Justice Gorsuch, concurring in part: "Few things
could be more perilous to liberty than some “fourth branch”
that does not answer even to the one executive official who
is accountable to the body politic. FTC v. Ruberoid Co., 343
U. S. 470, 487 (1952) (Jackson, J., dissenting).
Instead of applying our traditional remedy for constitu-
tional violations like these, the Court supplies a novel and
feeble substitute. The Court says that, on remand in this
suit, lower courts should inquire whether the President
would have removed or overruled the unconstitutionally in-
sulated official had he known he had the authority to do so.
Ante, at 35. So, if lower courts find that the President would
have removed or overruled the Director, then the for-cause
removal provision “clearly cause[d] harm” and the Direc-
tor’s actions may be set aside. Ibid."
"By once again purporting to do Congress’s job, we
discourage the people’s representatives from taking up for
themselves the task of consulting their oaths, grappling
with constitutional problems, and specifying a solution in
statutory text. “Congress can now simply rely on the courts
to sort [it] out.” Tennessee v. Lane, 541 U. S. 509, 552 (2004)
(Rehnquist, C. J., dissenting).2"
"The Court’s conjecture does not stop there. After guess-
ing what legislative scheme Congress would have adopted
in some hypothetical but-for world, the Court tasks lower
courts and the parties with reconstructing how executive
agents would have reacted to it. On remand, we are told,
the litigants and lower courts must ponder whether the
President would have removed the Director had he known
he was free to do so. Ante, at 35. But how are judges and
lawyers supposed to construct the counterfactual history?
It is no less a speculative enterprise than guessing what
Congress would have done had it known its statutory
scheme was unconstitutional. It’s only that the Court pre-
fers to reserve the big hypothetical (legislative) choice for
itself and leave others for lower courts to sort out."
Consider the guidance the Court offers. It says lower
courts should examine clues such as whether the President
made a “public statement expressing displeasure” about
something the Director did, or whether the President “at-
tempted” to remove the Director but was stymied by lower
courts. Ibid. But what if the President never considered
the possibility of removing the Director because he was
never advised of that possibility? What if his advisers
themselves never contemplated the option given statutory
law? And even putting all that aside, what evidence should
courts and parties consult when inquiring into the Presi-
dent’s “displeasure”? Are they restricted to publicly availa-
ble materials, even though the most probative evidence may
be the most sensitive? To ascertain with any degree of con-
fidence the President’s state of mind regarding the Director,
don’t we need testimony from him or his closest staff?
The Court declines to tangle with any of these questions.
It’s hard not to wonder whether that’s because it intends for
this speculative enterprise to go nowhere. Rather than in-
trude on often-privileged executive deliberations, the Court
may calculate that the lower courts on remand in this suit
will simply refuse retroactive relief."
