policy, right? All they are is sort of mindless drones. Unless that's your view of what they do, then they are carrying out some portion of the executive power and ought to be fireable for precisely the reasons that Professor Mascot pointed out, if that is in fact our sort of overriding meta principle. Okay. fact, our sort of overriding meta principle. Okay, I really appreciate the temporal, you know, mass binding aspect of your argument

there. I actually think both of you should respond to that as well. Professor Nielsen, what do you think of this argument that really what this is, is we the people elected Congress, Congress chooses at time one to say that we are going to be bound for some amount of time with appointments like this. And therefore, it is a constitutional limitation on the president's removal power at time one to carry out not that dissimilar from how judicial appointments in some sense are made in time one and are going to be lagging indicators of popular will. Yeah, so I just go back to the take care clause. Imagine you have somebody who is in a position,

put it there, you know, the way they set up the statute in time period one, confirmed before the president goes. The president is convinced, 100% convinced, you know, good faith, let's assume all the things in my favor here, this person is not doing the law. They're just breaking the law. It's right there in the text of the Constitution. The president has the duty to take care of laws that are faithfully executed. If somebody refuses to do it, there's no vesting

of power in that person that's in the president. I don't see how that works for the time period one versus time period two. Professor Mascot, will you talk about you were vigorously shaking your head on the civil service protection aspect? Oh, I just, I think the Penalty Act gets, I think that there can be a categorical distinction between what was happening there, which was just simply saying Congress can require there to be some criteria or qualifications for folks. I'm not sure that's actually a violation of the Constitution. And it's different from saying that somebody can't be fired on the back end or has to go through a long process of being fired. So I actually think in 1883, there's no constitutional

tension between that act and saying that Humphrey's executive was wrong. It's the later removal bills in the early 20th century. Okay. So Professor Chaffetz, what about Professor Nielsen's point about his take care example? Right. So the person at the Federal Trade Commission in this case just says, no, I'm not doing that. The president's like, well, I have a vision for what our trade commission should do. And he's like, nope, won't do it. The president then is violating his take care clause.

Well, so so two things. First of all, you know, for the most part, Congress has structured tenure protections as allowing people to be fired for cause. Now, if someone is simply refusing to carry out their duties, right, that is cause to fire them. Now, it may or may not be cause if they're not doing the thing the president wants them to do, right? That would depend on how their statutory duties are defined. I think the take care clause though, I think that that gets seriously over read, right? The president has no duty to execute the laws. The president has a duty to take care that the laws be faithfully executed. And so I think one way you could

understand that is the president has a duty to do everything in his power to execute the laws. That doesn't tell you everything that's in the president's power, right? There might be some things that are outside of the president's power. So the president is not violating his duty to take care that the laws be faithfully executed if he fails to exercise some control in some area where he simply doesn't have the authority to exercise control, right? He's still carrying out all of his constitutional duties, including the take care duty. Okay, let's leave this for a moment. I want to talk this court, what's going to happen now with some of these cases and whatever predictions you may have. I also want to talk

remedies and I want to talk who the swing justice is. So, Professor Mascot, I want to talk to you first about this. You can pick or give us just a few, hum a few bars of what you think this court will look like and if they do hold that the president, for instance, has unlawfully removed someone, what remedy is there in this case? And for the non-lawyers listening or for law students who haven't yet taken remedies, it's really fun to be a judge and be like, aha, yes, no, lawful, unlawful. And then you have to come up with what the actual order is.

That's the remedy, right? Be like, okay, I've said what the law is, now what happens? And that's often a very hard question in cases like this where the president has fired someone, do they get money? In which case the president's like, has fired someone, do they get money? In which case the president's like, not my money, why do I care? Or can the courts reinstate someone to a position that the president has previously fired? That's not going to have a felicitous

ending. Well, I don't think we're going to get there because I think there's a couple trends and ways in which most of the members of this court have been deciding cases in the prior years where I do think it's likely that they are going to find a lot of the removals and the firings here to be within the president's constitutional authority. First of all, if you look at Humphrey's executive itself, a decision in the 1930s, one of the moves recently that litigators have been making is to point out that what the Federal Trade Commission was doing back then is much more modest and much less vast governmental authority than what's happening now. So you might say the modern agencies for massive penalties are being imposed on individuals, massive regulations reoriented

in the economy, that there's a lot more executive power being exercised there than was going on with the Federal Trade Commission. Also, if you look at the way in which the court decided the cases dealing with the public company accounting oversight board and the CFPB, the court's really been talking a lot more on the front end about the vesting of the president's executive power. So even more fundamentally than the take care duty, because Professor Schavitz, of course, is right, that it just simply means the president has a duty to take care to do whatever he's empowered to do, which begs the question, what does he have the power to do? You know, if all of these executive powers vested in him, and

that includes supervising and directing, then there has to be some way to be able to tell people what to do and fire them on the back end. And the court has been focusing more and more on the executive power and the vesting clause in recent decades. And so I anticipate that the way the cases come up to the court, there will be one or two where the court will finally feel like it can in a more full-throated way.

Peel back Humphrey's executive. Who's gonna be the swing? I mean, look, the chief justice has been the one writing these opinions, finding the constitutional problems a lot of times in the past. He served at a high level in the executive branch. I mean, it seems like the justice these days, it's less tough to predict as Justice Barrett, notably the one out of the six on the more perceived conservative side of the court who does not have any executive branch experience. And I just think it'd be a really interesting scholarly pursuit, law student pursuit, law review pursuit to figure out and actually empirically analyze how or

whether that difference in Justice Barrett's background impacts or colors or gives different context to how she understands some of these arguments that are coming before the court. And my instinct is that it probably does quite a bit. Professor Nielsen. Yeah. So it's tricky for the remedies if private people are suing. The Supreme Court has said that you can bring these suits, but that doesn't mean that everything the agency has done under a unconstitutionally unremovable person is like gone. And that makes it really tricky for people to bring these suits because it's expensive

to litigate them. If you're not gonna get anything, why are people gonna do that? You know, you're still gonna see it. But what we're happening now is like the much more potent way is the president is just gonna fire them. And that's like, there you go. Um, so we're seeing it happen right now in real time, um, where folks that, you know, are getting fired. So after Collins, uh, soon, immediately after Collins, president Biden fired for the first time ever the president of the social, the president, the head of the

social security men's administration that never been happened before. He said under Collins, I have that power, I'm gonna do it. And now President Trump has said, well, I've got the same power, that you just fired the head of the Social Security administration, I'm gonna fire the special counsel. And that's kind of where we are. And there's not a lot of remedies at that point.

Like, there you go, you're out. No, I guess if the court were to say something like, well, actually some of these positions you can't fire, you know, maybe they can get back pay, the court or federal claims or something. I'm not sure how that's going to play out. But I really think what's just going to happen is they're going to leave the office and somebody else will go in that office instead. Okay. So Professor Chaffetz, the remedies question perhaps is more appropriate for you than anyone else. Assume for a moment that

your view prevails. What do you think the remedy would be for the unlawful removal of an executive branch official? Well, with the disclaimer that I know less than nothing about the field of remedies, I don't believe it was even offered when I was in law school. But, you know, I think what's most important here, right, is who's exercising government power, right? So I don't think back pay is, you know, I don't think saying, oh, you know, you can unlawfully fire anyone you want

as long as they then can draw their salary out of the treasury for the rest of whatever their term would have been, right? That's clearly sort of not satisfactory. I would love to see impeachment be part of the discussion of the remedy here, but impeachment has failed. No president in American history has been removed through the impeachment process. One president in American history might have been under current conditions of partisan polarization. It is inconceivable that a president

would be removed by the Senate in an impeachment trial. And so, right, then the question would be, you know, what would we want the courts to do if they were to side with me? Now, the thing is, I completely agree with both of my colleagues that they're not going to side with me, right? I think they're both right that Humphrey's executor is not long for this world. I think it's worth noting this, I think is picking up on something that Professor Mascot noted as well.

You know, it's not perhaps a coincidence, right, that seven of the nine justices on the Supreme Court right now have executive branch experience and zero of the nine have legislative branch experience, right? That, I think, goes a long way towards predicting the kinds of rulings that we've been getting out of the Supreme Court, right, that are almost uniformly hostile to legislative power and almost uniformly aggrandizing of presidential power. Quick follow up on that, Professor Chafetz. You think the court is going to allow broad removal powers for the president on these so-called independent agency heads, et cetera.

What about, do you see any distinction on how the court would come out on administrative law judges on some of the civil service reform? Do you think there's limits to where the court would sort of have this broad unitary executive reach? I honestly don't have a great sense of that. I mean, since since peekaboo in 2010, right, every one of these cases has has come out the same way, right, which is to say, chipping away at the at sort of any kind of independent authority. And they've, you know, thus far done it without saying Humphrey's executor is overruled, but that seems to be

the next step, right? They've basically chipped away everything else they can chip away at. I suspect they'd do the same thing for ALJs, but there I'm sort of less confident. Professor Metzger has joined the chat from Columbia Law School. Thank you. Apologies for the delayed flight, but we're thrilled to have you. I'm delighted to be here. So we're just wrapping up. But do you have a grand unified theory

on unitary executive theory, perhaps, either on what the law should look like or what it will look like in the next few years? Wow. Well, no. But let's see. I mean, I don't think that there should be a grand unifying theory of unitary executive because I don't think the unitary executive has strong footing in the Constitution. I think there are some instances in which you can justify giving the president power to remove

without limits, for example, if it's an alter ego like a Secretary of State. But the kind of broad assertions that the Supreme Court has been upholding, I think, represent much more an effort at constructing a particular view of the Constitution than something inherently in it. And it's not a view that I think travels very well. Is that a view based on original understanding of the Constitution, on structural aspects of the Constitution? Where does that read come from for you? The read that there isn't support for it. I think actually, if you look at certainly

structurally at the Constitution, the unitary executive does a tremendous job of downplaying the powers of Congress and exaggerating what is provided to the president. There are certainly some instances where the president, you can make, as I've argued elsewhere, an argument for supervision and a duty to supervise on the part of the president. I think there's structural basis for that, but you certainly don't need the kind of broad,

untrammeled removal power that the court has been upholding to get there. And you certainly don't need the other aspects of the unitary, very powerful president that we've been seeing anything to do with the kind of broad claims of criminal immunity protection and other things that sort of travel alongside the unitary executive that we're seeing. And what about the political accountability argument that in fact, to not give the president

structural removal powers for anyone within the executive branch, destroys political accountability. You know, in the wake of the 2008 financial crisis, let's assume we the people blame the head of the Securities and Exchange Commission, but now there's no way to remove that person and the president can't remove that person. How is there political accountability then for that governmental process? So one thing is to not simplify what we mean by political accountability. Congress is also an elected branch. Congress has created these structures. Congress is doing oversight.

Congress is doing funding. There's many, in that sense, many more than just the president in terms of institutions providing political accountability. There are so many ways that an agency can be controlled. Removal is certainly one of them, but it's not the only way. And even when you have, say today, if we talk about the CFPB and we talk about the president claiming the authority to just obliterate the agency, well, that doesn't take into account

the important political positions of Congress. Professor Tyler has joined the chat. Professor Tyler, coming in from Berkeley Law School, do you want to sing us a few bars of your thoughts on unitary executive theory and how it is likely to fare? And in particular, we've raised the possibility of Justice Barrett as the swing vote right now on these issues, whether it's simply because of her judicial philosophy or because she hasn't served in the executive branch like so many of the other justices who are now on the court. What say you, Professor Tyler? I feel badly because I'm jumping into the conversation midstream. I have no idea what has been said before I got here, but maybe that's actually really freeing in some respects. I'm delighted to be back speaking

with you, Sarah. I think it's a really interesting time because we have a president that is provoking the court to have to answer some really hard questions. And inevitably, we're going to have a lot of cases come to the court. What is really hard, and I'm sure that you've been talking about this, is if you go back and you read the precedents, particularly in this particular area, they are not easily reconciled. And you have two very different visions of the presidency.

You have this idea of very formalist, strict boundary type idea, and then you have cases that are much more functional in nature and ask harder questions. And by harder, I mean questions that involve judgment and looking at the particular situation and assessing whether limitation on presidential power actually somehow inhibits robust exercise of that power. What is really interesting to me is that if you look, for example, at this current court, a lot of the justices are easily put in favor of one category or the other, but some are not as obvious. And Barrett is one in particular I would flag. If you look at the Trump versus United States series of opinions in particular,

and I hope I'm not retreading ground that's been covered, what is interesting to me, particularly about her concurrence, is that she does talk about a functional type test when thinking about whether immunity should apply for acts that are arguably official. And she asks a question about whether it intrudes on the proper exercise of the presidential power to have this as a check. And that is not a straightforward black and white application of a rule. It's a standard. And what is interesting to me about her jurisprudence of late is that if you look at her opinions from last year with respect to constitutional interpretation, and in particular, in thinking of her opinions in Vital versus Elster and Rahimi, when you put those together, you see

a justice that is not entirely uncomfortable with standards. So, for example, in Vital versus Elster, she says to Justice Thomas, constitutional interpretation is not as straightforward as you make it out to be. Inevitably, we have to translate old words or words ratified hundreds of years ago into present day and inevitably judges like us are gonna face new situations and we're going to have to come up with a test. And so I think it'll be very interesting in particular to watch her in these cases. I think when you put together her opinions in those two cases, Vidal versus Elster and Rahimi, the Second Amendment gun case from last term, when you put those in conversation with her opinion, her separate opinion in Trump versus United

States and her separate opinion in Trump versus Anderson, I think she's the most interesting justice on the Supreme Court right now. And it's fascinating to watch her work through a lot of these issues. Well, certainly the internet this week of conservative commentators are unhappy to find that she is the most interesting justice on the court right now. But yes, I think if you were making an ad, you know, most interesting man in the world. It's Justice Barrett there drinking the dos-es-es-es. With that, let's take some questions from you guys. Ask the question.

I'll repeat it for our panelists. Yes. When did this liquidation happen, Professor Nielsen? Is it directly when Madison is talking about those four options. Is it in the Tenure of Office Act with Johnson's impeachment circa, you know, 1867? Is it in 1923? Or does this law student like using the word liquidation because I do too.

Yeah, awesome question. That's one problem with liquidation, right? So, but I will say this, I go back to Myers and President Taft, Chief Justice Taft says, you know what, like I'm looking at the history and there haven't been these removal restrictions. And there was one that we did in 1861 or 62 with the first comptroller, and they immediately took it away. And that was the debate that we're talking about. And as go back and read the debate, very scholarly debate in Congress.

And they're like, I don't think we can do this after the decision of 1789. So they took it away. Then you get President Johnson and they put in the 10-year in office act. Fast forward, that's what they took us in Myers. So that's where Taft goes. He looks, he's like, there was none of this. So a long time in our country's history, there was none. And when they did it, they talked about it.

And they're like, what did we just do? And they undid it. So that was, I guess, the liquidation that I'm talking about. It's a tough call. It is a tough call, because there isn't a removal provision of the Constitution. So you have to rely on structure to figure out how this works. Is it executive power

combined with take care clause? Is it necessary and proper power? Is it the inverse to the appointments clause? These are all hard things. So the question is, do you think Madison was right? They thought it was right. At least they didn't enact such a restriction until the 1860s. Next question. Professor Mascot, I'll give this to you in the sense of, do you feel like this is a premeditated interest in attacking Humphrey's executor and looking to overturn it? Or do you think this is organically happening as they're finding members of the administrative

state that they don't like. I think this started with the Biden administration firing the head of the Social Security Administration and being very forward leaning and taking all of its power within statutory limits, particularly at the time getting rid of people on commissions. And this is the logical algorithm of that. Thank you, Federal Society Student Symposium attendees for being here. We so appreciate the audience.