Following up on my last post, I think an institutional position for Congress in the Slaughter case would look something like this.
First, the Court can avoid addressing the precedential status of Humphrey’s Executor by holding that courts cannot intervene in a dispute regarding an officer’s purported removal from a multimember commission like the Federal Trade Commission (FTC). The government makes several broad constitutional and statutory arguments against judicial power to provide relief in this case (some of which depend on its view that Slaughter is a presidential subordinate). Brief for Petitioners at 38-47. Whatever the merit of those arguments, there is none to the government’s suggestion that the Court should both reach the substantive question of whether the removal limitation in the FTC Act is constitutional and hold that courts in any event lack the power to grant any relief. If the courts lack the power to grant relief, there is no basis for reaching the merits of Slaughter’s claims. Continue reading “An Outline of Congress’s Interest in the Slaughter Case”