During the oral arguments of Kennedy v. Braidwood Management, Inc., Supreme Court Justice Elena Kagan. questioned an attorney about creating an independent task force agency.
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00:00Well, point taken as to what the history is, but still, I mean, we don't go around just creating independent agencies.
00:07More often, we destroy independent agencies.
00:11That seems to be...
00:12You know, the idea that we would take a statute which doesn't set up an independent agency and declare it one
00:19strikes me as pretty inconsistent with everything that we've done in this area.
00:23In terms of construing statutes to maximize presidential influence over the...
00:27Yeah, I mean, you know, we've basically said we're not going to read something as putting restrictions on removal power unless it puts restrictions on removal power.
00:37But the problem here, it's not really a question of removal power, Justice Kagan.
00:40The test for principal officer status turns on whether the secretary can direct and supervise the decisions of these task force members.
00:47It's the question whether the...
00:48Well, why isn't removal power enough?
00:50Suppose that there were clear at-will removal power here.
00:54I mean, we've gone to such lengths to say that that's pretty much...
00:58Somebody said it's not the end-all and the be-all.
01:00I think Mr. Mupin said that.
01:02And I don't know if you read this court's decisions.
01:05It seems often to be the end-all and the be-all, that the court has suggested on many occasions that removal power is really the essence of control.
01:15If you have it, you have control.
01:17If you don't have it, you don't have control.
01:19Now, as you know, I'm sure, on a number of occasions, I've said that that understanding of removal power is not realistic, at least in certain contexts.
01:29But the court has said it again and again.
01:32So why doesn't it get you, if not 100% of the way there, in a context like this, pretty near there?
01:39I think that argument would have more force if it weren't for the opinion in Arthrex.
01:43And if we were litigating this case 10 years ago before the Arthrex opinion, I think that would have a lot of...
01:49That would be a very powerful reason to say these could be inferior officers.
01:52But if you look at the Arthrex opinion, pages 15 and 16, where Arthrex catalogs all the ways in which the PTO director can influence the decision-making of these administrative patent judges in an informal way,
02:05without the formal ability to review their decisions, and then the court says, not only is that not good enough, it actually says that aggravates the problem.
02:11This is not the solution, it is the problem, because it blurs the lines of accountability and it undermines the transparency that the appointments clause is supposed to provide.
02:20Again, if Arthrex wasn't there, I think we could have an interesting discussion about whether the test for principal officer status should be this formalistic test that Arthrex sets forth,
02:29or whether we should have more of a hard-nosed legal realist look at the actual powers that the secretary can exert to influence the task force.
02:36But Arthrex really, I think, makes it hard for that argument to get off the ground.