During the oral argument for Kennedy v. Braidwood Management, Inc., Supreme Court Justice Samuel Alito questioned an attorney on the level of independence Government officials hold in task force creation.
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00:00That's the nature of an agency, isn't it, that they hire experts to help the decision makers come to a conclusion?
00:07Right. That was the essential reasoning in holding a free enterprise fund, in fact, was that you would have bureaucrats but not be ruled by them.
00:14So, yes, you have bureaucrats who contribute their expertise, but ultimately the final decision power is in a politically accountable head of an agency.
00:23And that word independent could mean that people on the task force have an obligation to give their independent opinion, but that doesn't mean that the secretary has to accept it, correct?
00:38That's exactly right, and I would point this court to how this court has described administrative law judges in Butts v. Economist.
00:45And that's an incredibly strained interpretation of the term independent. Are you independent of the president?
00:53No, Your Honor.
00:54I mean, he is counting on you to exercise a degree of independent judgment, but if somebody is removable at will, that person is not in any ordinary sense of the term independent.
01:08Well, with all due respect, Your Honor, in Your Honor's opinion for the court in Collins, this court held that there are many statutes that use the phrase independent to describe an entity that is nevertheless not subject to a removal.
01:22All right. Well, maybe that's a little bit unfair, but I mean, maybe I was wrong in Collins, but explain to me, you know, explain to me how somebody can be independent and yet subject to removable on the whim of the president.
01:36Sure. As Justice Sotomayor said, it's independent in the sense that they have both the duty and the power to exercise their own best judgment.
01:45That doesn't mean that once they've done so, they're free from accountability.
01:49It just means that when they are making the decision, they have an obligation to exercise their best scientific judgment.
01:55Well, let's say they are removable at will, okay? And independent means something. It's like a precatory directive.
02:09Still, if the task force rates something A or B, then that's it. And you try to get around, and even if the members are removable at will, the only way you can get around that is through a really, some really jerry-built arguments.
02:31I don't think so, Your Honor. Let me give you the most straightforward of them. Under the statute itself, no recommendation takes effect until the secretary sets the minimum interval period.
02:43Right.
02:43And the minimum interval period is at least one year.
02:46Yeah.
02:47So one year is more than adequate time for the secretary, if he doesn't agree with the recommendation, to direct the board to rescind it, the force to rescind it, and if the task force doesn't rescind it, to replace them with people who will.
02:59That doesn't seem very jerry-built to me.
03:01In addition to that, the secretary also has the power to create a pre-approval requirement. Under 300 GG 92, he has rulemaking power to implement this statute, and he can say,
03:12before you issue any recommendations, submit it to me for my approval. And if and only if I approve it, can you issue it in the first place. Again, that's not all that jerry-built, and it perfectly serves.
03:23If Congress really wanted these task force members to do the bidding of the secretary, isn't that an incredibly odd way to go about conferring that authority?
03:37No, because critically, we are not saying that Congress wanted the task force to do the secretary's bidding. We agree that the secretary cannot tell the task force to make a given recommendation.
03:50If the task force doesn't want to make a recommendation, it doesn't have to make a recommendation. Our point is simply that if the task force does make a recommendation, the secretary can block it.
03:59To use an analogy, it's like bicameralism. The Senate can't force the House to pass a bill, but if the Senate doesn't also agree with the bill, it doesn't become a law.
04:10Well, under the argument that you've just made, why can't the secretary demand that a particular recommendation be made using exactly the same authority that you just outlined?
04:23What am I missing? The president says, I want you to make this recommendation, and if you don't make this recommendation, I'm going to remove you and replace you with somebody who will make the recommendation.
04:33So he can remove them, but we don't think he has the ability to force them to make the recommendation, because we do think that the phrase independence, and more importantly, the phrase the recommendations made shall be independent in 299B4A6, we do think that that language does prevent that.
04:51And that makes perfect sense. If you take a step back and think about the statutory scheme, Congress was, as it often does, balancing competing objectives.
04:59On the one hand, it wanted the benefits of an expert body. It wanted recommendations that reflected their best scientific judgment.
05:07But on the other hand, it recognized that you need to have political accountability, and so the secretary can block it, and that solves the problem.
05:15It means that no final decision could be made that binds the public unless the secretary approves it.
05:20Mr. Mopin doesn't.
05:21Mr. Mopin doesn't.