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Re: Robert from yahoo bd post# 741005

Thursday, 11/24/2022 4:20:32 PM

Thursday, November 24, 2022 4:20:32 PM

Post# of 746326
This looks like the 3 part test a 3 Judge Appealate Court in the 5th Circuit will use in Collins (as articulated in the recent CFPB decision):

"We distill from these hypotheticals three requisites
for proving harm: (1) a substantiated desire by the
President to remove the unconstitutionally insulated ac-
tor, (2) a perceived inability to remove the actor due to
the infirm provision, and (3) a nexus between the desire
to remove and the challenged actions taken by the insu-
lated actor. This is borne out by the concurring Jus-
tices’ opinions as well. See id. at 1792-93 (Thomas, J.,
concurring); id. at 1801 (Kagan, J., concurring in part);
id. at 1803 n.1 (Sotomayor, J., concurring in part and dissenting in part). As Justice Kagan emphasized,
“plaintiffs alleging a removal violation are entitled to in-
junctive relief—a rewinding of agency action—only
when the President’s inability to fire an agency head af-
fected the complained-of decision.” Id. at 1801 (Ka-
gan, J., concurring in part) (emphasis added).
It is thus not enough, as the Plaintiffs would have us
hold, for a challenger to obtain relief merely by estab-
lishing that the unconstitutional removal provision pre-
vented the President from removing a Director he
wished to replace. As we read Collins, to demonstrate
harm, the Plaintiffs must show a connection between
the President’s frustrated desire to remove the actor
and the agency action complained of. See id. at 1789.
Without this showing, the Plaintiffs could put them-
selves in a better place than otherwise warranted, by
challenging decisions either with which the President
agreed, or of which he had no awareness at all. Id. at
1802 (Kagan, J., concurring in part)."

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