Amy Coney Barrett Questions Executive Power Limits in Trump v. Slaughter

Executive Power and Removal Authority

• 💡 Justice Barrett questioned Solicitor General John Sauer regarding the broadest authority for executive removal power, specifically the unitary executive theory stemming from the vesting clause.
• 🎯 Alternative theories, such as the take care clause or the appointments clause, were presented as potentially more limited sources of removal authority.
• 🔑 Sauer argued that the court's decisions, dating back to the 19th century, consistently support an exclusive and illimitable power of removal, citing textual bases in the vesting and take care clauses, and referencing Madison's statements.

Constitutional Textual Bases

• 🧠 Sauer asserted that the vesting clause provides the clearest textual basis for executive removal power, aligning with the concept of overseeing those who execute laws as a quintessential executive function.
• ⚖️ He encouraged the court to adhere to the logic of previous decisions, highlighting nine cases from 1839 to 2024 that describe the removal power as exclusive and illimitable.

Independent Agencies and Bargains

• ❓ Barrett inquired about the role of legislative vetoes in the historical context of creating independent agencies, noting their ubiquity before being deemed unconstitutional in Chada.
• ⚙️ She questioned whether the loss of legislative vetoes, a significant congressional check, might have led to independent agencies exercising powers beyond congressional intent, a point raised by Justice Gorsuch.
• 🏛️ Sauer countered that the FTC Act predates the widespread use of legislative vetoes and suggested that legislative vetoes themselves represent a separation of powers problem.

Stare Decisis and Reliance Interests

• 📌 The discussion shifted to stare decisis, with questions about overruling old cases and the weight of reliance interests in government structure cases.
• 🚀 Sauer referenced Justice Gorsuch's opinion in Ramos, arguing that reliance on a violation of the separation of powers, such as congressional reliance on agency removal restrictions, should be given little weight.
• 📊 He distinguished between reliance on constitutional structure and personal reliance interests (e.g., marriage, business), suggesting the latter are not typically implicated by agency removal restrictions.