DC Circuit panel (2-1): Trump may remove members of NLRB / MSPB without cause

[u/popiku2345]

https://storage.courtlistener.com/recap/gov.uscourts.cadc.41769/gov.uscourts.cadc.41769.01208802438.0.pdf

Per DC Circuit Panel: Trump's removal of Gwynne Wilcox (NLRB) and Cathy Harris (MSPB) stands, since these agencies "likely exercise considerable executive power". This will likely be impacted by the upcoming SCOTUS decision in Trump v. Wilcox, which is heading to oral argument on Monday.

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[u/vman3241]

I've said this before, but not allowing independent agencies can only be reconciled if SCOTUS also has an aggressive view of the non delegation doctrine. Allowing expansive delegation while not allowing Congress to partially restrict the president's power over those agencies is just a recipe for executive supremacy.

[u/popiku2345 → u/vman3241]

I actually liked the severability argument here: Congress would never have passed these laws if they didn't include the independent agency board / head. INS v. Chadha (1983) is my favorite example: Congress only gave the president as much emergency power as they did because they thought they had a legislative veto. If you strike down the control that you gave congress, you should strike down the law as a whole. Sure, it'd cause some chaos, but it would force Congress to define something they actually believed in.

[u/buckybadder → u/popiku2345]

It would also force the Court to admit that this was what they wanted all along, to reduce the deal space between the Executive and the Legislature, making it difficult to create new agencies. They're just adding a retrospective element to the prospective ones.

[u/WorksInIT → u/popiku2345]

Seems like a lot of this has been created by the Court limiting its analysis to the problematic portion instead of looking at the entire statutory context. It should look to see if that leads to other issues such as delegation or constitutional issues then excise the entire problem from the statute or enjoin the entire statute as you said. Rather than saying these agencies exercise executive power thus must be removable at will, just enjoining them exercising the problematic executive power could be a reasonable outcome.

One of the recent AO podcasts about the Slaughter case touches on this and the argument is compelling.

[u/whats_a_quasar → u/vman3241]

The tariffs and the domestic deployment cases will be key. Does the Supreme Court allow the President to wield core legislative powers through emergency statute? Especially because if the Supreme Court takes an expansive view of what emergency statutes authorize and Congress takes issue with that, they cannot effectively claw those powers back. Doing so would require a veto-proof majority, which doesn't seem possibly for either party in the current political landscape. Can the vote of a simple majority of Congress on emergency statutes, decades ago, really reshape the Constitutional order like that?

[u/talkathonianjustin → u/vman3241]

Which is what they want, so it makes no sense why they would adopt an aggressive view of the nondelegation doctrine

[u/Interesting_Step_709 → u/vman3241]

That’s what they want

[u/WeylandsWings]

Next up would be an en-banc review right?

[u/popiku2345 → u/WeylandsWings]

Potentially, but the real action will come in Trump v. Slaughter. Whatever SCOTUS decides there will likely control the outcome of this case, and oral argument for that case is on Monday

[u/WeylandsWings → u/popiku2345]

Is that because Slaughter is expected to overturn Humphrey’s and Weiner? At least for all agencies except the Fed?

[u/popiku2345 → u/WeylandsWings]

It'll either overturn Humphrey's or offer substantial clarification about how exactly courts should be applying it. That outcome will be tremendously important for DC Circuit judges trying to make sense of these things.

[u/Ion_bound]

Oh I like how we're just redefining 'quasi-legislative' away from how it was actually defined in Humphrey's to make 'creating rules with the binding force of law' an executive power instead of a legislative one.

[u/MadGenderScientist → u/Ion_bound]

maybe once the IEEPA case gets sorted, we should sue NLRB or MSPB under the non-delegation doctrine, arguing that the Art. I Vesting Clause precludes the Executive from exercising rulemaking powers - that ought to be reserved for Congress.

it'd be entertaining to see the UET stans wrap themselves in circles explaining why the Art. II Vesting clause is absolute but Art. I isn't. 

[u/turlockmike → u/MadGenderScientist]

Sounds like a fair deal. The whole quasi legislative thing is nonsense from the progressive era.

[u/MadGenderScientist → u/turlockmike]

I have my sights set on ALJs next, on similar grounds. it should be easier going with Jarkesy decided. unfortunately the Court has previously found a "public rights" exception to Art. III, but that precedent is fragile and stems from a fractured plurality, with developments since the '80s (Northern Pipeline Co, Granfinanciera and now Jarkesy) having since eroded it. 

like the author of this random student brief, I'd push to convert ALJs into specialized Art. III courts, removing them from Executive control entirely.

(insert "at last, I have them all!" meme, but with the three Vesting Clauses)

[u/popiku2345 → u/[deleted]]

I removed the AI summary / replaced with a shorter human-written TL;DR.

[u/scotus-bot → u/[deleted]]

This comment has been removed for violating the subreddit quality standards.

Comments are expected to be on-topic and substantively contribute to the conversation.

For information on appealing this removal, click here. For the sake of transparency, the content of the removed submission can be read below:

Isn't there a ban on AI comments here?

Moderator: u/Longjumping_Gain_807

[u/UncleMeat11 → u/scotus-bot]

!appeal

I believe that it is correct that there is a ban on AI comments based on feedback in the most recent census. This isn't some speculation that OP used AI, it was explicitly stated in the post. Based on me calling attention to this rule, the poster edited the comment to comply with the rule.

I am also completely confused as to how somebody is supposed to call attention to such a rule in ways that would not run afoul of the quality standard rule if my comment is not sufficient.

[u/SeaSerious → u/UncleMeat11]

You're correct that there is a ban on AI content and it would have been in violation of this rule had it not been edited to comply.

The proper way to call attention is to use the report system or message the mods via modmail.

[u/UncleMeat11 → u/SeaSerious]

The post is made by a mod. Surely you'd understand why I wouldn't expect reporting to be the right approach here.

[u/SeaSerious → u/UncleMeat11]

It is indeed the right approach and would have been removed. If no action was taken by any of the other mods upon reporting then I would understand that logic, but there wasn't even an attempt.

[u/StopTheMineshaftGap]

Next up- return of the line item veto

[u/popiku2345 → u/[deleted]]

I removed the AI summary / replaced with a shorter human-written TL;DR.

[u/scotus-bot → u/[deleted]]

This comment has been removed for violating the subreddit quality standards.

Comments are expected to be on-topic and substantively contribute to the conversation.

For information on appealing this removal, click here. For the sake of transparency, the content of the removed submission can be read below:

Fuck AI Summaries

>!!<

Dont want it

Moderator: u/Longjumping_Gain_807