Always Already
Show notes
The big opinions are coming fast and furious as the Term ends. This episode, we take on two related cases from the penultimate opinion drop day: Trump v. Slaughter, which overrules Humphrey's Executor and clears away for-cause protection for the independent agencies, alongside its interim-docket companion Trump v. Cook, where the very same logic somehow spares the Federal Reserve. The big question: if the President can fire an FTC commissioner at will, what actually makes the Fed different — is "history" doing the work, or is the Court just saving the bond markets? Along the way: Heidegger's "always already," whether the metaphor of a living tree is consistent with originalism, a Goldilocks definition of "cause," the Chief leaning on his own unworkable precedents, the Ex parte Young mystery that keeps escaping the Court's grasp, and the first appearance of "the interim docket" in the U.S. Reports.
Highlights
[00:00:18] The penultimate opinion day — four down, four to go
[00:00:50] The last-day pileup, and the McCain-Feingold campaign-finance case still pending
[00:03:25] A confession: staircase wit, and the metaphor Will wishes he'd used
[00:04:27] The living tree as an originalist — and the petrified-tree rejoinder
[00:06:01] The new custom-cover workflow, and what Claude still isn't allowed to write
[00:07:00] The day's four opinions: Cook, Slaughter, Chatrie, and Watson v. RNC
[00:09:50] Is the Court strategic about opinion timing? A walk back through OT21's last days
[00:13:55] Slaughter before Cook: the general rule before the exception
[00:15:08] "Humphrey's Executor has always already been overruled" — by way of continental philosophy
[00:17:36] Slaughter: the question, Humphrey's Executor, and the road from Morrison v. Olson through Seila Law
[00:22:12] Why presidents mostly haven't tested removal — and whether this shifts the equilibrium
[00:25:29] Walking the opinion: Roberts for the Court, the Thomas non-join, a Sotomayor (not Kagan) dissent
[00:27:30] The Decision of 1789, the history fight, and the "good arguments on both sides" that made Will a "witless hack"
[00:33:19] Part III-B's reserved questions and the Gorsuch concurrence's non-delegation wish list
[00:43:06] Cook: procedurally on the interim docket, and why it comes out the other way
[00:46:00] The Chief's history tour — the Bank of North America, Hamilton, and an accomplished yachtsman
[00:49:00] The Fed as the "third bank"; Bamzai & Nielson and the monetary-vs-regulatory problem
[00:50:25] The chain of moves: reviewability, a Goldilocks "cause," and the equity remedy
[00:53:11] Footnote 2 and the Ex parte Young mystery — Armstrong, CASA, and Bivens
[00:58:41] Process not received: a Truth Social post isn't enough, and what Cook gets next
[01:00:54] "The interim docket" enters the U.S. Reports
[01:01:52] The separate writings: Kavanaugh (save the economy), Jackson (equities), Thomas's solo dissent
[01:04:45] Alito-Gorsuch and Barrett: hard questions, and skepticism of a carve-out defended "for secret reasons"
[01:11:26] Sign-off: if there's a long delay before the next episode, it's because we've lost removal protection
Relevant links
Cases
Chatrie v. United States — slip opinion · SCOTUSblog analysis
Watson v. Republican National Committee — slip opinion · SCOTUSblog analysis
Commentary & articles
Aditya Bamzai & Aaron L. Nielson, "Article II and the Federal Reserve" — the leading qualified defense of Fed independence (Cornell L. Rev.)
Samuel L. Bray, "Remedies in the Officer Removal Cases" — relied on by the Cook majority on the equity-remedy question (Journal of Legal Analysis); draft/announcement on the Divided Argument blog
William Baude, "How To Save The Federal Reserve" — Will's prior take on preserving Fed independence under the removal cases