Always Already

[00:00:18] [Dan Epps] Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.

[00:00:26] [Will Baude] And I'm Will Baude.

[00:00:26] [Dan] So, Will, the deluge is underway. We're recording this on Monday, June 29th, which is, I believe, the penultimate opinion release day of the October term 2025. We have 4 opinions left. We got 4 opinions today, and there's going to be 4 opinions left.

[00:00:47] [Will] Maybe.

[00:00:48] [Dan] Why is that?

[00:00:50] [Will] Well, there are 4 cases left pending, the 2 trans sports cases, the birthright citizenship case, and the campaign finance case about McCain-Feingold. I already have this bad track record for offbeat predictions of why cases are taking a long time, so I don't want to go too far out on a limb, but it's weird. It's weird that the campaign finance case, which was argued in December, is now a last-day case because it seems like the fix was in on that case years ago. The Court's obviously going to strike down yet another campaign finance restriction. I wonder what's going on there.

[00:01:26] [Dan] Unless Roman Martinez managed to persuade his old bosses, Justices Kavanaugh and Chief Justice Roberts, to go the other way, right?

[00:01:39] [Will] Right. But what if you convince them to squeak out a DIG, maybe?

[00:01:44] [Dan] Yeah, it would be over a dissent, presumably.

[00:01:47] [Will] Presumably. Although sometimes you see— in 2012, I think we saw an end-of-term DIG with no opinion. First American Financial v. Edwards, it was the TransUnion standing issue before TransUnion, and the court was just so dumbfounded by it that after deciding it, they were like, "DIG'd." That's possible.

[00:02:08] [Dan] That would be anticlimactic, but it would give us one fewer thing to talk about, which wouldn't be entirely unwelcome given the deluge. We're going to try to record multiple times this week, and then we can dole out some cases during my— vacation. Yeah.

[00:02:25] [Will] One of my colleagues was just saying, "Why do you two not take your scheduled vacations around the Supreme Court term?

[00:02:31] [Dan] Don't you take this seriously?" Was that a serious question?

[00:02:36] [Will] It was a serious question.

[00:02:37] [Dan] I don't know. When you start paying me for this, maybe I will.

[00:02:40] [Will] No, I think it's great.

[00:02:42] [Dan] We're all working around. We've got families and stuff.

[00:02:46] [Will] Right.

[00:02:48] [Dan] Lots of constraints of which I'm glad that people like the podcast, but I'm not sure that getting one or two extra episodes in the first week or two of July is necessarily worth configuring my whole summer around.

[00:03:02] [Will] Right. We already took a vacation in the middle of June, which is even more— we just missed the opinion day. Both of us did.

[00:03:10] [Dan] We're not that behind on coverage. I feel like we're doing okay. We haven't had huge gaps. Okay. But if listeners disagree, they can tell us.

[00:03:21] [Will] Can I confess to one other thing that's been embarrassing me?

[00:03:24] [Dan] Oh, please.

[00:03:25] [Will] So our last episode we released was called Mechanical Animal after this sort of unfortunate metaphor I got myself into when you talked about— I liked it.

[00:03:37] [Dan] What was wrong with that?

[00:03:37] [Will] Well, so you talked about the originalist enterprise or the Bruen doctrine wasn't especially mechanical. And I said, "Well, it's not mechanical. It's got to be animal. And then what kind of animal is it?" And there's that French saying I can't pronounce, it's about staircase wit where you're walking, you're on the stairs after an encounter and you suddenly realize the thing you should have said. And there's got to be some equivalent of that for the podcast when you're listening to your own podcast and realize you could have said something much smarter. So obviously the opposite of mechanical is not just animal, it's organic. All organic matter is non-mechanical.

[00:04:09] [Dan] But that doesn't rhyme.

[00:04:10] [Will] Well, and organic matter differentiates into both vegetable and animal. And so then the question is, is the Constitution vegetable or animal? And if it were vegetable, it could be a living tree. And the living tree is the most famous metaphor in constitutional law. Canada's Constitution has been called a living tree. It's an example of Canada's embrace of originalism.

[00:04:27] [Dan] But you don't like— Do you like the living tree?

[00:04:30] [Will] Well, the thing is—

[00:04:32] [Dan] Isn't there a living tree on the cover of your colleague David Strauss's book, The Living Constitution?

[00:04:38] [Will] Yes. The thing is—

[00:04:41] [Dan] Which you disagree with.

[00:04:42] [Will] Well, originalists have wrongly let the living constitutionalists co-opt the living tree metaphor. Because the thing about the living tree is it has roots in the ground. Has the correct origin story, and ideally, it grows in a healthy and legitimate path from where it's supposed to be. And then every once in a while, your tree gets out of whack, and you got to prune it or move it around and make sure it's in the right place. But a good living tree is originalist.

[00:05:04] [Dan] Isn't an originalist tree a petrified tree?

[00:05:08] [Will] No, only if you don't believe in change. But originalism is a theory of legal change, Dan. It's just legal change that's lawful and grounded in the proper origin. Anyway, I missed that whole set of metaphors and it's been eating up at me.

[00:05:22] [Dan] This is why you shouldn't listen to the podcast. I mean, you shouldn't. Other people should. Yeah. That's why I don't listen to it. There's always going to be things you wish you could have said differently. I liked it because I was able to— Occasionally when we're titling them, I'll take something that wasn't a literal direct quote. I kind of took those two words. Which were from the same sentence. But I thought it made for a nice little custom image. I hope someone out there appreciates these custom images we do for each episode. I'm not sure if anybody even notices, but they give me a lot of pleasure. They're my favorite thing about doing a new episode.

[00:05:57] [Will] One of the things I'm always excited to see is what's the image going to look like.

[00:06:01] [Dan] Yeah, I was telling Will, listeners, before we started recording about this new workflow I set up where Claude will reach out to OpenAI and Gemini and produce a bunch of different candidate images for every episode title we give it and then pick one, and then we get to pick one. So I'm really looking forward to the next time we have an episode to publish, so hopefully shortly, to figure out what that looks like.

[00:06:31] [Will] But just for the record, we're still not letting Claude handle the text of the podcast. That's still us until such time as—

[00:06:37] [Dan] There is no text to the podcast.

[00:06:39] [Will] Well, I mean the words, the things we're saying.

[00:06:40] [Dan] That's true.

[00:06:41] [Will] Not written words.

[00:06:43] [Dan] This is not scripted. I mean, there are some podcasts that have scripts, and we are pretty far away from that.

[00:06:49] [Will] That's how we stay unpredictable. Okay, so on June 29th, the penultimate day of the term, the Supreme Court has given us 4 opinions, right?

[00:06:59] [Dan] Yes.

[00:07:00] [Will] Basically, it's a huge win for the liberals today. The court has 2 cases about Trump's removal of executive officials, Trump v. Cook and Trump v. Slaughter, that I assume we're going to talk about. It has a Fourth Amendment case, Chatrie, that the criminal defendant won, and an election law case, Watson v. RNC, about whether or not the federal Election Day statute preempts the counting of late or seat-of-absence ballots, where it said no in a 5-4 opinion written by Justice Barrett and dissented by 4 of the more conservative Justices. Yeah.

[00:07:38] [Dan] I mean, whether this counts as— I think that Slaughter, which we'll talk about, is obviously not a win for liberals, pretty big loss. And maybe the most important case of those?

[00:07:51] [Will] Oh, absolutely the most important case.

[00:07:53] [Dan] But you're saying that because we already knew what was going to happen and it had been sort of priced in years ago.

[00:07:58] [Will] Yeah, priced in decades ago.

[00:08:00] [Dan] Well, I don't know about that.

[00:08:03] [Will] Humphrey's Executor has been overruled for 45 years and we're only just learning it.

[00:08:06] [Dan] Well, maybe. I mean, I think it's going to change practice on the ground a little bit. I'm not sure. Yeah. I mean, I think that the— we'll talk about Chatrie, the Fourth Amendment case, and what that looks like for Fourth Amendment law going forward. Watson, I mean, obviously it has— I guess we say it's a win for liberals whenever the liberals are in the majority. There's already some chatter online about whether this reasoning will somehow end up being really bad for Democrats in future elections, for some other reason I'm just not deep enough into it to know.

[00:08:41] [Will] Because federalism is bad when it's states we don't like doing it, I think.

[00:08:46] [Dan] Yeah, maybe.

[00:08:47] [Will] I make the joke only because the last opinion day last week had 4 opinions with a similar 3-1 Monsanto in one direction, and then 3, sort of 6-3 conservative wins in the other direction. And there was some talk about how the conservatives were winning.

[00:09:02] [Dan] Monsanto was not a liberal win. It was a fractured court in both directions.

[00:09:07] [Will] Yeah, that's true.

[00:09:08] [Dan] It was 7-2 with Gorsuch, Jackson in dissent.

[00:09:12] [Will] That's true.

[00:09:14] [Dan] Yeah, I mean, it's interesting because the narratives were already forming, and having a day like that that looks like a huge win for conservatives in the penultimate week of the term, everyone starts writing their end-of-term recaps early. I think if the court was a little bit more strategic, they would've flipped the order of one of these. So that they could have had 2 conservative, 1 more surprising liberal or whatever. One just moved one of these cases back.

[00:09:50] [Will] My impression, and you feel free to tell me I'm naive, is that the court is entirely unstrategic about the timing of these cases. They just come out when they come out. It's not like they are intentionally waiting to make birthright citizenship last because you've got to. It's just the hardest decisions are the ones that are the most likely to still be going through footnote wars or whatever.

[00:10:13] [Dan] I think in the big picture, yes. I mean, I don't think they delay opinions by a whole month for strategic reasons. I do think there is some discretion at the very end. As my memory is, the Chief Justice sends out a proposed memo. He's like, "What if we do these on next Tuesday and these the following week?" And it's possible there could be some kind of institutional considerations that are brought to bear in that decision-making process. Okay. It's at least possible, right?

[00:10:43] [Will] It's possible. I don't think so, but I empirically don't think it happens.

[00:10:48] [Dan] But it does always appear that at the very end, the last day, there's usually something that— things that cut both directions. And maybe it just works out that way, but it does seem like the court—

[00:11:02] [Will] I don't know. There's that term that ended in Dobbs and Bruen. Did it end in anything else?

[00:11:06] [Dan] I don't think Dobbs came out the last day of the term that year. Okay.

[00:11:11] [Will] Because Bruen came out the last day?

[00:11:12] [Dan] Well, I think— Didn't Dobbs come out earlier? Yeah.

[00:11:17] [Will] Okay. Maybe you're right.

[00:11:19] [Dan] Oh, no. Now we've got to go check. Was that OT02?

[00:11:26] [Will] 2022, yeah. I mean, it came out, it was leaked, so I've just—

[00:11:30] [Dan] Yeah. Was that 2022? No, okay, it was OT21, right?

[00:11:37] [Will] Yes, right.

[00:11:38] [Dan] Okay. Yeah. Okay, your memory is faulty because Bruen came out June 23rd and Dobbs came out June 24th. And then there were a few more cases a few days later. So the final day was Biden v. Texas and West Virginia v. EPA. Okay.

[00:12:04] [Will] Well, that's a good example of a mixed bag, as you say.

[00:12:07] [Dan] And then the penultimate day was Oklahoma v. Castro-Huerta, which is the tribal Oklahoma jurisdiction case.

[00:12:17] [Will] Yeah.

[00:12:19] [Dan] Torres v. Texas Department of Public Safety, which is about military and immigration stuff. I've sort of forgotten that one. That one was a Breyer opinion. Yeah.

[00:12:36] [Will] Okay.

[00:12:36] [Dan] So I don't know.

[00:12:37] [Will] All right.

[00:12:38] [Dan] I mean, obviously, Dobbs and Bruen were the big marquee cases. All right.

[00:12:45] [Will] But just as a quick counterexample, in 2023, the last day cases were the two student loan cases and 303 Creative. So there's not a mixed message there.

[00:12:55] [Dan] Yeah, that's reasonable.

[00:12:58] [Will] I mean, you could count the second student loan case, which the government has a win for the other side because it was a standing decision against the plaintiffs, but it didn't matter at all because the program was enjoined by— Yeah. —by University of Nebraska.

[00:13:10] [Dan] That would be interesting empirically to see whether there is, looking at the last day or the last two days, is there some way to measure whether we see more division among ideological wins for either side than we might based on the—

[00:13:31] [Will] If you use the rest of June as a control group, so you just take every decision date in June and ask how many are uniform versus how many are mixed and then see if they're a disproportionate number in the last days.

[00:13:42] [Dan] Also controlling for date of argument and division. I mean, yeah.

[00:13:46] [Will] Well, you've seen everything, or the last week, you've seen everything the last week of June could plausibly come out at any time. Yeah. Okay.

[00:13:54] [Dan] Okay.

[00:13:55] [Will] So I assume you're going to make us talk about Slaughter before we can talk about Cook.

[00:14:00] [Dan] I mean, why do you frame it that way? I'm going to insist on it. This is some pet peeve of mine.

[00:14:07] [Will] I have nothing to say about Slaughter. I was hoping we could start with Cook.

[00:14:10] [Dan] You have nothing to say about Slaughter?

[00:14:11] [Will] That's what I said, but obviously I will say something. It's fine.

[00:14:15] [Dan] I feel like we should, right? Because Slaughter is going to give us a general rule, and then Cook is going to give us an exception to that general rule, plus a bunch of other interesting legal wrinkles. I agree that there's ultimately going to be more to say there. There's a lot of moving pieces. Yeah. But shouldn't we at least get the basic framework out? Sure.

[00:14:34] [Will] It's fine. Yeah.

[00:14:34] [Dan] You've been sort of saying nothing to see here for quite some time. Yes.

[00:14:38] [Will] I think when we talked about— For like a year. Yeah.

[00:14:42] [Dan] When we talked about some of the times this has come up on the shadow docket, I think it was Wilcox, you were just like this— That's the one where the court functionally sort of practically overruled Humphrey's Executor via the shadow docket, and then it came back up in Slaughter, right, on the shadow docket. Right. I think all along, you were just sort of like, "Eh, this has been coming." "Totally fine. This has been briefed over the years.

[00:15:08] [Will] Totally fine to do all this in the shadow docket." Yeah, there's this phrase from Heidegger, "always already," to describe the human experience. And I guess my view is that Humphrey's Executor has always already been overruled, Dan.

[00:15:21] [Dan] I didn't think of you as a continental philosopher. I'm definitely not. Yeah. I read Being and Time once.

[00:15:33] [Will] Your way out of me.

[00:15:33] [Dan] Yeah, I took literally nothing away from it. There's this period in my early 20s when I was trying to work through a bunch of these dense texts. And I think I've gained nothing intellectually, at least I retain nothing intellectually from any of these projects. I read the entire Critique of Pure Reason. I think maybe there's a sentence worth of content I have left from that.

[00:15:56] [Will] My freshman year of college, one of the best things that happened to me was I read A.J. Ayer's Language, Truth, and Logic.

[00:16:00] [Dan] That's a classic.

[00:16:01] [Will] That's short. A short foundation of analytic philosophy, and it convinced me there were sound intellectual reasons to never read continental philosophy, and so I never have. Mm-hmm.

[00:16:12] [Dan] Mm-hmm. I mean, Kant isn't continental philosophy though.

[00:16:15] [Will] Well, Kant counts. As what? Bad. Hume over Kant.

[00:16:21] [Dan] I mean, he's still important. I mean, he's before the branching off into continental philosophy, but you know. I think that's a defensible position. So you're a non-Kantian?

[00:16:33] [Will] Yes, I'm a Humean. Yeah, that's fine.

[00:16:38] [Dan] But you still have to grapple with them. I think you don't really have to grapple with Heidegger. You can just treat all that as after this division where it just doesn't— for the kind of legal theory you and I might be involved in, it just doesn't really matter.

[00:16:51] [Will] In my middle age, I have come to believe there is a non-zero amount of wisdom in Kant. In my youth, I thought it was zero. Okay.

[00:17:02] [Dan] I'm sure when I teach criminal law, we talk about deontology and Kant. You don't have to agree with them, but it's a data point to talk about.

[00:17:12] [Will] I've never taught Kant in constitutional law. No, that's not true, actually. We do talk about the categorical imperative in conflict of laws in Maryland v. Wynne and the dormant commerce clause's application to taxation. We talk about Kant.

[00:17:24] [Dan] There you go. So there you go.

[00:17:26] [Will] Take it back. Okay.

[00:17:27] [Dan] Okay. So yeah, we are only going to talk about the removal cases. So back to Slaughter, and we'll get to more later in the week.

[00:17:36] [Will] Okay. The question in these cases is whether the President, under his executive power in Article II, can fire a commissioner of the FTC or of the Federal Reserve Board, notwithstanding the statutes that say that they have to be removed only for cause. In one of them, the answer is yes, and the other one, the answer is no. Yes. Okay.

[00:17:59] [Dan] So as you said, Slaughter, these issues have been thoroughly discussed and presaged by past opinions, but what is the basic idea here? Is this fair to say this is something that originalists and folks in your camp and conservatives have wanted for a very long time? Sure.

[00:18:24] [Will] Hasn't everybody wanted this, Dan? No.

[00:18:27] [Dan] Some people like independent agencies.

[00:18:30] [Will] Well, who? Okay. I like them okay, yeah. In the New Deal, the Supreme Court decided this case, Humphrey's Executor, that said there are some agencies that are quasi-executive, quasi-legislative, and quasi-judicial, and because they are only quasi-executive, they only need to be quasi-answerable to the executive. And so Congress is allowed to give them some kind of independence for removal, such as a rule that they can only be removed for cause. At some point, this doctrine has come under some pressure. My impression of it is that it was roughly in the start of the Reagan presidency, which you could call the beginning of the conservative legal movement or whatever, but starting roughly then. So by late in the Reagan presidency, we get Justice Scalia's dissent in Morrison v. Olson. Mm-hmm. Which is one of the founding texts for skepticism of this kind of independence and in favor of the unitary executive.

[00:19:26] [Dan] Maybe or maybe not chanted at Federalist Society meetings. There's a factual dispute about that we discussed in a prior episode. Yeah.

[00:19:33] [Will] I'm going to put one on or something for the— maybe now actually. For chanting? Today. I feel like today there should be Federalist Society chapters across the country chanting the Morrison v. Olson dissent. I hope they are. I guess they're all probably distributed to their summer jobs. And then that skepticism grows even more, especially once the Roberts Court starts. I think starting with PCAOB versus Free Enterprise Fund in 2010, made even stronger in Seila Law in 2020, Collins versus Yellen.

[00:20:04] [Dan] PCAOB was about two layers of for-cause removal. Yes. Right? The Public Company Accounting Oversight Board, that was a regime set up by Sarbanes-Oxley. Right. Which you had this board that was removal only for cause that was appointed by, gosh, was it the SEC?

[00:20:28] [Will] The SEC, which people assumed was removal only for cause even though the statute doesn't say that.

[00:20:32] [Dan] Yeah, it doesn't say that, which was weird.

[00:20:34] [Will] Then Seila Law had, well, what if it's one layer of for-cause removal, but it's not a multi-member agency, it's a single-member agency? And the court said, oh yeah, Humphrey's Executor doesn't apply to single-member agencies.

[00:20:45] [Dan] Yeah, for reasons that don't totally make sense.

[00:20:48] [Will] If you wanted to get really functionalist about it, they cooked up a just fine functionalist explanation that nobody really believed. Collins v. Yellen said so again. And then we get these cases. But in a way, also, Morrison v. Olson, which was a case that upheld the independent prosecutor, sort of already began the death of Humphrey's Executor because Morrison v. Olson was dealing with a prosecutor who's very executive. So if you're just applying the quasi-executive, quasi-legislative test, you'd say, "Oh boy, the prosecutor doesn't seem quasi-executive, they seem executive-executive." And so it had to do a kind of reframe of the whole doctrine and turned Humphrey's Executor v. United States into a rule that, well, you can have some insulation from executive power as long as it's not too much, as long as the executive still has enough executive power to supervise things enough. And even Morrison v. Olson talks about this, relevant to the other case, that for cause can't be a super demanding standard because if it were, then it might stop the president from removing people he wants to remove. Yeah. Justice Scalia says in his dissent in Morrison v. Olson, this is a totally dishonest reading of Humphrey's Executor, but it's hard to get too upset about it because Humphrey's Executor was bad. I think it produces the line, "He who lives by the ipse dixit dies by the ipse dixit." So I would say since at least 1987, the reasoning of Humphrey's Executor has not been endorsed in the Supreme Court. That's fair.

[00:22:12] [Dan] Although the fact of independent agencies has been assumed and believed in. The thing that's interesting about this is that I feel like you're right that there's always been some uncertainty about how durable is this really? Does this really hold up if the issue is really pressed? But there's been residual uncertainty about that. And so it's encouraged people to not force the issue? It could be.

[00:22:46] [Will] I mean, the other thing in this period is it's not like presidents have been trying to remove people anyway.

[00:22:50] [Dan] Well, that's sort of what I mean.

[00:22:52] [Will] Although I'm not sure whether that's because of— I'm not sure why exactly. Even under a for-cause scheme, for instance, I think nothing since Morrison v. Olson would've stopped any president from saying, "This person—" Stop President Biden from saying, "This guy on the FTC believes in markets." "I don't. I need to remove him because he is obstructing the proper execution of the laws." Maybe, and nobody tested it. So how much that's fear of litigation, how much that's just conventions of independence is unclear to me.

[00:23:29] [Dan] Yeah. I think that's truly right. I mean, also it struck me as not really necessary because the way these things usually work, Seila Law scheme obviously different, is you have these multi-member commissions and the president who's in power, his party gets a majority. Right. So it's sort of like, well, what's the big deal? Just leave the Democrats on there and they can write dissents. I mean, in some ways, it has a legitimating function to have the other party's appointees. Now, if you want to deny the agency a quorum, that's different, but if you want the agency to pursue— if you're the president and you have the ability to appoint your own people, let's assume you have the Senate. It's obviously more complicated if the Senate is held in the other party's hands, but then I don't know, you get a majority. What's the big deal? Right.

[00:24:25] [Will] Right. So that's where I'm genuinely uncertain what the effect of this will be. It's possible that the decision itself will now move the equilibrium, so it becomes common for the executive to get rid of everybody in the independent agencies they don't like. It's possible that even though they could have done that before in various ways, this just shifts the norm in some way that causes that to happen, like many post-Trump norm shifts. But it's just not clear to me this actually affects the functioning of the independent agencies that much.

[00:24:53] [Dan] Yeah, we'll see. I don't know. We're recording this late afternoon on Monday. Has there been any news? I certainly haven't seen any about the Trump administration relying on this to now fire more people?

[00:25:07] [Will] I haven't seen it, because I was sort of wondering.

[00:25:13] [Dan] Yeah, I don't see anything, but we'll see what happens later in the week, right?

[00:25:18] [Will] And certainly I don't mean to rule out the possibility of a new— yeah, new round of firings various places. Okay, so what do you want to say about this opinion, Dan?

[00:25:29] [Dan] Well, should we just, you know, very briefly work people through it, the basics, right? We've got an opinion by Chief Justice Roberts. He always takes cases like this, right? The really big structural separation of powers cases, right? Most of the time.

[00:25:46] [Will] Let's see. I mean, he took PCAOB. He took Seila Law. My memory is that he did not take Collins v. Yellen, the Seila Law sequel.

[00:25:56] [Dan] Yeah.

[00:25:56] [Will] Which maybe wasn't big.

[00:25:59] [Dan] Yeah, I certainly feel like it's not as big, but maybe that's because he didn't take it.

[00:26:03] [Will] They're big when he takes them, Dan.

[00:26:09] [Dan] But I think that was not going to be a surprise that he was going to take these. I think nobody was surprised by that. So joined by other conservatives, except for a small slice of it that Justice Thomas doesn't join, but it's got a minimum of 5 votes for the entire thing. So this is all opinion of the court. So predictably, dissent by Justice Sotomayor, joined by Justices Kagan and Jackson. So this is your classic 6-3 conservative-liberal marquee case. Yeah.

[00:26:41] [Will] Although you say predictably, are you surprised it's not a Kagan dissent? I feel like this is one of her core issues.

[00:26:48] [Dan] Yeah, it did seem like the kind of one that she would want to write. So that is a good question. I was wondering about that because she did write the dissent in Seila Law.

[00:27:02] [Will] I guess on the seniority principle, does this apply that Justice Sotomayor is the senior-most Justice in dissent by a year? Yeah. So maybe Justice Sotomayor gets to assign the dissent.

[00:27:13] [Dan] Yeah, she may have just said she really wanted it. Right.

[00:27:17] [Will] And then only one separate opinion, a concurrence by Justice Gorsuch and nothing else. So pretty clean.

[00:27:23] [Dan] Which I think is the most interesting thing about it, which we'll talk about. Yeah.

[00:27:28] [Will] The concurrence or the lack of concurrence? The concurrence.

[00:27:30] [Dan] Yeah. Okay. Not the fact of it, but the actual text substance of the concurrence. Yeah. So yeah, both of these opinions, majority and dissent, spend a lot of time going over the history and the so-called decision of 1789, where it was politically resolved that the president did have the power to fire appointees without the consent of the Senate.

[00:27:55] [Will] Well, was it?

[00:27:57] [Dan] Well, I mean, I think that the firing power was resolved, but not— there's a debate in the case about whether that also resolved the question about whether restrictions on that power would be permissible. Is that fair? Yeah.

[00:28:16] [Will] My view, which is not the view the court puts forward, is that there were 4 camps, 2 of which were rejected. One of which is like, "Is impeachment the only option?" Textually, actually the most logical answer, but obviously wrong.

[00:28:30] [Dan] Or do you need advice and consent by the Senate or something to fire?

[00:28:34] [Will] Yeah, because do you have to go out the way you went in? Yeah.

[00:28:38] [Dan] Those are both rejected for sure.

[00:28:40] [Will] Those are both rejected because the statute setting up the First Cabinet Agency says they can be removed when the president wants to remove them. Yeah. The phrasing many people think was a compromise to allow both the Congress decides people, like the Congress can decide by statute people and the president people could both be happy with that because Congress decided by statute to go to the president. Yeah. There are some things about the wording that tilt a little towards the presidential view, and there's a Sai Prakash article where he tries to go through and count noses and figure out if there really was a consensus. But yeah, the first view is in the presidential direction, and over time, the decision comes to be seen as standing for the proposition that the president has the power and it's up to him.

[00:29:22] [Dan] Yeah.

[00:29:23] [Will] There's some interesting stuff about that in the majority too.

[00:29:24] [Dan] But does not clearly resolve the question here, right? I mean, the opinion is written as if it is totally clear over the long run of history that Congress can't limit presidential removal power, and yes, we maybe got a little bit wacky in the middle of the 20th century. But everybody, that was kind of an aberration and it's been clear for a while that that's not really right. Is that fair?

[00:29:50] [Will] I mean, that's in the majority's story. And I think any one piece of it doesn't necessarily line up with that story, but I do think over time that is the conventional wisdom that emerges. And that's why when the Supreme Court finally decides this case for the first time in 1926 in Myers, that's sort of why the core lands there. But yes, we could fight about the history a lot. There's a whole cottage industry of originalism and counter-originalism about who has the better view of this and what about the sinking fund and what about the control of the currency.

[00:30:21] [Dan] And that's been, I feel like, a pretty heated debate. Yes. Across ideological divides.

[00:30:28] [Will] One of the things that I've gotten into the most trouble for in the past year was in one of these not on the podcast, but on one of these other things, I think I said that there were good arguments on both sides. And another law professor called me and was like, "Will, you usually have a reputation for being an honest broker, but I think you've just created your reputation here. You've really got to retract that." Just the claim that there were good arguments on both sides was enough to make me seem like a witless hack. That wasn't me, right, that said that? No, it's not. Yeah.

[00:31:04] [Dan] I would've denied that you had that reputation to begin with, right? Just to mess with you. You know I'm incorrigible.

[00:31:11] [Will] Yeah. Yeah, I know. And allegations of scholarly perfidy and all this, yeah, there's been a lot in this area, maybe out of proportion too.

[00:31:22] [Dan] And so this will end that. This will end the debate, right? It's over now. Everyone's going to go along and accept the resolution and conclude that one side was right.

[00:31:34] [Will] Well, you're joking. But here's one interesting question. There's been a huge supply of purportedly originalist articles by people claiming on the other side, all the articles that Justice Sotomayor cites in her dissent, many of which are quite good. And I guess my question is, do you predict the supply of those articles to dry up now? There's some people who are kind of like, this is what they do, I guess. Yeah. But were those articles being written in part because the issue had not been conclusively resolved by the court and people were hoping— I don't know. That was a reason to write about them?

[00:32:07] [Dan] I think that there's more impetus to write them when the issue hasn't been resolved. I don't think that you have to say that they're writing them to influence the court, but when there's an open question, it's more worth writing about.

[00:32:18] [Will] Why is that? The originalist question is just as open now as it was yesterday, because the court doesn't resolve the truth.

[00:32:28] [Dan] Yeah, that's true, but I guess it seems more like this is an issue that will get a lot of attention in the short term, and so it's great to be part of that conversation, rather than you could pick anything the court has decided and say, "The court was wrong about this," but maybe that seems less pressing, less exciting.

[00:32:49] [Will] This is why I went up the influence thing. One option would be to pick the things the Supreme Court has just said and figure out whether they're true and then tell people. Another option is to pick things the Supreme Court hasn't said yet and try to say what it should say. The obvious reason to do this, the first, is actually like, now we know what the Supreme Court thinks and we have arguments we can respond to. And we're sure it's important because the court's just said it. But the argument for the other one is maybe you're going to influence the court. I'm not sure how people decide which one to write about.

[00:33:19] [Dan] Well, there will be another round of scholarship about this decision, surely. But then the debate may move elsewhere. It may move to the implications of the decision. Of civil service, what are the other possible limitations and carve-outs, which is something that this opinion leaves open. So the part that Justice Thomas does not join, so this is I think 3B. Yeah. Says, "Because the FTC's activities fall well within the heartland of executive power, we have no occasion today to define the bounds of what such power entails." "As our Presidents recognize, not all offices created by Congress necessarily come with executive or even sovereign power attached," and mentions Boy Scouts of America, Society of American Florists, and Ornamental Horticulturalists. I guess these are congressionally chartered organizations. Mm-hmm. The court says very clearly— Georgetown University. Yeah, I had no idea. Also notes that they're leaving open questions about removability limitations for judges of non-Article III courts, so the Tax Court, Court of Federal Claims. That's still preserved. Yep. Obviously, the court says in the next case we'll talk about that the Fed is an exception to this too.

[00:34:49] [Will] Right, which I assume is why Justice Thomas doesn't join it, is because that part is the basis of the statute. Yeah.

[00:34:54] [Dan] He may disagree that there should be other carve-outs as well.

[00:34:57] [Will] Right. No, I'm curious when Justice Thomas writes a dissent from denial in 3 years about the removal of Eduardo Penalver and Liz McGill from their posts at Georgetown. That would be funny. Sorry. They're both friends. I don't mean to—

[00:35:12] [Dan] You're not trying to encourage that, I hope.

[00:35:15] [Will] Well, they're safe.

[00:35:18] [Dan] They're clearly safe. I hope so. All right. So there's that big historical debate. Both sides, majority and the dissent, really try to paint the history in the best light for them. Mm-hmm. I don't have a ton to say about that debate. If people are really interested in it, they can go read the secondary literature or the primary sources themselves. I find the questions about prudential discretion and stare decisis maybe a little bit more compelling, which is, is there something to be said for maybe almost leaving this question a little bit unresolved? I think we've had a political equilibrium on these issues that has been somewhat stable for a while. Yeah. Doesn't strike me as that bad, because the one of the themes of the majority and of some of these other cases is basically, "Oh, these removal restrictions are bad because they deprive the president and the American people of the opportunity to influence policy." But I mean, I don't think that's really been true of independent agencies under the regime under which most of them work, where there's, like I said, there's a majority appointed by the president. Yeah. Right.

[00:36:44] [Will] And that's where the question becomes, does that mean this case was already meaningless and we haven't done anything to it? And maybe another example of the phenomenon you described is like Rucho, right? One might have said for the decades leading up to Rucho, political gerrymandering is already constitutional. Everybody does it, and the court has had many opportunities to stop it and has never taken the opportunity. And nonetheless, in hindsight, it does seem like saying definitively, okay, "Game on, do whatever you want," did dramatically change practice.

[00:37:14] [Dan] This is unfortunate because I've had for weeks a half-written blog post for the blog about this that sort of uses that example and how you've seized it.

[00:37:23] [Will] Well, you can also do Edwards v. Illinois and the ATS case to bring them all together.

[00:37:30] [Dan] Oh, okay. Those are good. Yeah. The other thing that's maybe a tiny bit irritating about this is part of the reason the court explains why it's so necessary to overrule Humphrey's Executor, is that its precedent has left it in tatters. And some of the main exhibits in that case are decisions written by Chief Justice Roberts. Yes. It's like, "Look at our precedent that I wrote." Well, this is one of my favorite— Where I tried to draw these distinctions, and those distinctions obviously don't work.

[00:38:06] [Will] This is one of my favorite and least favorite things about the workability component of stare decisis, because this used to come up a lot in the abortion cases too. It's like, does Roe v. Wade establish a workable rule? And then Justice Scalia would always say, no, look at all these decisions narrowing Roe. And I think that actually there is a deep truth there, which is like, yeah, if the court really doesn't want a precedent to be workable, it will make it unworkable and then overrule it. And there is a way— I mean, to be clear, Brown v. Board of Education does the same thing. Brown says, Plessy's proved unworkable because look at all these cases we decided. Under the auspices of the NAACP eroding it. So it's just true that's a way the court overrules precedent. Yeah. But it's funny when the court then describes it as if the unworkability is not coming from inside the house.

[00:38:53] [Dan] Yeah. I mean, it maybe is more justified when the unworkability happens over many decades, including with a bunch of people who are not on the court anymore. But when it's the same Justice citing his own opinions, it seems a little bit rich to me. Yeah.

[00:39:12] [Will] But I mean, again, maybe a better way to say this is just like, "We have already overruled everything that made sense about this opinion, and all we're left with is the parts that don't make sense." Yeah.

[00:39:22] [Dan] But it kind of paints it as our hands are totally tied here. Right. Even though those other cases were like, "Oh, we're not doing that, of course." It's a way you can sort of basically at no point does the court actually take responsibility. It's like at time one, it's like, "Okay, no, no, we're not overruling it. We're just cabining it, or we're just not extending it to this new situation where it's two layers." Then you get to time two, and they're like, "Oh, well, we kind of already dealt with this, right? Of course we can't. We didn't leave it standing with those other decisions." I agree.

[00:40:00] [Will] I just think this is— Justices do this a lot.

[00:40:04] [Dan] Fair enough. Then the only other thing that's worth talking about, I think, is the Gorsuch concurrence, which is kind of interesting. It also has a little bit of the "this is rich" kind of flavor to it because he's like, "Look, we just got rid of for-cause removal protections for independent agencies, and that's going to have all these dramatic consequences. It's going to create this administrative state under the control of the president that Congress didn't intend." So because we did that, we have to do a bunch of other stuff, basically, like follow a bunch of doctrines down a rabbit hole that would change the administrative state even further. So he wants to bring back non-delegation, right? Yes. In a major way. So significantly limit— Yes. Substantially limit the power of administrative agencies now fully under presidential control, whether they're formally independent agencies or not. He wants to bulk up the Seventh Amendment as the court did in Jarkesy. Anything else?

[00:41:15] [Will] So I'm curious what you think. The concluding paragraph has a little bit of this distinctive Gorsuch style. "From here, the only sure path is to finish the journey we start today and restore legislative and judicial powers to where they belong, in Congress and the courts. We have tolerated adventurous theories long enough. It is time to return all the way to the Constitution."

[00:41:38] [Dan] I don't have any objection to that.

[00:41:41] [Will] Yeah. I kind of like this opinion. I actually thought of all of the radical separation of powers Gorsuch opinions, which I feel like start maybe with the Gundy dissent on nondelegation and have had many other variations, this and the Loper Bright concurrence, just my favorite. I thought the way it delves into the sort of construction of the administrative state under Woodrow Wilson and talks about the moving parts. I just thought it was well done.

[00:42:09] [Dan] I haven't had a lot of criticisms of Justice Gorsuch's writing style in quite some time. I found his first opinion a little tedious, but he's had some good lines. I do find his tone a little bit annoying sometimes, like his tone in Learning Resources v. Trump, the tariffs case. He comes off as just such a know-it-all and kind of snide, which is not my favorite. I think some of the others do a better job tonally. Justice Gorsuch, I mean, clearly is somebody— One theme in his jurisprudence is I think he really doesn't care what other people think. I wish that didn't come across quite so clearly in some of his writing. I think it's great.

[00:42:52] [Will] I think he reminds me a lot of Justice Douglas.

[00:42:54] [Dan] In style? Perhaps not in substance.

[00:43:00] [Will] Well, some ways in. I mean, just the whole thing. All right.

[00:43:06] [Dan] So I want to talk about Cook. You want to talk about Cook. Yeah. We have finite amounts of time, so let's talk about Cook. All right. So we've got a general rule. President gets to remove people, no for-cause restrictions. Those are unconstitutional. Yes. So we have another case presenting basically that same fact pattern. Yes. And yet it's going to come out differently. Okay.

[00:43:28] [Will] Well, so Cook is different in a couple of ways. So one— It's procedurally different. Cook is procedurally different. It is formally a case on the interim docket. The court did not grant cert. The President ordered Lisa Cook removed on the basis of some allegations about misstatements in her mortgage application. The district court, the lower courts disagreed and enjoined that, gave a preliminary injunction against the removal. And so Trump filed a request for a stay of the injunction from the Supreme Court back in December, I think, maybe longer ago. And the Supreme Court deferred it and set it for oral argument. So this is formally just a ruling on a stay request. Yeah.

[00:44:12] [Dan] But I mean, it got the same amount of consideration as a true merits case. Yes.

[00:44:17] [Will] Although, well, we know from Mullin v. Doe, a case we're going to talk about later that different legal principles apply to such cases. Yes, fair. Yeah. And it's also different. So in that briefing, the Solicitor General actually never questioned the constitutionality of the tenure protections of the Federal Reserve.

[00:44:37] [Dan] Taking a lead from an earlier shadow docket decision in Wilcox.

[00:44:41] [Will] The questions presented to the court by the parties were assuming that Lisa Cook does have for-cause removal protection, unlike Rebecca Slaughter, has cause been proven here and has there been enough process? And so the question was sort of, is what she's accused of enough to constitute cause and has there been enough of a hearing about that? Now the court decides to also answer the big constitutional question.

[00:45:03] [Dan] Yeah.

[00:45:04] [Will] One of the most interesting things about the opinion, but it came to the court as sort of more of a follow-on and indeed an argument that Justice Kavanaugh, who's in the majority, but an argument that Justice Kavanaugh proposed what sounded like a one-paragraph opinion, which they could just say. Process required, process not received, denied. Yeah. Yeah.

[00:45:23] [Dan] And so they go in totally the other direction, right? They write something quite maximalist that just settles these questions. It doesn't answer the question about was this okay here under these facts? Yeah. But it settles the constitutional question, says that she has a cause of action, and so the only thing left is to figure out what specifically kind of process she's entitled to and whether the President has made the requisite showing to satisfy.

[00:45:53] [Will] Well, I think it's clear that she hasn't had enough process yet. I think the President basically has to try again.

[00:45:58] [Dan] Yeah. But just how much more does she get?

[00:46:00] [Will] Yeah. Right. So I will say, as I started reading this opinion, it has several pages of— I mean, it begins with the Bank of North America before the establishment of the Constitution. And then you go through and you get Hamilton. You get Jackson's response to the bank, and you get a footnote about how Jackson had an advisor, Jay Hamilton, who was Alexander's fourth child and who was also an accomplished yachtsman, a last-minute addition to the crew that won the first America's Cup, who later came to regret his support of Jackson. At about this point, I was like, "What are we doing?" I was sort of enjoying this tour through our history, but I was like, "Why is this even here?" The Chief Justice does this a lot, right?

[00:46:44] [Dan] I mean, he sort of did that in Slaughter.

[00:46:46] [Will] Well, but in Slaughter, I understood what the history was for. Here was before I realized quite what the court was going to be doing with the merits of the Federal Reserve. So the history is there for a reason.

[00:46:55] [Dan] Wasn't it clear though? I mean, hadn't the court already kind of tipped its hand to say maybe there's unique history here and that's why the Fed is different?

[00:47:03] [Will] Well, yeah, but again, here's how I thought that independence of the Federal Reserve was going to work. I thought this was an incredible piece of sleight of hand by the court. I thought the way it was going to work was in two previous footnotes, the court said the Fed might be different for reasons, for history. Yeah. And that was sufficiently strong to scare the Trump administration away from even questioning the Fed, because they don't really want to question the Fed, and it's clear the court's not going to say it's independent. And thus, the court would never have to actually explain why the Fed is independent, because they hinted it strongly enough that nobody ever questioned it, and thus the court never have to answer it. And that satisfies both the pragmatic and formal account. This is the way legal tender survives, right? Everybody knows legal tender will survive, thus nobody questions legal tender, thus the court never has to figure out what a enumerated power is, what's legal tender.

[00:47:48] [Dan] And so they could have done that here, right? They could have just said it wasn't argued, and so let's just do the statutory question.

[00:47:54] [Will] It worked, and then they decided not to do it anyway. Now, Justice Thomas questions it, because Justice Thomas's dissent takes on the constitutional question. And that does, I think, arguably put the question in play, depending on what you think about the party presentation principle. If there's a principle that's not debated by the parties, but is questioned by the dissent, it's sort of fair game for the majority to respond.

[00:48:14] [Dan] Yeah. Although we don't know when drafting was happening, who went first, right?

[00:48:20] [Will] No, although the opinion is structured as if— Yeah. Now again, I think they seem to be happy to have it happen. They and Justice Kavanaugh write separately to say, like, it's good that we do this, and they have reasons for doing it. But it is— they didn't have to do it. Now having done it, they have to come up with a reason the Fed is different. Yeah. History. Yeah. So I mean, there is history about the bank. Which is not the Fed, just for the record. Right.

[00:48:51] [Dan] The Fed is neither the first nor second bank of the United States. In fact, those banks have been defunct for nearly a century.

[00:49:00] [Will] I guess it's now the third bank of the United States. Yeah. And there is a theory, which I don't think the majority ever cites, by Aditya Bamzai and Aaron Nielson, "Article II and the Federal Reserve," that's kind of a leading quasi-defense of Federal Reserve independence that concludes that most of the Federal Reserve's monetary functions are things that you could vest independently from the president. Mm-hmm. Because those are enough like the core thing that the banks could do. I said this at lunch. It drove several of my colleagues crazy because they're like, "What the Bank of the United States did is totally different from what the Federal Reserve did." There are various arguments whether they really even are the same kind of monetary policy, but you could at least put it in a box called monetary policy that's not executive power. Now, the actual Fed also has a bunch of regulatory power. And the dissent points this out. So to explain how to say the actual Fed is complicated, and the Bamzai-Nielson article says, "Well, yeah, the actual Fed is partly unconstitutional." All we're saying is you could, if you tried, restructure the Fed to make it okay. Make some of its functions okay. So I'd always sort of thought, boy, if they ever get to the Fed, it's going to be complicated. You'd have to cook up a weird severability theory and get rid of the regulatory functions or something. But they just didn't do anything. They just— They just say it's different. Okay.

[00:50:25] [Dan] So there's so many things the court has to decide to get here, or at least chose to decide to get here. Let's try to go through them. So one, the court has to decide whether this is the president's determination of cause, whether that's reviewable at all.

[00:50:42] [Will] Yes, and they say it is.

[00:50:44] [Dan] It's reviewable. The court says, "Look at the statute. It's not committed to the president." Right? Okay. Yeah. And then we have to figure out what cause means. Yep. Right? And the parties, the government says incredibly low. Cook says it's incredibly high and the court sort of says— takes a Goldilocks approach. It says, "They're both wrong. It's something in between. We're going to look to the common law to determine cause. We're going to treat that as a kind of term of art." Yeah. And then we're going to tell you not what it means. We're going to just tell you it doesn't mean the other two. Well, I think— They say, "We need not fully demarcate." It is sufficient to observe that any definition of cause in this context must reflect the Federal Reserve's unique historical status and role. Right.

[00:51:39] [Will] And they say, "This requires a substantial threshold for cause, and the key issue is whether the cause assigned truly implies an unfitness for the place or whether it simply represents an effort to secure a more congenial replacement." I guess the way I'd say it is, Cook pushed for almost a technical term of art— that there were these technical terms of art about malfeasance, inefficiency, neglect, plus maybe committing a bank crime. And the Court says it's not a term of art. It's a broader term than that. But it still is— the point is cause is not just like, "I don't like you. I wish you were doing the job differently." It's like you've got to show unfitness for the place.

[00:52:17] [Dan] Yeah. And it's interesting because the Court says, "Well, we've got to look to the common law to define this." Yeah. But then it turns out that the definition is Fed-specific?

[00:52:26] [Will] Kind of. Right?

[00:52:30] [Dan] I mean, the definition has to reflect the Federal Reserve's unique historical status and role?

[00:52:35] [Will] Right. But that's because the common law rule is cause has to keep in mind the purpose of the office.

[00:52:40] [Dan] Yeah, yeah, yeah. Fair.

[00:52:42] [Will] And so the court says, without these constraints, any perceived or alleged misstep, past or present, could provide a ready pretext for governor's removal— a fact that he would truly know and that would surely weigh on him as he decided what to say and how to vote. Nothing could be more corrosive of the independence that Congress sought to preserve. So I think this is hotter than Goldilocks, but— Okay. Then the equity question. Yeah.

[00:53:04] [Dan] Do courts have the power to block this removal or reinstate the person? Mm-hmm.

[00:53:11] [Will] The court says yes, relying in part on Sam Bray, Remedies in the Officer Removal Cases. Published in record time by the Journal of Legal Analysis.

[00:53:20] [Dan] Of which you're an editor, right?

[00:53:23] [Will] Of which I'm an editor. Happy to say I helped facilitate the acceptance of that piece. That's great.

[00:53:29] [Dan] Is that the first Supreme Court citation for that journal? That is a good question.

[00:53:32] [Will] I don't know the answer. Quite possibly. And it is tricky because there were all these old cases about equity not intervening in trial to office, and Sam says, no, it's mostly about The point is that quo warranto or mandamus were the right legal remedies, but equity could intervene to protect the de facto officer at the time. Then there's a kind of related equity question. I think it's very important. The court deals with in footnote 2. Footnote 2. You'll surely teach in fed courts next year. Mm-hmm. Because Justice Thomas says, well, there's no private right of action. What about private rights of action? And the court says, I don't know. No, that's not a problem because we've often held that plaintiffs can sue in equity without a congressionally provided cause of action to prevent an injurious act by a public officer. And here it cites Armstrong v. Exceptional Child Center and the latest edition of Hart and Wechsler. That's not wrong, but whether that is what Ex parte Young says is one of these great ambiguities. And just last term in Trump v. CASA, the court said some stuff about Ex parte Young. That caused a lot of people to wonder if it had a much different and narrower view. And why Ex parte Young creates just like an all-purpose federal cause of action to stop things by federal officers when on the Bivens side, we like never create causes of action for damages. It's like one of these great mysteries. So here the court is like once again picked up the— Yeah. The Ex parte Young end of the stick. Yeah.

[00:55:07] [Dan] And actually— I think it's a hard question, right? Because I remember puzzling over this as a young law student taking fed courts, and I remember coming across, and I saved it. It was so helpful to me, I saved it, and it's no longer on the internet as far as I can tell, because blogs are not. I think maybe it was on TypePad, which has now gone defunct, but it was a post on— the Con Law blog that was a post of an email that Doug Laycock sent to the listserv. And sort of explaining that Ex parte Young is about sovereign immunity and it's separate from the question of does the plaintiff have a cause of action.

[00:55:58] [Will] I don't know if I agree with that. But I mean, Ex parte Young is about sovereign immunity, and that is a separate question from the plaintiff as a cause of action. But I think Ex parte Young is also about if there's a cause of action, although at the time, equity didn't care about causes of action.

[00:56:14] [Dan] Do you think there is an Ex parte Young cause of action? You agree with this?

[00:56:19] [Will] I think that question is so impossible to answer. No, it's more like in Free Enterprise Fund, the two levels of removal case, there's a similar footnote. Footnote in Free Enterprise Fund, the SG said, "Why is there a private right of action here?" And the court drops an almost identical footnote, except without the Armstrong citation, because Armstrong hadn't been decided yet. It was like, "What are you talking about? We do this all the time." Yeah. Surely aware that actually it's a hard question. Then you get to Armstrong, where Justice Scalia really explicitly adopts this very broad view of Ex parte Young. It's just like, in equity, there's always a cause of action against unlawful executive action. It's the way it's always been. That's not obviously correct about Ex parte Young or equity, but he says that. And then for 10 years, people cite that and then other people say, "Well, it can't really mean that. There's got to be an exception. What about this?" And also, all along, there have been two different views of Ex parte Young. One is Ex parte Young created a new constitutional cause of action as a response to the rising constitutional litigation and the need to create one to get around Hans v. Louisiana. And the other, which is like John Harrison, is no, no, Ex parte Young is nothing new. This was always just like a growth out of the anti-suit injunction that always been part of equity. And so there's always been a kind of like—

[00:57:36] [Dan] Which is what CASA seemed to endorse. Yes.

[00:57:38] [Will] CASA seems to endorse the Harrison view, which would seem to be inconsistent with the Trump v. Cook view. Trump v. Cook now re-endorses the Armstrong view, which seems to be inconsistent with the Harrison view. And all these happen without quite explicitly taking this position without acknowledging the other. So I love that while the court is willing to overrule a 90-year-old precedent in Humphrey's Executor and ipse dixit a Federal Reserve carve-out to save the bond markets, Ex parte Young just escapes the court's grasp.

[00:58:08] [Dan] I mean, it is in the footnote, right? But yet there is a lot more to say. It's there.

[00:58:15] [Will] It's not obvious why they think this. I mean, it's tremendously important, even more clearly important now. Okay.

[00:58:25] [Dan] So either that will be very generative and cited a ton, or the court will flip-flop on it later and not cite this. Yeah.

[00:58:32] [Will] But even making clear that CASA did not sound the death knell for the broad jurisprudence of Young is already enough, even if all it does is maintain the duality ambiguity again for a while.

[00:58:41] [Dan] Yeah. Okay. So having rejected, done those things, which all seem— They say, the Court says, "Having rejected the government's view that the courts are to play no role in assessing the validity of a governor's removal, we may decide this application on narrow grounds," which I think is not accurate. For reasons we've discussed and will discuss. The purportedly narrow grounds are that we're not going to totally give you definition of cause. We're not going to totally tell you the scope of review of cause. And we're not going to totally tell you exactly what procedure is required, but basically there wasn't enough procedure here. She wasn't clearly told what she supposedly did. A post on Truth Social is not adequate. Yeah. She wasn't given an opportunity to respond and a fixed deadline, et cetera, et cetera. Yes.

[00:59:40] [Will] They rely partly on a friendly, some kind of a hearing about the minimum requirements. At a minimum, she's entitled to some explanation of the evidence, some avenue for a response, and a deadline by which a response would be due.

[00:59:53] [Dan] We still don't know for certain what would happen after that and what quantum of evidence would be sufficient and whether this would qualify, right? Assuming that those steps happen and the President still goes forward and fires her, which I imagine he's going to want to do, this doesn't doom his efforts to do that, right?

[01:00:18] [Will] I'm very curious what happens next. You think he's going to try again?

[01:00:24] [Dan] I think that it's quite possible. I think people in the administration might just try to convince him to let this one go rather than continue fighting it, but I think his inclination would be to not let it go.

[01:00:35] [Will] Yeah. I really can't venture a prediction of what happens. What happens next?

[01:00:40] [Dan] Okay. And as we said, the court claims that it's doing something narrow, even though it is, as you said, resolving the constitutional question, which is not narrow.

[01:00:54] [Will] One last thing about the majority opinion before we talk about the separate opinions. The majority also uses an interesting phrase that I believe has been used at by the Supreme Court for the first time to refer to the docket on which it decided this case. The court says on page 23— Ah, the interim docket. How much to say on our interim docket and how much to say in response to a dissent is not rebuttal. Here we go. I think that's the first use of interim docket in any Supreme Court opinion, and it's in a Supreme Court opinion of the court by Chief Justice Roberts. That's official now.

[01:01:29] [Dan] It's the interim docket. Yeah.

[01:01:32] [Will] Now, you really can't call this opinion the shadow docket. Yes, this is not shadowy. Or even the emergency docket, because it sure doesn't seem like an emergency given how long it's been.

[01:01:40] [Dan] They treat it like an emergency. Right.

[01:01:42] [Will] Yeah. Okay.

[01:01:44] [Dan] All right. So I feel like there's a lot going on in that majority and probably other things buried in there that we haven't even talked about.

[01:01:50] [Will] Yeah, it's amazing. Okay.

[01:01:52] [Dan] But so we've got the Kavanaugh concurrence, which is pretty short. He's two points he wants to emphasize. First, basically, maybe the president still can fire her. We're not answering that question. Second, he wants to confirm that history shows the Fed is an independent agency. Yes. He thinks that's very important and explaining that we need to answer this now because stock market. More or less. Yeah. Or political upheaval. Right. Be bad for the economy.

[01:02:29] [Will] I would not risk destabilizing the US economy just so that we can further mull over an issue that in various permutations we have been thinking about for many years. So there you go. Okay.

[01:02:42] [Dan] So then we have an interesting concurrence by Justice Jackson. Mm-hmm. This is interesting, because she's been someone on the interim docket who has pushed relying on some of the other factors. Here's why there's no irreparable injury. The court shouldn't be granting relief here. She says, "We could decide this case on those other factors." Yeah. Equities, no irreparable injury, and so forth. Showing consistency with her overall approach.

[01:03:16] [Will] Yeah. I don't think she builds it this way, but I see this as also a good response to some of the dissents, for reasons we can talk about in a second. But yeah. Okay. Then we have the big dissent by Thomas. Yeah.

[01:03:31] [Dan] And it's a big dissent, except it is a solo dissent, right? You might have thought in a case like this, there would be a principal dissent joined by 4 Justices, but there's not.

[01:03:42] [Will] Yeah. Justice Thomas thinks that the President has plenary power to do this, and the statute can't be read this broadly, and so on and so forth. The full executive power view.

[01:03:56] [Dan] He also addresses the due process argument that the court didn't need to address. The court didn't go down that path. Yeah. This is a 30-plus-page dissent.

[01:04:08] [Will] Footnote 6, he rejects the majority's view of Ex parte Young.

[01:04:11] [Dan] And so he doesn't get other joiners, I guess, just because they want to decide this case more narrowly too.

[01:04:21] [Will] Yeah, right. I mean, saying that Federal Reserve independence is unconstitutional and that that means the President can fire people with the Truth Social post, yeah. Even though that hasn't even been fully argued by the—

[01:04:36] [Dan] Yeah, and even though the constitutional question was conceded, right? Or at least not challenged by the government in this case. Yes.

[01:04:45] [Will] So then the Alito-Gorsuch dissent, which is the lead dissent in the sense that it's the only dissent that has more than one person joining it. More than one, yeah. Goes with the, "This case presents many thorny legal questions. What is for cause? How much judicial review? What kind of rebuttal entry do you need? Does this Truth Social post count? Can courts do this?" Also, a question that's not mentioned by the majority, "Can the President appeal an injunction that no enjoined party challenges?" Because I guess he was not actually the subject of the injunction. That is interesting. And Justice Alito says, "Many of these are questions of first impression without obvious answers, so I wouldn't get into all those. I would just say the district court is clearly wrong and go from there." And only on the issues that the district court reached. Right. And I will say, so this is where I had— I agreed with everything about this dissent other than its outcome. I think you could take this dissent plus the Jackson concurrence and do the opposite. You could say, boy, this case presents a ton of hard questions that we're not really in a position to get through at this stage. So all I can say is I don't think I would intervene in a grant of stay yet. It's all too muddy. It's not sufficiently clear. There's some equities pointing against the president here. And this is what reminds me a bit of the Trump v. Illinois National Guard litigation, where we had some of the same things going on, where the court had a number of hard questions about the structure of the militia statute. And then some Justices were like, "Oh, these are hard questions, therefore the President wins." Or, "Wait, these are hard questions, therefore the President loses." Because which questions you decide to ask and which ones you regard as too hard could be enough to shape the outcome. Yeah. Okay.

[01:06:28] [Dan] And so he would've just said, "Look, the District Court adopted this really restrictive vision of kind of cause for cause removal. Yes. That's wrong. Really restrictive in the sense of tying the President's hands to only removing someone for in-office misconduct, basically. That was wrong, and also the District Court was wrong in its due process holding, and then send it back down. They can deal with the other issues and figure it out. Yeah. And then Justice Barrett, slightly different, sort of similar, wants to go more narrowly. Why does she not join Alito?

[01:07:01] [Will] So I don't totally understand. I think she's more concerned than anything about the constitutional and the Federal Reserve question. Yeah. I mean, there are other questions, but more than anything, she's concerned about that one. And then I think she has a more specific and technical reason.

[01:07:17] [Dan] And I think that she's skeptical of it, right?

[01:07:19] [Will] Skeptical of? Of the carve-out. Yes.

[01:07:24] [Dan] She says, "Slaughter announces a categorical rule, yet here the court claims a special exception. How can history support both a categorical rule and a carve-out?" I mean, she frames it as a question, right? But at least it comes across as a skeptical question.

[01:07:39] [Will] I read her as directionally sympathetic, but she says, "Even assuming it's right, it warrants more than a few paragraphs." Sympathetic to what? Sympathetic to the carve-out.

[01:07:48] [Dan] Okay, interesting.

[01:07:49] [Will] As Justice Thomas points out, the differences between the Federal Reserve and our early national banks are more significant than the majority lets on. What do we do about these things?

[01:07:56] [Dan] I read this as sympathetic to Thomas, but—

[01:07:58] [Will] Do all the Federal Reserve's existing regulatory powers have a requisite connection to monetary policy? If not, are they grandfathered in. I guess I read her as with Bamzai and Nielson in thinking there probably is a monetary policy exception, but what is the monetary policy exception and do all the powers count as part of the monetary exception are real questions you have to work through. And as she says, is the Federal Reserve unique or might history sanction other exceptions too? I read her as probably willing to say that some version of the Federal Reserve is an exception, but sweating the details much more. Yeah. I forgot to say that one of the funny parts of the exception is the majority doesn't really grapple with the fact the Federal Reserve has a mix of monetary and regulatory powers, except to drop in a footnote saying, "In upholding the Constitution of the Federal Reserve as currently structured, we do not suggest that Congress could assign the Federal Reserve additional regulatory powers that are attenuated from monetary policy." Some. The current ones are okay for secret reasons, and additional ones would not be okay for also secret reasons.

[01:09:04] [Dan] It's amazing. There's also this issue about how to read the scope of the earlier injunction by the district court, which is another thing from the footnotes, buried in the footnotes of the majority opinion, which is the majority reads it kind of narrowly. Right.

[01:09:18] [Will] And I think that's her sort of best, sort of like formalist argument for why if you think all these questions are hard, you have to reverse the district court. Yeah. The district court injunction is sort of too broad on any interpretations. You've got to reverse that and sort the rest out later. So maybe this is the right place. So Justice Barrett's dissent left me with two kind of questions about the Federal Reserve carve-out in Slaughter v. Cook and how to think about them. And one is— and I've been somebody who's been more sympathetic to this carve-out than many and the sort of Bamzai-Nielson view. But right, as structured here, you do wonder, if the Federal Reserve is special because it does something so important that to have not even the appearance of independence would jeopardize the economy and cause all this cataclysm, et cetera, et cetera, how do we know there aren't other things like that? Yeah. I mean, now again, maybe the Federal Trade Commission is not like that because nobody cares about the Federal Trade Commission. But if we thought that an independent DOJ, that actually doesn't engage in spite prosecutions of politicians on either side and forces neutral principles and the rule of law, would do a lot to bolster property and the safety of things. Could that also be different? And if not, why not? Why does the fact that the court feels like monetary policy is too important to be left to the political process not allow other things to be put in that category?

[01:10:46] [Dan] And why is the court much more sympathetic to technocracy here very deeply skeptical of it in Slaughter. Right.

[01:10:56] [Will] And again, this may be history, some of it, but you just sort of wonder. And then the other part that's funny is in Slaughter, part of what they say is that Humphrey's Executor was relying on a fictional account of the Federal Reserve. Humphrey's Executor said the Federal Reserve wasn't really executive, and that was obviously false. Yeah. And so now we can overrule it. I just want to say, the Court is here relying on a fictional account of the Federal Reserve. Almost failing to grapple with it. One day, one could say, "Well, just as in Slaughter..." Anyway. Yeah.

[01:11:26] [Dan] I'm impressed. Okay. Well, the markets hopefully will be comforted by this outcome, which Justice Kavanaugh seemed worried about. All good. All right. Well, we will keep recording. There's tons more we could say about this one. There's so much buried in the majority, but I got to go home. You've got to keep doing originalism or whatever it is you do when we're not recording.

[01:11:47] [Will] Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.

[01:11:50] [Dan] And please visit our website, dividedargument.com, blog.dividedargument.com for commentary, store.dividedargument.com for merchandise. Email us, pod@dividedargument.com. Leave us a voicemail, 314-649-3790, or a voice message on our website. If there's a long delay between this and our next episode, it will be because we have lost any protection from removal and we are no longer in our offices. The case is submitted.