Neil Gorsuch Presses Attorney About Secretary's ‘Removal Authority’ In Obamacare Case

Forbes Breaking News

During the oral arguments for Kennedy v. Braidwood Management, Inc., Supreme Court Justice Neil Gorsuch asked an attorney about the jurisdiction of Department Secretaries.

Transcript

00:00Mr. Mupin, on that score, the removal at will argument that the government makes hinges a lot

00:06on the assumption that the removal power comes with the appointment power, and that because the

00:12Secretary has the power to appoint, he therefore has the power to remove. The Fifth Circuit didn't

00:19address the antecedent question whether the Secretary indeed has the power to appoint.

00:24What do we do about that? Should we remand the case to assess that in the first instance?

00:31Just as Justice Thomas's questions point out, there seems to be some reason to question

00:36that.

00:37Well, so I guess what I would say is the following. There is certainly no removal restriction

00:41in the statute. So whoever it is who has the ability to—

00:45Whoever it is is an important question, though, right?

00:48So I take the point, Your Honor, but in terms of the question of is there a removal at will

00:52removal, there is at will removal.

00:53Well, I understand that, but you say the Secretary has that at will removal power. That's

00:59a pretty critical premise of your argument, and it's an untested premise, one that the

01:05Fifth Circuit hasn't addressed and is being really addressed here for the first time, as

01:12you point out. And therefore, would you object to a remand for that consideration of that question?

01:19Well, we think it is fully briefed here, and we think the Court is capable of deciding.

01:22Well, you also cite Cutter and tell us, you know, we're not normally a court reminding

01:26us, as if we need it, that we're a court of review, not first view.

01:30So I won't object if this Court doesn't want to address that question, but we do think

01:34the answer is quite clear for the reasons with my colloquy, Justice Thomas. I don't

01:38think the statute could plausibly be construed to vest the appointment in the President and—

01:43I agree with that, but whether it vests it in the Director as opposed to the Secretary

01:49is an interesting question.

01:50Well, but that's a very easy question, because if you agree with me, it's at least

01:54in the Director. The Reorganization Act—

01:56I understand you think it's easy. The Council always thinks it's easy. But I'm pretty

02:02sure Mr. Mitchell doesn't think it's quite—he probably thinks it's easy, too, just the other

02:07way.

02:08Well, to be fair—

02:09And no courts passed on the question. And so, again, I ask you, do you have any objection

02:12if we were to remand it?

02:13I—we don't, but to be fair, I don't even hear Mr. Mitchell to disagree with what

02:18I'm about to say, which is that the Reorganization Act of 1966 clearly vests the Secretary with

02:24all the powers of the Director.

02:25Okay.

Category

Transcript

Recommended