New Draft of "Remedies in the Officer Removal Cases"
This morning I posted a new draft of my paper on interim and final relief in the officer removal cases (such as Trump v. Slaughter and Trump v. Cook). And it now has a citation: Samuel L. Bray, Remedies in the Officer Removal Cases, 17 Journal of Legal Analysis (forthcoming 2025).
A brief note on the revisions. There’s one structural change—now final relief is taken up first and then interim relief. There is a more thorough engagement with treatises across numerous subjects—equity, public officers, quo warranto, mandamus, de facto officers—and the cases they cite. There are some fascinating cases that have not previously been part of the literature or discussion (e.g., Delgado v. Chavez). There is a much closer engagement with the briefs and procedural history of White v. Berry. And there are numerous other refinements and more precise formulations, in part thanks to a number of helpful readers and splendid research by the librarians at the D’Angelo Law Library. But the gist of the Article and its main conclusions are exactly the same as in the previous draft: declaratory judgments are likely to be the best remedies after suit in the officer removal cases, and the historic practice of equity supports preliminary injunctions that protect de facto officers—provided, critically, that they sue immediately. So there are alterations but only in detail.
I should probably note one other point about how this paper came to be. As a remedies scholar, I found it hard to avoid being interested in this difficult and salient remedies question, but I did not start considering it carefully until earlier this fall. When I did, my intuition was that this would not just be an ad hoc or case by case analysis, but there would be some usual pattern—a presumption. And my intuition was that the presumption would run in favor of the president, with the officer being provisionally removed from office during legal proceedings. That’s not because I thought the removal powers of the president were being wisely used as a policy matter. But that’s where I thought the history of equity would lead me.
That’s not what happened. I found more and more cases that couldn’t fit the pattern I expected, and eventually a very different but also coherent pattern emerged: equity would not determine title to the office, but it would protect the de facto officer while the legal process played out. That pattern was evident in the past—the “page of history” in Justice Holmes’s famous line. And it made sense in terms of the present equitable analysis for a preliminary injunction, because of how an “anti-flipping” principle would fit into the consideration of the equities and the public interest in officer removal cases. This Article is the fruit of that investigation.
A topic not addressed by this paper but which I wondered if you had thoughts is what the remedy should be if the executive's right to remove is ultimately upheld by the courts. The working assumption seems to be that the court will only strike down the narrow limitations on removal in the statute. But in certain cases, such as the removal of inspectors general or appointments that require partisan balance, that seems to defeat the purpose of the statute. Why in those cases isn't the proper remedy to strike down the entire statute and return the question of appropriate delegation to Congress?