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