The 5th circuit en banc pretty straight forward. The same 16 judges that previously ruled in favor of shareholders that the NWS was illegal, now have another shot at the apple due to the SCOTUS opinion (technically now 17 judges with another trump appointee in the mix). They have to decide if because Trump couldn't fire Watt, are shareholders entitled to relief? And according to SCOTUS a public statement by Trump expressing that he wanted to fire Watt but couldn't would confirm this. Enter the Trump letter... Trump claims if he could have fired Watt day 1, he would have done so and would have had 4 years to complete recap and release instead of 2 and would have monetized the governments stake for billions of dollars. Shareholders argue that if that's the case, bc Trump couldn't fire Watt day 1, we are entitled to remedy to put us back into a position as if Trump could have fired him from day 1 but wasnt allowed to due so because of the unconstitutional removal provision.
Depending on how the court rules, possibly a 10 if the judges agree the Trump letter satisfies the SCOTUS requirement to prove shareholders were harmed and are entitled to remedy, possibly a 0 if they don't and case gets dismissed, possibly a 5 if further testimony is required (maybe get Mnuchin and Calabria to comment on the situation but I would think Trump's voice is most relevant here and he already opined what he would have done had it not been for the removal restriction).
The ideal ruling would read "We order the district court to enter an injunction placing Plaintiffs in the position they would be in absent the unconstitutional removal restriction."
Gorsuch's concurring in part/dissenting in part SCOTUS opinion further highlights that the 5th circuit SHOULD acknowledge the Trump letter as evidence that shareholders are entitled to relief...
"Instead of applying our traditional remedy for constitutional 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 insulated 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 Director’s actions may be set aside."
The lower courts no longer need to "inquire" as Trump provided them with that evidence.
"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 “attempted” 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 President’s “displeasure”? Are they restricted to publicly available materials, even though the most probative evidence may be the most sensitive? To ascertain with any degree of confidence the President’s state of mind regarding the Director, don’t we need testimony from him or his closest staff?"
Well.. we got exactly the testimony Gorsuch claimed was most important.
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