Things to Read This Week (5/26)
Adversarial collaborations, Trump v. Wilcox, and more
Happy Memorial Day!
An “Adversarial Collaboration” between Sam Bray and Jim Pfander on "Remedies in the First Hundred Days of Trump II.” A great co-authorship, and also a great format idea. I would love to see more adversarial collaborations in law.
The Past and Persistence of Private Prosecution, from the always-interesting Emma Kaufman.
My New York Times op-ed defending Trump v. Wilcox: The Supreme Court Ruled in Favor of Trump. And That is OK. (“It is a sign of the times that the Supreme Court may have just used its emergency docket to all but overrule an important precedent limiting executive power. That precedent is Humphrey’s Executor, a New Deal-era case establishing the constitutionality of independent agencies.
In a surprising twist, its decision to do so was both predictable and reasonable.”) Don’t read the comments.
And relevant to the above, The Supreme Court’s Fed Carveout: An initial Assessment, by Lev Menand. Very helpful and obviously very timely (a 10-page analysis of Trump v. Wilcox posted the day after that decision) but I would like to see some engagement with Bamzai & Nielsen, which I discussed in Friday’s post (How To Save The Federal Reserve). A ripe opportunity for another “adversarial collaboration”?
Menand does, in effect, effectively engage with Bamzai/Nielsen, even if he doesn't cite them. Indeed, the principal point of his piece is to explain that, contra B&N, the Federal Board of Governors isn't analogous in the slightest to the early Banks of the U.S.--indeed, the Board regulates banks and thus, even in this particular respect, exercises very significant executive power, however one would define that term.
And that's hardly the only reason that B&N isn't remotely sufficient to defend what the Court did on Friday in Wilcox.
For one thing, as you noted in your Friday post ("the bad news"), because the Board does much *more* than simply control "monetary policy," the tenure protection of the Board members can't be reconciled with the rationale of Seila Law (and, now, Wilcox's newly hatched "considerable executive power" test), even on B&N's own account.
What's more, to the extent B&N do, as you suggest, "conclude that monetary policy is not core executive power," their case is, well, hardly compelling. That function is not analogous, in any way, to the sorts of "functions that congress could perform on its own—such as investigative and informative functions" (B&N at 897). Setting rates isn't something Congress could assign to its own agents. Of course it's a form of "executive power." B&N's entire case for concluding to the contrary is that early Congresses are said to have assigned it to private parties. But that's begging the question. Even if that were so (and as Menand points out, it's not accurate as to the Banks of the U.S., although Congress did do something analogous in, e.g., creating the Sinking Fund Commission), that would simply show that the Constitution does not require Congress to assign such "executive power" to entities subject to absolute presidential control--indeed, Congress need not assign such statutory functions to governmental entities at all. In other words, it would demonstrate that the Court Seila Law was wrong to assume that the Vesting Clause gives the POTUS the power personally to exercise, direct and control "all of" "the Executive power," i.e., the power to execute statutory functions.
As I understand them, B&N *start from* the premise that Seila Law was right that a power not subject to indefeasible and virtually plenary presidential control must not be "executive," and they then reason from that starting point that functions the early Congresses removed from such control (such as by assigning them to entities that are not part of the Government for Lebron purposes) must not, for that reason, be deemed "executive" for purposes of the Vesting Clause. That doesn't follow, though. What the early history shows instead--over and over again--is that virtually *no one* at the Framing or the generations immediately thereafter viewed the Vesting Clause the way the Court did in Seila Law. See pp. 24-31 of my amicus brief with David Vladeck in SL: https://www.supremecourt.gov/DocketPDF/19/19-7/129635/20200122204142091_19-7bsacProfessorsMartinS.LedermanAndDavidC.Vladeck.pdf#page=31. (Indeed, that view of the Vesting Clause was unceremoniously rejected by no less than John Yoo and Don McGahn in recent GOP Administrations. See https://balkin.blogspot.com/2024/09/a-vivid-illustration-of-impact-of.html.) If you had said to anyone in that early period that an entity such as the MSPB exercises its statutory power "on [the President's] behalf," as the Court did in Wilcox, they would have looked at you as if you were from another planet. (And, of course, the Congress that created the MSPB would have viewed that notion as nuts: The whole point of the MSPB is to ensure that the POTUS and his appointees comply with the law, rather than to act "on [Trump's] behalf."
Taking regulatory powers out of FED and combining them with Comptroller and FDIC in consolidated bank regulatory agency has been repeatedly advocated. Political/bureaucratic resistance. Those regulatory powers are clearly different from functions of bank/monetary policy. If those regulatory powers are “executive”, S Ct can sensibly sever them. Congress can do job of creating better federal bank regulator. FED can continue as independent bank making monetary decisions.