Neil Gorsuch Questions Executive Power in Trump v. Slaughter Oral Arguments

Executive Power and Civil Prosecutions

• ❓ Justice Gorsuch questioned the respondent attorney, Amit Agarwal, on how his theory of conclusive and preclusive executive power applies to civil prosecutions, referencing the Meyers case.
• 💡 Agarwal argued that the conclusive and preclusive standard doesn't have to be the sole limiting factor and that the Take Care Clause might impose such a standard in certain circumstances, particularly for officers with purely executive functions like the postmaster in Meyers.

Agency Powers and Independence

• 🔍 Gorsuch probed whether many independent agencies, like the FTC, also exercise investigative powers similar to those of traditional executive agencies.
• ⚖️ Agarwal distinguished criminal investigative authority as different and noted that if certain functions cannot be wielded by independent agencies, then that is simply the law.

Civil vs. Criminal Enforcement

• 🏛️ Gorsuch expressed difficulty understanding the attorney's use of "conclusive and preclusive" regarding executive power, especially when applied to the decision of whether to bring civil charges under the FTCA, which he sees as a conclusive enforcement decision.
• 📜 Agarwal responded that there's no controlling authority holding that civil enforcement can never be vested in a multi-member agency with insulation from political pressure, citing Humphrey's Executor.
• 👨‍⚖️ He further elaborated that while civil enforcement on behalf of the government is not executive power, criminal actions are considered quintessentially executive, but agencies also engage in quintessentially judicial and legislative activities without being subject to plenary control.
• 🔑 The core issue, according to Agarwal, is not whether a function is executive in some sense, but whether it is constitutionally committed to the President's sole and exclusive discretion.