Thumbnail Image
Risa Goluboff, John Harrison and Jennifer Mascott

S4 E10: The President’s Power To Hire and Fire

George Mason University law professor Jennifer Mascott discusses past and present legal challenges to the president’s power to appoint and remove executive officers.

Show Notes: The President’s Power To Hire and Fire

Jennifer Mascott

Jennifer Mascott is an assistant professor of law and co-executive director of The C. Boyden Gray Center for the Study of the Administrative State at the Antonin Scalia Law School. Mascott writes in the areas of administrative and constitutional law and the separation of powers. Her scholarship has been cited by the Supreme Court and has been published in the Stanford Law Review, the George Washington Law Review and many others.

Mascott serves as a public member of the Administrative Conference of the United States and as a vice chair of the Constitutional Law and Separation of Powers Committee within the American Bar Association’s Section of Administrative Law and Regulatory Practice. She has testified in the U.S. Senate on topics ranging from executive privilege to Supreme Court jurisdiction, and she is a frequent media commentator.

In 2019, Mascott took a leave of absence to serve as deputy assistant attorney general in the Office of Legal Counsel within the U.S. Department of Justice. In May 2020, she was appointed associate deputy attorney general and starting in November 2020, served in a double appointment as both ADAG and a deputy in OLC through January 2021. During government service, Mascott assisted with aspects of Justice Amy Coney Barrett’s confirmation process and argued cases in federal appellate and trial courts. 

Prior to her time in the DOJ, Mascott served as faculty director of the Antonin Scalia Law School’s Supreme Court and Administrative Law clinics. Mascott is a former law clerk to Supreme Court Justice Clarence Thomas and to then-Judge Brett M. Kavanaugh, formerly of the U.S. Court of Appeals for the D.C. Circuit.

Listening to the Show



Risa Goluboff: Today on Common Law, the separation of powers with Jennifer Mascott of the Antonin Scalia School of Law at George Mason University.

Jennifer Mascott: Even though the Constitution's somewhat specific about who can appoint officers, it doesn't actually say anything at all about how officers are to be removed.


Risa Goluboff: Welcome back to Common Law, a podcast of the University of Virginia School of Law. I'm Risa Goluboff, the dean.  In today's episode, we are welcoming back professor John Harrison, who can teach just about every law school subject. He came to UVA after serving in the Justice Department and has also been a counselor on international law in the State Department's Office of the Legal Advisor. He is a prolific and prominent scholar with a special love for legal history and for how different branches of the government relate to one another. John, thanks so much for returning for round three.

John Harrison: Thank you Risa. It's good to be doing another.

Risa Goluboff: I understand that our guest today shares your love for administrative law issues, so tell us more.

John Harrison: Yes, that's right. We're going to be talking to Professor Jennifer Mascott, who is an assistant professor at the Antonin Scalia Law School at George Mason University. Jennifer is already an important figure in administrative law and constitutional structure. She is co-executive director at George Mason of the C. Boyden Gray Center for the Study of the Administrative State. She's currently a public member of the Administrative Conference of the United States, a federal government agency that makes proposals for administrative law policy. And she's the vice chair of the Constitutional Law and Separation of Powers Committee of the American Bar Association's Administrative Law and Regulatory Practice Group. That's an extremely active group within the ABA, so Jennifer's leadership role there makes her an important figure. She has recently served, as I did a long time ago, as a deputy assistant attorney general in the Office of Legal Counsel.

Risa Goluboff: Well, she is quite accomplished and she's going to talk to us today about the court's recent cases on separation of powers, in connection with presidential appointments and removals, clearly an exciting and timely topic. And in fact, I had the pleasure of meeting Jennifer during the confirmation hearings before the Senate Judiciary Committee for now-Justice Ketanji Brown Jackson. So we will be right back with Jennifer Mascott.


Risa Goluboff: Jennifer, welcome to Common Law.

Jennifer Mascott: Thank you so much for having me. It's great to meet you and join you today.

John Harrison: Jennifer, thanks for joining us. So why don't we start by just sort of talking about the problems, the lay of the land, overall —what's going on with respect to removal, presidential control, the so-called unitary executive principal, and the more specific appointments clause issues that come up from time to time.

Jennifer Mascott: You know, questions about the extent of the presidential removal power have I think become even more pressing in recent years because the Supreme Court has been much more willing to take on more cases, litigants bringing challenges who are disaffected with various decisions and actions being taken by administrative agencies and therefore are bringing challenges to the constitutionality of the way in which the agencies are structured. And I think over the past, you know, couple of decades as agencies have received more power or more unique structures of agencies have been enacted by Congress through the Consumer Finance Protection Agency and others, it's given an opportunity for litigants to challenge those new arrangements. And so, in the October term, 2020-2021, the court heard a case dealing with the president's appointment authority, as well as the president's removal authority. And both of those cases, I think show that the court is willing to take a look at these issues, considers them important to make sure that officials exercising power are doing so subject to constitutional constraints and supervision. And also perhaps show a general cynicism or concern about the exercise of regulatory authority and how vast it's become and wanting to make sure that it's been at least exercised by people who are in some ways accountable back to the electorates.

Risa Goluboff: John used this phrase the “unitary executive.” Could you just define it for us before we continue with the conversation?

Jennifer Mascott: Generally and broadly, right, it means that Constitution in Article II has vested all of the executive power in one individual president. So there can't be any other entities or actors wielding executive power within the executive branch who the president can't meaningfully supervise in some way. Because in addition to giving the president the executive power, Article II also assigns the president the duty to take care that laws be faithfully carried out. And so the idea or the theory would be that if the president can't, in some way, supervise people in agencies under him, then he can't fully maintain responsibility for actions that those agencies are taking.

John Harrison: Jen, maybe it would be a good idea to talk a little bit about Humphrey's Executor, a struggle between President Roosevelt and a holdover appointee to the Federal Trade Commission. That might give us a good window into sort of the practical stakes with unitary executive and removal power questions.

Jennifer Mascott:  Congress has created two different kinds of departments or executive entities. One is the more traditional department like the Department of Treasury, where it's headed by one cabinet secretary. President appoints that person subject to Senate consent and then the idea is if the individual does something the president doesn't like, the president can fire that person and put a new person in the position to carry out his agenda.

Risa Goluboff: So that category would include the departments of transportation, education, labor, et cetera. Basically, any department headed by a member of the president's cabinet.

Jennifer Mascott: Correct. That’s right. There has also been a different type of entity put into place – commissions. And the idea with some of these commissions, whether it be the Securities and Exchange Commission or the FTC, was that if the commissioners together have to reach joint decisions, there's a certain measure of accountability and teamwork that happens within the commission itself. And so part of what would make them independent, at least in the original congressional creation of the structure, was not only splitting up the power among multiple board members who might represent different political parties, but making sure that those commissioners could not be fired at will immediately by a president who just didn't like their policy. And so the challenge in Humphrey's Executor was to this idea that the president could just fire an official for not being somebody who's going to as vigorously carry out the president's agenda because the president wants his or her own person to fill the seat, but that there's some limitation in the statutory scheme. And it was a particularly pressing issue in Humphrey's Executor because just a few years earlier, in an opinion, uh, known as Myers, the Supreme Court had issued an extensive opinion, talking about the strength of executive power, the need for there to be accountability in presidential control, a president needed to be able to supervise everything happening in the branch beneath him. And so the idea in Humphrey's Executor is perhaps these tenure protections are veering away from that ideal.

Risa Goluboff: So Myers is 1926 and the court basically says the president can fire any executive branch official he wants. Then 1935 rolls around and the justices come to a different conclusion in Humphrey's Executor. How did that happen?

Jennifer Mascott: It tried to create this distinction with commissioners, describing them as exercising what it termed as quasi-legislative or quasi-judicial power. Power that was more policymaking or making suggestions to the courts or making suggestions to Congress or to the executives about rules that should be put in place, and therefore the exercise of power didn't need to be as directly accountable to the president. And so Humphrey's Executor is obviously a significant precedent that's been on the books since 1935. The court did issue an additional kind of follow-on opinion of significance, Morrison versus Olson, in the 1990s where the court also found it to be acceptable for an independent counsel, kind of an independent prosecutor within the executive branch, also to be subject to some sort of tenure protection so that the attorney general or the president that the independent counsel might be investigating, could not just fire that individual.

John Harrison: Those decisions have been very important for the courts for decades now. What's changed recently?

Jennifer Mascott: What's happened in recent years is that this current court and its current makeup, has faced a lot of challenges as new agencies have been created. And what the court over the past 11 years has really repeatedly done now on three particularly poignant cases, has said, well, we're not going to go any further than Humphrey's Executor, Morrison versus Olson. And with every one of these subsequent opinions, the court seems to be a little bit more distant from the approval of independence in the past, and seems to be wanting to rely a little bit more on executive supervision and some of the principles of the Myers decision without actually overruling Humphrey's Executor and Morrison.

John Harrison: I don't want to completely ignore the appointments clause, sort of the younger sibling here. It can have really important practical consequences. So maybe you could tell us a little bit about some of the background on the appointments clause, and maybe in particular about Buckley against Valeo, a case in which a constitutional provision, the appointments clause that many people might've thought was something of a technicality, kind of threw a wrench in a, in a major congressional regulatory scheme.

Jennifer Mascott: Absolutely. So the appointments clause is in a more specific provision within Article II, that essentially says if there is an official who is an officer of the United States, that the individual needs to be appointed by the president with Senate consent. There's an exception for "inferior officers.” And it's a curious little provision or    exception. It's not clear how much thought they actually gave to the provision, because the exceptions clause basically was put in place right at the very end of the convention, kind of when the drafters realized how time-consuming it might be to send every officer of the United States through presidential appointment with Senate consent. And so the idea was that there should be some alternative mechanism if Congress so chose.

John Harrison: And the court has wrestled for a long time now, and in particular, in recent years with the question who is an inferior officer, who doesn't have to be appointed subject to Senate consent.

Jennifer Mascott: What I think is an interesting threshold question actually about the appointments clause and how it connects to removal and how it connects executive supervision generally is: One might have a different view about the proper scope of the appointments clause based on exactly where someone believes the president gets the power to staff or to oversee the executive branch in the first place. And, you know, John, you had us start the discussion with removal – the presidential removal authority, but interestingly, even though the Constitution's somewhat specific about who can appoint officers, it doesn't actually say anything at all about how officers are to be removed. And so at least in the court's recent opinions, it seems pretty clear that the Supreme Court believes that the president's power to remove officers under him actually stems from the vesting of the executive power in the president.

Risa Goluboff: Can you talk a little bit about some of the more recent cases that have come to the court about the appointments and removals? These are big, administrative, structural, constitutional questions, but they come up in, you know, concrete context. So tell us about what those are.

Jennifer Mascott: In subsequent cases, the court started thinking through what does significant authority mean in the context of adjudication? And so it first looked at tax court judges in a case known as Freytag. Current chief justice was involved in arguing that case.


Chief Justice William Rehnquist: We’ll hear argument next in number 97-62, Thomas Freytag versus Commissioner of Internal Revenue.

Jennifer Mascott: Current chief justice was involved in arguing that case.

Chief Justice William Rehnquist: Mr. Roberts we'll hear now from you.

Justice John Roberts: Thank you, Mr. Chief Justice, and may it please the court. Petitioners claim that the appointment of a special trial judge to hear and report on their cases, which is authorized by the plain language section 74-43-A-V4, is unconstitutional under the appointments clause.

Jennifer Mascott: The court more recently looked at administrative law judges within the Securities and Exchange Commission in Lucia versus SEC in a decision that was handed down in 2018.


Justice Elena Kagan: The petitioner is Raymond Lucia, an investment advisor who marketed a retirement savings strategy called “buckets of money.” The SEC thought that Lucia's sales pitch was deceitful and brought charges against him.

Risa Goluboff: This is Justice Elena Kagan issuing the opinion in Lucia vs SEC.

Justice Elena Kagan: But Lucia says that decision should be erased because the ALJ wasn't properly appointed. And we agree.

Jennifer Mascott: If you take those two cases together, the court didn't say that only people exercising this level of adjudicative authority are officers, but that surely if you are presiding over something that looks like a trial within an agency and you can take evidence and you can issue at least initial decisions that are going to be imposing significant penalties on regulated parties and deciding what laws mean, you exercise significant authority and you're an officer of the United States. And so you come somewhere within the appointments clause.

John Harrison: Yeah.

Jennifer Mascott: And then the second question that wasn't at issue in those cases, but was at issue in a case, uh, in a decision that was issued just last summer Arthrex versus United States. The question is if somebody is an officer of the United States, how do we know when they're an inferior officer who can be appointed by the department head like the SEC commissioners ...

John Harrison: As opposed to having to be appointed by the president with the advice and consent of the Senate.

Jennifer Mascott: Right. And so the court has essentially settled on this line, that it all comes down to supervision. And if you're adequately supervised, then you can be an inferior officer. And if you're not, then you're a principal officer. And it's a curious debate because the Constitution doesn't use this phrase “principal officer” in the appointments clause. It refers to principal officers just one time when it says the president can get the advice of the principal officer of every department.

Risa Goluboff: So what happened in Arthrex? That was about the Patent and Trademark Office, right? And what was going on there?

Jennifer Mascott: The Patent and Trademark Office was allowed to not only have an adjudicative body that would grant patents, but would also make decisions being able to strip inventors of patents if there was a conclusion that a patent had been improperly granted. And so you didn't necessarily have to go to the Article III judiciary and get an impartial body to strip your patent. It could happen right within the patent office itself. So that increased the pressure a lot on are the administrative patent judges exercising too much authority. Have they been constitutionally appointed?  Because even though there's a director of the patent office, who's treated as a non-inferior officer and appointed by the president with Senate consent, the director did not have complete supervisory authority to be able to reverse these decisions stripping inventors of patents. And so, the federal circuit actually first concluded that the administrative patent judges were not subject to enough supervision to have their mode of employment be constitutional.

John Harrison: Right, because they're selected by the secretary of commerce, not by the president with the advice and consent of the Senate.

Jennifer Mascott: Correct. And to have them be selected by the president with Senate consent will be quite burdensome because there's a large number of them. So there's a lot of sort of institutional and pragmatic considerations — and pressure — to conclude that these judges do not need to be nominated by the president with Senate consent. And so essentially the court said, to the extent that the statutory scheme is prohibiting the director from reversing the decision that he thinks was wrongly decided, that can't any longer be constitutionally enforced against the director. And essentially the statutory scheme needs to be read to see the director as having supervisory authority, the final yay or nay on any of these administrative patent judge decisions, stripping patents. This keeps the administrative patent judges from having the final word for the executive branch. That final decision-making authority was the piece that made them seem to us like non-inferior officers. And so long as we get rid of that piece, we think that the structure can go on as it always has and is constitutional.

So it remains to be seen, I think, how broadly the court is going to apply that principle. But what I find interesting about it as a scholar is that even though for years and decades, we've seen the question of executive supervision turning on how easily you can fire someone …

John Harrison: Exactly. Yeah. Tell us a little bit about this, because this may be very important coming out of Arthrex.

Jennifer Mascott: I think it's actually quite significant because if you, if you read the opinion in its full glory, essentially the court is saying we're going to deal with supervision through the vesting power.

John Harrison: Exactly.

Jennifer Mascott: The court clearly and repeatedly clarifies and defines that what these adjudicators are doing is executive. So right there, you have arguably a distinction from what was happening back in Humphrey's Executor where whatever power was being exercised, the court at the time was calling it quasi-legislative or quasi-adjudicative. Here, the court is using language that started appearing in Justice Scalia's concurring opinion in the Freytag case dealing with appointments and tax judges. And the court is clearly here, as I say again, telling us all that this type of adjudication happening within the executive branch is indeed executive, and because of that, the final decision-making authority has to be subject to the standard vesting of executive power in the president.

John Harrison: Since we're talking about presidential control here, we've been talking under the Arthrex and the appointments clause, maybe we could move over to Collins and Seila Law, the other two recent cases, which are more directly about removal and presidential control and do raise some very important practical questions concerning independent agencies.

Jennifer Mascott: We're dealing in both cases with agencies that are seen quote, unquote as independent and the court used that phrase, meaning we don't want them to be totally politicized because they were regulating parts of the economy.

Risa Goluboff: Exactly. So, Collins versus Yellen dealt with the Federal Housing Finance Agency, which oversees Fannie Mae and Freddie Mac, and Seila Law dealt with the Consumer Finance Protection Bureau.

Jennifer Mascott: Yes, thank you.

Risa Goluboff: Okay.

Jennifer Mascott: The trouble there is that the way, I think, Congress structured those agencies is they weren't headed by multiple commissioners. They were headed by one individual.

John Harrison: So that's not like Humphrey's Executor and the FTC.

Jennifer Mascott: It's factually distinct from Humphrey's Executor in terms of the structure that there's not that accountability structure of many people have to reach consensus on a decision, it's only one person. But in a sense, those agencies were perhaps exercising even more power over private actors than was happening with the FTC. And so to the extent that you want there to be independence, because you think regulators overseeing private lives shouldn't be too politicized, you might be more concerned that there be independence with the Consumer Finance Protection Agency or even with the Federal Housing Finance Agency, then with the FTC of 1935, which at least the court in recent cases has said, wasn't really doing — exercising nearly as vast power as is happening, for example, with the CFPB today. However, because Congress headed the agencies with just one person, the court on those cases said this one person can't possibly be seen as independent in line with our case law. And, there's too much power given here to one person.

John Harrison: They're not being checked by other members of the agency.

Jennifer Mascott: They're so powerful that they’ve taken too much away from the president and therefore they've got to be more easily subordinate to the president and we're going to make that happen by severing, by basically removing or in our mind, pretending it doesn't exist, the provision in the law that says they can only be fired for cause. So actually the decisions made these people much more politically accountable to the president. So it's in a certain sense, almost counterintuitive and seems to throw the reasoning of Humphrey's Executor on its head, because again, to the extent that you bought into the idea that powerful agencies regulating parts of the economy should be nonpartisan, these decisions made the agency subject more to the president. And so what they really do is call into question, I think, one's view about where does accountability properly come from.

John Harrison: Mm-hmm.

Jennifer Mascott: One view is that only the president could hold anything like executive power. There's a president, there's Congress, there's courts. There's not a fourth entity like independent agencies. The only hope that we have in limited power is through being able to elect the president, get him in and out of office. And therefore everybody exercising power under him, whether it's a multi-member board or something else that Congress creates, has got to be able to be fired by the president, um, and gotten rid of through that electoral accountability.

John Harrison:  Right.

Jennifer Mascott: If one has the view that that is way too much power for one individual to have supervising a whole branch and therefore we need checks and balances within the executive branch, then you might be somebody who liked the, um, multi-member board structure and you might be quite concerned that the modern court is suggesting that Congress is limited in terms of these accountability structures.

And so what's fascinating is the way I think the Supreme Court's handled it. Because the Supreme Court, through its words, is suggesting that it has continued to stick with Humphrey's Executor and Morrison and allow this concept of independence within the executive to remain on the books.

John Harrison: And Morrison's the independent counsel, so ...

Jennifer Mascott: Morrison's the independent counsel ...

John Harrison: Very important for this idea of partisanship.

Jennifer Mascott: Very important about partisanship. And the court has said, we're going to not mess with these precedents, but we're going to not apply them to these new cases. But ironically, if we were really being honest with the court's reasoning, I think we would see that the court can only do that because it thinks that the president needs to be fully in charge.

John Harrison:   Mm-hmm. Jen one thing that happened shortly after the court decided the most recent removal case, the Collins case, is that President Biden removed the head of the Social Security Administration, who has statutory protection from removal and said, well, that's unconstitutional under Collins against Yellen. Do you think that presidents are now going to become more aggressive than they've been either in exercising removal power or just in giving orders?

Jennifer Mascott: Well, I think it's just going to depend on the philosophy of the particular president. I mean, President Biden, as you point out, definitely decided to apply Collins by making the removal decision with the Social Security Administration. Also, President Biden has been a lot more forward-leaning, or aggressive, depending on one's perspective in even removing members of, like, distinguished boards and other entities or of the Administrative Conference of the United States. And so President Biden's been taking full advantage of that. At the same time, the one other one that hasn't yet been touched is the Office of Special Counsel, which is seen as being related more to ethics issues. So again, would the president want to touch that or would he see that as the third rail, because it's ethically related?

John Harrison: Good point.

Jennifer Mascott: There might not be the same political will to be forward-leaning there.

John Harrison: So it may be that President Biden has fired everybody he can fire under Collins.

Jennifer Mascott: That he would want to politically. And then the other thing about the political view of the president, right? President Biden has stated, I mean, regardless of whether it's constitutional or not, that he has a value of their wanting to be more of a difference between him and the Department of Justice. And so regardless of what he can do, he wants to let the attorney general operate more independently. And so there again, I mean, even if the court would abide by a president directing the exercise of power in the Department of Justice, which is typically thought of as an executive department and indeed the attorney general, as we know, can be fired at will by the president, which happened in the last administration.

John Harrison: Mm-hmm.

Jennifer Mascott: President Biden may just have a view where he wants to follow norms that differ from whatever the most, um, forward-leaning use of executive power would provide.

Risa Goluboff: So just stepping back from the kind of court-president relationship. It raises a bigger picture question of, how important is the court to this conversation and, you know, so much, I think of what happens in the relationships between the branches doesn't necessarily go through the court. How do you think about President Biden's interactions with agencies. And you mentioned this, right, in light of President Trump. So how much of what President Biden is doing is him responding to the court and these new court precedents and how much of it is either following in the footsteps of, or rejecting what prior presidents have done?

John Harrison: I think that's a great question. And I think it might vary based on, you know, what the particular issue is. So I certainly think, you know, there was so much said and done publicly, for example, in the last administration, with the news media questioning about what is the role of the Department of Justice and what is President Trump's understanding, that I do certainly think that President Biden has made a greater point of trying to articulate and tell everybody, oh, my view of the relationship with my Department of Justice is going to be X.

Risa Goluboff: Yeah.

Jennifer Mascott:  On the other hand, when we talk about some of these more perhaps like minor behind the scenes things like, you know, firing everybody who's serving on a military academy board, I think there, President Biden, you know, served in government a lot. He has a lot of advisors who have served in government. And so they recognize where they have power and have just decided that they're going to take a forward-leaning, assertive approach to get as many of the president's people in as they possibly can. And my thought on that would be just, you know, that to the extent power changes hands later, I think everybody should, you know, take note and also feel free that they can exercise power to remove people who, you know, serve in these small-p political positions, to the extent they think the president has an agenda that would be better carried out by somebody else.

John Harrison: Jen, on Risa's question about sort of the political environment and not just the courts. Do you think it matters – and do you think it's true – that these days, people in Congress are more aligned on partisan grounds with the president or against the president, depending on which party controls the presidency, and aren't so interested in institutional prerogatives of Congress. And so might, might not be as invested in limits on the, on, on presidential power as members of Congress might have been like 30 or 40 years ago.

Jennifer Mascott: Both of you are hitting on a very core, critical, phenomenon. Regardless of what we think the court should or shouldn't do based on our constitutional view of separation of powers, I am firmly of the view that the branch that has the most authority here is Congress because Congress was responsible for creating the agencies in the first place.

John Harrison: Mm-hmm.

Jennifer Mascott: It's responsible for creating offices. And so it doesn't matter how active or not litigants are or aren't, the court's not going to be the one responsible for completely bringing about the right alignment of power.


Risa Goluboff: Well, thank you so much for talking with us, Jennifer. It's been really interesting.

John Harrison: Thanks, Jennifer. This was wonderful and no better topic than separation of powers.

Jennifer Mascott: I agree.


Risa Goluboff: I wanted to pick up on the last question that you asked Jennifer, which was about the assumption – and this is something Sai Prakash, our colleague has written and talked about as well – the assumption by the founders that separation of powers, combined with checks and balances would make the different federal branches jealous of their powers and that the creation of political parties and the power today of political parties has really intervened in each branch jealously guarding its own power to make branches happy to collaborate with one another in the name of partisanship. And I wonder if you could say more about that.

John Harrison: If there is a single development that has caused the constitutional system to operate NOT the way the framers expected it was going to operate, it's political parties, which not only cause branches that the framers expected to be antagonistic to one another to cooperate, but also has integrated the state and national governments. Because that's another function of political parties. So yeah, one of the big questions, and we're seeing this now certainly in the separation of powers area, is: Are a lot of the expectations on which the constitutional design rests just made inapplicable by political parties? And one, one important point there is the coherence of parties varies over time. And the strength of leadership by the parties in Congress varies over time. And right now we have very strong partisanship in Congress and very strong leadership of the parties in Congress. That has not always been true. So I think one of the big questions for American politics and separation of powers in particular, is: Is that going to last, or might we go back to an era in which individual members of parties in Congress have their own agendas? Because I think the more they have their own agendas, the more they will think of the institutional prerogatives of Congress as a way of advancing those agendas.

Risa Goluboff: Right, right. I think that's totally right. And do you have a prediction about that?


John Harrison: Prediction is difficult, especially about the future, said Yogi Berra.

Risa Goluboff: Of course. So John, one thing that we weren't able to get to in talking with Jennifer is really how much overlap is there between the court's opinion in Arthrex, where they're really talking about the appointments clause and what the court has been doing in the last 10 years, and most recently in Seila Law and Collins, in thinking about the unitary executive and the vesting clause. Is that the same? Is it very different? How do you think about the relationship between those two lines?

John Harrison: They are certainly distinct, but one of the striking things about the court's opinion in Arthrex is how much it reads like a unitary executive presidential control theory.

Risa Goluboff: Yeah.

John Harrison: One of the really interesting things I think about Arthrex is that because what the court said ultimately is yes, there has to be control, but it doesn't have to be through removal. It can be through the authority of the director of the office to reverse what the patent trial appellate board does. That raises the possibility that maybe in the unitary executive area, the court is going to be open to the possibility, which we talked about a little bit with Jennifer, that some presidential means of control other than removal, like the ability to direct the lawful decisions of the officers, might be acceptable. If that's true, it makes sort of the unitary executive side of things a little more complicated, but it also makes possible that the court could bless tools of presidential control that are in some ways more limited and less blunt than just firing the official.


Risa Goluboff: Well, John, you know, as is often the case when we think about these big structural questions, my head hurts, but I feel edified and more knowledgeable than I did before.

John Harrison: Well, these are questions of fundamental importance and we had a guest who really knows her stuff. So this was great.

Risa Goluboff: Absolutely. I agree.


John Harrison: That does it for this episode of Common Law. If you'd like more information on Jennifer Mascott's work on the separation of powers, please visit our website at Common Law Podcast dot com. There you'll find all our previous episodes, links to our Twitter feed and more.

Risa Goluboff: And in two weeks, co-host Danielle Citron and I will be delving into why privacy matters with Washington University's Neil Richards.

Neil Richards: Edward Snowden actually put this really well: “saying you don't care about privacy because you have nothing to hide, is a bit like saying you don't care about free speech because you have nothing to say.”

Risa Goluboff: We can't wait to share that with you. I'm Risa Goluboff.

John Harrison: And I'm John Harrison. Thanks for listening.


Emily Richardson-Lorente: Do you enjoy Common Law? If so, please leave us a review on Apple Podcasts, Stitcher, or wherever you listen to the show. That helps other listeners find us. Common Law is a production of the University of Virginia School of Law, and is produced by Emily Richardson-Lorente and Mary Wood.