I know it is conventional wisdom that the Supreme Court will overrule Humphrey’s Executor. As I joked on a recent panel, Humphrey’s Executor, like William Humphrey, is dead. (And I have his death certificate to prove it.) Yet, I am not so sure the Court will actually pull the trigger on Humphrey’s Executor. In early February, I wrote that Roberts and Justice Barrett would save Humphrey’s Executor as a way to repudiate Trump himself. They might overrule the case at some future time. But not in the first few months of the Trump Administration. That would be seen as an unconditional surrender to the new regime.
But how can the Chief Justice salvage the situation? What will be the John Roberts Blue Plate Special? There are so many classics! Giving Congress another chance to revise the Voting Rights Act. Upholding the individual mandate as a tax on the uninsured. Allowing states to opt into the Medicaid Expansion. Blocking the rescission of DACA until the government considers the reliance interests. Blocking the census question until the government takes further action. Blocking the congressional subpoena for Trump’s tax returns until it follows some incoherent test. Ruling that the eviction moratorium is unlawful, but giving the Administration a chance to stop enforcing it. And so on. Roberts’s legacy will be a series of too-cute-by-a-half rulings that resolved the precedent at hand without setting any actual meaningful precedent. None of these rulings will be remember once he leaves his court. His impact will fade quicker than Justice Kennedy’s.
I think I figured out what Roberts’s play will be. As best as I can recall, the presidential removal cases that have come to the Supreme Court did not concern re-instatement. Rather, Meyers and Humphrey sought backpay. So in all regards, the Walter Dellinger case, which seeks reinstatement, is novel. Dare I say, unprecedented. (To be clear, Dellinger argues that he was never legally fired, since Trump did not show cause, so he does not need to be reinstated, but I still think the effect of the remedy has to be one of reinstatement.)
Justice Gorsuch’s dissent in the Hampton Dellinger case contended that the Court lacks an equitable cause of action to order reinstatement. I think he is correct.
What will John Roberts do? The Chief Justice can hold that the removal of Dellinger was unlawful but the Court lacks the power of reinstatement. Dellinger, at most, can seek backpay in the Court of Federal Claims. Then, it is up to Trump to decide whether to recognize Dellinger as the lawful holder of the office. That way, Roberts does not need to stomach forcing the President to reinstate Dellinger. This move would resemble Chief Justice Taney’s opinion in Ex Parte Merryman. Taney did order Lincoln, or anyone else to release Merryman. Taney only ruled that the continued detention of Merryman was unlawful. Roberts would not actually issue an order against the President, but hope he complies with it voluntarily.
There is another, less dramatic variant. Generally, if an injury cannot be remedied, the Court lacks jurisdiction. Everyone remember California v. Texas? If the Court lacks the power to reinstate Dellinger, then an opinion finding his removal was unlawful would be advisory. Therefore, the entire case must be dismissed for lack of jurisdiction. Dellinger can start over in the Court of Federal Claims, which can then adjudicate the legality of the removal, with proper jurisdiction. That case might reach the Supreme Court in two years or so. At that point, no one will remember this conflict. This would probably be Justice Barrett’s preferred option. Redressability is her favorite jurisdictional prong. Indeed, if Barrett fractures with Roberts, then the Chief has a green light to issue any sort of opinion he wants, since it will not command a majority of the Court.
The District Court issued a 67-page summary judgment opinion in favor of Dellinger. That case seems to be moving faster than the Wilcox NLRB matter. The race is on.
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