The Eighth Annual Executive Branch Review Conference was held on April 28, 2020 via an online webinar. The first panel was titled "Restoring the Executive Power: Revisiting Humphrey's Executor, Reviving the Unitary Executive."
In public discourse, the visibility and prominence of the presidency has flourished in recent decades in America. However, while the visibility of the presidency has increased, some worry that the actual power and influence of the presidency gradually has been surrendered to much less visible levers of governmental power. The ever-increasing power of the administrative state and the influence of independent agencies has caused many legal experts and policy makers to question whether the presidency has retained all the powers of the executive branch the founding fathers intended. The President surely exercises some control over significant agency heads, but has Presidential control over the agencies themselves weakened? Is the President’s control over independent agencies too attenuated? Proponents of greater executive power argue that the administrative state has grown so large it can stymie a newly elected president’s agenda, which leads to a less democratic form of government. In light of these concerns, should the Supreme Court revisit Humphrey's Executor, and give the President more control over federal agencies? As a practical matter, if agency power is reduced, what ought to fill the void of policy-making and enforcement?
Our distinguished panel of experts will attempt to answer that question, and will delve into multiple sides of this controversial and complex debate.
- Hon. W. Neil Eggleston, Partner, Kirkland & Ellis LLP, and former White House Counsel
- Hon. Steven A. Engel, Assistant Attorney General, Office of Legal Counsel, United States Department of Justice
- Mr. Jesse Panuccio, Partner, Boies Schiller Flexner LLP, and former Acting Associate Attorney General, United States Department of Justice
- Moderator: Dean Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
Dean Reuter: Welcome to The Federalist Society’s Executive Branch Review Week webinar series. Your telephones and computers have been muted until the question and answer portion of today’s panel.
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Our first panel of our webinar series is entitled “Restoring the Executive Power: Revisiting Humphrey’s Executor, Reviving the Unitary Executive.” My name is Dean Reuter. I’m General Counsel, Vice President, and Director of Practice Groups at The Federalist Society. And today we’re fortunate to have with us three guests. We’re going to get opening remarks from each of about five to eight minutes, then maybe a little conversation, but as always, questions from our audience which we’ll manage as well as we can.
We’ll hear first from the Honorable Steven A. Engel. He’s Assistant Attorney General, Office of Legal Counsel at the U.S. Department of Justice. Then from Mr. Jesse Panuccio; he’s a Partner at Boies Schiller Flexner and former Acting Associate Attorney General at the U.S. Department of Justice. And finally, we’ll hear from the Honorable W. Neil Eggleston, who’s a Partner at Kirkland & Ellis, former White House Counsel.
After our speakers give their opening remarks, as I mentioned, we’ll get to your questions through various formats. Thank you all for being with us today. With that, Steve Engel, the floor is yours.
Hon. Steven Engel: Thanks, Dean. I’m happy to be here this morning to talk about Humphrey’s Executor and the President’s constitutional authority to supervise the Executive Branch. These are the kinds of questions that we deal with regularly at the Office of Legal Counsel. And in recent years, we’ve increasingly seen these kinds of separation of powers cases come before the federal courts as well. Indeed, right now, the Supreme Court is considering in Seila Law whether and how Humphrey’s Executor applies to the CFPB. And that decision, which is anticipated in the next couple of months, may provide significant insight into how current justices view the future of that decision.
Now, the Constitution established a single President, chosen by the nation, who would be obliged to take care that the laws are faithfully executed. But in order to fulfill that role, it’s necessary that the President had the responsibility and the control over the executive officers who would assist him in administering those laws. Now, I would submit that Humphrey’s Executor represents a significant departure from that constitutional scheme. That decision envisioned an administrative state that would wield significant governmental power independent of the President and with little forethought and accountability for the democratic process.
The Court that decided Humphrey’s Executor in 1935 was a Court that at that time was actively opposing President Roosevelt and his New Deal. But while the Court later overruled a number of decisions from that period, Humphrey’s Executor remained the precedent of the Court. In the years since, though, I would submit that the Court has gradually eroded the premises upon which that decision relied. And whether or not the Court jettisons Humphrey’s Executor itself or sticks with the precedent, I believe that we have seen and will continue to see the decision read narrowly in ways that in my view better promote the President’s authority to ensure the uniform administration of the law.
Now, this is a complex area of the law, and so at the risk of oversimplifying in the few minutes I have here, let me talk briefly about why I think Humphrey’s Executor departed from the original framework of the Constitution. Article II of the Constitution establishes the office of the President and invests in him all of the executive power, charging him alone with the responsibility to take care that the laws be faithfully executed. As the Supreme Court explained in Myers v. United States, which was the word on this issue prior to Humphrey’s Executor, the President may properly supervise and guide subordinate officers to secure the unitary and uniform execution of the laws, which Article II of the Constitution evidently contemplated investing executive power in the President alone.
Now, the Framers of the Constitution agreed with these principles. In The Federalist, for example, Alexander Hamilton described executive officers as the assistants or the deputies of the chief magistrate who derive their offices from his appointment and therefore ought to be subject to his superintendence. James Madison similarly recognized during the First Congress that the Constitution charged the President with responsibility for the executive department, but he can only do that if the officers in that department were responsible to him. That meant that the President must be able to direct his subordinates’ actions, and that he must be able to remove them, again in the words of Myers, “the moment he loses confidence in their intelligence, ability, judgement, or loyalty.”
Now, the President’s supervision is not just a matter of presidential power, but it’s also presidential accountability. It guarantees that the people may select the President and then hold him personally accountable for how his administration executes the federal law.
Now, the Supreme Court’s decision in Humphrey’s Executor represented a marked departure from this understanding of presidential authority. There, the Court rejected President Roosevelt’s efforts to replace an FTC member who he believed was not vigorously supporting the New Deal enough. Now, in reaching the conclusion that Roosevelt could not remove Humphrey without cause, the Supreme Court reasoned that FTC commissioners should not be viewed as purely executive officers. The FTC, the Court said, served as a neutral body of experts who would exercise what the Court imagined to be quasi-legislative and quasi-judicial functions and be independent of executive authority except in their selection. Humphrey’s Executor therefore authorized an administrative state that would exercise political authority separate from the President and separate from Congress as well. And this is a very different kind of administration that the one the Framers contemplated with respect to Article II.
But while the Supreme Court has not overruled that holding, it has chipped away its reasoning over the ensuing decades. Most notably, the Court has squarely rejected the proposition that independent agencies fall outside of the Executive Branch. Subsequent decisions have recognized that when an agency makes rules or conducts adjudications, they are exercising executive power. There’s no such thing as a quasi-legislative department or a quasi-judicial department.
In addition, Humphrey’s suggestion that independent agencies must be immune from presidential supervision has not only been undermined by subsequent decisions, but it wasn’t even true, really, in Humphrey’s itself. Although the Court described the FTC as independent of executive authority except in selection, it overlooked the fact that the FTC act at issue authorized the President to remove members for inefficiency, neglect of duty, or malfeasance in office. Those terms presuppose that the President needs to review and evaluate the performance of the FTC members in their duties to decide whether or not he is justified in removing them.
And finally, the central policy justification of Humphrey’s Executor, that independent agencies would act outside of the political process as a neutral body of experts, has also not withstood the test of time. The policies of the FTC or the FCC are no more neutral or nonpolitical than the policies of the EPA or the Department of Education. As Justice Kavanaugh observed on the D.C. circuit, independent agencies make a slew of nonscientific legal and policy judgements, including how to exercise policy discretion or how to interpret statutes. These are quintessentially political judgements. Elected officials campaign on these matters, and the President is constitutionally obliged to bear responsibility for the decisions of his administration. That in turn presumes active supervision of these agencies as well as others in the Executive Branch.
For these reasons, I don’t think that the vision of agency independence reflected in Humphrey’s Executor accurately describes the current state of the law. And while the decision remains in place, I think that in recent decades, we had seen a move towards greater presidential control and accountability.
One step in this direction we’ve seen has been the Supreme Court’s inclination to construe Humphrey’s Executor to it’s actual context and not to extend it to other contexts. So for example, in Free Enterprise Fund, the Supreme Court invalidated a tenure restriction on the members of the Public Company Accounting Oversight Board. The Court reasoned that the board members there had been appointed by the FCC whose members the Court assumed would enjoy tenure protection. The Court held that this double for-cause removal took Humphrey’s Executor too far because the agency could not be truly independent of the President, and such a structure would prevent the President from having active influence over the agency.
And I think we see the same principle in the litigation today over Seila Law, which considers whether Humphrey’s Executor should be extended from a multi-member agency, like the FTC, to the CFPB, which is headed by a single director. And the Court once again is considering limiting Humphrey’s reach and may reaffirm that at least single member agencies which are not different in principle from many of the cabinet officers of the executive departments, that those single member agencies cannot enjoy tenure protection.
And finally, one thing that I would add is that even if the core holding on Humphrey’s remains in place, we may see situations in which the President exerts greater control by construing more broadly what constitutes cause for removal. Humphrey’s itself held only that the President may not remove an FTC commissioner without any justification, but it did not interpret what cause meant under the statute. And later decisions of the Court, decisions like Morrison and Bowsher, have suggested the potential for a broader reading of cause. And while there are many reasons why a President would not remove from office an executive officer, even if the person lacks tenure protection, we may well see cases where the President asserts a broader understanding of cause in order to ensure accountability for the decisions of the Executive Branch.
So again, this is a complex area of law, but I appreciate having the opportunity to discuss these matters here. And thanks, Dean. I look forward to the discussion with the panel. So I think we’re now over to Jesse.
Jesse Panuccio: Well, thanks very much. And good morning, everyone. Thanks, Dean Reuter and The Federalist Society, for inviting me to participate in this important conference and for finding a way to host it even during these challenging times. You can see I’ve decided to go with quarantine chic as my backdrop. Steve’s got the nice DOJ backdrop there. But it is a real privilege to be on a panel with my former colleague Steve Engel and with Neil Eggleston. Both men have served this country and have lived and helped shape the law of executive power, so it’s a timely panel with excellent panelists. So thank you.
Steve has just provided, I think, an excellent summary of the doctrinal evolution since Humphrey’s and the slowly eroding foundation upon which it rests. For those looking for the long version of the attack on Humphrey’s, that is on the idea that parts of the Executive Branch can be insulated from control by the President, the Chief Executive, just go back and read, as Steve mentioned, Chief Justice Taft’s opinion in Myers or Justice Scalia’s dissent in Morrison v. Olson. Morrison especially, I think, is Scalia at his very finest. Most often quoted is his, “This wolf comes as a wolf,” line, but I think I’d be remiss if on this panel I didn’t just quote for the audience Justice Scalia’s discussion of the interplay between the Morrison majority, Humphrey’s, and Myers.
He said this: “One can hardly grieve for the shoddy treatment given today to Humphrey’s Executor which, after all, accorded the same indignity to Chief Justice Taft’s opinion ten years earlier in Myers, gutting, in six quick pages devoid of textual or historical precedent for the novel precedent it set forth, a carefully researched and reasoned 70 page opinion. It is, in fact, comforting to witness the reality the he who lives by the ipse dixit dies by the ipse dixit. But one must grieve for the Constitution.” That is good stuff from Justice Scalia. And again, I commend the entire opinion to the audience as I think the best anti-Humphrey’s track you will find out there.
Now, on the other side, if you want a, I think, particularly eloquent and timely defense of Humphrey’s, I would commend to you the brief filed this term in the Supreme Court by Paul Clement in the Seila Law case. Clements’s brief shows, I think, that the pro-Humphrey arguments have some significant force behind them. There is, after all, no removal clause in the Constitution, and the Founders seem, indeed, to have held a diversity of viewpoints on the subject. However, to my mind, the better view in light of all of the historical evidence, the text of the Constitution, and the structure of the Constitution, as you’ve just heard Steve lay out, is that the Taft-Scalia view ought to prevail on this question.
So rather than trying to rehash the historical and textual arguments that are so well, I think, and thoroughly plowed in those sources, let me offer two thoughts about Humphrey’s that go beyond the historical and textual analysis. First, let’s discuss the real world implications and applications of the doctrine. One such application is the investigation of the President for wrongdoing. Should the President be able to remove Executive Branch officials who are investigating him or his administration?
Now, in light of our recent pandemic woes, some people may have forgotten that there was once something called the Mueller probe, and this question was hotly debated. And of course, that debate was just a rehashing of the fight in Morrison v. Olson. Here again, I return to Justice Scalia’s dissent because I think it offers a pretty convincing argument on this particular application.
He said, “Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is it’s own exemption from the burdens of certain laws. No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statue reducing the salaries of the Justices.” The safeguards against abuse, Justice Scalia noted, are one, the other branches using their powers to check the executive, such as the impeachment power, and two, the ultimate check of the people at the ballot box.
So I think that’s an important application of the Humphrey’s-or-not debate, but to my mind, it’s a rare application, and it often receives outsized attention. Far more important, only if because they are so much more common, are the thousands of executive decisions made every year that are, because of Humphrey’s regime, unaccountable to the President and therefore the electorate. And that for me is what the debate over Humphrey’s is really about. It isn’t a question of presidential power. It’s a question of democratic power, of popular sovereignty. It’s a question of whether the American people have the power through their vote, or whether the power resides with a permanent ruling class in the economic, political, and social enclave of the federal city. And that is a very big question.
Indeed, as Mr. Clement points out in his Seila brief, and this is a quote, “Humphrey’s Executor was no small matter. It forms the basis for roughly a third of the modern federal government,” end quote. Clement posits this as a point in favor of maintaining the doctrine, but I think it’s a reason for the American people to be aghast. It means that their votes for President are sapped of vitality with respect to a large swath of the executive government that controls their daily lives. To put it more bluntly, the Humphrey’s regime created a fourth branch of government, the so-called independent agencies. The question is, independent from whom?
A saga currently unfolding in the courts, the FTC’s action against Qualcomm, provides a recent and ready example of the problem. The FTC brought the case as the clock struck midnight on the Obama administration on a 2-1 vote while two commission seats sat vacant. Since that time, the commission has been deadlocked 2-2 due to a recusal, meaning that the FTC staff has proceeded with the case for the last several years on its own initiative with no direction from anyone. What’s more, the DOJ’s antitrust division has now informed the courts that it disagrees with at least some of the FTC’s desired outcomes in the case. And it has also noted the case has major implications for American 5G technology, implications that are significant for, among other things, national security.
Now, it’s not uncommon for executive agencies to have divergent views on a policy question. But typically, those disputes get decided by the Chief Executive, and the Executive Branch proceeds with a coherent and unified policy. If the American people don’t like that policy, they have a remedy at the ballot box. Here, however, there is no opportunity for the Chief Executive to decide this critical national security issue. There is no chance for the voters to have a say. The unelected staff of the FTC just gets to keep plowing ahead, accountable to no one in particular. And meanwhile, the regulated party faces the spectacle of a two-headed government, one saying stop, and one saying proceed. This is not an isolated state of affairs. It is, as Mr. Clement notes in his brief, the way we are governed now.
So I would say Humphrey’s lacks not only a cogent historical or constitutional footing, but also any clear rationale for why it’s consistent with our democratic norms. Thus, to answer succinctly one question posed of this panel in the description on the website, “Should the Supreme Court revisit Humphrey’s Executor?”, I think the answer is yes. Its constitutional foundation is weak, and its consequences for our democratic republic are stark.
Now, answering that prescriptive question leaves open the predictive question of whether the Court will revisit Humphrey’s, especially this term in the Seila Law case. Now, it’s always a fool’s errand to predict the whims of the nine, but I’ll play the fool. And I think the recent trend is for the Court to avoid overruling major precedents about the structure of the administrative state. We saw that last term when the Court reaffirmed Auer deference in Kisor and again refused to police congressional delegations of legislative power in the Gundy case. So I think there’s almost a zero percent chance that the Court overrules Humphrey’s in Seila, and at least an even chance that it simply punts the case altogether.
Now, I said I had two overall points I wanted to make about Humphrey’s. The first, as we just discussed, was about implications. The second and final I will make briefly because I’m out of time, but it’s a good closing point as it ties this panel with the later panels you will hear today. Those panels will address judicial deference to administrative agencies and the nondelegation doctrine.
Now, as I just noted, the Supreme Court reaffirmed its precedents on both of these issues just last term. And it is critical to see the interplay of these doctrines with Humphrey’s to understand just how far our administrative state has strayed from the Founding vision. These doctrines, the abandonment of nondelegation, extreme deference to agency interpretations, and establishment of so-called independent agencies work in concert to create the following situation. Congress can delegate policy making power of any kind to unelected administrative officials. The agency can interpret the scope of it’s own authority under that delegation without much interference from the courts, and the President can be completely walled off from that agency’s decision making.
When viewed at that level rather than down in the weeds of any particular line of cases, is there any good argument in favor of this state of affairs? Would any American who cherishes his right to vote choose to be governed in this way if the question were put directly to him? I think the answer is obviously no, and it underscores why the discussions of all three panels today are so important.
With that, thank you very much, and I’ll pass it over to Neil. I look forward to questions.
Hon. Neil Eggleston: Thanks to both Steve and Jesse. I very much appreciate your comments. Just a few words of introduction, I guess, which is first, as I frequently say, I very much appreciate the invitation to appear on Federalist Society panels. I have a different political view from others on this panel, but I think it’s commendable that The Federalist Society seeks different views in these panels, and I’m always honored when I’m asked to do it. And so I thank The Federalist Society and Dean particularly for inviting me to participate.
The second point I just want to make is that I’ve now served two presidents. I was in the White House Counsel’s Office for President Clinton, and I was the White House Counsel for President Obama. And so my general bent, as you might guess, is significantly in favor of presidential power. I come to this discussion for someone who has worked for two presidents. The second time for President Obama, my office was in the West Wing, about a 20 second walk from the Oval Office. And so I have a very strong view about presidential power. Having said that, I have a very different view about the issue we’re discussing today.
The unitary executive theory, really, I think the modern conception of it is, I think as either Jesse or Steve or both talked about, is the dissent by Justice Scalia in Morrison v. Olson. It’s become quite venerated. I just want to remind everybody he was the lone dissenter. I can’t remember whether someone was recused so that it was 7-1 or 8-1, but he was the lone dissenter. The opinion was written by Chief Justice Rehnquist, whom I think is someone you would say was a particularly strong proponent of executive power as well.
But let me go -- the basic theory, I think, of Justice Scalia, is that the Constitution established three separate branches, and that each of the powers within those branches were inviolate and had no overlap. And I think basically the Supreme Court has rejected that proposition and that way of looking at separation of powers throughout. I’m certain if you go to Justice Jackson’s opinion in Youngstown, you will see that he talks about how there’s sort of an overlap and clashing and really figuring out where the various different powers start and end is one of the difficult issues in connection with separation of powers.
But let me start with Myers. It’s where Steve really started. We have to remember that Myers was a totally different case, and although the Chief Justice had some sentences that went well beyond what the case was about, that Myers was about Congress inserting itself into the President’s decision on termination. That’s what Myers is about. It is not about the issue in Humphrey’s Executor. Humphrey’s Executor and Seila Law are about restrictions on the President’s removal authority, but it’s not about getting another branch having to sign off on the decision by the President. It makes is a very different decision, and it’s interesting that the Chief Justice went beyond that in describing it. But what the decision was actually about in Myers was that Congress could not assert itself into the decision about whether the President could remove an FTC commissioner.
I’m also struck -- people don’t really talk about it, but there’s a fascinating dissent by Justice Brandeis in Myers. And he makes a point that I think is worth paying some attention to, which is that all of these positions are created by Congress. And without Congress creating these positions, they don’t exist. Congress can abolish them any time they want. Congress can change the terms any time they want. And so it’s not as if any of these positions that we’re talking about are inherent to the President of the United States. They’re all creatures of Congress through legislation.
And Brandeis’s point — I actually think Brandeis went too far in the point he was making — but Brandeis’s ultimate point was that it’s appropriate for Congress to have some control because, in fact, without Congress, there is no such position whatsoever. And so, as I said, that his conclusion was there is some ability for Congress to have a role, at least in creating restrictions on the removal power.
I just might -- as we think about Humphrey’s Executor, really, the Supreme Court has had a whole series of cases on the removal issue and has never adopted the Scalia approach. I think Jesse talked about the PCAOB case, which was a case of essentially double insulation, double for-cause removal. The SEC commissioners were only removable for cause, and then under the statute, the members of the PCAOB governing board, whatever it was, were only removable for cause.
And what the Supreme Court found is that double removal provision went too far and was too big a restriction on the President’s power. What it did not reject was the first level of removal restriction on the members of the Supreme Court. There are a whole series of these cases. There’s Perkins going way back as well, but there are a whole series of cases that have addressed this issue. And the Supreme Court, I think, pretty much time after time has rejected, either before or after he articulated it, the Scalia view.
Let me just weigh in on Seila Law as well. Again, I sometimes joke that I’ve stopped being in the prediction business since November of 2016, and so I probably shouldn’t weigh in here. I listened to the arguments in Seila Law partially because Paul Clement is my partner at Kirkland & Ellis and I wanted to hear him argue, and partially because I teach a course, actually, in presidential power at Harvard Law School. And I downloaded the argument and took excerpts and used it as part of the class discussion. It came up in class post-argument, but obviously pre-decision.
And I very much suspect that the Court is not going to reverse Humphrey’s Executor. Obviously, we know where Justice Kavanaugh is. When he was on the D.C. circuit, he wrote the panel opinion in PHH, which essentially is the same case. And then the case went en banc and his panel opinion was vacated, and so as a result he wrote the dissenting opinion. We’re pretty sure where he is. But just based on the argument, it did not seem to me there was much appetite for reversing Humphrey’s Executor. Again, everybody listening, including the panel members, should take my disclaimer about predictions since the fall of 2016.
I think that one aspect of this — and I think Scalia doesn’t do a very good job of addressing this — is that we have the language of the Constitution which is that the executive power shall be invested in the President of the United States. But he doesn’t address, really, what the executive power means and what it is. And I’ve heard today and I’ve heard before, and I think I argued this when I was White House Counsel, which is the use of the Take Care Clause essentially as a sword, which is that the Take Care Clause of the Constitution provides more power to the President because he has a duty to make sure that the laws are executed. I think of it as a sword, but I equally think of it as a shield, which is a duty on the President to make sure that the laws are executed and not to act in his own personal interest but essentially to make sure the execution of the laws.
There’s been some really interesting recent scholarship, some of it by Julian Mortenson who is a professor at University of Michigan, on the issue of what the executive power meant at the time of the framing. And he’s got very much of an originalist approach to it. He’s got a law review article which ultimately concludes that the Framers had a very narrow view of what executive power meant and that it was simply the power to execute the laws that Congress had drafted and didn’t carry with it the residual power that you would have thought about that the King may have possessed.
It’s interesting in some ways because it’s a very originalist approach to what the phrase “executive power” means. And as I say, I think Justice Scalia was powerful in arguing that the executive power is vested in the President and it can’t be diffused by Congress. But I think he’s not very powerful about what exactly executive power means in the Constitution and pretty much ignores that issue.
He has a -- since Jesse got to read from his opinion in Morrison v. Olson, I’m going to read from his opinion in Zivotofsky, which I think probably reflects at least the way I think about this issue better than his Morrison v. Olson opinion. I need to say off the bat that, remember, Zivotofsky is the case having to do with whether Israel had to be on a passport for someone who was born in Jerusalem. The position of the Obama administration was no. The position of Congress was yes. The question was who won? Kennedy wrote the majority. Scalia dissented, basically holding that the Congress had equal power.
Now, he would disagree with my analysis here because this is an area where he thinks there’s overlapping power, and he doesn’t see why the presidential power then should kick out the power of Congress. But Justice Thomas has a concurrence which basically writes about this strong residual power in the President, and that’s why Justice Thomas would have ruled in favor of the President.
And Scalia in attacking Justice Thomas says, “The concurrence approach shatters it in one stroke. The combination of A) the concurrence assertion of broad, unencumbered residual powers in the President, B) its parsimonious interpretation of Congress’s enumerated powers, and C) its even more parsimonious interpretation of Congress’s authority to enact laws necessary and proper for carrying into execution the President’s executive powers produces D) a presidency more reminiscent of George III than George Washington,” which certainly has to be one of my favorite Justice Scalia quotes.
And I think the final point I’ll just make quickly in support of Humphrey’s — and I’m sure we’ll get more into it, obviously, in the questions — is that as I think Steve said, this whole thing is being done in the absence of anything in the Constitution. There’s nothing in the Constitution whatsoever about removal power. In fact, if you go to The Federalist Papers, there’s some serious suggestion that Hamilton and Madison thought there would be some congressional restraint on removal of executive officers. And I actually think ultimately this issue comes down to what’s the function and at what level of the administration can removal power go? I don't think anybody argues that Congress could say the Attorney General, for example, could only be removed for cause, or the Secretary of State and the like.
But I’ve become increasingly concerned about an argument I see made largely by conservatives which is an argument based on the structure of the Constitution. And the reason I’m skeptical of this argument is that I think it’s one that has no content. And I don’t have it in front of me, but Scalia makes this point in a dissent that he wrote on a case that’s just not coming to my brain, but that if the argument is not based on a specific clause of the Constitution but is based on the structure of the Constitution, that’s an argument that you can shovel anything into because it’s contentless. It’s based on whatever the judge’s view is of how the Constitution has been structured.
And so I’m very cautious of any argument that is based on some judge’s view of the inherent structure of the Constitution because I think that’s an argument essentially without structure. And I guess structure is not what I mean. It is an argument without standards. And there’s no way for courts to figure out what that means, and as a result, I would reject it.
In any event, thanks to everyone on the phone and participating by Zoom and my panel members. And I’m looking forward to the discussion. And Dean, I’ll turn it back to you.
Dean Reuter: Thank you, gentlemen. We’re off to a great start with our webinar series here. We’ve got about 20 minutes or so left for questions. I’m going to give a CLE code, which if you’re an attorney and want CLE from your bar association, you apparently have to reproduce this code in your forms to prove that you actually listened. I wanted to use the code “my bar association doesn’t trust me,” but the actual code for this call is the number 1 and then federalist 627. So please write that down. I’ll give you a minute to get a pen and paper. And I’ll repeat it: 1federalist627. And we’re not allowed to give that out later, so write it down, 1federalist627.
We’re now going to start taking questions from our registered attendees and from our callers. If you joined as a Zoom attendee, to join the queue, hit the button at the bottom of your bar labeled raise hand and we’ll unmute you when we get to your question. If you dialed in by telephone, you need to push star and then the 9 button on your telephone, *9, to indicate you have a question. We’re going to try to get to as many questions as possible.
A reminder to those who are not regular Federalist Society attendees. We’re very careful about our tone and style. We ask that questions actually end in a question mark and be succinct, so do get to a question. We don’t have much time left. But when we get to your question, you’ll hear a prompt that will say, “Your phone has been unmuted,” or “Your computer has been unmuted.” Looks like we have just one question in the queue at this point. Again, hit the raise hand bar at the bottom of your Zoom screen or push *9 on you telephone. Two questions now, so with that, let’s take our first call. Go ahead, caller.
Caller 1: Hi. Thank you. I actually argued this case in a new class here in my law school last week, so it’s a very interesting topic for me, Seila Law. And I thought one of the most interesting questions during the argument was essentially one of the big arguments from the government was about liberty and how the separation of powers not only separates the Executive from Congress and vice versa, but also is a function for individual liberty.
And I think Justice Kagan had a question about why isn’t that a political question? Why shouldn’t the branches -- why is the issue of liberty essentially defined -- why should the Court be defining that? Why shouldn’t they leave it up as a political question, essentially? And I didn’t think the argument had a satisfying answer, and I just wanted to, I guess, get the panel’s take on that issue, whether it should be left as a political question as to what is the best way to promote liberty, I think is the phrase that was used.
Dean Reuter: Who wants to take a shot at that?
Jesse Panuccio: I think I can start, if that’s okay.
Dean Reuter: Go ahead, Jesse.
Jesse Panuccio: I guess I would just say in answer to that question, it was a political question. In 1789, the Founders thought about it. If you read Federalist 51 and other explanations of what they did, they thought that you have to go back to what is government? And government is men aren’t angels, so we need a government. But the trick is to restrain government from taking away all your liberty. And the chief way the Founders did that was not through a Bill of Rights, which came later. The chief way they did that was through the separation of powers and the structure of government.
So this answers Neil’s argument a bit, which is to say the structure is not some nebulous part of the constitutional plan. It is the key feature the Founders thought would be protective of liberty. And so any devices or actions by branches of government that encroach on that separation of powers or that structure are serious constitutional violations. And that’s why I think courts need to intervene when that occurs.
Hon. Neil Eggleston: Dean, it’s Neil just jumping in. So I don’t agree with the second half of Jesse, but I actually agree with the first half of Jesse, which is I do think that the Court has made clear X — actually I think Zivotofsky 1 is the best example — that individual private plaintiffs have the right to raise separation of powers issues in connection with litigation. And that’s essentially what Seila Law has done. And so to call it a political question when they’re sort of claiming that the structure against them is unconstitutional, it seems to me that’s one of the reasons that courts and there, and that’s one of the decisions that courts really have to make.
Without getting off this topic into a different one, I was quite surprised that the Supreme Court yesterday asked for a briefing on the political question doctrine in connection with entirely private lawsuits that are going on at the Supreme Court that are going to be argued in May. But I think that’s a different issue.
Hon. Steven Engel: The entirely private lawsuits necessarily involve weighing the enforceability of subpoenas with respect to potentially Executive Branch records. But the only thing I would say to add is that I fully agree that a lawsuit that simply seeks to promote liberty as such and asks the courts to determine their best idea of liberty is not the kind of lawsuit that we think that Article III courts should decide. But here as Jesse and Neil have suggested here, here we have a concrete argument based on the separation of powers under the Constitution, and we have a litigant who says that its interests are very much affected by the appropriate resolution of that.
So we may explain presidential accountability and presidential control over the Executive Branch as one of the structural ways in which the Founders promoted liberty, but the argument is not based on conceptions of liberty. It’s based upon a conception of what actually the Constitution means and what it structurally required. And while there are actually nontrivial arguments against justiciability at some of these, those arguments have largely been jettisoned over the last -- since the early 1980s or so, and particularly over the last 15 years or so.
And so the Court has shown itself increasingly ready to decide questions about whether a particular officer is properly appointed or not in the context of challenging that officer’s decisions and the like. And so we’ll probably continue -- that’s largely why we’ve seen such an expansion in these cases with Lucia and Seila Law and Free Enterprise Fund and the like. And I think we’re going to continue to see that as the Court enforces now these structural boundaries on the Constitution.
Hon. Neil Eggleston: Dean, can I jump back on that just for a second? I’m actually now going to agree with Steve. So one of the arguments that Paul Clement makes why the Court should not actually decide the case — I think Jesse made a vague reference to this — is that unlike Myers and unlike Humphrey’s Executor, nobody is removed. This is sort of -- in Paul’s view, this is a little bit of an advisory opinion because there has not been a removal of anybody in connection with the CFPB. And in fact, the current director thinks the director serves at the pleasure of the President. But in a situation where there’s been harm, it seems to me that it’s perfectly appropriate for the Supreme Court to resolve that case, and it’s not a political question doctrine necessarily.
Dean Reuter: Once again, if you’re in the audience, if you have a question on the phone, push star and then 9. If you’re on the Zoom feature on your chat button on the lower part of your screen, you can push raise hand. We’ve just got one question, now two questions pending. Let’s check in with our next caller and remind you to be as succinct as possible with your questions. We’ve got about 13 minutes left. Go ahead, caller.
Caller 2: Just wondering does the impeachment of Andrew Johnson over the removal of Stanton have any part in this discussion?
Hon. Steven Engel: I think it’s very much relevant. And it was at issue in Myer v. United States, which actually, among other things, in Chief Justice Taft’s opinion, he actually addresses the Tenure of Office Act. And maybe this dovetails in a little bit to what Neil said about Morrison v. Olson. Justice Scalia -- I have the highest regard for Justice Scalia and admiration for many of his opinions, including I share Justice Kagan’s view of his dissent in Morrison v. Olson.
The one thing I don't think we can give him credit for is the invention of the notion of a unitary Executive Branch run by a single President, in part because I think that that conception was understood at the time of the Founding. In addition, Myers v. United States discusses that issue based largely on historical and originalist evidence and the like. And at the time of the Founding, if everything were perfectly clear, we probably wouldn’t be having this discussion right now.
But that doesn’t mean that history doesn’t give us right answers and wrong answers based on the text of the Constitution, the structure of the Constitution, the understanding of executive power at the time. That was the decision that was made -- what they referred to as the Decision of 1789 where this issue was first thought about by Congress which said, “We’ve got to set up the Executive Branch. We’ve got it set up. We’ve got to create these officers who report to the President, so we have to help understand what did we understand by vesting the executive authority in the President?” And there was an active debate about what this means. And they adopted a view in which the executive officers would be directly responsible to the President.
Now, that view didn’t hold forever. And as we saw various innovations in our political structure during the Civil War, the Republicans in Congress who deeply distrusted, for good reason, Andrew Johnson on a variety of fronts, adopted the Tenure of Offices Act and ultimately impeached him for that. Now, he wasn’t convicted by two-thirds. It was very close. That is something of a historical precedent, although it’s not a judicial precedent.
But this issue then was kind of relitigated in the context of Myers v. United States because the statue at issue there was very similar to the Tenure of Offices Act, except insofar as it applies to the Postmaster General -- the Postmaster Offices, rather. That was at issue. So I think it’s very much relevant to it. I think Myers, which I agree with Neil, did involve, in part, congressional aggrandizement, was rightfully decided, was not challenged. The music of it, the analysis of it, all 70 pages of it, was cast aside to a significant degree by Humphrey’s Executor.
Dean Reuter: Jesse or Neil, on this point?
Jesse Panuccio: When OLC starts opining on history, I just let them do their thing.
Dean Reuter: We’ve got a couple questions pending. Before we go to our next caller, let me ask a question really quickly. Maybe it’s one question of each of our panelists. And that for Neil, I get the points about whether unitary executive exists, and the structure of the Constitution and so forth. I do wonder if there’s something to be said about fairness and predictability in the law and what that means for the regulated community as to Jesse’s point about the FTC v. Qualcomm case or the EEOC Title VII cases or the CFPB case where the government finds itself on both sides of a case. And what is the regulated entity supposed to do in those circumstances in terms of how predictable is the law?
For Jesse and Steve, I’d give you a chance, or I’d be interested in your responses to Neil’s argument that the structural Constitution assertions are -- I don’t want to put words in your mouth, Neil, but they’re without a lot of substance. But anyhow, Neil first, if you could.
Hon. Neil Eggleston: Well, so two thoughts, which is first let me let me defend my other position a little bit, which is I completely agree that the Founders thought that the structure of the Constitution with three branches was part of preserving liberty of individuals. And so if you have a situation where you look at a congressional power and you look at a presidential power and determine in a separation of powers case who wins, which comes up from time to time, that’s perfectly appropriate. I’m not saying that there’s anything about that dispute about structure. That’s what courts do all the time.
What I don’t like is when courts, without referring to specific clauses of the Constitution, base their arguments on the Constitution itself as opposed to their inference about what the Framers might have been thinking about the structure, but not based -- and I’m sounding quite originalist here. I get that. But when the arguments are not based on the text of the Constitution but on some sort of secondary what they might have been thinking, that’s what I think becomes contentless and standardless.
But I completely agree that the structure of the Constitution, the three branches, is a critical component of defending liberty. I’m completely in support of that. It’s the analytical framework that I want to talk about, so I’m glad. And thanks for giving me the chance to make that clear.
But on your question, I really think in some ways that that question confuses apples and oranges. This issue, the issue that you’re talking about comes up in connection with litigation. It’s in the process of being resolved. And the question is what do courts get told about what the positions of the various parties are? I think that’s different than the issue about regulated parties because the Court is going to come out with a decision, and the decision is going to bind the Justice Department and going to bind the FTC, whatever that decision is.
But in some weird way, I think that -- so I’m not troubled by the Qualcomm decision. In fact, in some ways, I think it’s just a restatement of the problem we’ve been talking about, which is, is it appropriate for there to be independent agencies or not? I don’t think it’s a different question than the question we have generally been talking about.
And I think that in this matter -- in fact, I think it was helpful, actually, the Department of Justice weighed in. And my understanding is they got five minutes of argument or so, and they largely focused on the issue that Jesse talked about, which is the national security issue, which is an area that they have expertise on that maybe the FTC does not. And so the Court got to hear the various different arguments.
I know we’re running out of time. I just want to tell a quick little story. So I argued In Re Lindsay in the D.C. circuit, and that was one of the Clinton era litigations we had about privilege. It had to do with governmental privilege.
So I was a private lawyer retained by the Office of the President to represent the Office of the President in that litigation. The decision was that the Attorney General could not represent the White House because the Attorney General had supervisory authority, albeit not very much, over the independent counsel. So I argued as a private lawyer on behalf of the Office of the President. Ken Starr argued on behalf of independent counsel. The Department of Justice had an amicus brief, and if I’m remembering right, argued on behalf of the Department of Justice. Bob Bennett represented the President in his individual capacity.
And let me just say we had lots of lawyers giving lots of positions to the court. And I don’t think the court had any trouble figuring out what various people’s interests were. I don’t like the outcome because I lost 2-1, but there was no lack of clarity about where various people stood.
Dean Reuter: Jesse Panuccio or Steve Engel?
Jesse Panuccio: Yeah, if I can -- Steve, do you want to go?
Hon. Steven Engel: Go ahead, Jesse.
Jesse Panuccio: Well, let me just respond to that last point. I think the key difference between some of these cases where you have maybe the government switching positions or differing positions, it’s one thing when a party sues and you’re in court for that reason. I think it’s very different when you’re in court because you have an enforcement action. What’s going on here is the FTC is telling a regulated party it broke the law. And the other law enforcement agency, no less than the United States Department of Justice, is saying, “No, you did not.” I think that state of affairs is very difficult. And saying the Court will sort it out doesn’t do much for the regulated party, at least in the short term.
Dean, if I could, I wanted to just respond quickly to a couple of points that Neil raised. And I think I already answered the structural point, but one — and I hope I do these justice — but one point he made is Humphrey’s is okay because another branch -- unlike Myers, another branch of government is not getting involved in the removal decision. I think the answer to that is if that were true, we wouldn’t have an opinion called Humphrey’s Executor. It may have been that Congress wasn’t involved. What Congress did is set up a regime where the official could sue over the removal standard and then have another branch, the Judicial Branch, decide whether the executive’s removal was appropriate or not.
The second argument was that Congress creates all of the departments, so why can’t it structure them -- Congress is the font of all of this, so it can structure as it wants. I think the answer to that is Congress is the font of everything in this country. All laws emanate from Congress. It doesn’t mean Congress can pass any law it wants. So all crimes come from Congress. It doesn’t mean that Congress can criminalize speech. There’s a First Amendment, there’s a constitutional check on that power, and I think there are constitutional checks on how Congress can set up the Executive Branch.
And then third, there’s a point about there’s no strict separation of powers. We have a regime where the powers are actually mixed. I think that is true. It is very hard, as Steve mentioned, to define what exactly is executive or legislative power. I think that the key point, though, is that while Congress may be able to delegate some of its power or there can be some mixing, what no branch can do to another is diminish the power that the other has. So if something truly is executive power, Congress can’t say to the executive, “You can no longer exercise that power.”
And then the last point I’ll just make -- I think Neil made a point about some originalist scholarship that’s come out about the limited nature of the Founder’s view of what executive power is. Just two points about that. One I would say, at the very least, though, you can’t faithfully execute the laws if you can’t control the agents who are, in fact, executing the laws. That seems to me at least the basic proposition. And then lastly, I’d say if that scholarship is to be accepted and the executive power is quite limited, that’s a good thing for your later panel on the delegation doctrine because it means perhaps we don’t reconsider Humphrey’s Executor, but we certainly need to reconsider how much power these independent executive agencies have been given under an originalist view.
Dean Reuter: Steve Engel, let me give you a minute quickly if you’d like, if you want to take it, and then we’ll see if we can get a final question in.
Hon. Steven Engel: Sure. I think I fully agree with Neil and Justice Scalia that we need predictability in the law, and we need doctrines that are premised in the law and do not give too much discretion to judges to enact what they regard as solid policy in a variety of contexts.
I would only submit maybe in closing or on this point that if you accept the proposition that Congress cannot do whatever it wants with executive officers, if you accept that the Attorney General cannot be appointed with a tenure protection to be removed only for cause -- and frankly, that is not universally accepted. That was proposed in the wake of Watergate in the 1970s by many people. And I think that that has been proposed recently in connection with this administration. So I’m not sure that that’s -- there are people who say that, but if you accept Congress doesn’t always win, and yet, at the same time, you say that large segments of the Executive Branch can be immunized from presidential control, particularly with respect to principal officers, you’re left with a system in which there is no predictability about the outcome.
I would point to Justice Breyer’s dissent in Free Enterprise Fund. And in that dissent, he talked about a functional approach. He said that courts should figure out what’s the right balance between how Congress sets up the Executive Branch and what is enough control for the President? But I’m not sure that there is any standard other than kind of we know it when we see it in that arrangement.
And I think that the better answer under the law is the one that was adopted by five justices in the majority in Free Enterprise Fund which is that we have an Executive Branch that the President speaks for, and therefore, we cannot be in a situation in which executive officers are insulated from presidential control. The majority left Humphrey’s Executor in place, but again, I think that what they did show and I think the theory of the Chief Justice’s opinion in that case is one in which we need to restore accountability and restore presidential control over those who exercise executive power.
Dean Reuter: Well, folks, we’re out of time. Indeed, we’re beyond our time. So I’m afraid we’re going to have to let that be our final word. We were advised that 60 minutes is the right length of time for these webinars. Otherwise, people lose interest. But I certainly hadn’t lost interest.
On behalf of The Federalist Society and personally, I want to thank our three experts. This has been very entertaining and a great way to start our EBR webinar series. To the audience, if you have a question about CLE, you can direct those to email@example.com. We have another webinar that begins at 10:30 Eastern Time on judicial power. It is at a unique link. Do not use this same link to access it. But until that next call, we are adjourned. Thank you very much, everyone.
Jesse Panuccio: Thank you. Stay well, everyone.