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Calling case number 25, 5037 et al.

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Kathy A. Harris in her personal capacity and her official capacity as member of the Merit System Protection Board versus Scott Bessent in his official capacity as Secretary of the Treasury et al.

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Appellant.

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And case number 25, 5057, Gwen A. Wilcox v. Donald J. Trump in his official capacity as President of the United States.

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And Marvin E. Kaplan in his official capacity as Chairman of the National Labor Relations Board Appellants.

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Mr. McArthur for the Appellants.

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Mr. Zelinski for Applely Harris and Mr. Gupta for Applely Wilcox.

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All right, Mr. MacArthur, good morning.

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Good morning, Your Honors, and may it please the court, Eric MacArthur for the defendants.

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The court should stay the judgments below pending appeal because the government is likely to prevail on the merits and because the balance of harms and the public interest favor a stay.

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On the merits, the government is likely to prevail for two independent reasons.

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First, because Article 2 empowers the president to remove members of the NLRB and MSPB at will.

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And second, because even if that were not the case, the reinstatement remedies ordered below are improper.

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As to the first point, the government is likely to prevail because the four cause removal restrictions for members of the NLRB and MSPB

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unconstitutionally infringe on the president's core Article 2 authority to supervise principal officers who wield his executive power on his behalf.

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The Supreme Court has been quite clear that the president's unrestricted power of removal is the general rule, or as this court called it in Severino, the presumptive rule.

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That rule flows from the text of Article 2,

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which vests the entirety of the executive power in the president, and from the need to ensure that executive officials who wield power affecting the lives and livelihoods of American citizens remain accountable to the democratically elected president.

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I think Judge Henderson may have been trying to ask a question.

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Oh, I'm sorry.

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I didn't hear.

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Sorry.

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Mr. MacArthur, could the president decide that he wasn't going to appoint or allow to remain in office?

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any female heads of agencies or any heads over 40 years old.

[00:02:29] Speaker 05:
I think that that would be within the president's constitutional authority under the removal power.

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There would be separate questions about whether that would violate other provisions of the constitution.

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But of course the president would have to go there because the 14th amendment came after article two and that's not this case.

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I'm not saying how it would come out but

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It would not be the same as a last in time statute in conflict with the Constitution.

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It would be a last in time constitutional provision, arguably in conflict with a previous.

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I mean, that would be the analysis.

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You would have to reconcile the 14th Amendment versus the removal power.

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And as we know, the 14th Amendment has been applied to the federal government for the due process clause.

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I think that would be the analysis.

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But of course, as Your Honor mentioned, we have nothing like that here.

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What about the over 40 part?

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All you need is a rational basis under the Constitution is I desire to exercise my removal power a rational basis.

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I think it might well be a rational base.

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So, so at least as to judge Henderson's question is to fire and everybody over 40.

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That is your view as of now at least.

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But I don't I mean I don't want to get get out over my skis here obviously all of these are sensitive questions when the department makes decisions about this, this is made very top acting Solicitor General and I do not want to get out in front of the president or the acting Solicitor General on any of these issues.

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I'm trying to wrestle with how sort of reasonableness review applies to the president's exercise of the removal power, which doesn't have to give any reasons under your theory.

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I mean, that is right.

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The Supreme Court has been clear that that figure out how the over 40 thing would come out any different.

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The presumptive rule is is that it is an unrestricted power of removal.

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But the question we have here isn't about whether that that power has trenched on some other provision of the Constitution.

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It is whether Congress can constitutionally restrict that power through a provision that says the president may only remove one of these members for cause for malfeasance or inefficiency or neglect of duty.

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And the Supreme Court's precedents have been quite clear that to date, the court has recognized only two exceptions that allow Congress to come in and regulate that otherwise unlimited power of removal.

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One is for inferior officers.

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And one is for multi-member expert agencies that do not wield substantial executive power.

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There's no dispute here that plaintiffs are principal rather than inferior officers.

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They are agency heads who answer to no one but the president.

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So the first exception clearly does not apply.

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Instead, this case turns on the issue that you flagged Judge Walker in your concurrence in Severino as an issue for another day.

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that day has now come.

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And the question is, what is the scope of the Humphreys executor exception in light of the Supreme Court's most recent precedents?

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And our principal guide on that question is the Supreme Court's decision in SILA law, where the court carefully reviewed the decision in Humphreys executor.

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And this is how the court summarized its analysis of what that opinion stands for.

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The court said

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That was an exception that permitted Congress to give four cause removal protections to a multi-member body of experts balanced along partisan lines that performs legislative and judicial functions and was said to not to exercise any executive power.

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Or in shorter compass, the CELA law court described the exception as one for multi-member expert agencies that do not wield substantial executive power.

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Now I'm not certain whether that substantial part of the formulation survived the court's subsequent decision in Collins, but whether it did or not, I don't think makes any difference in this case because even if the test is substantial executive power, both agencies here clearly wield substantial executive power and power that goes well beyond the powers that were considered by the court as the basis for its decisions in Humphrey's executor and subsequently and

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in Wiener.

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If all the entity does is adjudicate disputes, applying the law that Congress has prescribed to facts that it may find.

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How is that wielding executive power within the meaning of Humphreys and Wiener?

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So the Supreme Court has told us in cases like City of Arlington that even if an executive agency is doing things that take on

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judicial or legislative forms under our constitutional structure, those exercises of power are and must necessarily be exercises of the executive power.

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And that is why the Supreme Court's decisions have repudiated the central plank on which Humphrey's executor stands.

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I think the court has left.

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They've done that, but said time and again and again that we're not touching Humphrey's executor.

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That's still precedent.

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Now I understand

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You want to make marked arguments to the Supreme Court.

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But this court is bound by Supreme Court precedent until the Supreme Court says otherwise.

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And given that it has in seal of law, and even again in Collins, said this precedent is still on the books, what authority does this court have to say, you were just kidding.

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That's how we're going to interpret it.

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You really meant for us to cast aside what you have kept in place.

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So I have no quarrel with you, Judge Mallette, that you are, of course, bound by the Supreme Court's precedents, their holdings in those cases, unless and until the Supreme Court decides to overrule them.

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And we're not asking you here to do anything inconsistent with the holdings of Humphrey's executor or Wiener.

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We are instead asking you to apply those cases as they have been clarified by the Supreme Court in SILA law.

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And I will say frankly that I think the Supreme Court has left the lower courts in something of a tough spot here because it has left those holdings in place while repudiating their rationale, the central plank of the rationale of Humphrey's executive.

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was that the FTC occupied no place within the executive branch and exercised no part of the executive power.

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That's because you have to just read the whole decision, though.

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And again, in Wiener, it was quite clear that what we mean is, in Wiener, the commission, it said all they do is adjudicate cases according to the law and find facts.

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And that,

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is sufficient.

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And the CFPB wasn't adjudicating anything in seal of law.

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Well, both authority and Collins.

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And so neither of them could speak to what happens when you have sort of quintessentially adjudicated bodies like the MSPB and NLRB.

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As to those types of bodies, we have to stick with Humphreys and Wiener.

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Well, both of the bodies here exercise powers that go well beyond

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adjudicatory power.

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So we can come back to that.

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But as to your Honor's question about this.

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Predominantly is what the test was.

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Perhaps predominant.

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The MSPB and NLB, the board as it acts is predominantly adjudicative.

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The MSPB, that's all it does.

[00:10:03] Speaker 05:
Well, that's not all it does.

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It needs some rules to govern its own proceedings, as does this court.

[00:10:12] Speaker 05:
It does some other things that are executive powers, but to go back to your honor's point about predominantly, I agree with that.

[00:10:19] Speaker 05:
I think the MSPB is predominantly an adjudicatory body, but the issue here is how you apply the Supreme Court's precedents when the holdings are left intact.

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but the rationale has been repudiated.

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I'm not sure.

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And I'm just, I'm quarreling with that, that, you know, our tests for whether the Supreme court has gotten rid of something that's pretty strict, right?

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We don't get to, we don't get to treat it like some kind of Rorschach test and we see in it, whatever we wish, right?

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It is, it has got to be pretty strict.

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And when the other cases haven't involved adjudicatory bodies like these two at all,

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You've got no precedent dealing with adjudicatory bodies, predominantly, as you just said, adjudicatory bodies, since Wiener.

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And we're having to do an awful lot of surgery that the Supreme Court has said don't bother.

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Humphreys and Wiener are still precedent.

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And I'm just curious why the Justice Department thinks the courts of appeals

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have the ability to do what the Supreme Court itself has again and again expressly declined to do.

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So we don't think that this court has any authority to overrule the holdings of Humphreys or executor.

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We think that the cases here- Or Wiener.

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I'm sorry, did I?

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Humphreys executor or Wiener.

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The cases here are materially distinguishable from those facts, from the facts that were presented in both of those cases.

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Oh, sure.

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They may do less than they

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FTC.

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No, I disagree with that, Judge Mallette.

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I mean, if you want to compare, let's compare, for example, the MSPB to the War Reclaims Commission that was at issue earlier.

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And I think we should compare it on two axes, both looking at and evaluating the nature of the adjudicatory power that the two bodies exercise and then looking also at the additional powers that the MSPB exercises that weren't exercised by the War Reclaims Commission.

[00:12:18] Speaker 05:
So starting on the first one, the War Claims Commission was a time-limited body that existed for just a few years, essentially to distribute money in a fund to people who had been injured in World War II.

[00:12:30] Speaker 06:
Sounds pretty executive or legislative.

[00:12:32] Speaker 05:
Well, I think it was definitely, we would definitely understand that today as executive power, but it was a very narrow scope executive power.

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Whereas the MSPB is a permanent body that has the charge to apply and interpret.

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What does permanence or length of time have to do

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with whether it's trenching on your vision of the removal power.

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I think we're looking at the scope of the power entrusted to that body.

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Okay.

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So if they just, if they created an MSPB and it did exactly what it does now, but it only operated as many years as the war claims commission did.

[00:13:10] Speaker 05:
I think that's one of the factors you could take into account.

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Would that change the outcome?

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I don't know that that one by itself would change the outcome, but I do think... Has the Supreme Court ever said how long something is acting?

[00:13:20] Speaker 06:
I don't think the Supreme Court... The MEC has been around a very long time.

[00:13:23] Speaker 05:
That's true.

[00:13:24] Speaker 05:
I don't think the Supreme Court has addressed that, but I'm just pointing out ways in which this body differs that could be a basis for saying the logic or the holding of cleaner doesn't exist.

[00:13:34] Speaker 06:
Finding a difference is a logical rationale as to why it's legally relevant

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Again, something this court shouldn't be doing.

[00:13:41] Speaker 05:
I think there is a logical rationale because you are focusing on what is the scope of the power that has been entrusted to that body.

[00:13:48] Speaker 04:
Can you give another difference?

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Sure.

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It interprets and applies multiple federal statutes, some of them that are quite open-ended.

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It has the authority to award both affirmative relief and penalties.

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Penalties is something that the War Claims Commission was not doing.

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None of which are independently enforceable.

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They can all be challenged in court.

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NLRB, it has no effect until it's adopted by a court.

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They can be challenged in court.

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But the court commission was much more powerful.

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It had unreviewable authority to make a final, conclusive decision as to money.

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I think the fact that Congress made those decisions unreviewable reflects that Congress thought that that was not that consequential of a power compared to the power that the MSPB is wielding and the Congress that has to be subject to judicial review.

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Congress thinks it's not a consequential path.

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I'm not understanding.

[00:14:53] Speaker 06:
I understand you're doing your best, but I'm sitting here with Supreme Court precedent, one on each shoulder, multiple on each shoulder, honestly, saying, still law, still law, still law, still law.

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There hasn't been a case that has involved you to go to worried bodies like this, still law, still law.

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And then I hear you saying things like, well, time and Congress might have thought it wasn't that big a deal.

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And I'm just having difficulty figuring out how one writes an opinion like that.

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I think one intellectual integrity.

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I think one writes an opinion that says we are bound by the Supreme Court's holdings.

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And that means that if we are presented with the same or a materially indistinguishable set of facts, we must apply those holdings.

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And so the inquiry then becomes is the MSPB or the NLRB

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Materially distinguishable from the powers.

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From the CSPB.

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Very much so.

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Definitely from the CSPB, but the question here is... Well, that's what you're relying on.

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I take it you want us to take Celula and Collins and say those change what happens to adjudicatory or quasi adjudicatory bodies.

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But neither of them were, and neither of them look remotely like the entities we have here.

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Putting aside the signature difference, those were sole heads, which was the central rationale the Supreme Court used in those cases.

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And so we're not touching the law on multi-member bodies.

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I agree with you that far.

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The central difference between SILA law and Collins and these cases is

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multi-member versus single head.

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But the court also had a lot to say in SILA law about the Humphreys executive exception.

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The court thoroughly canvassed that decision and then summarized what the court today understands that exception to stand for.

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Yes, substantial executive power.

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And then you just agreed that the MSPB is predominantly substantially undertaking adjudicatory activity.

[00:17:00] Speaker 05:
I don't think those categories are mutually exclusive, Judge Millett.

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I think the adjudicatory power that the bodies here wield is substantial executive power.

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If we accept that, which is not how the Supreme Court described it as exactly the opposite in Wiener.

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So if we accept that, then how in my mind do I say the court preserved Humphreys and Wiener intact?

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What you want us to do is say,

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They said those words, but when you read the analytical decision, they couldn't have meant what they said.

[00:17:37] Speaker 06:
And it's so clear that they couldn't have meant what they said when they said, we're keeping those precedents intact, that you, lower court, should disregard what they said when they said Humphrey's executor is still in place and say, no, you're wrong.

[00:17:54] Speaker 06:
These other parts of your opinion talking about an entirely differently designed body

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control.

[00:18:00] Speaker 06:
I mean, that's what I'm struggling with is, is you want us to follow Supreme Court precedent, but then not take their words, take them at their word and instead psychoanalyze whether somehow they were subconsciously overruling what they said they were keeping in place.

[00:18:15] Speaker 05:
No, I don't think they were asking the court to analyze whether they were subconsciously overruling anything.

[00:18:20] Speaker 05:
They obviously did not overrule the holdings of those cases, but they also had some things to say about the reasoning of those cases.

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And the court was very clear that the central rationale of Humphrey's executor did not withstand the test of time.

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It would have all been dicta.

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It's not necessary at all to the decision about the CFPB.

[00:18:37] Speaker 05:
I think it was very much part of the core reasoning of the case, part of the ratio decision.

[00:18:42] Speaker 06:
Was it necessary to the decision?

[00:18:44] Speaker 05:
No.

[00:18:46] Speaker 05:
I think you could debate that.

[00:18:47] Speaker 06:
The long list of things that they were concerned about with the CFPB, none of those apply here.

[00:18:54] Speaker 06:
You don't have the single head.

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It's a fact in sharp contrast to a multi-member body.

[00:19:00] Speaker 06:
They said, this person makes all the decisions all by herself with no one to check or review, which of course doesn't happen in a multi-member.

[00:19:09] Speaker 06:
entity and the funding stream was argued to be sort of too siloed off from presidential control.

[00:19:18] Speaker 06:
The number of statutes in ORB has one.

[00:19:22] Speaker 06:
The MSPB just has very narrowly limited to some employment, government employment statutes.

[00:19:30] Speaker 06:
CFPB had a broad range.

[00:19:32] Speaker 06:
None of these

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None of these speak to Humphrey's executor or Wiener or unravel what the Supreme Court said in terms.

[00:19:41] Speaker 05:
Let me try it this way, Judge Millett.

[00:19:42] Speaker 05:
I agree with you 100% that there are parts of the analysis in CELA law that have no analog here.

[00:19:49] Speaker 05:
Some of the things Your Honor just mentioned, but it is also part of the analysis in CELA law, whether or not the CFPB fell within the Humphrey's executor exception as clarified by the court with those two prongs.

[00:20:03] Speaker 05:
multi-member expert agency, and does not wield substantial executive power.

[00:20:07] Speaker 05:
If you look at the court's opinion in SELA law, it marches through both prongs.

[00:20:12] Speaker 05:
It says CFPB flunks them both.

[00:20:15] Speaker 05:
And so when you get to the part of the analysis where they are analyzing that second prong, does the CFPB exercise substantial executive power?

[00:20:23] Speaker 05:
That's the part of the analysis that is directly relevant here.

[00:20:27] Speaker 06:
What about when the Chief Justice

[00:20:30] Speaker 06:
And two other justices said, one way to fix the problem in CELA law is to make it a multi-member board or a multi-member entity.

[00:20:41] Speaker 06:
A point that was joined by the four dissenting justices.

[00:20:45] Speaker 06:
So seven justices in CELA law, your central case said, we can fix the CFPB's problem, if there is one, according to the dissent, by making it a multi-member entity.

[00:20:58] Speaker 06:
That was the remedy that the chief justice

[00:21:01] Speaker 06:
adopted.

[00:21:02] Speaker 06:
I've got to weigh that in there too.

[00:21:04] Speaker 05:
I think that is too aggressive a reading of what that part of the opinion in CELA law says.

[00:21:09] Speaker 05:
I think the Chief Justice couched that much more tentatively.

[00:21:13] Speaker 05:
He said there may be ways that Congress could fix the problem and he said nothing in our severability analysis, not our merits analysis, he said nothing in our severability analysis forecloses Congress from pursuing other alternative

[00:21:30] Speaker 05:
Such as?

[00:21:31] Speaker 05:
Such as, that's correct.

[00:21:32] Speaker 06:
So was the Chief Justice proposing something that could be constitutional or was he engaged in some sort of disingenuous bait and switch with Congress?

[00:21:41] Speaker 06:
I don't think it's a disingenuous bait and switch to say that you... I don't think the Chief Justice is going to say, hey, Congress, here's some ways you can fix this.

[00:21:49] Speaker 06:
For example, when if under your theory, the reading you want us to drop of seal law,

[00:21:57] Speaker 06:
if the Chief Justice knew that would be just as unconstitutional.

[00:22:01] Speaker 05:
Well, maybe he didn't know it would be just as unconstitutional.

[00:22:04] Speaker 05:
Maybe.

[00:22:05] Speaker 06:
He didn't know that Celia Law made these things, multi-member boards unconstitutional, then surely I can't make that decision for him.

[00:22:13] Speaker 05:
Well, he wasn't prejudging the next case.

[00:22:15] Speaker 06:
But you're asking us to make that.

[00:22:17] Speaker 06:
Right, exactly.

[00:22:18] Speaker 06:
That's exactly my point.

[00:22:19] Speaker 06:
They were not deciding multi-member boards.

[00:22:22] Speaker 06:
That's exactly right.

[00:22:24] Speaker 06:
And so why should we?

[00:22:26] Speaker 05:
Well, because I think if you look at the merits portion of the analysis, it tells you something about how multi-member boards should be analyzed.

[00:22:35] Speaker 06:
I read the whole opinion.

[00:22:36] Speaker 06:
That's my job.

[00:22:37] Speaker 06:
And when it says, here's a fix, Congress, and you want to say, well, the Chief Justice wasn't sure about whether multi-member boards would be allowed or not.

[00:22:49] Speaker 06:
So we kept Humphrey's executor in place.

[00:22:51] Speaker 06:
I mean, all they were doing was saying, well, we will wait, and we will decide that very, very difficult and complicated question when presented with it, just like Judge Walker mentioned in Severino.

[00:23:03] Speaker 06:
When it comes up, we'll decide it.

[00:23:05] Speaker 06:
But until then, this precedent is in place.

[00:23:10] Speaker 06:
And that, if it's unsure to the Chief Justice, no way we

[00:23:17] Speaker 06:
can say, actually, it was clear.

[00:23:23] Speaker 06:
So clear that we can depart from your rule that courts of appeals not overrule, bypass Supreme Court precedent until the Supreme Court has had its first...

[00:23:36] Speaker 06:
First bite.

[00:23:38] Speaker 05:
I'm not saying that it's clear and judgmental that I think I said at the outset that I think the Supreme Court has left the lower courts in a bit of a tough spot here.

[00:23:44] Speaker 06:
It's not clearing out how to apply this player court supposed to go.

[00:23:47] Speaker 06:
I thought the Supreme Court told us that until we have overruled it, which would be quite clear.

[00:23:54] Speaker 06:
You guys follow the existing law.

[00:23:56] Speaker 05:
Absolutely follow the holdings, but I think you also have to follow the part of the court's analysis severability part of the holding.

[00:24:03] Speaker 05:
No, the merits part of the analysis.

[00:24:06] Speaker 06:
Where have they said you only follow certain parts of opinions?

[00:24:09] Speaker 06:
The severability part was a holding.

[00:24:12] Speaker 05:
The fact that the removal restriction there was severable was a holding.

[00:24:16] Speaker 05:
I don't think remark that your honor is focused on as part of the holding.

[00:24:20] Speaker 05:
And it was very tentatively couched.

[00:24:23] Speaker 05:
There may be.

[00:24:24] Speaker 05:
I don't think the court in that one line was prejudging that issue.

[00:24:28] Speaker 06:
They're always going to say that because they don't know how Congress is going to concoct this thing.

[00:24:35] Speaker 06:
But you take that and you put it with the fact that all these adjudicatory, they haven't touched the concept of adjudicatory entities at all.

[00:24:45] Speaker 05:
But they've given you a touchstone for how to evaluate those bodies.

[00:24:51] Speaker 05:
Do they wield substantial executive power?

[00:24:54] Speaker 05:
And if you go back to the part of the merits analysis that I was alluding to earlier, the court focused on three aspects of the powers possessed by the CFPB that distinguish the CFPB from the powers wielded by the FTC as understood in Humphrey's executor.

[00:25:12] Speaker 05:
The court said number one, the CFPB has rulemaking power.

[00:25:16] Speaker 05:
Number two, the CFPB has the authority to award affirmative relief in its own adjudications.

[00:25:22] Speaker 05:
And number three, it has the power to seek monetary penalties in federal courts.

[00:25:27] Speaker 05:
Now, the first two of those apply to both of the agencies before us today.

[00:25:32] Speaker 05:
Neither of them has the ability to seek monetary penalties in federal court.

[00:25:36] Speaker 05:
They do have the authority to go to federal court or at least CNLRB has the authority to go to federal court and get awards that award affirmative relief enforced by the court.

[00:25:47] Speaker 05:
And MSPB doesn't even have to do that.

[00:25:50] Speaker 05:
It has the power to enforce its own orders directly, which is a significant executive power that goes beyond any power that either the War Claims Commission or the CFP or the FTC have to go to court before it's

[00:26:04] Speaker 06:
Decisions would have any legal force at all.

[00:26:09] Speaker 06:
I believe so.

[00:26:11] Speaker 06:
So nothing took effect at all.

[00:26:14] Speaker 06:
subpoenas, any of those things?

[00:26:15] Speaker 05:
Oh, I mean, some of the subpoena stuff, but I think their final orders were reviewable in court.

[00:26:19] Speaker 06:
Reviewable.

[00:26:20] Speaker 06:
I'm distinguishing between reviewable and, as in the NLRB context, actually just don't operate at all.

[00:26:28] Speaker 06:
Don't have legal force in their own, like the NLRB.

[00:26:30] Speaker 05:
That's right.

[00:26:31] Speaker 05:
I don't recall the answer to that question, Judge Mallette, whether the CFPB's orders had any effect before they were enforced in court.

[00:26:38] Speaker 05:
But I do think as the MSPB, it is important that the orders are directly enforceable by the MSPB.

[00:26:45] Speaker 05:
They don't have to get a court to agree before they can enforce.

[00:26:49] Speaker 05:
They can order another executive branch agency or an employee to comply with the orders and they are statutorily empowered to enforce compliance.

[00:26:59] Speaker 05:
So the statutory remedy that's mentioned is they can direct that the pay be withheld for an employee who is out of compliance with the MSPB's order.

[00:27:10] Speaker 05:
So that's clearly an executive order.

[00:27:14] Speaker 06:
What can they do to agency heads or agency officials, people operating in an agency if it doesn't comply?

[00:27:21] Speaker 05:
It's the same remedy.

[00:27:21] Speaker 05:
I don't know that it reaches agency heads.

[00:27:24] Speaker 06:
I'm just as opposed to the employee than the people who are sort of running the agency.

[00:27:28] Speaker 05:
It may be a supervisory employee who needs to comply with an order granting relief to a subordinate employee.

[00:27:36] Speaker 05:
And if that supervisory employee is failing to comply, the MSPB can say you don't get paid supervisor until you comply.

[00:27:43] Speaker 05:
So they have the power to do that directly.

[00:27:47] Speaker 06:
Has that ever happened?

[00:27:48] Speaker 05:
I'm not aware if it has ever happened or not.

[00:27:50] Speaker 05:
I mean, it certainly has been threatened.

[00:27:53] Speaker 02:
Mr. McArthur, we're at a stay motion.

[00:27:57] Speaker 02:
We're not at the merits stage.

[00:28:00] Speaker 02:
So I'd like you to address the irreparable harm factor.

[00:28:05] Speaker 02:
It seems to me that there's no irreparable harm on the side of these two agency heads.

[00:28:14] Speaker 02:
But what about the irreparable harm to the president?

[00:28:18] Speaker 05:
So I think the analysis here very much tracks the analysis in this court's opinion on the Dellinger stay motion.

[00:28:26] Speaker 05:
And there as here, here as there, the injury focus factors favor the government.

[00:28:31] Speaker 05:
And that's because as this court recognized, requiring the president to recognize and work with a principal officer whom he has already removed inflicts an irreparable harm that cannot be unwound.

[00:28:45] Speaker 05:
The president has a short four years

[00:28:48] Speaker 05:
to implement the agenda that the American people elected him to implement.

[00:28:53] Speaker 05:
And every day that passes with plaintiffs wielding his executive power over his objection is a day that can never be gotten back.

[00:29:02] Speaker 05:
On the other side of the scales, plaintiffs' loss of employment is not an irreparable harm.

[00:29:07] Speaker 05:
That can be compensated through back pay if their claims are ultimately determined to be meritorious.

[00:29:14] Speaker 05:
And as the court said in the Dellinger stay order at worst, they will be out of office for a short period of time.

[00:29:20] Speaker 05:
So I think the harms here weigh strongly in favor of the government.

[00:29:25] Speaker 06:
Well, if.

[00:29:27] Speaker 02:
Sorry, were you done with you?

[00:29:28] Speaker 02:
How about how about the fact that this is a multi-member board that cannot function right now because it lacks a quorum?

[00:29:37] Speaker 08:
Right.

[00:29:38] Speaker 02:
We weigh that as as harm here.

[00:29:41] Speaker 02:
That's not harm to these individual

[00:29:43] Speaker 02:
plaintiffs, but at least one of them is claiming to sue in her official capacity.

[00:29:50] Speaker 05:
I think that analysis more naturally fits under the public interests prong of the analysis.

[00:29:55] Speaker 05:
But wherever you put it, I do think that's something that you can legitimately think about.

[00:30:00] Speaker 05:
I think the problem here is that there are going to there's going to be disruption for the agency any way that you slice it.

[00:30:07] Speaker 05:
So obviously, if they don't have

[00:30:10] Speaker 05:
a quorum, there's going to be some business they can't conduct.

[00:30:13] Speaker 05:
But the flip side of that is if they are allowed to go forward and can conduct business with a quorum composed of agency officials that the president has terminated, there is going to be a heavy cloud of illegitimacy over every official act they take.

[00:30:30] Speaker 05:
And those official acts, if we ultimately prevail in this litigation, may have to be unwound, which will cause significant

[00:30:37] Speaker 05:
disruption both for the agencies and for the people whom they serve.

[00:30:42] Speaker 05:
I also think that the disruption from the lack of a quorum has been somewhat overstated.

[00:30:47] Speaker 05:
For example, Harris focuses on the fact that if an employee goes to the MSPB and has a claim heard by an administrative judge and prevails in front of the administrative judge, and then the government appeals, that can tie up the case until there's a quorum in effect that will allow the MSPB

[00:31:07] Speaker 05:
to issue a final order.

[00:31:09] Speaker 05:
That's true, but the fact is the ALJ proceedings are ongoing and under the statute, the default rule is that if the ALJ rules for the employee and awards relief, that relief takes immediate effect and doesn't wait until the appeal proceedings are done before the board.

[00:31:26] Speaker 04:
Can I ask a question about how consistent or inconsistent

[00:31:33] Speaker 04:
DOJ is being about its view of executive power and the unitary executive theory.

[00:31:41] Speaker 04:
I have a case called Secretary of Labor versus KC Transport and Federal Mine Safety and Health Review Commission.

[00:31:54] Speaker 04:
So what you'll see there is that the Secretary of Labor is on one side of the V.

[00:32:00] Speaker 04:
and the Federal Mine Safety and Health Review Commission is on another side of the V. That is arguably an intra-executive branch dispute.

[00:32:11] Speaker 04:
Certainly in the view of the executive that you're asserting today, it would seem to be an intra-executive branch dispute.

[00:32:20] Speaker 04:
So I'm wondering if what you're saying today is correct.

[00:32:25] Speaker 04:
Why is the Secretary of Labor petitioning this court to resolve an intra-executive branch dispute?

[00:32:32] Speaker 05:
So I am aware of that case, Judge Walker.

[00:32:34] Speaker 05:
I don't know what the answer in that particular dispute is, but I think the issues that are presented there are distinct from issues that are presented with respect to the president's exercise of his removal.

[00:32:45] Speaker 04:
Do you think you can be right in this case and at the same time an Article III court can resolve an intra-executive branch dispute?

[00:32:52] Speaker 05:
I'm not gonna take a position on that other case just because I haven't studied it.

[00:32:56] Speaker 05:
I'm not sure how the analysis may diverge, but it does seem to me that those are separate questions.

[00:33:01] Speaker 05:
President's removal power versus how it affects the court's Article III jurisdiction or whatever if you have two executive agencies that are before you.

[00:33:11] Speaker 05:
I do want to touch on the remedy piece of this because that is a second and independent ground on which we can prevail on the merits before this court

[00:33:21] Speaker 05:
and for which I think a stay would be warranted.

[00:33:23] Speaker 05:
Because obviously the circumstance that we're here on the stay motion for is that the plaintiffs are today in their posts exercising executive power.

[00:33:33] Speaker 05:
And if we're right about the remedy, they shouldn't be there.

[00:33:37] Speaker 05:
And so the plaintiffs rely principally on this court's decisions in Swan and Severino.

[00:33:45] Speaker 05:
And those decisions don't help them for three reasons.

[00:33:49] Speaker 05:
The first is that the relief that was ordered below goes significantly beyond what was contemplated in Swan and Severino.

[00:33:56] Speaker 05:
Second is that Swan and Severino didn't consider the separate line of authority holding that a court sitting in equity has no power through an injunction to interfere with the removal of a public officer.

[00:34:09] Speaker 05:
And the third is that Swan, this is input note one,

[00:34:14] Speaker 05:
I think made clear that the sort of injunction that the court was contemplating there was a mandatory injunction that would have to meet the same requirements that you need to meet in order to get rid of mandamus.

[00:34:25] Speaker 05:
Those are very stringent requirements and the plaintiffs cannot satisfy them here.

[00:34:30] Speaker 06:
So on the first point about the district court, I think in Harris's case that mandamus would be met here.

[00:34:38] Speaker 05:
The district court said that in the alternative, it would be prepared to issue a writ of mandamus, but I think that

[00:34:44] Speaker 05:
analysis there was wrong.

[00:34:46] Speaker 06:
The purposes are stay motion.

[00:34:47] Speaker 06:
We're not here on the merits of this case.

[00:34:50] Speaker 06:
There's no dispute that there's sort of an article three case or controversy that there's some remedy that could be given you conceded back pay.

[00:34:59] Speaker 06:
This is a remediable case, a case of controversy for us to be solved.

[00:35:04] Speaker 06:
And so

[00:35:06] Speaker 05:
just trying this is starting to sound more like sort of the merits argument rather than a stay one which just trying to decide likelihood of no i think this is very much i mean it is one of the grounds on which we can prevail on the merits of our claim that the relief ordered below was improper and that is ultimately the relief that we need to stay up if it had just been say a declaratory judgment that

[00:35:27] Speaker 05:
Okay, this termination was unlawful and you're entitled to back pay.

[00:35:31] Speaker 05:
Obviously, we'd appeal that.

[00:35:31] Speaker 05:
I don't know that we would be here on a stay motion.

[00:35:33] Speaker 06:
You don't even get to rate.

[00:35:34] Speaker 06:
I mean, so again, for the purposes of the stay, for Wilcox, Ms.

[00:35:39] Speaker 06:
Wilcox, you all didn't even dispute the availability of a declaratory judgment in district court.

[00:35:45] Speaker 06:
So any argument at the contrary here is forfeited.

[00:35:48] Speaker 05:
That's not quite right, Judge Millett, but we did not.

[00:35:50] Speaker 05:
District court said.

[00:35:52] Speaker 05:
Well, the district court, I think, swept a little too broadly with what we had said we weren't disputing.

[00:35:58] Speaker 05:
We had said we weren't disputing a declaratory judgment to the effect that the termination was unlawful.

[00:36:04] Speaker 05:
But I think if you read the transcript of that hearing, it's pretty clear that any declaratory judgment that goes beyond that, as the judgments that were entered here do, we did maintain our objection to.

[00:36:15] Speaker 05:
We said if you're trying to build relief,

[00:36:17] Speaker 05:
into a declaratory judgment that essentially says that they're back in office, we maintain our objection to that.

[00:36:23] Speaker 05:
That is the principal respect in which the relief ordered below goes beyond what was contemplated in Severino and Swann.

[00:36:30] Speaker 05:
So Severino and Swann said that the plaintiffs there had established the Article III element of addressability because the court in theory had the power to give at least partial relief

[00:36:42] Speaker 05:
by ordering subordinate officials to treat the plaintiffs as de facto members of their boards.

[00:36:49] Speaker 05:
De facto.

[00:36:49] Speaker 05:
The court in both cases drew a very clear distinction between being de facto reinstated and actually being officially clothed with the authority of the office.

[00:36:58] Speaker 05:
The decisions below both of them take that next step here and say this isn't just de facto.

[00:37:04] Speaker 05:
This is we are ordering that these plaintiffs remain members of these boards and shall continue to serve as members

[00:37:11] Speaker 05:
Listen until they are removed.

[00:37:14] Speaker 06:
You don't quibble with the de facto.

[00:37:17] Speaker 06:
I'm going to put a second and other arguments and other prongs, but for this prong, I would say that circuit precedent binding to the extent the court district court's decisions are read as de facto reinstatement and only operating upon other executive officers, you don't quibble and you don't quibble with the declaratory judgment saying that what happened here was unlawful, unlawful.

[00:37:41] Speaker 06:
for both of them, then it's just the official status.

[00:37:46] Speaker 06:
The things that you're kind of sort of de jure.

[00:37:49] Speaker 05:
I think de jure is a problem and one of the ways in which this goes beyond severing no one's mind.

[00:37:53] Speaker 05:
I would say that we do accept as a matter of circuit precedent that the court would have power in appropriate circumstances to order that sort of partial relief that was contemplated.

[00:38:04] Speaker 05:
But whether the court has power to do it is a separate question from

[00:38:07] Speaker 06:
whether it's appropriate.

[00:38:09] Speaker 06:
Didn't lose Judge Henderson here.

[00:38:10] Speaker 05:
No.

[00:38:12] Speaker 06:
Judge Henderson, are you still on?

[00:38:15] Speaker 06:
Yep.

[00:38:15] Speaker 06:
Okay.

[00:38:15] Speaker 06:
Your picture has disappeared, so you wanted to make sure you were still here.

[00:38:18] Speaker 06:
I'm sorry.

[00:38:18] Speaker 06:
Go ahead.

[00:38:19] Speaker 05:
But there are the two other points that I wanted to make with respect to the remedy.

[00:38:23] Speaker 05:
One is the court and Severino and Swan did not consider this separate line of authority a long standing limitation on the

[00:38:32] Speaker 05:
power of a court sitting in equity to interfere with the removal of a public officer.

[00:38:37] Speaker 05:
This is about public officers generally.

[00:38:39] Speaker 05:
It's not just about the president removing agency heads.

[00:38:42] Speaker 05:
That's a long-standing equitable doctrine and plaintiffs don't have any persuasive response to it.

[00:38:48] Speaker 05:
They point to the Supreme Court's decision in Sampson, but all Sampson said is that in light of the extensive statutory scheme that Congress had enacted for government employees,

[00:39:01] Speaker 05:
The court was talking there about the forerunner to the CSRA today.

[00:39:06] Speaker 05:
In light of that statutory scheme for employees, the court said it wasn't prepared to say that Congress had foreclosed all injunctive relief in these personnel cases.

[00:39:17] Speaker 05:
We are obviously not dealing here with an employee.

[00:39:19] Speaker 05:
We are dealing with agency heads for which there is no comparable statutory scheme.

[00:39:25] Speaker 05:
So no question arises here of Congress having displaced that longstanding limitation

[00:39:30] Speaker 05:
on the powers of a court sitting in equity.

[00:39:34] Speaker 05:
In fact, the Supreme Court's decision in Grupo Mexicano makes clear that those historical limitations on a court's equitable powers persist unless Congress has eliminated them.

[00:39:45] Speaker 05:
Not only has Congress not eliminated them in this context, it legislated against the backdrop

[00:39:51] Speaker 05:
of those rules, certainly for the NLRB back in 1935 and I think also for the MSPB in 1978.

[00:39:58] Speaker 05:
It legislated against the backdrop of that long-standing rule saying a court in equity will not interfere with the removal of a public officer and it did not displace that rule and it did not enact a reinstatement remedy for violation of the at-will removal provisions that it enacted.

[00:40:16] Speaker 05:
I think that counsels strongly

[00:40:18] Speaker 05:
against judicial creation of such a remedy, especially in this constitutionally sensitive context involving the president and his exercise of his article to power, his core removal power.

[00:40:32] Speaker 02:
All right, Mr MacArthur, we'll give you a couple of minutes in reply if there are no more questions.

[00:40:37] Speaker 05:
Thank you.

[00:40:38] Speaker 02:
Thank you, Mr Zelensky.

[00:40:45] Speaker 03:
Good morning, Judge Henderson and may it please the court, Nathaniel Zalinski on behalf of Kathy Harris, a member of the Merit Systems Protection Board.

[00:40:53] Speaker 03:
I'd like, if I could, to identify four points, four concessions that my friend on the other side made that doom his request for emergency relief from this court.

[00:41:03] Speaker 03:
First, the government is asking to throw out centuries of precedent from Blackstone and Marbury on remedies.

[00:41:11] Speaker 03:
You think he conceded that?

[00:41:12] Speaker 03:
I do.

[00:41:13] Speaker 04:
What did he say?

[00:41:14] Speaker 04:
What was his exact quote to concede?

[00:41:16] Speaker 03:
That we should throw out Blackstone.

[00:41:18] Speaker 03:
That we should throw out Blackstone when he said there's no relief available here.

[00:41:21] Speaker 03:
Blackstone was very clear, Judge Walker, that mandamus provides full and effectual relief.

[00:41:26] Speaker 03:
Marbury Chief Justice Marshall said that it was a plain case for mandamus.

[00:41:29] Speaker 03:
I don't remember him saying, like, we should, you know,

[00:41:32] Speaker 03:
He is in this court.

[00:41:33] Speaker 03:
The government is in this court telling you that you have no authority, Judge Walker.

[00:41:38] Speaker 03:
Go ahead.

[00:41:40] Speaker 03:
Well, let me move to some other concessions that I think are critical, because they are asking you to throw out Humphrey's executor, Judge Millett.

[00:41:46] Speaker 04:
I didn't hear him to concede that either.

[00:41:48] Speaker 04:
I think he said about 25 times, we're bound by Humphrey's executor.

[00:41:51] Speaker 03:
So Judge Walker, then we win this case.

[00:41:53] Speaker 03:
Because as he said, and he did say this in emergency state posture, that he said that it is not clear.

[00:41:58] Speaker 03:
He said, quote, it is not clear under Celia law that the government should prevail.

[00:42:03] Speaker 03:
Well, in an emergency state posture, the government must make a strong showing, Judge Walker, of success and the merits.

[00:42:09] Speaker 03:
And you can't skip over that prong.

[00:42:11] Speaker 03:
Judge Henderson, you are absolutely right.

[00:42:13] Speaker 04:
I genuinely think there's a lot of difficult debate about the question of what a strong showing on likelihood of success and the merits means.

[00:42:20] Speaker 04:
Do you think that that means a 51% likelihood of success, an 80%, a 30%?

[00:42:25] Speaker 03:
So Judge Walker, in this case, I think we are 100% right.

[00:42:27] Speaker 03:
And I'm happy to walk you through Celia Law.

[00:42:29] Speaker 03:
And I'm happy to walk you through Collins and Wiener and tell you why we are indistinguishable.

[00:42:33] Speaker 03:
In fact, Judge Malan, you are right.

[00:42:34] Speaker 03:
We have less power than the War Claims Commission did in Wiener because the decisions of the Merit System Protection Board are reviewable.

[00:42:41] Speaker 03:
the War Claims Commission, they were reviewable nowhere.

[00:42:43] Speaker 03:
But Judge Walker, to your point, I think given all the concessions that they made about how silly law didn't predetermine the next case, and in fact, they said over and over that it left Humphrey's executor, they agree that it leaves Humphrey's executor in place.

[00:42:59] Speaker 04:
They didn't overrule all of Humphrey's executor.

[00:43:01] Speaker 03:
And as Judge Henderson noted in the Cosum decision, in your en banc dissent, Judge Henderson, when the Supreme Court has left a decision in place and you think that there are other aspects of another decision that are in tension, the prerogative of overruling the Supreme Court's precedent lies with the Supreme Court.

[00:43:20] Speaker 03:
It is not for the Court of Appeals.

[00:43:21] Speaker 04:
I think we all recognize that we are a lower court and that we take our orders from the Supreme Court.

[00:43:27] Speaker 04:
I think we cannot disregard what Humphrey said.

[00:43:31] Speaker 04:
I think we cannot disregard what Sila and Collins said about Humphreys.

[00:43:38] Speaker 03:
Do you agree with that?

[00:43:39] Speaker 03:
So Judge Walker, I completely agree that the Sila law decision keeps the traditional rule for multi-member agencies intact.

[00:43:47] Speaker 03:
And one of the reasons we know that, and I'd like to walk through the decision with you, but one of the reasons we know that is because Justice Thomas and Justice Gorsuch concur.

[00:43:56] Speaker 03:
And they say it leaves.

[00:43:57] Speaker 03:
the Humphreys' executive task.

[00:43:59] Speaker 03:
I didn't quite hear the answer to my question though.

[00:44:00] Speaker 04:
Do you agree that we can, I know you agree we cannot disregard what Humphrey says.

[00:44:05] Speaker 03:
I think we take the Chief Justice's decision at face value, Judge Walker.

[00:44:08] Speaker 04:
Do you agree we can't disagree with what Collins and Selah say about Humphreys?

[00:44:13] Speaker 03:
And here's what Collins says about the state of the law and here's what Selia Laws says.

[00:44:18] Speaker 03:
Of course you have to agree with what the Chief Justice wrote and what the Chief Justice wrote in Selia Law is crystal clear.

[00:44:24] Speaker 03:
It says

[00:44:25] Speaker 03:
And this is the severability analysis at 237, Judge Millett.

[00:44:29] Speaker 03:
Our severability analysis does not foreclose Congress from pursuing alternative responses, for example, converting the CFPB into a multi-member agency.

[00:44:37] Speaker 03:
At page 216, Humphrey's executor permitted Congress to give four-cause removal protections to a multi-member body of experts.

[00:44:43] Speaker 03:
Page 218, the court recognized the lawfulness of, quote, multi-member expert agencies that do not wield substantial executive power.

[00:44:50] Speaker 03:
228, we do not revisit Humphrey's executor or any other precedent.

[00:44:55] Speaker 03:
Judge Millett, you're absolutely right.

[00:44:56] Speaker 03:
You need to overturn Wiener in order to rule against Appellee Harris in this case.

[00:45:03] Speaker 03:
I want to move, if I could, to another point that I think is an important concession.

[00:45:08] Speaker 03:
My friend on the other side agreed that the Merit Systems Protection Board is a predominantly adjudicatory body.

[00:45:14] Speaker 03:
That places us squarely within the heartland of the Humphreys executor framework.

[00:45:19] Speaker 03:
Judge Henderson, as you noted in your decision in the PHH Corp case, the Wiener, and in your dissent, you said that the Wiener exception is for primarily adjudicatory bodies.

[00:45:29] Speaker 03:
That is precisely what the Merit Systems Protection Board is.

[00:45:32] Speaker 02:
Well, let me ask you about that, because I'm

[00:45:36] Speaker 02:
looking at paragraph 26 of your client's declaration in which she says, I cannot issue adjudication decisions unilaterally.

[00:45:47] Speaker 02:
And yet, she unilaterally stayed the termination of thousands of employees, and she is describing that as not adjudication.

[00:45:59] Speaker 02:
We are here today on the exact same type

[00:46:03] Speaker 02:
review, that is, whether we're going to issue a stay order, we are clearly adjudicating.

[00:46:10] Speaker 02:
And my question to you is, do you think she meant by that, uh, the nature of what that board and what she was reviewing was executive?

[00:46:24] Speaker 02:
Uh, that is the termination or stopping the termination of employees.

[00:46:29] Speaker 02:
We are reviewing no question.

[00:46:31] Speaker 02:
The decision of a district judge and that's adjudication, but I have a hard time understanding how she took the action.

[00:46:41] Speaker 02:
She did with the stay order and yet saying she has no authority to adjudicate unilaterally.

[00:46:49] Speaker 03:
So, Judge Henderson, I'd like to discuss the stay motion in a couple of different parts, because I think it's an important part of the case that the government is relying on.

[00:46:57] Speaker 03:
The first top line answer is that courts do this frequently.

[00:47:00] Speaker 03:
So the Supreme Court rules, which we cited in our response, provide a single justice the authority to act on stay motions.

[00:47:08] Speaker 03:
It is not uncommon.

[00:47:09] Speaker 03:
And in this case, Congress said that a single member of the board can provide a temporary stay at the request of OSC.

[00:47:17] Speaker 03:
That is definitely an adjudication because you are adjudicating the stay request.

[00:47:22] Speaker 03:
And so Judge Henderson, I just want to be very clear.

[00:47:25] Speaker 03:
We are not suggesting that it's not adjudication.

[00:47:26] Speaker 03:
It is 100% adjudication.

[00:47:28] Speaker 03:
It is temporary.

[00:47:29] Speaker 03:
It can only last for 45 days.

[00:47:32] Speaker 02:
Well, what do we do with her declaration that says, I don't adjudicate anything unilaterally?

[00:47:39] Speaker 02:
Because it's a temporary, she just did.

[00:47:42] Speaker 03:
So I, Judge Henderson, it's a temporary measure in the same way that in the Supreme Court United States, a single justice of a multi-member court has the temporary ability to provide a stay.

[00:47:52] Speaker 02:
But to the extent, is that single justice not adjudicating?

[00:47:58] Speaker 03:
So, Judge Henderson, I agree she's adjudicating.

[00:48:01] Speaker 03:
I don't think it is the type of issue that was at concern in Celia Law and CFPB, because in multi-member courts, when they're still multi-member, you will sometimes have a single member in an emergency posture handling, and this court may do it as well, a single judge handling an emergency motion.

[00:48:18] Speaker 03:
It doesn't change the multi-member nature of the body.

[00:48:21] Speaker 03:
The en banc court is still there.

[00:48:22] Speaker 03:
It's still a multi-member court.

[00:48:24] Speaker 03:
But if you're concerned about the stays, Judge Henderson, the president

[00:48:27] Speaker 03:
completely controls the state process, the ability to request the state right now, because as a result of this panel's order in the Dellinger case, the president now has an acting special counsel in office.

[00:48:41] Speaker 03:
So the state can, the president can just now completely control that process.

[00:48:46] Speaker 03:
because nobody else except for OSC can walk in and request a stay.

[00:48:50] Speaker 03:
So now that Dellinger is out and somebody else is in there, the president completely controls the ability to request stays.

[00:49:00] Speaker 03:
On Joe Henderson, I'd also like to if I could focus on the enforcement aspect, my friend on the other side said that MSPB can enforce orders by withholding salaries.

[00:49:12] Speaker 03:
That is not true.

[00:49:14] Speaker 03:
Part of the reason that my friend said it has never occurred is because it's unconstitutional.

[00:49:18] Speaker 03:
The statute was passed in 1978 before the Supreme Court's decision in Bauscher.

[00:49:24] Speaker 03:
In 1986, the Supreme Court said that a certification of that type to the Comptroller General was unconstitutional.

[00:49:31] Speaker 03:
The reason MSPB has never used that mechanism is because it's an unconstitutional mechanism.

[00:49:37] Speaker 03:
And under Celia law and the court's other precedent, you just pretend it doesn't exist in the statute.

[00:49:43] Speaker 03:
I'd like if I could also.

[00:49:45] Speaker 04:
If you think that the test for whether Congress can put removal restrictions on the president is, and I'm going to quote, seal a law.

[00:50:00] Speaker 04:
Is it a multi-member expert agency?

[00:50:05] Speaker 04:
that does not wield substantial executive power?

[00:50:08] Speaker 03:
I believe that's the test in cellular law, yes.

[00:50:11] Speaker 03:
And I think if I- That's the test we should apply.

[00:50:13] Speaker 03:
I think that you're in an emergency stay posture.

[00:50:16] Speaker 03:
And I think the easiest thing to do in an emergency stay posture is look at the Supreme Court's other precedent.

[00:50:21] Speaker 03:
The Supreme Court, Judge Walker, has given you guideposts.

[00:50:24] Speaker 03:
And so has my friend on the other side.

[00:50:26] Speaker 03:
The guideposts in this case are Wiener, the FTC, as it is described in the Humphrey's executive decision,

[00:50:33] Speaker 03:
And then the Federal Reserve, because my friend on our side agrees that the Federal Reserve is constitutional.

[00:50:38] Speaker 04:
And that's a massive... The two Supreme Court presidents you just mentioned, I mean, I think we have to consider them.

[00:50:42] Speaker 04:
We have to apply them.

[00:50:45] Speaker 04:
They have not been overruled.

[00:50:46] Speaker 04:
I agree with you.

[00:50:47] Speaker 04:
But if we have to apply Humphreys...

[00:50:51] Speaker 04:
which we do, we also have to apply Myers.

[00:50:54] Speaker 04:
And when there's tension between Humphreys and Myers, we have to try to reconcile that tension.

[00:51:01] Speaker 04:
When there's tension between Humphreys and Selah and Collins, we have to try to reconcile that tension.

[00:51:07] Speaker 04:
But I don't understand why you said you have to apply Humphreys and Wiener and just kind of stopped there, as if Myers and Collins and Selah

[00:51:19] Speaker 03:
don't exist.

[00:51:20] Speaker 03:
Judge Walker, I'm not pretending Myers doesn't exist.

[00:51:22] Speaker 03:
The Supreme Court said in Humphrey's executor that Myers is restricted to the specific facts that were presented in that case.

[00:51:29] Speaker 03:
It says that.

[00:51:29] Speaker 03:
And it did not say that, Judge Walker.

[00:51:33] Speaker 03:
It did not at all.

[00:51:34] Speaker 03:
I disagree very strongly and I think this is critical.

[00:51:37] Speaker 03:
Celia Law, Judge Malait, you're absolutely right, said time and again that multi-member bodies were okay.

[00:51:43] Speaker 03:
That's why.

[00:51:44] Speaker 04:
They were okay if

[00:51:45] Speaker 04:
They don't wheel.

[00:51:46] Speaker 04:
And I agree that they did not literally say it's restricted to its facts, but they said that multi-member bodies are OK if they do not wield substantial executive power.

[00:51:54] Speaker 03:
And and Judge Walker, how we determine substantial executive power is by looking to the bodies where the court has said these are it's glossing those precedents.

[00:52:04] Speaker 03:
You have to look.

[00:52:05] Speaker 04:
I think I'm asking a more basic question.

[00:52:07] Speaker 04:
Do you agree that that's the test?

[00:52:08] Speaker 04:
Yes.

[00:52:09] Speaker 04:
OK.

[00:52:09] Speaker 04:
And then do you

[00:52:13] Speaker 04:
And I know you argue that the MSPB does not exercise substantial executive authority.

[00:52:21] Speaker 04:
That's your argument, right?

[00:52:22] Speaker 04:
We know it doesn't, Judge Walker.

[00:52:24] Speaker 04:
Because?

[00:52:25] Speaker 04:
I know, and you've briefed why you say you know it doesn't.

[00:52:29] Speaker 04:
In the PHHH dissent, which was later vindicated by the Supreme Court, Justice Kavanaugh said,

[00:52:38] Speaker 04:
The Merits System Protection Board exercises substantial executive authority.

[00:52:44] Speaker 04:
So was he wrong?

[00:52:45] Speaker 03:
I think he was.

[00:52:46] Speaker 03:
And let me explain why.

[00:52:48] Speaker 03:
First, we know that adjudication is squarely within the Humphreys executive framework of what is constitutional.

[00:52:55] Speaker 03:
And the Merits System Protection Board hears discrete cases, for example, of partisan discrimination and whistleblower retaliation.

[00:53:01] Speaker 03:
So for example,

[00:53:02] Speaker 03:
If a Democratic president fires, say, somebody at the FBI or DHS and says, I don't like who they voted for or I don't like the person they donated to, then you can go in front of the American System Protection Board and you hear those kind of discreet cases.

[00:53:17] Speaker 03:
That's all it does.

[00:53:18] Speaker 03:
It's an adjudicator.

[00:53:19] Speaker 03:
And the president gets to pick his prosecutor.

[00:53:22] Speaker 03:
That's the point of the Dellinger.

[00:53:23] Speaker 03:
order, the president doesn't get to pick his judges.

[00:53:26] Speaker 03:
And the Congress, which is the people's representatives, have enacted a law which is squarely within the Humphreys executive framework to say that these types of neutral arbiters have a measure of protection because otherwise they can't decide cases free of fear or favor.

[00:53:40] Speaker 03:
And Judge Henderson, I think one of your initial questions beginning, to my friend on the other side, got to the sweeping nature of executive power here.

[00:53:47] Speaker 03:
If my friend on their side is correct that the president can remove everybody in the executive branch at will.

[00:53:53] Speaker 03:
That means that Judge Walker Marbury was wrong because in Marbury, Chief Justice Marshall said that the William Marbury was not his commission was not revocable at will.

[00:54:03] Speaker 03:
It means Perkins is wrong because it means every employee and inferior officer in the federal government can be removed at will.

[00:54:10] Speaker 03:
And it means Myers is wrong because even in Myers, the high watermark of removal, the court recognized that Congress had this historic authority to regulate the removal of members of the civil service.

[00:54:22] Speaker 03:
If I could, I would like to touch.

[00:54:23] Speaker 03:
What do you do with Seela's statement?

[00:54:25] Speaker 04:
that the Supreme Court has rejected Chief Justice Marshall's dicta that some officers are not removable at the will of the president.

[00:54:34] Speaker 04:
They called it ill-considered dicta.

[00:54:36] Speaker 03:
I think that Perkins is not inconsidered dicta, and it's very clear that Perkins is straight holding.

[00:54:40] Speaker 03:
And in fact, Justice Scalia recognizes Perkins.

[00:54:44] Speaker 04:
We are a lower court.

[00:54:46] Speaker 04:
We are bound by SEALA, which came after Marbury.

[00:54:49] Speaker 04:
Just to be clear, the holding of Marbury is very, very good law and the most important holding in the history of the Supreme Court.

[00:54:57] Speaker 04:
But as far as the ill-considered dicta in Marbury that you are relying on, we are a lower court bound by SEALA, which called it ill-considered.

[00:55:05] Speaker 03:
Judge Walker?

[00:55:06] Speaker 03:
You would have to overrule Perkins and Myers.

[00:55:08] Speaker 03:
You'd also have to overrule Cecilia to rule for the government, because under the government's theory, there's nothing left of Humphreys.

[00:55:14] Speaker 03:
Under the government's theory, Humphreys is literally a case about one guy named Humphreys and his estate.

[00:55:20] Speaker 03:
That is their effective reading of that decision.

[00:55:23] Speaker 03:
That's not a fair reading, Judge Malat.

[00:55:24] Speaker 03:
You're absolutely right of the Chief Justice's decision.

[00:55:26] Speaker 04:
I think that what they said is Humphreys represents the outermost constitutional limits of permissible congressional restrictions on the president's removal power.

[00:55:33] Speaker 04:
And what that means is we apply Humphreys

[00:55:35] Speaker 04:
but we do not extend Humphreys to new context.

[00:55:38] Speaker 04:
In some ways, it's similar to Bivens.

[00:55:40] Speaker 04:
Bivens is still good law, and if it's the same context as Bivens, then we recognize a Bivens action.

[00:55:45] Speaker 04:
But we don't extend it to new context because of what the Supreme Court has done in the 45 years since Bivens.

[00:55:51] Speaker 04:
And the argument you're making about Humphreys, if we translate it to Bivens, it would have us treat Bivens as if this is 1978 and not 1925.

[00:56:00] Speaker 03:
I disagree, Judge Walker, and let me take the Bivens analogy.

[00:56:03] Speaker 03:
I think the analogy under Bivens would be to say that if your name is Bivens, you have a cause of action.

[00:56:07] Speaker 03:
But if you have the exact same Fourth Amendment claim, you can't bring it.

[00:56:11] Speaker 03:
And we know that's not right because the Chief Justice didn't say Humphreys is only right for the FTC.

[00:56:16] Speaker 03:
The Chief Justice said, we are not disturbing Humphreys, any other precedent, and they left in place an exception, and we know that from Justice Thomas and Justice Gorsuch's concurrence, where they were very clear they would go the next step and throw it all out, that they left in place an exception for multi-member bodies.

[00:56:31] Speaker 03:
And by the way, every single Court of Appeals to have heard this argument, including this court in Metta,

[00:56:36] Speaker 03:
including the 10th Circuit, including the 5th Circuit in Judge Watt's decision, every single court has rejected it.

[00:56:42] Speaker 03:
And you are here, Judge Henderson, on an emergency stay.

[00:56:45] Speaker 03:
And what that means is the government does bear a strong burden of showing success on the merits.

[00:56:51] Speaker 03:
They can't just come in and say they have a theory.

[00:56:53] Speaker 04:
They have to come in and convince you that they are ultimately so right that they deserve extraordinary relief.

[00:57:12] Speaker 03:
So Judge Walker, I think it's 51%, I don't think would be, because that would just be more likely than not would be the same standard you would use at the merit stage.

[00:57:19] Speaker 03:
So it can't be that.

[00:57:20] Speaker 03:
But I don't think it's more or less.

[00:57:22] Speaker 03:
I think it has to be more, right?

[00:57:24] Speaker 03:
Because it's clearly a strong showing.

[00:57:26] Speaker 03:
It has to be more than just you think, ultimately, that the government's likely to prevail.

[00:57:30] Speaker 03:
But the point I'm trying to make is the court has never tried to quantify that before.

[00:57:35] Speaker 03:
And I think that Judge Posner has a decision where he said, I know how to do hard review and soft review.

[00:57:40] Speaker 03:
I don't know how to sort of quantify reviews in the middle.

[00:57:43] Speaker 03:
And so I think at one level, I'd give Judge Posner's answer, which is, I can tell you there's hard review and soft review, and this is hard review.

[00:57:49] Speaker 03:
You have to look and say, are they so right that they deserve this extraordinary relief?

[00:57:55] Speaker 03:
And if I could, I think it might be helpful.

[00:57:57] Speaker 06:
If I follow up there, I think as Judge McConnell said when he was on the bench that

[00:58:03] Speaker 06:
stays injunctions pending appeal.

[00:58:09] Speaker 06:
We're not supposed to change the world in advance of adjudicating the merits of a case.

[00:58:17] Speaker 06:
And so the reason we require a strong showing of a likelihood of success on the merits is there has to be a justification for us to jump ahead of our normal processes of full briefing, full deliberative consideration, not on the compressed timeframe we have here, and then

[00:58:37] Speaker 06:
We decide the legal question.

[00:58:40] Speaker 06:
Whereas here, a stay would not decide the legal question.

[00:58:45] Speaker 06:
It would just make a prediction.

[00:58:48] Speaker 06:
And that's why we only use stays to preserve the status quo and not to turn it upside down.

[00:59:00] Speaker 06:
How does that factor in your answer to Judge Walker's question?

[00:59:02] Speaker 03:
Well, it factors in, and I think it's telling here that the government is not seeking to preserve the status quo.

[00:59:08] Speaker 03:
They are seeking to massively disrupt it.

[00:59:10] Speaker 03:
And they are in two respects.

[00:59:11] Speaker 03:
The first is that no president in history has ever done this since Wiener to a member of a multi-member body.

[00:59:19] Speaker 03:
And we know that the government's argument that it needs some extraordinary relief doesn't bear out how they've acted in this case.

[00:59:25] Speaker 03:
They waited Judge Millett weeks when this case was pending in the prior appeal in this court and never filed for emergency relief.

[00:59:32] Speaker 03:
They never filed in the Supreme Court in the United States.

[00:59:34] Speaker 03:
They now have an acting OSC, so they control that process.

[00:59:38] Speaker 03:
And the status quo is these people remaining in office.

[00:59:41] Speaker 03:
It's Member Harris remaining as an adjudicator on this board.

[00:59:46] Speaker 03:
Um, she is a member of the board.

[00:59:48] Speaker 03:
She's protected by four cause removal and it massively disrupts the status quo and in fact will result in a loss of a quorum to remove her from office.

[00:59:57] Speaker 03:
And Judge Henderson, you asked about a loss of a quorum last time.

[00:59:59] Speaker 03:
The last time there was a loss of a quorum, it resulted in 3800 undecided cases that the board under member Harris then chair Harris's leadership only just cleared.

[01:00:10] Speaker 03:
It was a massive disruption to the public interest.

[01:00:13] Speaker 03:
And I would stress, by the way, and I think it may be helpful, Judge Henderson, to talk about irreparable harm, but I want to stress as well that we can't skip over that likelihood of success factor.

[01:00:23] Speaker 03:
So if you think that the government can't prevail on the likelihood of success factor, that's at one level the end of the story.

[01:00:29] Speaker 03:
You can't then go beyond, the government can't go beyond and say, well, we fail on likelihood of success, but we still want emergency relief.

[01:00:36] Speaker 03:
If I could, I'd like to briefly touch on remedy because Judge Walker, I do think they are trying to get you to overturn Marbury.

[01:00:42] Speaker 03:
The core holding of Marbury was that the court could have provided a remedy, right?

[01:00:47] Speaker 03:
That's the purpose of an Article 3 court.

[01:00:50] Speaker 03:
And we know that courts going back to Blackstone and discussing English courts

[01:00:55] Speaker 03:
rude to the very citations they are giving this court, from Inui Sawyer and White P Berry, all say that the writ of mandamus was available here.

[01:01:03] Speaker 03:
And in fact, I heard my friend on the other side concede that relief is available under SWAN.

[01:01:08] Speaker 03:
So if relief is available under SWAN, and that's precisely what we received was injunctive relief there under SWAN and Severino,

[01:01:14] Speaker 03:
then they also cannot make that strong showing Judge Milado likely success on the merits if they've conceded that injunctive relief is available and if there is an extraordinary long history dating back to England of courts providing mandamus.

[01:01:28] Speaker 04:
On the status quo question, what do we do with the statement in the Ken stay simply suspends the judicial alteration of the status quo?

[01:01:39] Speaker 03:
So I want to be very clear, Judge Walker.

[01:01:42] Speaker 03:
I don't think, and I take Judge Millett's point, that we normally provide the state to prefer the status quo.

[01:01:48] Speaker 03:
And the court has said sometimes it's tricky to determine what the status quo is.

[01:01:52] Speaker 03:
In this case, no president has ever.

[01:01:55] Speaker 06:
Have we said it's tricky?

[01:01:55] Speaker 06:
Or do we have a clear definition, which is the last unconsessive status between the parties?

[01:02:00] Speaker 03:
So just what I'm not a trial or my guess is that's a leading question.

[01:02:03] Speaker 03:
So I think that that would be the last uncontested said that that would bind that would bind you that would bind you.

[01:02:09] Speaker 03:
And so that would be my answer judge Walker to that question, but.

[01:02:15] Speaker 04:
I mean, I know we have precedent that says as a general rule that.

[01:02:20] Speaker 04:
for us to issue a preliminary injunction, or for us to order the district court to issue a preliminary injunction, as a general rule, the status quo is what Judge Blatt just said.

[01:02:29] Speaker 04:
We're not ordering a preliminary injunction here.

[01:02:32] Speaker 04:
We're considering whether to order a stay.

[01:02:34] Speaker 04:
And I think if there is a conflict between our precedent and the Supreme Court's, we go to the Supreme Court's.

[01:02:41] Speaker 04:
And the Supreme Court said a stay simply suspends judicial alteration of the status quo.

[01:02:45] Speaker 03:
This court has also said, and the Supreme Court has also said, that a stay is an extraordinary remedy because it disrupts the normal judicial process.

[01:02:53] Speaker 03:
And I think that the government still has to show that extraordinarily high burden, regardless of whatever it may be.

[01:03:00] Speaker 03:
51%, 99%, somewhere in between Judge Walker.

[01:03:04] Speaker 03:
It's an extraordinarily high burden.

[01:03:06] Speaker 06:
We know that.

[01:03:06] Speaker 06:
I'm confused because the question is, do we have, we can use a stay if there's been a judicial alteration of the status quo.

[01:03:16] Speaker 06:
But if under our standard, the district court here preserved a status quo.

[01:03:24] Speaker 03:
And also, I'd point you- It wasn't clear.

[01:03:25] Speaker 06:
Were you conceding the status quo?

[01:03:26] Speaker 03:
I'm not conceding.

[01:03:27] Speaker 03:
I'm not conceding, Judge Mulan.

[01:03:28] Speaker 06:
You held on to the status quo?

[01:03:28] Speaker 03:
I'm not.

[01:03:29] Speaker 03:
I do think that that is an alteration of the status quo.

[01:03:31] Speaker 03:
And part of the reason that the president's removal was- So it was or was not?

[01:03:34] Speaker 03:
It was not an alteration.

[01:03:35] Speaker 03:
The district court is keeping it in place.

[01:03:36] Speaker 03:
But part of the reason we know that it's keeping the status quo in place is because in CALFAS, and this is, I think, critical on the question of where the status quo lies.

[01:03:44] Speaker 03:
CALFAS is a decision from this court in 1914.

[01:03:47] Speaker 03:
It involves mandamus relief.

[01:03:49] Speaker 03:
And what the court says in CALFAS is,

[01:03:52] Speaker 03:
that the officer remained in office, that the removal was not effective.

[01:03:58] Speaker 03:
So this is not a case where someone is being put back into office.

[01:04:01] Speaker 03:
It's simply a recognition, Judge Mota, as you noted in the Severino case, that that person is in office.

[01:04:07] Speaker 03:
That's why they're de facto being treated as in office.

[01:04:10] Speaker 03:
It's because under calc of this, they've never been removed.

[01:04:14] Speaker 03:
And Judge Henderson, I do think that the extraordinarily long history and tradition of courts providing relief to officials in precisely this context underscores why there is irreparable harm if they are removed from office.

[01:04:30] Speaker 03:
It'd be like if a judge was told, an Article 3 judge was told, you're removed from office, you're barred from your chambers, but you're receiving back pay.

[01:04:40] Speaker 03:
I don't think anyone would think, in that context, that the back pay would remedy the extraordinary injury to an Article III adjudicator who was nominated by the president and confirmed by the Senate.

[01:04:53] Speaker 02:
If I could, I would like more questions.

[01:04:56] Speaker 02:
Any more questions?

[01:04:58] Speaker 02:
Judge Millett?

[01:04:59] Speaker 06:
No.

[01:04:59] Speaker 02:
All right, why don't you go ahead.

[01:05:02] Speaker 06:
I'm sorry.

[01:05:03] Speaker 06:
I still apologize.

[01:05:03] Speaker 06:
I have a quick one, and I will want the government's answer.

[01:05:06] Speaker 06:
I'm sorry I forgot to ask you as well.

[01:05:10] Speaker 06:
Regardless our state decision, do you want an expedited or a highly expedited appeal?

[01:05:15] Speaker 03:
We would agree for an expedited appeal on the merits, which I think would also alleviate some of the government's concerns, Judge Millett, regarding sort of the vague separation of powers harms.

[01:05:24] Speaker 06:
And obviously if the stay were granted,

[01:05:28] Speaker 03:
Well, I think we'd obviously like an expedited appeal there.

[01:05:32] Speaker 03:
I would ask, I think it may be helpful to administratively stay the stay, no puns intended, in part because just given the flip-flopping disruption that that might occur if we then

[01:05:42] Speaker 03:
receive another stay that it might make sense just to pause press pause on a new stay order for a minute if there is further score from this court yes if there is further review of that order from the special panel potentially so I just throw that out your question to do that when they gave you the relief that you want to.

[01:05:59] Speaker 03:
We were never removed from office under calculus.

[01:06:01] Speaker 03:
We had an absolute right.

[01:06:02] Speaker 03:
And so I don't think it's necessary, Judge Walker, for us to have asked the district court for that.

[01:06:06] Speaker 03:
And I would add, by the way, the government's own behavior showed that it didn't think that was necessary.

[01:06:11] Speaker 03:
Because the district court, unlike in Dellinger, Judge Walker, where the district court immediately went up to the special panel and then immediately went to the Supreme Court, the government took an appeal from that TRO and then sat on it.

[01:06:22] Speaker 03:
So I don't think the government even thinks that this was, from their perspective, so critical that they needed immediate relief.

[01:06:28] Speaker 04:
We can ask them how big a hurry they're in.

[01:06:32] Speaker 03:
Thank you.

[01:06:32] Speaker 03:
If there are no other questions, we'd ask that you deny the motion.

[01:06:35] Speaker 03:
Thank you.

[01:06:36] Speaker 02:
All right.

[01:06:38] Speaker 02:
Mr. Gupta.

[01:06:43] Speaker 01:
Thank you.

[01:06:44] Speaker 01:
And may it please the court, Deepak Gupta, on behalf of Gwynne Wilcox, a member of the National Labor Relations Board.

[01:06:50] Speaker 01:
I want to start

[01:06:52] Speaker 01:
up with the standard.

[01:06:53] Speaker 01:
Stay pending appeal is an extraordinary remedy that demands a strong showing on all factors.

[01:06:58] Speaker 01:
And the court has repeatedly emphasized that likelihood of success is the most important factor.

[01:07:03] Speaker 01:
Judge Walker, I don't know the exact percentage, but I think 51% is sort of ordinary likelihood of success.

[01:07:09] Speaker 01:
So if it's a strong showing, it's got to be considerably more than that.

[01:07:13] Speaker 01:
And I think precedent should be the guide.

[01:07:15] Speaker 01:
I think, as my colleague mentioned, the fact that

[01:07:19] Speaker 01:
every circuit that's been confronted post-Salah law with the question of what's left of Humphrey's executor for these traditional multi-member bodies has said it's not our prerogative to overrule the Supreme Court's precedent.

[01:07:34] Speaker 01:
That question will probably reach the Supreme Court.

[01:07:37] Speaker 01:
But as Judge Willett put it, middle management judges in the circuits don't take for themselves the prerogative

[01:07:46] Speaker 01:
of anticipating the Supreme Court's potential overruling of the president.

[01:07:51] Speaker 04:
I definitely agree with that.

[01:07:52] Speaker 04:
And then I think you would agree that we can't read Humphreys in isolation, right?

[01:07:58] Speaker 04:
Right.

[01:07:58] Speaker 04:
Or Wiener.

[01:08:01] Speaker 04:
We have to read Humphreys and Wiener in the way that Selah and Collins told us as lower courts to read Humphreys and Wiener.

[01:08:10] Speaker 01:
Well, I don't think, I don't read SEALA as saying here's a new framework for Humphreys and you should engage in a kind of agency by agency analysis that is different from what has prevailed up until SEALA.

[01:08:25] Speaker 01:
What I read SEALA is doing is saying we are not revisiting or overruling Humphreys even though we've been invited to do so and even though

[01:08:33] Speaker 01:
some of the dissenters would do so.

[01:08:35] Speaker 01:
They rejected that.

[01:08:37] Speaker 01:
And I think if you read the thrust of the opinion, it is contrasting the novelty of the single director

[01:08:45] Speaker 01:
agency with the traditional multi-member body.

[01:08:49] Speaker 04:
One of the first opinions about single director agencies was first the panel decision and then this court's en banc decision in PHH.

[01:08:58] Speaker 04:
And as you heard me mention to Mr. Zelinsky, Justice Kavanaugh said about the MSPB, but he also said about the National Labor Relations

[01:09:09] Speaker 04:
it exercises substantial executive authority.

[01:09:12] Speaker 04:
We have to disagree with Justice Kavanaugh's statement in order to agree with you, correct?

[01:09:18] Speaker 01:
I do disagree with that statement and I think that statement is wrong.

[01:09:21] Speaker 01:
I don't think you need to do that to rule in our favor because I think that anticipates, it anticipates the merits and probably anticipates

[01:09:31] Speaker 01:
the question that ultimately reaches the Supreme Court, because the through line in SALO law is the emphasis on the historical, traditional understanding that counts for a lot in separation of powers.

[01:09:43] Speaker 01:
And so for the majority of this country, we have had multi-member bodies like this.

[01:09:50] Speaker 01:
And it started, you know, the Interstate Commerce Commission is a multi-member body that actually had a lot more

[01:09:55] Speaker 01:
substantial executive power than the NLRB does.

[01:09:59] Speaker 01:
And it has that forecast removal protection.

[01:10:01] Speaker 01:
We had any before the 1880s?

[01:10:05] Speaker 01:
I think you had Article 1 courts that, as you've written, are housed within the executive branch, but that doesn't mean that they have been considered unconstitutional because they're wielding executive power.

[01:10:19] Speaker 01:
And I think it's important when we're- The answer may be yes.

[01:10:23] Speaker 04:
Did they have, were there removal restrictions on them?

[01:10:25] Speaker 01:
They are.

[01:10:26] Speaker 01:
They do have removal restrictions, yes.

[01:10:27] Speaker 01:
And so does the Interstate Commerce Commission.

[01:10:29] Speaker 01:
That's all in the 19th century.

[01:10:31] Speaker 06:
And then I think Humphrey's executor predated Myers, right?

[01:10:34] Speaker 01:
It did.

[01:10:34] Speaker 01:
Yes.

[01:10:35] Speaker 01:
And then Humphrey's executor builds on top of all of that.

[01:10:38] Speaker 01:
And the National Labor Relations Board was created by Congress two months after Humphrey's executor in reliance on that, modeled on the arrangements that the Supreme Court had just sustained.

[01:10:49] Speaker 01:
I get that.

[01:10:50] Speaker 04:
And if we were deciding this case two months after Humphrey's,

[01:10:55] Speaker 04:
It might be this would be an easier case.

[01:10:59] Speaker 04:
But do you think we're supposed to decide this case as the state of Supreme Court jurisprudence stood two months after Humphrey's or as it stands today after Selah and Collins?

[01:11:09] Speaker 01:
Surely as it stands today in 2025.

[01:11:11] Speaker 01:
I think we agree on that.

[01:11:13] Speaker 01:
And then the question is, what does Selah law instruct lower court

[01:11:17] Speaker 01:
judges to do.

[01:11:18] Speaker 01:
And I think I would look at what your colleagues across the circuits have done.

[01:11:24] Speaker 01:
I think that counts for a lot, because those are decisions not in an emergency, say, posture.

[01:11:29] Speaker 01:
Those are largely decisions where a panel was hearing full argument on the merits.

[01:11:35] Speaker 04:
Even when a precedent is binding,

[01:11:42] Speaker 04:
there's often debate and difficulty about how broadly or narrowly to read it.

[01:11:47] Speaker 04:
Surely.

[01:11:47] Speaker 04:
And would you concede at least that after Selah and Collins, we read Humphreys more narrowly than we would have before Selah and Collins?

[01:11:58] Speaker 01:
I don't think so.

[01:11:59] Speaker 01:
I don't think that's what Selah and Collins are instructing the lower courts to do.

[01:12:03] Speaker 01:
And I think that's partly what surely the court meant when it said we're not revisiting

[01:12:08] Speaker 01:
were overruling those precedents.

[01:12:10] Speaker 04:
I think what they said were not overruling the precedents meant there's something of Humphrey's left.

[01:12:15] Speaker 04:
And I recognize there's some things of Humphrey's left.

[01:12:17] Speaker 04:
But I think if you have Humphrey's here, and then you've got the text of the Constitution, early originalist history, the tradition of the first 100 years up until ICC and then the 1930s pushing against

[01:12:36] Speaker 04:
reading Humphreys broadly, and then you've got Free Enterprise Fund, and you've got CELA, and you've got Collins pushing kind of the other way, squeezing Humphreys, make it narrower than it might otherwise be.

[01:12:51] Speaker 04:
It's almost like the trash compactor in Star Wars.

[01:12:54] Speaker 04:
They're still alive, but Humphrey's is getting narrower and narrower.

[01:12:58] Speaker 01:
So I think when we say that it is the prerogative of the Supreme Court to decide whether to dispense with its precedent, I think part of that entails teasing out whether there are tensions in the existing case law that require a change in that precedent.

[01:13:14] Speaker 01:
And I've read your opinion, Judge Walker in Severino,

[01:13:17] Speaker 01:
And so I suspect that if we were starting from first principles, you and I might disagree on where it would all shake out.

[01:13:23] Speaker 01:
But we don't have to have that debate here.

[01:13:25] Speaker 01:
My friend conceded to you all that these two agencies are predominantly adjudicative.

[01:13:32] Speaker 01:
He was right to concede that.

[01:13:34] Speaker 01:
And I think with respect to the NLRB, I just want to make it really clear, because I don't think it comes through in the papers.

[01:13:40] Speaker 01:
The NLRB is a unique institution where Congress went back in after 1935 and ensured even more separation.

[01:13:49] Speaker 01:
It ensured that the president has the ability to remove the general counsel.

[01:13:54] Speaker 01:
That officer serves at the pleasure of the president and oversees all of the attorneys, all of the investigatory and prosecutorial functions.

[01:14:02] Speaker 01:
is it is as if that is a different agency.

[01:14:04] Speaker 01:
In fact, Congress considered giving that agency a different name and instead calls all of it the National Labor Relations Board.

[01:14:13] Speaker 01:
But it's very different from a scenario in which you have one agency with a multi-member board at the top.

[01:14:21] Speaker 01:
And it's wielding all of that executive power.

[01:14:23] Speaker 01:
In fact, that executive power resides in the general counsel, who has been removed by the president.

[01:14:29] Speaker 01:
The president has named a new person.

[01:14:31] Speaker 01:
And the board, so now I'm talking about the board members, not the agency we call the board.

[01:14:37] Speaker 01:
Those board members are appellate adjudicators.

[01:14:41] Speaker 01:
They decide cases, much like you decide cases, in panels of three.

[01:14:46] Speaker 01:
And the cases come to them in an appellate capacity.

[01:14:51] Speaker 01:
And so they were right to concede that it's predominantly adjudicatory.

[01:14:55] Speaker 01:
The board is almost exclusively adjudicatory in its functions.

[01:15:00] Speaker 01:
And so it sits within the heartland not just of Humphreys, but Wiener.

[01:15:04] Speaker 01:
And so I think this is a particularly poor test case to be asking you as circuit judges to anticipate that the court would dispense with that framework.

[01:15:13] Speaker 01:
Because if there's anything left of the framework, we fall within the heartland of that framework.

[01:15:18] Speaker 01:
And I think the government gives you

[01:15:21] Speaker 04:
I would have thought the framework is what SILA said the framework is, which is, is this a multi-member expert agency that does not wield substantial executive power?

[01:15:29] Speaker 04:
And then maybe sometimes it's harder than other times, but we would have to figure out, is this agency wielding substantial executive power?

[01:15:39] Speaker 01:
Right.

[01:15:40] Speaker 01:
And so what I would submit to you, it's not.

[01:15:42] Speaker 01:
And I think there are two versions of the way that the government is using executive power in their papers and their argument.

[01:15:48] Speaker 01:
And I want to distinguish them because I think it's very important.

[01:15:51] Speaker 01:
One way is to say, simply because something is housed within the executive branch, it's necessarily executive power.

[01:15:59] Speaker 01:
And so it fails the Humphrey test.

[01:16:01] Speaker 01:
If that's their position, and I think there are flavors of that in their briefing, then there's nothing left of Humphrey's.

[01:16:09] Speaker 01:
And it would be hard to say that even the Federal Reserve Board is constitutional, or even Article I courts are constitutional.

[01:16:15] Speaker 01:
And they recognize that that is an extreme position.

[01:16:18] Speaker 01:
So they attempt a historical justification for the Fed.

[01:16:26] Speaker 01:
Then another way to understand, sorry, go ahead.

[01:16:30] Speaker 01:
Another way to understand this, and I think this is in salial law itself, is salial law distinguishes between executive power in that sense, which is merely housed within the executive branch, and in executive function.

[01:16:41] Speaker 01:
And I think this is what is left of the Humphreys framework.

[01:16:45] Speaker 01:
The Humphreys framework looks at the functions

[01:16:48] Speaker 01:
that the agency is engaged in.

[01:16:50] Speaker 01:
And that's why that concession that this is a predominantly, almost exclusively adjudicatory body is fatal, at least here.

[01:16:58] Speaker 01:
It might not be fatal ultimately in the Supreme Court after a full briefing and argument, but it should be fatal here given the high standard for a stay pending appeal.

[01:17:10] Speaker 01:
And given this court's obligation to follow existing framework rather than to anticipate whether precedent might ultimately be overruled.

[01:17:21] Speaker 04:
So how much executive authority does an agency have to wield before it fails the Humphrey's standard, as Selah and Collins interpret the Humphrey's standard?

[01:17:32] Speaker 01:
So I think if it is a traditional multi-member body of experts that is tasked with deciding or adjudicating cases in a nonpartisan manner, then it will easily succeed under the Humphreys test.

[01:17:48] Speaker 01:
If, however,

[01:17:49] Speaker 01:
It's an agency that is engaged in, you know, prosecutorial functions that are unsupervised by the president and is wielding the kind of power that the court was discussing in Salo Law, where you had, you know, you're supervising the entire economy, you're writing rules, and as Judge Millett mentioned,

[01:18:09] Speaker 01:
You can take actions that become instantly enforceable even without Article III courts.

[01:18:14] Speaker 01:
That's a very different scenario.

[01:18:16] Speaker 01:
And I do want to make clear, that is true of the CFPB.

[01:18:20] Speaker 01:
It is not true of the NLRB.

[01:18:22] Speaker 01:
And I'd recommend a decision by Judge Aldam in the Fifth Circuit called Dish Network, where he explains that the NLRB is unique.

[01:18:30] Speaker 01:
In fact, he says the NLRB may be the only agency that needs a court's imprimatur to render its orders enforceable.

[01:18:38] Speaker 01:
The board is given no power of enforcement, and he says what was true in the 1930s about the NLRB remains true today in that respect, quoting a case called in Ray NLRB from 1938.

[01:18:52] Speaker 01:
So the NLRB is actually uniquely non-executive.

[01:18:56] Speaker 01:
It doesn't have that enforcement power to the extent that there are prosecutorial

[01:19:01] Speaker 01:
prosecutorial or investigative powers, Congress made those powers supervised by someone that the president can remove and who serves at the pleasure of the president.

[01:19:11] Speaker 01:
And instead, what you've got is a pure adjudicative body, like you don't even have to look at Humphreys.

[01:19:17] Speaker 01:
You can look at Wiener, where you have a commission.

[01:19:19] Speaker 01:
And differently from the War Commission, which wasn't reviewable by Article III courts, everything the NLRB does,

[01:19:28] Speaker 01:
is reviewable by Article III courts, as this court well knows, because you review actions of the NLRB all the time, maybe more than you would like.

[01:19:37] Speaker 01:
And so this case falls within the heartland of Humphrey's.

[01:19:42] Speaker 01:
And you and I might have different views on how this will all shake out ultimately, but I don't think that is the way that a stay motion should be decided.

[01:19:52] Speaker 01:
And I do think the government cannot, as my colleague said, just skip over likelihood of success.

[01:19:58] Speaker 01:
Because I think this court's precedent has been clear that that's the most important factor in this analysis.

[01:20:06] Speaker 01:
They have to show you not just a likelihood of success, but a strong showing of a likelihood of success.

[01:20:11] Speaker 01:
And surely that means that their position doesn't require dispensing with settled precedent.

[01:20:17] Speaker 06:
What about the injury to the president's power here?

[01:20:21] Speaker 01:
Right.

[01:20:21] Speaker 06:
So that's a relative irreparability.

[01:20:24] Speaker 01:
Right.

[01:20:24] Speaker 01:
And on irreparable harm, I do want to make clear that this case stands on a very different footing from Dellinger.

[01:20:31] Speaker 01:
I think in that case, the court rightly cited the harm to the president of sidelining his acting person who had been there and the need to work with the special counsel, who, of course, is antagonistic to the president.

[01:20:45] Speaker 01:
In this case, what you're instead talking about is whether or not this multi-member

[01:20:50] Speaker 01:
body that adjudicates the claims of private parties, not the executive, whether it has a quorum or not.

[01:20:56] Speaker 01:
And the president has no legitimate interest

[01:20:58] Speaker 01:
in disabling this body created from Congress from performing its functions.

[01:21:03] Speaker 01:
He does have a legitimate interest as a new president elected by the people of putting his stamp on the agency.

[01:21:10] Speaker 01:
He does that by naming a new general counsel.

[01:21:12] Speaker 01:
He does that by naming the chair, which he has done, and he could do that, hasn't done so yet, by naming people to the two vacancies.

[01:21:21] Speaker 01:
All of that would put his stamp on the agency and allow it to function

[01:21:24] Speaker 01:
in the way that he would like.

[01:21:27] Speaker 01:
But what he does not have an interest in doing, a legitimate interest, is depriving the agency of a quorum.

[01:21:33] Speaker 06:
And all we're asking is that by allowing... Well, they say, like, every day he can't remove somebody is an irreparable harm because it, you know, impedes upon, steps upon his removal power.

[01:21:48] Speaker 01:
That very abstract conception of irreparable harm, I think, fundamentally relies on a view that they are right on the merits.

[01:21:57] Speaker 01:
And it also, it doesn't.

[01:21:59] Speaker 06:
Humphreys and Wiener and Celia law, these portions of it, are still binding on us.

[01:22:09] Speaker 06:
Right.

[01:22:09] Speaker 06:
And it's still there.

[01:22:11] Speaker 06:
The Supreme Court has said it's not a constitutional injury.

[01:22:15] Speaker 01:
right.

[01:22:15] Speaker 06:
I think that very constitutional injury there.

[01:22:17] Speaker 06:
It can't be an irreparable harm analysis, right?

[01:22:19] Speaker 01:
It's sort of like when people rely on, uh, you know, first amendment or separation of powers, harms.

[01:22:25] Speaker 01:
It's a, it's a very, very abstract kind of the thinnest

[01:22:28] Speaker 06:
It's an injury we can't recognize until Humphrey's executor is overruled.

[01:22:34] Speaker 01:
I think both, right.

[01:22:35] Speaker 01:
It critically depends upon the argument that they have a likelihood of success.

[01:22:40] Speaker 04:
Humphrey's executor controls this case.

[01:22:43] Speaker 04:
Everybody agrees that Humphrey's executor has not been overruled.

[01:22:45] Speaker 01:
Yes, I mean, I would say and just to your to the colloquy you had earlier Humphreys executor and salial law, the whole whole body of president precedent in 2025 right and Collins and Collins.

[01:22:56] Speaker 01:
Yes.

[01:22:57] Speaker 01:
And so we we we run it through all of the precedent.

[01:23:00] Speaker 01:
But if all I'm saying on

[01:23:02] Speaker 01:
to judge Mollett's question about the harm is that this abstract argument that they're making depends upon the likelihood of success.

[01:23:11] Speaker 01:
And then I think in contrast with that, you've got the fact that my client, if

[01:23:19] Speaker 01:
if she is ejected, if she does not have the ability to stay in this office, is deprived of her ability to perform the role that she was assigned by Congress and by Senate confirmation to a duly appointed role.

[01:23:34] Speaker 01:
And that also works a great harm to the public interest, because again, I don't think the government has a legitimate interest in depriving this agency of a quorum.

[01:23:44] Speaker 01:
It is the only place where these claims are adjudicated.

[01:23:48] Speaker 01:
That deprives private parties of the private parties.

[01:23:52] Speaker 04:
I know you think that the statutory removal provisions are constitutional.

[01:23:57] Speaker 04:
If they are not constitutional, then

[01:24:03] Speaker 04:
Would it be legal for the president to fire Ms.

[01:24:09] Speaker 04:
Wilcox?

[01:24:11] Speaker 01:
I think you're asking a very simple question.

[01:24:15] Speaker 01:
You're saying if we lose on everything and the statute is unconstitutional, does the president have the ability?

[01:24:25] Speaker 01:
Yes, of course.

[01:24:26] Speaker 04:
And if the provisions are unconstitutional,

[01:24:30] Speaker 04:
they were always unconstitutional, right?

[01:24:33] Speaker 04:
They were void ab initio, right?

[01:24:36] Speaker 01:
Yes, I think that's the right way to think about it.

[01:24:38] Speaker 04:
I do think these are simple questions, but I ask because the district court said that the president's action was blatantly illegal because the statute prohibits it.

[01:24:46] Speaker 04:
Well, if it's an unconstitutional statute, then a statutory prohibition against it is not something that would make it blatantly illegal.

[01:24:57] Speaker 01:
Yes, but I do think why do you think she said that I think because it's obviously it's a it's a you know a clear violation of the text of the statute these statutes have been around for you know nearly a century and and presidents have not gone around violating them and that's because there's a settled

[01:25:15] Speaker 01:
Inter branch understanding and we call that Humphreys executor we call that wiener but Congress has relied repeatedly on that understanding and structuring and creating these agencies and I think Sally a law said.

[01:25:28] Speaker 01:
It we we're going to we're going to confront this question about a novel set of arrangements.

[01:25:33] Speaker 01:
in which all of this power resides in a single individual.

[01:25:36] Speaker 01:
But what we're not going to do is do the massively disruptive thing of unsettling all of those arrangements upon which Congress has relied.

[01:25:45] Speaker 01:
And this is the prototypical one, right?

[01:25:47] Speaker 01:
Because it does matter.

[01:25:48] Speaker 01:
It was enacted two months after Humphrey's executor in clear reliance on that precedent.

[01:25:54] Speaker 01:
They've conceded an adjudicatory body.

[01:25:58] Speaker 01:
And so I think if Humphrey's executor and Wiener mean anything,

[01:26:01] Speaker 01:
It means that these bodies, at least under present law, are constitutionally structured.

[01:26:08] Speaker 01:
And the removal was unlawful.

[01:26:10] Speaker 01:
And I think so the district court, I think, was right to say it was blatantly unlawful in that sense.

[01:26:16] Speaker 01:
Again, you don't have to agree with me.

[01:26:17] Speaker 01:
How does you believe the statute is constitutional?

[01:26:19] Speaker 01:
And you don't have to agree with me about where that ultimately shakes out after the Supreme Court hears briefing and argument on the question to agree with me that under existing settled law,

[01:26:31] Speaker 01:
that an extraordinary stay motion is not the right time to be anticipating that overruling.

[01:26:37] Speaker 01:
And if I can just return to the question of irreparable harm, and I realize I'm running out of time, but I do want to point out that the government is relying on cases from the 19th century and treatises from the 19th century that say that courts of equity in the days of the divided bench didn't grant the kind of relief that we're talking about here.

[01:27:00] Speaker 01:
If you look at those cases and you look at those treatises, almost everything they're citing, the very next sentence says, and that's because these remedies were available at law.

[01:27:11] Speaker 01:
And they were available through mandamus.

[01:27:14] Speaker 01:
And in fact, in the late 18th century, Blackstone makes this clear.

[01:27:18] Speaker 01:
The principal function of mandamus was to do precisely what the district court did here, which is to ensure that somebody who has been unlawfully removed from office can remain in that office.

[01:27:28] Speaker 01:
What a discussion about

[01:27:29] Speaker 04:
standards and level of certainty that's necessary?

[01:27:34] Speaker 01:
Davis has an extremely high standard, correct?

[01:27:38] Speaker 01:
Yeah, and I think this court's decision in Swan addressed all of this in some detail.

[01:27:44] Speaker 01:
Not just footnote one, but the discussion that talks about how, at least if there is, and in that case, the court ultimately concluded that there wasn't such a non-removal duty, right?

[01:27:55] Speaker 01:
But the court said, where the standards