JUSTICE GORSUCH: You agree that [the President] has a duty to faithfully execute all the laws.MR. AGARWAL: Yes.JUSTICE GORSUCH: Civil and criminal.MR. AGARWAL: We agree that the Constitution imposes on the President a duty to faithfully execute the laws, absolutely.MR. AGARWAL: Well —JUSTICE GORSUCH: Are there some laws he doesn’t have to? That would be news to our friends across the street.
Agarwal anticipates the trap Gorsuch is walking him toward. If there is a duty, there must be the power, so he says it out loud and offers a limitation:
MR. AGARWAL: The Take Care Clause is a duty, and it is also a power, but the text of the clause does not provide that the President must have at-will presidential —
Gorsuch doesn't want the extras. He's leading Agarwal through a catechism. He wants only the answer to the question asked:
JUSTICE GORSUCH: I didn’t ask that. Does he have a duty to faithfully execute all the laws?MR. AGARWAL: We know from —JUSTICE GORSUCH: Yes or no?MR. AGARWAL: I would say no, in the sense —JUSTICE GORSUCH: No?
The correct answer is "yes." What's with this "no"? Agarwal knows he needs it to be "no" or he's walking into the trap:
MR. AGARWAL: — in the sense — let me — there’s two different questions, and I want to make sure that I’m answering the questions.JUSTICE GORSUCH: The question is, does the President have a duty to faithfully execute all the laws? The answer is no. Why?MR. AGARWAL: So he can’t break the law for sure. Does he have to be vested with statutory authority to actually enforce, directly enforce, or to exercise —JUSTICE GORSUCH: I’m not asking whether he has to bring the indictment. I’m asking whether he has a duty to faithfully execute the laws.MR. AGARWAL: I think the President does not under both history and tradition have to have plenary power of supervision, but in the case of the FTC, he does have some power of supervision, including if there’s a demonstrable, palpable violation of law, the President could absolutely fire a Commissioner of the FTC under the plain language of the statute.JUSTICE GORSUCH: So the answer is no, I guess. But you say that he does have to have direct supervision and removal authority for someone who has conclusive and exclusive authority to bring criminal prosecutions, right?MR. AGARWAL: That is our understanding of this Court’s decision in Trump v. United States — yes.JUSTICE GORSUCH: But not civil?MR. AGARWAL: That’s right.JUSTICE GORSUCH: Okay. And just to be clear, so that means if the government wants to bring a misdemeanor, that person has to be reportable to the President, but if the government wants to bring ruinous fines and penalties and injunctions, that person doesn’t?MR. AGARWAL: I don’t know the scope of this Court’s holding in Trump v. United States —JUSTICE GORSUCH: I’m asking you for your theory because it’s a very interesting theory. You’re building off of two words from Trump versus United States and putting a gloss on it that I’m not familiar with. I had understood the executive power and he has conclusive and preclusive authority to that, but this line, I don’t know where it comes from.
If Agarwal wants to answer "no" to the question that is so much more easily answered yes, and Gorsuch will expose how difficult that "no" is.
MR. AGARWAL: Your Honor, the theory that we are referring to, Justice Gorsuch, as we understand it, is not just based on this Court’s recent decision in Trump v. United States. It goes all the way back to Marbury v. Madison.
Agarwal is, presumably, ready to explain that the President is himself bound by the law, and if the law says the President is only allowed to fire the FTC commissioner for cause, then faithfully executing the laws includes not firing the FTC commissioner without cause. Gorsuch suddenly abandons his careful walk into the duty/power trap and simply announces his theory:
JUSTICE GORSUCH: I’ll put my cards on the table — maybe it’s a recognition that Humphrey’s Executor was poorly reasoned and that there is no such thing in our constitutional order as a fourth branch of government that’s quasi-judicial and quasi-legislative. Maybe you’re trying to back-fill it with a better new theory that itself recognizes that we’ve got a problem.
Gorsuch has a theory and challenges Agarwal to show that his theory is better. Agarwal's theory requires drawing "this line" distinguishing what power belongs exclusively to the President.
MR. AGARWAL: And Marbury distinguishes in the context of removability of federal offices—
JUSTICE GORSUCH: I guess I’m just wondering if we take your theory to back-fill Humphrey’s and go down this road, how are we supposed to decide which powers are exclusive — for your purposes, as you understand it from Trump v. United States, what powers are going to fall in and what are going to fall out? Are we going to have just as much litigation over that as anything else we might do in this case?
Now, Gorsuch is making it sound like a practical problem of too much uncertainty and too much litigation. Agarwal is comfortable here:
MR. AGARWAL: I don’t think so. We’ve had this modern era of traditional independent agencies for a long time. We haven’t had any precedent ever striking them down. And this Court has not been, as far as I know, overwhelmed with difficult questions of line drawing. In fact, from 1935 to 2025, we had pretty much unanimity among courts that traditional independent agencies are fine.
This is Agarwal's safest place. If you want to know what's practical, look at what long practice has shown us.
JUSTICE GORSUCH: We’re always going to have litigation over the separation of powers, aren’t we?MR. AGARWAL: There will always be litigation — absolutely, but the point is that this Court’s precedents affirming Congress’s authority to work with Presidents to create traditional independent agencies has not generated any significant problems, still less insurmountable problems.JUSTICE GORSUCH: Thank you.
Ah! That was a soft landing for Agarwal. It seemed as though Gorsuch was leading him into a conceptual trap, but the 2 men ended up talking about practicalities. And yet in the long run, the narrative arc of this discussion does not matter. I liked the gentle etiquette, but the key information must be what Gorsuch said right after "I’ll put my cards on the table."
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50 comments:
It looks like Gorsuch didn’t just lead him into a trap, he trapped him. No? Really?
I think Agarwal recognized that the 'fourth branch' idea would be a third rail, and stayed well away from engaging it at all. But I notice that Gorsuch did not point out that there is one system of laws that applies to all.
’We’ve had this modern era of traditional independent agencies for a long time.’
If these traditional independent agencies have existed for a long time then it’s all good!! Woot! That was easy…
I would like to know where Congress gets the power to do carveouts and end runs of Article II, absent a constitutional amendment.
Full admiral ackbar
"We’ve had this modern era of traditional independent agencies for a long time. We haven’t had any precedent ever striking them down."
So- the "Living Constitution" concept allows for the creation of a fourth branch of the government but does not allow for it's removal?
Ok then. Let's start from there. Suppose everybody employed in the fourth branch is let go and Trump brings in new bureaucrats who cannot be removed by a future Democrat president.
Do you think Democrats would be okay with that?
So Philip Hamburger: Is Administrative Law Unlawful? -- that book seems to be precisely what is going on here, right?
More broadly.... isn't the administrative state the fundamental aspect of fascism, in the classic Mussolini sense? The idea that government can work with and manage the economy without "owning" it, like the commies do?
Next point: Isn't Fauci the fundamental reason why this case is suddenly here? The entire premise of the administrative state is that we are being governed by unbiased, competent "experts" in the field. And if that is the case, then there is a justification for the admin agencies.
But if they aren't actually expert, or they are just partisan politicians abusing their "unbiased agency status" to ram a political agenda down the countries throat, then why do we have the agency at all? Just have the partisans we elect decide, instead of partisans we do not elect wielding dictatorial, unchecked power.
"partisans we do not elect wielding dictatorial, unchecked power."
You mean- like kings?
We’ve had this modern era of traditional independent agencies for a long time.
Speaking of practicalities, chattel slavery existed in the Colonial and early Republican eras of this country for much longer than independent agencies erected by Congress to undermine the executive powers of the President, and elsewhere since time immemorial.
"Ah! That was a soft landing for Agarwal."
I suppose, but only if you're grading in it terms of debater's points. Agarawal's 'no' was a big problem, so much so that Justice Jackson came back to it at the end and tried to help him fix it. She goes last in the final round of questioning and basically asked him whether his 'no' was about prosecutorial discretion and the like. But the 'law' that the President has a duty to enforce includes the law specifying when he (or his subordinates exercising executive power) have such discretion.
Very unlikely that Gorsuch or any of the other five who were beating up on Agarawal found any of that persuasive. And very unlikely that the other three were open to being persuaded by anything said in today's argument, either.
Administrative law is unlawful in that he same people write the regulations and run the trial for violations.
I understand why Thomas asks very few questions. He knows Humphrey’s Executor was bullshit. As for Marbury, the question to the plaintiff’s lawyer is whether Marbury could be fired. Where in that imperious decision did the Court say that Jefferson couldn’t fire Marbury even if his commission had to be delivered.
The appointment power of the executive branch in the Constitution is spread among a few positions.
The Fire that Son of a Bitch Power isn’t mentioned. But given the rest of article 2 and the separation of powers, the President has total authority to Fire
"If the President has a duty, then he must have the power."
Of course, but there are millions in this country who would not come to that conclusion if it applies to you know who.
So then would it also follow that whatever power he has is also a duty to enforce, as in immigration? A lot of Presidents have not fulfilled their duty.
Where I see Gorsuch's questioning leading is to the conclusion that, if it's a good thing to have administrative agencies that are beyond the control of the President, then amend the Constitution to authorize them. Piece of cake, right? Right?
It's not clear to me why the Supreme Court's earlier holding in Collins v. Yellen (2021), to the effect that a legislative provision limiting the executive's power to fire agency commissioners to "for cause" was unconstitutional, isn't controlling here.
Maybe they took the case so that they can clarify that they meant what they said.
Funny how that works
I'm more interested in how the judges have the right to tell the Executive branch how to do its job.
Mr. Agarwal: “ Justice Gorsuch, we believe that there are plenty of rooms in Washington DC, both in the capital building at the White House. Why, there are streets lining the Capital Mall lined with buildings that have lots of rooms in them. Our position - my constitutional theory is that with enough smoke in these rooms - if we can just get enough smoke in them - the concerns aboutthese independent agencies can all be worked out as it has so well in the past, without having to bother with who has what power under the constitution.”
I also noticed that the word 'tradition' is factoring heavily in this discussion when discussing Humphrey’s Executor. Agarwal used it more than once and just now, listening to NPR's highly objective and totally unbiased (with Valley Girl accent) coverage of today's events, they used the word a number of times too. What happened to that old chestnut 'precedent'? Does it sound too much like 'President'? Just wondering about the studied non-mention of what is normally a key word in these types of stories. Using 'tradition' like that, as if it has its own gravitas and respectable patina, seems like a weak argument.
Oddly Chattel Slavery lasted 89 years from the Declaration of Independence - 76 years from ratification of the Constitution. Seems it's about time to undo the unlawful usurpation that began under FDR.
It took more that half a million lives
’…then amend the Constitution to authorize them.’
In a nutshell.
AGARWAL: Awww, come on Your Honor, it's so simple. Maybe you need a refresher course.
[leans arm on hot bench]
AGARWAL: Hey! It's all Marbury v. Madison nowadays. Now you prepare that Brown Jackson Justice with some 3-in-1 oil and some gauze pads. And I'm gonna need 'bout ten quarts of anti-freeze, preferably Prestone. No, no make that Quaker State.
Using 'tradition' like that, as if it has its own gravitas and respectable patina, seems like a weak argument.
There’s precedent for tradition in Con law, at least according the law prof host here, like with electors and disposing of Hawaiian judges. We don’t do that… was the explanation. Tradition!
Simon say...
In my view the independent agencies stuff - quasi-legislative & quasi-judicial - is just so much made-up stuff. What does them in is the universal "All" and the definite article "The,"
~~~"The All legislative powers herein granted shall be vested in a Congress . . ." If such powers are all in Congress, then none can be anywhere else.
~~~ "The executive power shall be vested in a President of the United States."
~~~ "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress [may create] . . ." Again, because this power can only be in the courts, none can be found anywhere else.
Jackson: My understanding was that independent agencies exist because Congress has decided that some issues, some matters, some areas should be handled in this way by nonpartisan experts
Well, Justice, the problem is that our Constitution does not give Congress the power to make that decision.
Democratic government and democratic acountability means that ALL decisions must be made by people who are accountable to the voters, so that when they screw up the voters can punish them for doing so.
No amount of "expertise" can beat that.
Way back in 1967 my Administrative Law professor predicted that the day would come when the Supreme Court would have to address head on the issue of how do you crowbar the concept of an “independent” administrative agency into the US Constitution’s three branches of government. It took a very long time , but that day has finally arrived.
I don’t know the scope of this Court’s holding in Trump v. United States
That means he is either wildly incompetent or he is lying because he knows he is in the wrong.
We’ve had this modern era of traditional independent agencies for a long time.’
If these traditional independent agencies have existed for a long time then it’s all good!! Woot! That was easy…
Slavery existed for a long time - about the exact same amount of time, in fact - yet no one argues that that makes it okay.
I note nary a comment from the leftists who frequent blog. Do they not have a legal justification for an unaccountable, all powerful, dictatorial agency?
More Jackson:
So having a President come in and fire all the scientists and the doctors and the economists and the PhDs and replacing them with loyalists and people who don't know anything is actually not in the best interest of the citizens of the United States.
1: If the current President can appoint "loyalists and people who don't know anything", then so can previous Presidents. Which means her delusion that the current people there are all "non-partisan experts" is clearly garbage
2: What's clearly not in the best interest of the citizens of the United States is to have people who aren't accountable to them running their lives and making decisions for them
By the way, "I put my cards on the table" is a polite way of saying "you are so full of sh*t."
" replacing them with loyalists and people who don't know anything
Those who say they don't know what a woman is are a perfect example of "replacing them with loyalists and people who don't know anything".
Gotta love our Constitutional order and those that dare test it every which way. We are a blessed nation.
One thing that sticks in my mind, reading the transcripts: The 3 lefties are all on the Respondent's team. They are not pushing or challenging Agarwal, they're simply supporting him.
Off teh top of my head I can't recall any case where the 6 not hard core lefties do that. Where they see their job as supporters of one side. Where they don't push and challenge both sides.
Is my memory poor?
Vance, “ So Philip Hamburger: Is Administrative Law Unlawful? -- that book seems to be precisely what is going on here, right?”
Bingo!
“Attorney Narwhal, I see your point.”
Well, no man, we don’t need a constitutional amendment to allow independent executive agencies. You need a constitutional amendment to keep them from being independent! Says the high school debater.
So if the electorate is upset with the FTC Commissioner there is NOBODY that they can elect that has the power to fire them? Where there are no political ways to accomplish reasonable things, unreasonable men turn to extra-political solutions.
Any judge that thinks the Article III Supreme Court can make something up blocking clearly enumerated Article II Executive powers really doesn't belong in a free country.
The Supreme Court is a disgrace. There is no saving it. It is a completely political entity that is essentially a warring tribe attacking the President and his tribe.
Nobody wants to read the paper this country was founded on.
The problem with Agarwal's argument is that if Humphrey is upheld, no limiting principle prevents Congress from making all the departments within the Executive Branch "quasi-independent" in which the President has no power at all. Really, Congress could just set up a completely separate executive branch by funding it and denying funding to the old executive branch. And mine is not really an absurd possibility because, what exactly is the argument that it can't be done?
So if the electorate is upset with the FTC Commissioner there is NOBODY that they can elect that has the power to fire them?
Be careful with this argument- the reply is going to be that Congress created the "quasi-independent" agency and Congress can fire those commissioners with legislation or impeachment. Why be careful? Because the argument hides the principle being violated here which isn't that the FTC answers to no one but, rather, that Congress is violating the Constitution by creating such agencies in the first place. It isn't happenstance that the original legislation gave the President some power over the commissioners- the writers of the legislation knew they were on unstable constitional grounds in trying to create this sort of "independence".
"I appreciate there’s a conflict between the two, but one would think, under our constitutional design, given the history of the monarchy and the concerns the Framers had about a President controlling everything, that in the clash between those two, Congress’s view—that we should be able to have independence with respect to certain issues—should take precedence.”
Ketanji Brown Jackson said this. Out loud.
This is a Supreme Court Judge.
This is flat out illiterate below average IQ garbage. This is so absurd.
THE DOG ate his homework.
Now we know why the Democrats want to "pack" the court.
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