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Thursday, June 15, 2017

Remedying Removal: Mueller and the CFPB Case

Many commentators have discussed whether President Trump could lawfully fire Special Counsel Mueller, despite a DOJ regulation providing that the special counsel may be removed only for cause by the Attorney General. But even if the president lacked lawful authority to remove Mueller, would any meaningful judicial remedy follow? Remarkably, the DC Circuit recently discussed this general issue during the en banc oral argument in the CFPB removal case.

Last month, the en banc DC Circuit heard argument in PHH v. CFPB, an important case on the president’s power to remove the head of the CFPB. Most of the discussion focused on the CFPB’s structure and the statutory guarantee that its head can be removed only for cause. Near the end of the CFPB’s argument, however, the judges zeroed in on the ever-critical question of remedy: when the president unlawfully fires an executive official, what follows?

While I wasn’t at the argument myself, two attendees have confirmed that the main questioner on this point was Judge Wilkins. Here is my edited transcript of the most focused exchange, which starts around 1:24:30 of the court recording.

Court: I’ve seen law review articles and other commentary that say that even though there is the for cause protection under Humphrey’s Executor, basically the only remedy that’s available is back pay. And they’re saying that there’s never been a case where a court has enjoined a president. And lots of commentators believe that no court would have jurisdiction to enjoin a president. So, how does that cut in our analysis? Does that mean that really this is a toothless protection? ...

CFPB: I don’t think that it’s toothless. … He may not be able to remove the official simply for policy disagreements. ….


Court: My point is that even though that’s what the Court held in Humphrey’s Executor—now, there was Humphrey’s Executor because Humphrey died. But let’s suppose he was still alive when the Court made its decision. He wasn’t going to get his job back. So I guess what I’m saying is: as long as the President is willing to cut a check for pay for the rest of the term, even if a court disagrees with him later, he can still get rid of the person, even with the Humphrey’s Executor protection, right?

CFPB: That may be, your honor. I just don’t know how that would play out.

The basic idea here is that a money damages award for back pay may be the only judicially available remedy when the president removes a subordinate without lawful cause.

It’s not entirely clear whether that conclusion would bear on the merits of the CFPB case. Could a removal restriction's constitutionality depend in part on how courts would enforce it? A truly “toothless” removal restriction might pose a lesser threat to executive power—but only because of its practical irrelevance. By comparison, courts might view relatively enforceable restrictions as more severe intrusions on the president’s power.

The DC Circuit’s discussion of removal remedies is directly relevant to the practical consequences of removing Special Counsel Mueller. If injunctive remedies are categorically unavailable to removed officials, then even the strongest statutory for-cause removal restrictions might not pose a serious real-world constraint on presidential power. Ditto for the regs protecting special counsels like Mueller.

True, the president would still have taken an oath to abide by the law, including both removal restrictions and relevant Supreme Court precedents. The Take Care Clause and the nature of the president’s office would also call for lawfulness. For these reasons, many presidents surely feel bound to adhere to law.

But the president’s own sense of duty is only so constraining. Presidents might be much more likely than the courts to believe that there is legally adequate cause to remove. Good-faith disagreements on what qualifies as cause are especially likely given the shortage of case law on the subject. Alternatively, the president might be a departmentalist who feels unbound by Humphrey’s Executor and takes a broad view of his own removal authority. In these situations, a president might feel that he is abiding by his duty to adhere to law, even when deviating from judicial views on lawful removal.

And what about a cynical president? Someone prepared to violate the law might use various legalistic arguments as a smokescreen for willfully unlawful conduct. For example, a president could raise bogus allegations of cause while asserting compliance with a removal provision. In time, the courts would presumably reject the bogus allegations, but by then the removed officer would be out of power—and without any way to return.

A sufficiently dramatic instance of unlawful removal could catalyze political checks, up to and including impeachment of the president. But while a judicial decree that the president violated the law could certainly play an important role, political checks are usually driven by, well, politics. Whether a court formally finds a violation would therefore be less important than whether the public feels that an abuse of power is afoot. What’s more, a damages-only approach could alter the way that the public views judicial decisions on removal. An order directing reinstatement could seem like a dramatic stand over deep legal principle. By comparison, a judgment for back pay might look more like a fee than a fine. Just another price of doing business.

The obvious alternative view is that removal restrictions are at least sometimes judicially enforceable through more than just back-pay awards. Officials who believed that they were unlawfully fired could then immediately seek judicial relief and perhaps obtain a stay, preliminary injunction, or writ of mandamus to remain in their jobs. Of course, viewing removal restrictions as judicially enforceable is fraught in various ways, as indicated by the scholarship that Judge Wilkins alluded to. Aditya Bamzai’s November post on the CFPB case touches on some of the relevant work, including papers by Cass Sunstein and Aziz Huq.

My goal here is not to say which side of this debate is correct, or even that the debate is key to the CFPB case. But it is remarkable that at least some members of the DC Circuit are already thinking about these questions—and could choose to opine on them soon.

Posted by Richard M. Re on June 15, 2017 at 08:32 AM | Permalink


I realize the point of this post is remedies, but... isn't it clear as day that the President can fire a special counsel? Humphrey's invented a carve-out from the rule the Court pronounced in Myers that the President can fire anyone in the Executive branch, no matter what Congress says. Humphrey's said that an FTC commissioner is different because it is quasi-judicial and quasi-legislative, whereas Myers was a postmaster which is only executive. A prosecutor is not judicial and legislative in nature; it is executive. Therefore, based on Humphrey's Executor and Myers, even if Congress passed a statute purporting to prohibit the President from firing a counsel appointed by the AG, the President could fire him. How could the AG, by regulation, do what Congress by law cannot do?

Posted by: biff | Jun 15, 2017 11:35:08 PM

Marty and SlipperySlope: Yes, a declaratory-judgment action is also a possibility, along with quo warranto (initially sought in Wiener) and still other options. That said, it’s not clear that the declaratory judgment option meaningfully expands the menu of choices. The removed official would presumably need more than just a declaration of rights and powers in order to receive a paycheck, access records, discover evidence, etc. So a declaratory judgment, if effective, would ultimately resemble the request for meatier remedies that I outlined in my penultimate paragraph. On the other side, the back-pay option already contains within it a declaration of sorts, since it would entail a finding that the removal was unlawful. So if a declaratory judgment alone would really do the trick, then maybe the back-pay approach is sufficient.

Posted by: Richard | Jun 15, 2017 3:26:02 PM

Richard: Your questions appear to assume that Mueller would leave his job if Trump purported to remove him. But what if he concluded that Trump didn't have the authority and refused to leave? I suppose in that case Trump could try to use other tools (nominally) at his disposal, e.g., ordering Treasury officials to have their employees stop cutting checks [if they would abide by such orders!]. But what if, instead, Mueller went to court for a declaratory judgment when he was still performing the functions of his office? He wouldn't be asking for reinstatement--instead merely for a declaratory judgment. Are there such precedents?

Posted by: Marty Lederman | Jun 15, 2017 12:58:32 PM

Seems like an appropriate analogy to consider would be Powell v. McCormack, 395 US 496 (1969), involving the refusal to seat Adam Clayton Powell despite him meeting all the constitutional qualifications for the House of Representatives.

In addition to the remedy of back pay (which the Court held prevented the case from becoming moot), the Supreme Court held that a court could issue a declaratory judgment. It stated: "We need express no opinion about the appropriateness of coercive relief in this case, for petitioners sought a declaratory judgment, a form of relief the District Court could have issued. The Declaratory Judgment Act, 28 U.S.C. § 2201, provides that a district court may "declare the rights . . . of any interested party . . . whether or not further relief is or could be sought." The availability of declaratory relief depends on whether there is a live dispute between the parties, and a request for declaratory relief may be considered independently of whether other forms of relief are appropriate. We thus conclude that, in terms of the general criteria of justiciability, this case is justiciable." (citations omitted).

Indeed, at the end of the opinion, after holding that "since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership," the Court "remanded [the case] to the United States District Court for the District of Columbia with instructions to enter a declaratory judgment and for further proceedings consistent with this opinion."

Posted by: SlipperySlope | Jun 15, 2017 12:56:33 PM

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