Collins v. Yellen

JUSTICE GORSUCH, concurring in part.¶

I agree with the Court on the merits and am pleased to join nearly all of its opinion. I part ways only when it comes to the question of remedy addressed in Part III–C.¶

As the Court observes, the only question before us concerns retrospective relief. Ante , at 32. By the time we turn to that question, the plaintiffs have proven that the Director was without constitutional authority when he took the challenged actions implementing the Third Amendment. In response to such a showing, a court would normally set aside the Director’s ultra vires actions as “contrary to constitutional right,” 5 U. S. C. §706(2)(B), subject perhaps to consideration of traditional remedial principles such as laches. See ante , at 36, n. 26; Abbott Laboratories v. Gardner , 387 U. S. 136, 155 (1967). Because the Court of Appeals did not follow this course, this Court would normally vacate the judgment in this suit with instructions requiring the Court of Appeals to conform its judgment to traditional practice. Today, the Court acknowledges it has taken exactly this course in cases involving unconstitutionally appointed executive officials. Ante , at 33–34.¶

Still, the Court submits, we should treat this suit differently because the Director was unconstitutionally insulated from removal rather than unconstitutionally appointed. Ante, at 33–34; see also ante , at 7 (THOMAS, J., concurring). It is unclear to me why this distinction should make a difference. Either way, governmental action is taken by someone erroneously claiming the mantle of executive powerand thus taken with no authority at all. The Court points to not a single precedent in 230 years of history for the distinction it would have us draw. Nor could it. The course it pursues today defies our precedents. In Bowsher v. Synar , 478 U. S. 714 (1986), this Court concluded that Congress had vested the Comptroller General with “the very essence” of executive power, id. , at 732–733, but that he was (impermissibly) removable only by Congress, id. , at 727–728. In Seila Law LLC v. Consumer Financial Protection Bureau , 591 U. S. ___ (2020), we found Congress had assigned the CFPB Director sweeping authority over the financial sector, id. , at ___–___ (slip op., at 4–6), while insulating him “from removal by an accountable President,” id. , at ___ (slip op., at 23). In both cases that meant the officers could “not be entrusted with executive powers” from day one, Bowsher , 478 U. S., at 732, and the challenged actions were “void,” Seila Law , 591 U. S., at ___ (slip op., at 10). 1¶

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1 The Court’s attempt to sidestep these cases leads nowhere. Seila Law , we are told, discussed standing—not remedies—when it said plaintiffs “ ‘sustain[] injury’ ” from unlawfully insulated executive action and may “challeng[e] [such] action as void.” See ante, at 34, n. 24. But standing and remedies are joined at the hip: Article III permits a court only to provide “a remedy that redresses the plaintiffs’ injury-in-fact .” Collins v. Mnuchin , 938 F. 3d 553, 609 (CA5 2019) (Oldham, J., concurring in¶

If anything, removal restrictions may be a greater constitutional evil than appointment defects. New Presidents always inherit thousands of Executive Branch officials whom they did not select. It is the power to supervise—and, if need be, remove—subordinate officials that allows a new President to shape his administration and respond to the electoral will that propelled him to office. After all, from the moment “an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear.” Synar v. United States , 626 F. Supp. 1374, 1401 (DC 1986) ( per curiam ). Chief Justice Taft, who knew a little about such things, put it this way: “[W]hen the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal.” Myers v. United States , 272 U. S. 52, 122 (1926). Because the power of supervising subordinates is essential to sound constitutional administration, as between presidential hiring and firing “the unfettered ability to remove is the more important.” M. McConnell, The President Who Would Not Be King 167 (2020).¶

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part and dissenting in part) (emphasis added). That is why a plaintiff “must have standing [for] each form of relief” sought. Town of Chester v. Laroe Estates, Inc. , 581 U. S. ___, ___ (2017) (slip op., at 5). Bowsher , we are told, involved a legislative officer—not an executive one, which supposedly makes all the difference. Ante , at 35, n. 25. But there the Comptroller was legislative only in the sense that he headed an “independent” department and was accountable to Congress rather than the President. 478 U. S, at 730–732. If there is any difference here, it’s that the FHFA Director—who likewise heads an “independent” agency, 12 U. S. C. §4511(a)—is accountable to no one . The idea that whether acts are void or not turns on a label rather than on the functions an officer is assigned and who he is accountable to should not be taken seriously. E.g., Bowsher , 478 U. S., at 727–728, 732–733; Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U. S. 477, 484–486, 496–498 (2010); Seila Law , 591 U. S., at ___–___, ___ (slip op., at 4–6, 23); ante , at 27–29, 31–32.¶

Protecting this aspect of the separation of powers isn’t just about protecting presidential authority. Ultimately, the separation of powers is designed to “secure[] the freedom of the individual.” Bond v. United States , 564 U. S. 211, 221 (2011); ante , at 20–21. That’s no less true here than anywhere else. As Hamilton explained, the point of ensuring presidential supervision of the Executive Branch is to ensure “a due dependence on the people” and “a due responsibility” to them; these are key “ingredients which constitute safety in the republican sense.” The Federalist No. 70, p. 424 (C. Rossiter ed. 1961). In the case of a removal defect, a wholly unaccountable government agent asserts the power to make decisions affecting individual lives, liberty, and property. The chain of dependence between those who govern and those who endow them with power is broken. United States v. Arthrex, Inc. , ante, at 3 (GORSUCH, J., concurring in part and dissenting in part). Few things could be more perilous to liberty than some “fourth branch” that does not answer even to the one executive official who is accountable to the body politic. FTC v. Ruberoid Co. , 343 U. S. 470, 487 (1952) (Jackson, J., dissenting).¶

Instead of applying our traditional remedy for constitutional violations like these, the Court supplies a novel and feeble substitute. The Court says that, on remand in this suit, lower courts should inquire whether the President would have removed or overruled the unconstitutionally insulated official had he known he had the authority to do so. Ante , at 35. So, if lower courts find that the President would have removed or overruled the Director, then the for-cause removal provision “clearly cause[d] harm” and the Director’s actions may be set aside. Ibid.¶

Not only is this “relief ” unlike anything this Court has ever before authorized in cases like ours; it is materially identical to a remedial approach this Court previously rejected. In Bowsher , the Court directly addressed and expressly refused the dissent’s insistence that it should undertake a ''consideration’ of the ‘practical result of the removal provision.'' 478 U. S., at 730. Instead of speculating about what would have happened in a different world where the officer’s challenged actions were reviewable within the Executive Branch, the Court recognized that unconstitutionally insulating an officer from removal “inflicts a ‘here-and-now’ injury” on affected parties. Seila Law , 591 U. S., at ___ (slip op., at 10). In this world, real people are injured by actions taken without lawful authority. “The Framers did not rest our liberties on . . . minutiae” like some guessing game about what might have transpired in another timeline. Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U. S. 477, 500 (2010).¶

Other problems attend the Court’s remedial science fiction. It proceeds on an assumption that Congress would have adopted a version of the Housing and Economic Recovery Act (HERA) that allowed the President to remove the Director. But that is sheer speculation. It is equally possible that—had Congress known it could not have a Director independent from presidential supervision—it would have deployed different tools to rein in Fannie Mae and Freddie Mac. Surely, Congress possessed no shortage of options. By way of example, it could have conferred new regulatory functions on an existing (and accountable) agency like the Department of Housing and Urban Development, or it might have enacted detailed statutes to govern Fannie and Freddie’s activities directly. For that matter, Congress might have opted for no additional oversight rather than subject the Federal Housing Finance Agency (FHFA) to supervision by the President.¶

This Court possesses no authority to substitute its own judgment about which legislative solution Congress might have adopted had it considered a problem never put to it. That is not statutory interpretation; it is statutory reinvention. Indeed, while never uttering the words “severance doctrine,” the Court today winds up implicitly resting its remedial enterprise upon it—severing, or removing, one part of Congress’s work based on speculation about its wishes and usurping a legislative prerogative in the process. See, e.g., Arthrex , ante, at 6–7 (GORSUCH, J., concurring in part and dissenting in part); Synar , 626 F. Supp., at 1393. By once again purporting to do Congress’s job, we discourage the people’s representatives from taking up for themselves the task of consulting their oaths, grappling with constitutional problems, and specifying a solution in statutory text. “Congress can now simply rely on the courts to sort [it] out.” Tennessee v. Lane , 541 U. S. 509, 552 (2004) (Rehnquist, C. J., dissenting). 2¶

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2 JUSTICE THOMAS stakes out more foreign terrain. After saying that he “join[s] the Court’s opinion in full,” he argues there was no constitutional violation at all because the President—despite statutes barring his way—was free to remove the Director all along. Ante , at 1, 4, 11. Accordingly, it seems JUSTICE THOMAS disagrees with all of Part III–B’s merits analysis in addition to the Court’s novel remedy in Part III–C. Like the Court, though, he seemingly takes as given that Congress would have chosen to adopt HERA even if it had known this course required subjecting the Director to removal by the President. Ante , at 5–6. In doing so, he parts ways with his opinion last year in Seila Law , where he recognized the following: First, in cases like ours, a constitutional violation arises because of “the combination” of statutory terms that (1) confer executive power on an official and (2) improperly insulate him from removal. 591 U. S., at ___ (THOMAS, J., concurring in part and dissenting in part) (slip op., at 21). Second, absent statutory direction from Congress, we cannot divine “which of the provisions” Congress would have kept and which it would have scrapped—or what else it might have done—had it known its actual choice was unconstitutional. Id., at ___ (slip op., at 23). Third, this Court lacks the “ ‘editorial freedom’ ” to pick and choose among options like these, for doing so would usurp Congress’s legislative authority. Ibid. Today, JUSTICE THOMAS suggests Seila Law rested on one party’s concession about the meaning of the law. Ante , at 8, n. 5; ante , at 10. But parties cannot stipulate to the law. E.g., Zivotofsky v. Kerry , 576 U. S. 1, 41, n. 2 (2015) (THOMAS, J., concurring in judgment in part and dissenting in part); Young v. United States , 315 U. S. 257, 258–259 (1942). More importantly, his observations were right then—and they remain so today.¶

The Court’s conjecture does not stop there. After guessing what legislative scheme Congress would have adopted in some hypothetical but-for world, the Court tasks lower courts and the parties with reconstructing how executive agents would have reacted to it. On remand, we are told, the litigants and lower courts must ponder whether the President would have removed the Director had he known he was free to do so. Ante , at 35. But how are judges and lawyers supposed to construct the counterfactual history? It is no less a speculative enterprise than guessing what Congress would have done had it known its statutory scheme was unconstitutional. It’s only that the Court prefers to reserve the big hypothetical (legislative) choice for itself and leave others for lower courts to sort out.¶

Consider the guidance the Court offers. It says lower courts should examine clues such as whether the President made a “public statement expressing displeasure” about something the Director did, or whether the President “attempted” to remove the Director but was stymied by lower courts. Ibid. But what if the President never considered the possibility of removing the Director because he was never advised of that possibility? What if his advisers themselves never contemplated the option given statutory law? And even putting all that aside, what evidence should courts and parties consult when inquiring into the President’s “displeasure”? Are they restricted to publicly available materials, even though the most probative evidence may be the most sensitive? To ascertain with any degree of confidence the President’s state of mind regarding the Director, don’t we need testimony from him or his closest staff?¶

The Court declines to tangle with any of these questions. It’s hard not to wonder whether that’s because it intends for this speculative enterprise to go nowhere. Rather than intrude on often-privileged executive deliberations, the Court may calculate that the lower courts on remand in this suit will simply refuse retroactive relief. See, e.g., ante , at 6¶

(KAGAN, J., concurring in part and concurring in the judgment). But if this is what the Court intends, why not just admit it and put these parties out of their misery?¶

As strange as the Court’s remand instructions are, the more important question lower courts face isn’t how to resolve this suit but what to do with the next one. Today, the Court sounds the call to arms and declares a constitutional violation only to head for the hills as soon as it’s faced with a request for meaningful relief. But as we have seen, the Court has in the past consistently vindicated Article II both in reasoning and in remedy. E.g., Seila Law , 591 U. S., at ___ (opinion of ROBERTS, C. J.) (slip op., at 36); Lucia v. SEC , 585 U. S. ___, ___–___, n. 5 (2018) (slip op., at 12–13, n. 5); NLRB v. Noel Canning , 573 U. S. 513, 557 (2014); Ryder v. United States , 515 U. S. 177, 182–183 (1995); Bowsher , 478 U. S., at 736. These cases—involving appointment and removal defects alike—remain good law. So what are lower courts faced with future removal defect cases to make of all this? The only lesson I can divine is that the Court’s opinion today is a product of its unique context—a retreat prompted by the prospect that affording a more traditional remedy here could mean unwinding or disgorging hundreds of millions of dollars that have already changed hands. Ante , at 32–33. The Court may blanch at authorizing such relief today, but nothing it says undoes our prior guidance authorizing more meaningful relief in other situations.¶

For my part, rather than carve out some suit-specific, removal-only, money-in-the-bank exception to our normal rules for Article II violations, I would take a simpler and more familiar path. Whether unconstitutionally installed or improperly unsupervised, officials cannot wield executive power except as Article II provides. Attempts to do so are void; speculation about alternate universes is neither necessary nor appropriate. In the world we inhabit, where individuals are burdened by unconstitutional executive action, they are “entitled to relief.” Lucia , 585 U. S., at ___ (slip op., at 12).¶