The challenge to Trump's removal of the head of the Office of Special Counsel raises unique procedural and substantive issues likely to prevent it from serving as a referendum—in either direction.
Every lawyer who follows this sort of thing knows that Humphrey’s Executor is on life-support, and the conservative justices would love to put it out out of its misery. But the smarter thing to do as a matter of procedure and of precedent is to reject the motion because TROs not immediately appealable, and to let this case work its way back up to the Supreme Court after further litigation.
Thank you for this nuanced look at the OSC case. But Press Secretary Leavitt's blunderbuss assertion that Trump "is the executive of the executive branch and, therefore, he has the power to fire anyone within the executive branch that he wishes to,” https://www.washingtonpost.com/politics/2025/01/31/trump-federal-workers-executive-orders/, may weigh pretty heavily as a key to where the administration is coming from.
And although the Supreme Court has sometimes moved incrementally to achieve its goals, e.g., re cases involving public funding of religious schools, in other cases it has gone further faster than it needed to, e.g., in both the Jan. 6 obstruction and immunity cases. In the latter two cases, however, Justice Barrett objected to the majority's overreaching, https://www.npr.org/2024/07/02/nx-s1-5026959/supreme-court-term, so her vote to go whole hog on the unitary executive doctrine now is not a sure thing.
Bottom line: Could go either way, as Prof. Vladeck says. As Emily Latella said, never mind ... . :>)
Funny, the word "abortion" isn't in the constitution so it can't be a constitutional right. But the word "firing" isn't in Article II either, but it IS a constitutional right of the president.
I haven't been following the unitary executive theory very closely. From a common sense point of view, if Congress is in fact the one that creates agencies I can't see why they shouldn't be able to put conditions on how the agency head is treated. Can you go into a bit more detail about how the Extremes have managed to work their way around that power? I know that "faithfully execute the laws" has somehow turned into an irrelevant phrase of the Constitution, but what about ignoring the laws is part of faithfully executing them?
(The same goes for refusing to prosecute cases that have already been through a grand jury decision to indict. I can see refusing to prosecute BEFORE the grand jury convenes, even if the reason of "insufficient evidence" is spurious. But are grand juries now as irrelevant as faithfully executing the laws? )
Article II's requirement that the president "take care that the laws be faithfully executed" is actually cited in both Seila Law v. CFPB (slip op. 11-13) and Trump v. U.S. (slip op. 6, 27 fn. 11) to support the court's view of the president's broad authority. But Justice Kagan, dissenting in Seila Law, noted that the Take Care Clause "speaks of duty, not power." (dissent 8).
I think Dellinger could be a bellweather in one respect. Whether they grant or deny relief at this stage may say something about how eager they are to get involved in these cases at preliminary stages.
Apropos your remark that most of the Republican justices likely “despise” Humphrey’s Executor. I have agreed and believed if they were eventually squarely confronted with the same issue regarding a multimember agency (and soon they will be) they would vote to overrule Humphrey’s Executor. But I recently re-read CJ Robert’s opinion for the Court in Seila Law v. CFPB. At the end of his opinion, in applying the severability clause in the statute and saving the rest of the Act, he wrote “Our severability analysis does not foreclose Congress from pursuing alternative responses to the problem—for example, converting the CFPB into a multimember agency.” p.36.
If he hated Humphrey’s Executor it seems odd (unlikely?) he would have made that gratuitous remark. And were none of the other justices who joined in his opinion bothered by this sentence? Odd.
I’m new to these issues. Based on this analysis, this question arises. Isn’t Dellinger another test of the competing powers of the executive and legislative branches? You write as though the test is over. Are you simply writing as a realist or is it the case that the supremacy of the executive is firmly established?
I've become weary of not adding political caveats to legal analyses, if anything, because, last summer, we saw that this Supreme Court is no longer wedded to precedent, but is definitely wedded to politics. I say this as someone who is a trained political scientist and definitely not a lawyer. For me, the real question, as far as any cases taken up by SCOTUS in the very near future, is whether they, too, will follow the oligarchy's lead and submit to Trump and Musk.
We are in an oligarchy now and, examining other oligarchies, one of the first things that strikes is how little the law means in them. What does mean a lot, however, is finding ways to keep an uninformed public aware.
Every lawyer who follows this sort of thing knows that Humphrey’s Executor is on life-support, and the conservative justices would love to put it out out of its misery. But the smarter thing to do as a matter of procedure and of precedent is to reject the motion because TROs not immediately appealable, and to let this case work its way back up to the Supreme Court after further litigation.
Thank you for this nuanced look at the OSC case. But Press Secretary Leavitt's blunderbuss assertion that Trump "is the executive of the executive branch and, therefore, he has the power to fire anyone within the executive branch that he wishes to,” https://www.washingtonpost.com/politics/2025/01/31/trump-federal-workers-executive-orders/, may weigh pretty heavily as a key to where the administration is coming from.
And although the Supreme Court has sometimes moved incrementally to achieve its goals, e.g., re cases involving public funding of religious schools, in other cases it has gone further faster than it needed to, e.g., in both the Jan. 6 obstruction and immunity cases. In the latter two cases, however, Justice Barrett objected to the majority's overreaching, https://www.npr.org/2024/07/02/nx-s1-5026959/supreme-court-term, so her vote to go whole hog on the unitary executive doctrine now is not a sure thing.
Bottom line: Could go either way, as Prof. Vladeck says. As Emily Latella said, never mind ... . :>)
Funny, the word "abortion" isn't in the constitution so it can't be a constitutional right. But the word "firing" isn't in Article II either, but it IS a constitutional right of the president.
I haven't been following the unitary executive theory very closely. From a common sense point of view, if Congress is in fact the one that creates agencies I can't see why they shouldn't be able to put conditions on how the agency head is treated. Can you go into a bit more detail about how the Extremes have managed to work their way around that power? I know that "faithfully execute the laws" has somehow turned into an irrelevant phrase of the Constitution, but what about ignoring the laws is part of faithfully executing them?
(The same goes for refusing to prosecute cases that have already been through a grand jury decision to indict. I can see refusing to prosecute BEFORE the grand jury convenes, even if the reason of "insufficient evidence" is spurious. But are grand juries now as irrelevant as faithfully executing the laws? )
Article II's requirement that the president "take care that the laws be faithfully executed" is actually cited in both Seila Law v. CFPB (slip op. 11-13) and Trump v. U.S. (slip op. 6, 27 fn. 11) to support the court's view of the president's broad authority. But Justice Kagan, dissenting in Seila Law, noted that the Take Care Clause "speaks of duty, not power." (dissent 8).
I get that he has a lot of power to enforce laws. I have trouble seeing how that gives him the power to BREAK them.
I think Dellinger could be a bellweather in one respect. Whether they grant or deny relief at this stage may say something about how eager they are to get involved in these cases at preliminary stages.
Apropos your remark that most of the Republican justices likely “despise” Humphrey’s Executor. I have agreed and believed if they were eventually squarely confronted with the same issue regarding a multimember agency (and soon they will be) they would vote to overrule Humphrey’s Executor. But I recently re-read CJ Robert’s opinion for the Court in Seila Law v. CFPB. At the end of his opinion, in applying the severability clause in the statute and saving the rest of the Act, he wrote “Our severability analysis does not foreclose Congress from pursuing alternative responses to the problem—for example, converting the CFPB into a multimember agency.” p.36.
If he hated Humphrey’s Executor it seems odd (unlikely?) he would have made that gratuitous remark. And were none of the other justices who joined in his opinion bothered by this sentence? Odd.
There's also this by Kavanaugh:
https://www.yalejreg.com/nc/would-a-justice-kavanaugh-overturn-humphreys-executor-and-declare-independent-agencies-unconstitutional/
I’m new to these issues. Based on this analysis, this question arises. Isn’t Dellinger another test of the competing powers of the executive and legislative branches? You write as though the test is over. Are you simply writing as a realist or is it the case that the supremacy of the executive is firmly established?
I've become weary of not adding political caveats to legal analyses, if anything, because, last summer, we saw that this Supreme Court is no longer wedded to precedent, but is definitely wedded to politics. I say this as someone who is a trained political scientist and definitely not a lawyer. For me, the real question, as far as any cases taken up by SCOTUS in the very near future, is whether they, too, will follow the oligarchy's lead and submit to Trump and Musk.
We are in an oligarchy now and, examining other oligarchies, one of the first things that strikes is how little the law means in them. What does mean a lot, however, is finding ways to keep an uninformed public aware.
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IN GOD WE TRUST 🇺🇸
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🇺🇸 I offer up my services Steve