Wednesday, July 1, 2020

Chief Justice Roberts Rewrote Morrison v. Olson

By Josh Blackman - July 01, 2020 at 05:32PM

Chief Justice Roberts talks a good game about stare decisis and stability. But time and time again, he reads precedent in such a distorted fashion as to effectively rewrite it. His superlative writing style often blurs the process. But careful readers–and dissenters–can see through his transparent ruses. Indeed, Roberts's self-professed humility depends on everyone being too dumb to see what he is really doing.

For example, in June Medical, he basically discarded Whole Woman's Health, and reverted back to Casey. And in Espinoza, he walked back Footnote Three of Trinity Lutheran. He is slowly interring Justice Kennedy's jurisprudence of doubt. Soon enough, I suspect he will roll back Fisher II and restore a constrained-notion of Grutter as the correct precedent for affirmative action.

Roberts made similar moves in Seila Law, but his target was the old boss: Chief Justice Rehnquist. Without much fanfare, Roberts effectively rewrote Morrison v. Olson. He did so with such nonchalance that you may have missed it.

Under the Ethics in Government Act, the independent counsel was appointed by a three-judge panel. Under the Appointments Clause, only "inferior" officers can be appointed by the "courts of law." If Alexia Morrison was a "principal" officer, then her appointment was invalid. Chief Justice Rehnquist concluded that Morrison was an "inferior" officer who could be appointed by the "courts of law."

Later in the opinion, Rehnquist considered whether the independent counsel statute, as a whole, violates the separation of powers: could Congress insulate the independent counsel from removal? Here, Rehnquist found the answer was no. The independence of the counsel did not unduly burden the President's Article II powers. But Morrison's "inferior" status played no role, whatsoever, in that analysis. It was irrelevant. Yet, in Seila Law, Chief Justice Roberts limited Morrison's separation-of-powers analysis to "inferior" officers. He wrote:

And in United States v. Perkins, 116 U. S. 483 (1886), and Morrison v. Olson, 487 U. S. 654 (1988), we held that Congress could provide tenure protections to certain inferior officers with narrowly defined duties.

Roberts adds later.

Although the independent counsel was a single person and performed "law enforcement functions that typically have been undertaken by officials within the Executive Branch," we concluded that the removal protections did not unduly interfere with the functioning of the Executive Branch because "the independent counsel [was] an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority."

That's not what Morrison held. Here is the full passage from Rehnquist's opinion:

Considering for the moment the "good cause" removal provision in isolation from the other parts of the Act at issue in this case, we cannot say that the imposition of a "good cause" standard for removal by itself unduly trammels on executive authority. There is no real dispute that the functions performed by the independent counsel are "executive" in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch. As we noted above, however, the independent counsel is an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority. Although the counsel exercises no small amount of discretion and judgment in deciding how to carry out his or her duties under the Act, we simply do not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.

The fact that Morrison was an "inferior" officer, rather than a "principal" officer, was irrelevant for the separation-of-powers analysis. After Seila, presumably, Morrison has nothing to say about tenure protections imposed on "principal" officers. Without missing a beat, Roberts gutted Morrison.

As a matter of first principles, I probably agree with this analysis. But it quietly deviates from precedent. Roberts's fidelity to stare decisis does not include following precedents as written. And we all know it.

Justice Kagan, in dissent, shredded the Chief on his flawed reading of Morrison.

The majority's description of Morrison, see ante, at 15– 16, is not true to the decision. (Mostly, it seems, the majority just wishes the case would go away.)

You don't say. She continues:

Second, as all that suggests, Morrison is not limited to inferior officers. In the eight pages addressing the removal issue, the Court constantly spoke of "officers" and "officials" in general. By contrast, the Court there used the word "inferior" in just one sentence (which of course the majority quotes), when applying its general standard to the case's facts.

She's right. Kagan also notes that the Roberts decision is inconsistent with Justice Scalia's canonical dissent:

Indeed, Justice Scalia's dissent emphasized that the counsel's inferior-office status played no role in the Court's decision. See id., at 724 ("The Court could have resolved the removal power issue in this case by simply relying" on that status, but did not). As Justice Scalia noted, the Court in United States v. Perkins (1886), had a century earlier allowed Congress to restrict the President's removal power over inferior officers. See Morrison. Were that Morrison's basis, a simple citation would have sufficed.

I noted earlier that Roberts does note cite Scalia's dissent once. Roberts wants this jurisprudence to be his; not Scalia's. Now, he owns it.

Justice Kagan also asserts that Roberts rewrote Morrison v. Olson as it interpreted Humphrey's Executor.

First, Morrison is no "exception" to a broader rule from Myers. Morrison echoed all of Humphrey's criticism of the by-then infamous Myers "dicta." 487 U. S., at 687. It again rejected the notion of an "all-inclusive" removal power. Ibid. It yet further confined Myers' reach, makingclear that Congress could restrict the President's removal of officials carrying out even the most traditional executivefunctions. And the decision, with care, set out the governing rule—again, that removal restrictions are permissible so long as they do not impede the President's performance of his own constitutionally assigned duties.

Roberts turns around and accuses Kagan of rewriting Humphrey's:

The dissent would have us ignore the reasoning of Humphrey's Executor and instead apply the decision only as part of a reimagined Humphrey's-through-Morrison framework. See post (KAGAN, J., concurring in judgment with respect to severability and dissenting in part) (hereinafter dissent). But we take the decision on its own terms, not through gloss added by a later Court in dicta.

I need to give this issue some more thought. The precise status of Humphrey's Executor has always given me difficulty. Myers was clear. Humphrey's muddied things, but standing along, was clear enough. Morrison altered Humphrey's without saying so. And now Seila Law throws everything into chaos. This semester, I will really struggle to teach these cases as a coherent doctrine.

Going forward, here is how the Chief summarizes the caselaw:

Our precedents have recognized only two exceptions to the President's unrestricted removal power. In Humphrey's Executor v. United States (1935), we held that Congress could create expert agencies led by a group of principal officers removable by the President only for good cause. And in United States v. Perkins (1886), and Morrison v. Olson (1988), we held that Congress could provide tenure protections to certain inferior officers with narrowly defined duties.

What is the rule? My colleague Randy Barnett's description of NFIB v. Sebelius is appropriate for Seila Law: this far, but no farther. Whatever was upheld in Humphrey's and Morrison is permissible. But novel extensions are presumptively unconstitutional, and have to be defended.

One final note. During oral argument, Paul Clement–as amicus curiae–suggested a possible limiting principle to Congress's authority to add tenure protections. Clement offered a "constitutional backstop":

Second, there's a constitutional backstop, an absolute constitutional backstop, which is those authorities that the Constitution assigns directly to the President –so the State Department, the Defense Department, pardon power; there's a few others –those cannot be subject under any circumstances to anything other than at-will removal.

I observed:

In other words, if the Constitution assigns a power to the President, then the President's supervision of the agencies that execute that power cannot be limited by a "for-cause" provision. Clement lists a few examples. First the State Department presumably premised on the President's powers over foreign affairs. Second, the Defense Department, which involves the President's powers as Commander in Chief. Third, the pardon power, which I think would relate to DOJ. These cabinet positions must be removable "at will." I did not see this argument made in Clement's brief; it was reserved for argument.

Justice Kagan, who appointed Clement, adopted this backstop: foreign affairs and military matters are different from domestic financial matters. She wrote:

…Congress took the first steps—which would launch a tradition—of distinguishing financial regulators from diplomatic and military officers. The latter mainly helped the President carry out his own constitutional duties in foreign relations and war. The former chiefly carried out statutory duties, fulfilling functions.

She repeated this point in Footnote 6:

In one sense, the two-decade-long existence of the Tenure of Office Act reveals the 19th century political system's comfort with expansive restrictions on presidential removal. But the ultimate repudiation of the law, and the broad historical consensus that it went too far, just as strongly shows the limits that system later accepted on legislative power—that Congress may not impose removal restrictions preventing the President from carrying out his own constitutionally assigned functions in areas like war or foreign affairs. See Morrison v. Olson, 487 U. S. 654, 689–691 (1988) (recognizing that limit as the constitutional standard).

And in Footnote 9:

If the only presidential duty at issue is the one to ensure faithful execution of the laws, a for-cause provision does not stand in the way: As Morrison recognized, it preserves authority in the President to ensure (just as the Take Care Clause requires) that an official is abiding by law. See 487 U. S., at 692. But now suppose an additional constitutional duty is implicated—relating, say, to the conduct of foreign affairs or war. To carry out those duties, the President needs advisers who will (beyond complying with law) help him devise and implement policy. And that means he needs the capacity to fire such advisers for disagreeing with his policy calls.

Roberts forcefully rejects this "constitutional backstop."

The dissent claims to see a constitutional distinction between the President's "own constitutional duties in foreign relations and war" and his duty to execute laws passed by Congress. Post, at 13. But the same Article that establishes the President's foreign relations and war duties expressly entrusts him to take care that the laws be faithfully executed. And, from the perspective of the governed, it is far from clear that the President's core and traditional powers present greater cause for concern than peripheral and modern ones. If anything, "[t]he growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive's control, and thus from that of the people." Free Enterprise Fund, 561 U. S., at 499 (emphasis added).

Indeed, Roberts rejects Kagan's entire theory of the Take Care Clause. He writes:

Under our Constitution, the "executive Power"—all of it—is "vested in a President," who must "take Care that the Laws be faithfully executed." Art. II, §1, cl. 1; id., §3. Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance. …

The President's power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States, 272 U. S. 52 (1926).

Here, Roberts writes that subordinates exercise executive power "on [the President's] behalf." And the Take Care Clause imposes on the President a duty to ensure that the subordinates faithfully execute the law. The unitary executive lives.

In March, I criticized the House General Counsel, Douglas Letter. He refused to offer any limiting principle. This case may be another instance where the client instructed the attorney to avoid taking a position that would not hold up. Clement tried, and it was rejected. Letter did not give up any concessions that could have backfire.

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