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Replies to post #595836 on Fannie Mae-No Politics (FNMA)
MR. CLEMENT: Mr. Chief Justice, and may it please the Court:
Text, first principles, and precedent all support the validity of the removal provision at issue here. Nonetheless, the parties are in violent agreement that the provision is unconstitutional.
Moreover, they are eager, indeed hungry, to borrow a phrase from Justice Scalia's Windsor opinion, to have this Court decide the constitutional issue on which they agree.
But if they agree, it's reasonable to ask why doesn't the government give Petitioner what it wants and drop the CID? Ah, but there's the rub.
The President and the executive branch acting through the President does not want the CID dropped, which is why the acting director, when he was removable at will, ratified the investigatory demand here and told the Ninth Circuit that that ratification was an independent, non-constitutional basis to resolve
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the entire case.
The Solicitor General, at page 22 of his reply brief, continues to argue that the ratification precludes any relief for the Petitioner. Yet, he insists that this Court should decide the constitutional question because the parties somehow agreed at the cert stage that ratification would be saved for the Ninth Circuit.
Thus, this is a case, unlike Windsor, for example, where the lack of adverseness between the parties is fundamentally distorting this Court's ability to do its job and its general preference to decide cases on non-constitutional grounds, rather --rather than wading into difficult constitutional questions.
There is a phrase that aptly describes what the Solicitor General wants from this Court, and it's an advisory opinion. And this Court lacks jurisdiction to issue it.
But if this Court were to reach the merits, it should affirm the decision below and the constitutionality of a removal provision that uses the same familiar phrase that this
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Court has approved on other occasions and leaves the removal power with the President, which avoids the principal defect in this Court's cases.
My friends want to describe this Court's precedents as providing a general rule of illimitable presidential removal power subject only to a narrow exception for multi-member commissions. With all due respect, that is wishful thinking.
The general rule that describes all of this Court's cases is that the Congress cannot assign the President's removal authority elsewhere -
AI
