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They weren’t being forced to allow the government onto their property. They were being forced to allow people (some of whom would otherwise already be there) who represent labor unions a limited amount of off the clock time to advocate for membership. This isn’t at all a governmental taking. This is union busting.
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Jun 23, 2021 20:50
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The fact that the people being given a right of access weren't state agents doing necessary inspection of the business but third parties that the state had decided had an interest on the property makes it worse, not better IMO. While I find the ends that California is trying to achieve (allow a meaningful opportunity for union organization of farm workers) good and laudable, I think the majority has the better of the argument that they need to find a different way to do it.
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Jun 23, 2021 20:59
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The private/ public distinction isn't as meaningful as it might seem. There are a lot of situations where the state delegates the right to enter and inspect to private third parties, usuallly privatized inspection companies.
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Jun 23, 2021 21:00
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They can’t do it on the clock, and they can’t do it off the clock, so when should they do it?
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Jun 23, 2021 21:01
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Unions are made up of the laborers who work there. These are not outside people coming onto the property. The rule was so that people who already work there were allowed to come early before work and stay after work and advocate for unions a very limited amount of time during the year. This is now a governmental taking. Can you see the problem?
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Jun 23, 2021 21:04
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Mr. Nice! posted:Unions are made up of the laborers who work there. These are not outside people coming onto the property. The rule was so that people who already work there were allowed to come early before work and stay after work and advocate for unions a very limited amount of time during the year. look, anything that happens on MAH PROPERTAH that I don't specifically give permission for is a taking and you have to pay me what? you're broke because I fired you for engaging in protected union activity and then sued you for taking my property? well sucks to be you guess your car and dog are mine now, shame you can't afford a lawyer either
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Jun 23, 2021 21:14
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Dead Reckoning posted:Which, again, is clearly distinct from someone having a right to physically enter and occupy your property. Businesses and individuals are regularly required to allow people on to their property for a multitude of reasons. The SCOTUS ruling is the result of them wanting to continue the right's union busting and then crafting an argument from there. The idea that it's unfair to a business for it to be required to allow employees to engage in off-the-clock unionization efforts on the property is nakedly partisan and not grounded in any sound legal reasoning. It's just "unions and worker rights are bad, all hail the sacred business owner" at its core. Saying that CA's law is an easement is laughable. When the power company comes out to check the meter at someone's house that's no more an easement than this law.
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Jun 23, 2021 21:15
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Mr. Nice! posted:Unions are made up of the laborers who work there. These are not outside people coming onto the property. The rule was so that people who already work there were allowed to come early before work and stay after work and advocate for unions a very limited amount of time during the year. Mr. Nice! posted:They can’t do it on the clock, and they can’t do it off the clock, so when should they do it?
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Jun 23, 2021 21:23
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Reminder this is set against the backdrop that employers do not have to compensate employees for extra time they're stuck at work for security screenings before and after work. However, if any level of government says it's ok to organize in that off the clock time, it's a governmental taking. This is a crock of poo poo ruling aimed squarely at union busting.
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Jun 23, 2021 21:28
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E: wrong thread
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Jun 23, 2021 21:28
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Dead Reckoning posted:My understanding of the law was that it also required the owners to allow access by non-employee union reps during the specified periods. Again, ok, if it's a taking, it's a de minimis taking and not significant and more importantly they were asking for the wrong remedy, then, because they requested declarative and injunctive relief, not compensation if it's a taking then the proper remedy was dismissal since they didn't request a remedy the court could grant. They needed to request compensatory relief not declarative or injunctive and they didn't.
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Jun 23, 2021 21:29
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Hieronymous Alloy posted:Again, ok, if it's a taking, it's a de minimis taking and not significant The case at the trial court was on a motion to dismiss. This ruling revives the complaint and they'll get leave to amend.
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Jun 23, 2021 21:57
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Mr. Nice! posted:The case at the trial court was on a motion to dismiss. This ruling revives the complaint and they'll get leave to amend. ah, balls I wonder how they'll confabulate the damage value of the "taking" Union recruiting takes a lot of our hard-stolen profits!
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Jun 23, 2021 21:59
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In the near future: “It’s a government taking to force a business to allow minorities onto their property.”
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Jun 23, 2021 22:02
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Hieronymous Alloy posted:if it's a taking then the proper remedy was dismissal since they didn't request a remedy the court could grant. They needed to request compensatory relief not declarative or injunctive and they didn't. That’s actually mentioned - the injunctive relief could be eliminated by California offering to pay compensation, but California has not yet done that as they hadn’t lost the case before today.
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Jun 23, 2021 22:05
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 Opinions! 4 of 4 for June 23. 8 opinions left after today, IIRC.COLLINS ET AL. v. YELLEN, SECRETARY OF THE TREASURY, ET AL. TLDR: Holding / Majority Opinion (Alito) Fannie Mae and Freddie Mac are two of the Nation’s leading sources of mortgage financing. When the housing crisis hit in 2008, the companies suffered significant losses, and many feared that their troubling financial condition would imperil the national economy. To address that concern, Congress enacted the Housing and Economic Recovery Act of 2008 (Recovery Act). Among other things, that law created the Federal Housing Finance Agency (FHFA), “an independent agency” tasked with regulating the companies and, if necessary, stepping in as their conservator or receiver. At its head, Congress installed a single Director, whom the President could remove only “for cause.” Shortly after the FHFA came into existence, it placed Fannie Mae and Freddie Mac into conservatorship and negotiated agreements for the companies with the Department of Treasury. Under those agreements, Treasury committed to providing each company with up to $100 billion in capital, and in exchange received, among other things, senior preferred shares and quarterly fixed-rate dividends. Four years later, the FHFA and Treasury amended the agreements and replaced the fixed-rate dividend formula with a variable one that required the companies to make quarterly payments consisting of their entire net worth minus a small specified capital reserve. This deal, which the parties refer to as the “third amendment” or “net worth sweep,” caused the companies to transfer enormous amounts of wealth to Treasury. It also resulted in a slew of lawsuits, including the one before us today. A group of Fannie Mae’s and Freddie Mac’s shareholders challenged the third amendment on statutory and constitutional grounds. … We hold that the shareholders’ statutory claim is barred by the Recovery Act, which prohibits courts from taking “any action to restrain or affect the exercise of [the] powers or functions of the Agency as a conservator.” But we conclude that the FHFA’s structure violates the separation of powers, and we remand for further proceedings to determine what remedy, if any, the shareholders are entitled to receive on their constitutional claim. … Two aspects of [the Recovery Act] are relevant here. First, the Recovery Act authorized Treasury to purchase Fannie Mae’s and Freddie Mac’s stock if it determined that infusing the companies with capital would protect taxpayers and be beneficial to the financial and mortgage markets. The statute further provided that Treasury’s purchasing authority would automatically expire at the end of the 2009 calendar year. Second, the Recovery Act created the FHFA to regulate the companies and, in certain specified circumstances, step in as their conservator or receiver...The FHFA is led by a single Director who is appointed by the President with the advice and consent of the Senate. The Director serves a 5-year term but may be removed by the President “for cause.” The Director is permitted to choose three deputies to assist in running the Agency’s various divisions, and the Director sits as Chairman of the Federal Housing Finance Oversight Board, which advises the Agency about matters of strategy and policy. … The Agency is tasked with supervising nearly every aspect of the companies’ management and operations...The statute empowers the Agency with broad investigative and enforcement authority to ensure compliance with these standards. Among other things, the Agency may hold hearings; issue subpoenas; remove or suspend corporate officers; issue cease-and-desist orders; bring civil actions in federal court; and impose penalties ranging from $2,000 to $2 million per day). … Finally, the FHFA is not funded through the ordinary appropriations process. Rather, the Agency’s budget comes from the assessments it imposes on the entities it regulates, which include Fannie Mae, Freddie Mac, and the Nation’s federal home loan banks. Those assessments are unlimited so long as they do not exceed the “reasonable costs . . . and expenses of the Agency.” ... In September 2008, less than two months after Congress enacted the Recovery Act, the Director appointed the FHFA as conservator of Fannie Mae and Freddie Mac. The following day, Treasury exercised its temporary authority to buy their stock and the FHFA, acting as the companies’ conservator, entered into purchasing agreements with Treasury.3 Under these agreements, Treasury committed to providing each company with up to $100 billion in capital, upon which it could draw in any quarter in which its liabilities exceeded its assets. In return for this funding commitment, Treasury received 1 million shares of specially created senior preferred stock in each company. … Within a year, Fannie Mae’s and Freddie Mac’s net worth decreased substantially, and it became clear that Treasury’s initial capital commitment would prove inadequate. To address that problem, the FHFA and Treasury twice amended the agreements to increase the available capital. … In August 2012, the FHFA and Treasury decided to amend the agreements for a third time.7 This amendment replaced the fixed-rate dividend formula (which was tied to the size of Treasury’s investment) with a variable dividend formula (which was tied to the companies’ net worth). Under the new formula, the companies were required to pay a dividend equal to the amount, if any, by which their net worth exceeded a pre-determined capital reserve. … After the third amendment took effect, the companies’ financial condition improved, and they ended up transferring immense amounts of wealth to Treasury. ... In 2016, three of Fannie Mae’s and Freddie Mac’s shareholders brought suit against the FHFA and its Director, and they asserted two claims that are relevant for present purposes. First, they claimed that the FHFA exceeded its statutory authority as the companies’ conservator by adopting the third amendment. Second, they asserted that because the FHFA is led by a single Director who may be removed by the President only “for cause,” its structure is unconstitutional. … We begin with the shareholders’ statutory claim and conclude that the Recovery Act requires its dismissal...The Act states that unless review is specifically authorized by one of its provisions or is requested by the Director, “no court may take any action to restrain or affect the exercise of powers or functions of the Agency as a conservator or a receiver.”...Every Court of Appeals that has confronted this language has held that it prohibits relief where the FHFA action at issue fell within the scope of the Agency’s authority as a conservator, but that relief is allowed if the FHFA exceeded that authority...We agree with that consensus. … The Recovery Act grants the FHFA expansive authority in its role as a conservator….An FHFA conservatorship, however, differs from a typical conservatorship in a key respect. Instead of mandating that the FHFA always act in the best interests of the regulated entity, the Recovery Act authorizes the Agency to act in what it determines is “in the best interests of the regulated entity or the Agency.” … It is not necessary for us to decide—and we do not decide—whether the FHFA made the best, or even a particularly good, business decision when it adopted the third amendment. Instead, we conclude only that under the terms of the Recovery Act, the FHFA did not exceed its authority as a conservator, and therefore the anti-injunction clause bars the shareholders’ statutory claim. We now consider the shareholders’ claim that the statutory restriction on the President’s power to remove the FHFA Director, 12 U. S. C. §4512(b)(2), is unconstitutional. Before turning to the merits of this question, however, we must address threshold issues raised in the lower court or by the federal parties and appointed amicus. In the proceedings below, some judges concluded that the shareholders lack standing to bring their constitutional claim. … To establish Article III standing, a plaintiff must show that it has suffered an “injury in fact” that is “fairly traceable” to the defendant’s conduct and would likely be “redressed by a favorable decision.” The shareholders meet these requirements. First, the shareholders claim that the FHFA transferred the value of their property rights in Fannie Mae and Freddie Mac to Treasury, and that sort of pocketbook injury is a prototypical form of injury in fact. Second, the shareholders’ injury is traceable to the FHFA’s adoption and implementation of the third amendment, which is responsible for the variable dividend formula that swept the companies’ net worth to Treasury and left nothing for their private shareholders. Finally, a decision in the shareholders’ favor could easily lead to the award of at least some of the relief that the shareholders seek. … After oral argument was held in this case, the federal parties notified the Court that the FHFA and Treasury had agreed to amend the stock purchasing agreements for a fourth time. And because that amendment eliminated the variable dividend formula that had caused the shareholders’ injury, it is necessary to consider whether the fourth amendment moots the shareholders’ constitutional claim. It does so only with respect to some of the relief requested. In their complaint, the shareholders sought various forms of prospective relief, but because that amendment is no longer in place, the shareholders no longer have any ground for such relief. By contrast, they retain an interest in the retrospective relief they have requested, and that interest saves their constitutional claim from mootness. … The federal parties contend that the “succession clause” in the Recovery Act bars the shareholders’ constitutional claim. Under this clause, when the FHFA appoints itself as conservator, it immediately succeeds to “all rights, titles, powers, and privileges of the regulated entity, and of any stockholder, officer, or director of such regulated entity with respect to the regulated entity and the assets of the regulated entity.” According to the federal parties, this clause transferred to the FHFA the shareholders’ right to bring their constitutional claim, and it therefore bars the shareholders from asserting that claim on their own behalf. In other words, the federal parties read the succession clause to mean that the only party with the authority to challenge the restriction on the President’s power to remove the Director of the FHFA is the FHFA itself. The federal parties read the succession clause too broadly. The clause effects only a limited transfer of stockholders’ rights, namely, the rights they hold as stockholders “with respect to the regulated entity” and its assets. The right the shareholders assert in this case is one that they hold in common with all other citizens who have standing to challenge the removal restriction. As we have explained on many prior occasions, the separation of powers is designed to preserve the liberty of all the people. So whenever a separation-of-powers violation occurs, any aggrieved party with standing may file a constitutional challenge. [Side note: it turns out Acting Directors are removable at will, which removes a certain amount of the constitutional violation as only actions by confirmed Directors are a problem. This is not relevant to the rest of the analysis.] [Kagan, Breyer, and Sotomayor are out here, because they don’t think there’s a separation of powers problem] The Recovery Act’s for-cause restriction on the President’s removal authority violates the separation of powers. Indeed, our decision last Term in Seila Law is all but dispositive. There, we held that Congress could not limit the President’s power to remove the Director of the Consumer Financial Protection Bureau (CFPB) to instances of “inefficiency, neglect, or malfeasance.” We did “not revisit our prior decisions allowing certain limitations on the President’s removal power,” but we found “compelling reasons not to extend those precedents to the novel context of an independent agency led by a single Director.” “Such an agency,” we observed, “lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a unilateral actor insulated from Presidential control.” A straightforward application of our reasoning in Seila Law dictates the result here. The FHFA (like the CFPB) is an agency led by a single Director, and the Recovery Act (like the Dodd-Frank Act) restricts the President’s removal power. Fulfilling his obligation to defend the constitutionality of the Recovery Act’s removal restriction, amicus attempts to distinguish the FHFA from the CFPB. We do not find any of these distinctions sufficient to justify a different result. Amicus first argues that Congress should have greater leeway to restrict the President’s power to remove the FHFA Director because the FHFA’s authority is more limited than that of the CFPB. … We have noted differences between these two agencies. But the nature and breadth of an agency’s authority is not dispositive in determining whether Congress may limit the President’s power to remove its head. The President’s removal power serves vital purposes even when the officer subject to removal is not the head of one of the largest and most powerful agencies. The removal power helps the President maintain a degree of control over the subordinates he needs to carry out his duties as the head of the Executive Branch, and it works to ensure that these subordinates serve the people effectively and in accordance with the policies that the people presumably elected the President to promote. … Amicus next contends that Congress may restrict the removal of the FHFA Director because when the Agency steps into the shoes of a regulated entity as its conservator or receiver, it takes on the status of a private party and thus does not wield executive power. But the Agency does not always act in such a capacity, and even when it acts as conservator or receiver, its authority stems from a special statute, not the laws that generally govern conservators and receivers. In deciding what it must do, what it cannot do, and the standards that govern its work, the FHFA must interpret the Recovery Act, and “[i]nterpreting a law enacted by Congress to implement the legislative mandate is the very essence of ‘execution’ of the law.” … Amicus asserts that the FHFA’s structure does not violate the separation of powers because the entities it regulates are Government-sponsored enterprises that have federal charters, serve public objectives, and receive “‘special privileges’” like tax exemptions and certain borrowing rights. In amicus’s view, the individual-liberty concerns that the removal power exists to preserve “ring hollow where the only entities an agency regulates are themselves not purely private actors.” This argument fails because the President’s removal power serves important purposes regardless of whether the agency in question affects ordinary Americans by directly regulating them or by taking actions that have a profound but indirect effect on their lives. And there can be no question that the FHFA’s control over Fannie Mae and Freddie Mac can deeply impact the lives of millions of Americans by affecting their ability to buy and keep their homes. Finally, amicus contends that there is no constitutional problem in this case because the Recovery Act offers only “modest [tenure] protection.” That is so, amicus claims, because the for-cause standard would be satisfied whenever a Director “disobey[ed] a lawful [Presidential] order,” including one about the Agency’s policy discretion. We acknowledge that the Recovery Act’s “for cause” restriction appears to give the President more removal authority than other removal provisions reviewed by this Court...But as we explained last Term, the Constitution prohibits even “modest restrictions” on the President’s power to remove the head of an agency with a single top officer., [Kagan, Breyer, and Sotomayor are back for the remedy: Gorsuch is out for this part.] Having found that the removal restriction violates the Constitution, we turn to the shareholders’ request for relief. And because the shareholders no longer have a live claim for prospective relief, the only remaining remedial question concerns retrospective relief. On this issue, the shareholders’ lead argument is that the third amendment must be completely undone. They seek an order setting aside the amendment and requiring the “return to Fannie and Freddie [of] all dividend payments made pursuant to [it].” … We have already explained that the Acting Director who adopted the third amendment was removable at will. That conclusion defeats the shareholders’ argument for setting aside the third amendment in its entirety. We therefore consider the shareholders’ contention about remedy with respect to only the actions that confirmed Directors have taken to implement the third amendment during their tenures. But even as applied to that subset of actions, the shareholders’ argument is neither logical nor supported by precedent. All the officers who headed the FHFA during the time in question were properly appointed. Although the statute unconstitutionally limited the President’s authority to remove the confirmed Directors, there was no constitutional defect in the statutorily prescribed method of appointment to that office. As a result, there is no reason to regard any of the actions taken by the FHFA in relation to the third amendment as void. … That does not necessarily mean, however, that the shareholders have no entitlement to retrospective relief. Although an unconstitutional provision is never really part of the body of governing law (because the Constitution automatically displaces any conflicting statutory provision from the moment of the provision’s enactment), it is still possible for an unconstitutional provision to inflict compensable harm. And the possibility that the unconstitutional restriction on the President’s power to remove a Director of the FHFA could have such an effect cannot be ruled out. ... The federal parties dispute the possibility that the unconstitutional removal restriction caused any such harm. They argue that, irrespective of the President’s power to remove the FHFA Director, he “retained the power to supervise the [Third] Amendment’s adoption . . . because FHFA’s counterparty to the Amendment was Treasury—an executive department led by a Secretary subject to removal at will by the President.” The parties’ arguments should be resolved in the first instance by the lower courts. The judgment of the Court of Appeals is affirmed in part, reversed in part, and vacated in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Alito, joined by Roberts, Thomas, Kavanaugh, and Barrett, joined by Kagan and Breyer as to all but Part III-B, joined by Gorsuch as to all but Part III-C, and joined by Sotomayor as to Parts I, II, and III-C. Concurrence by Thomas. Concurrence in part by Gorsuch. Concurrence in part and concurrence in the judgment by Kagan, joined by Breyer and Sotomayor as to Part II. Concurrence in part and dissent in part by Sotomayor, joined by Breyer. Concurrence (Thomas) I join the Court’s opinion in full. I agree that the Directors were properly appointed and could lawfully exercise executive power. And I agree that, to the extent a Government action violates the Constitution, the remedy should fit the injury. But I write separately because I worry that the Court and the parties have glossed over a fundamental problem with removal-restriction cases such as these: The Government does not necessarily act unlawfully even if a removal restriction is unlawful in the abstract. … For the shareholders to prevail, identifying some conflict between the Constitution and a statute is not enough. They must show that the challenged Government action at issue—the adoption and implementation of the Third Amendment—was, in fact, unlawful. … The shareholders largely neglect the issue of lawfulness to focus on remedy, but their briefing appears premised on several theories of unlawfulness. First, that the removal restriction renders all Agency actions void because the Directors serve in violation of the Constitution’s structural provisions, similar to Appointments Clause cases. Second, that even if the Director is in the Executive Branch and the removal restriction is just unenforceable, the mere existence of the law somehow taints all of the Director’s actions. Third, that “when FHFA’s single Director exercises Executive Power without meaningful oversight from the President, he exercises authority that was never properly his.” Fourth, that the statutory provision that gave the Director the power to adopt and implement the Third Amendments must fall if the statutory removal restriction is unlawful. As the Court’s reasoning makes clear, however, all these theories appear to fail on the merits. … Here, “[a]ll the officers who headed the FHFA during the time in question were properly appointed.” There is thus no barrier to them exercising power in the first instance. The mere existence of an unconstitutional removal provision, too, generally does not automatically taint Government action by an official unlawfully insulated. It is true the removal restriction here is unlawful. But while the shareholders are correct that the Constitution authorizes the President to dismiss the FHFA Director for any reason, no statute can take that Presidential power away...So every Director is a lawfully appointed executive officer whom the President may remove in a manner consistent with the Constitution but did not attempt to do so. Another possible theory the shareholders seem to rely on is that a misunderstanding about the correct state of the law makes an otherwise constitutional action unconstitutional. Thus, if the President or Director misunderstood the circumstances under which the President could have removed the Director, then that creates a defect in authority. But nothing in the Constitution, history, or our case law supports this expansive view of unlawfulness. The Constitution does not transform unfamiliarity with the Vesting Clause into a legal violation when an executive officer acts with authority. Perhaps the better understanding of this argument is the Director might have acted differently if he knew that he served at the pleasure of the President. That may be true, but it is not enough for a party to show that an official acted differently because he or another official incorrectly interpreted the Vesting Clause—the party must show that the official acted unlawfully. … Sure enough, we have not held that a misunderstanding about authority results in a constitutional defect where the action was otherwise lawful. Absent such authority in a “constitutional cas[e], our watchword [should be] caution.” … The shareholders’ briefing strongly implies one final argument: The statutory provision giving the FHFA the power to act as conservator cannot be severed from the removal restriction. … I do not understand the parties to have sought review of these issues in this Court. So the Court correctly resolves the legal issues presented. That being said, I seriously doubt that the shareholders can demonstrate that any relevant action by an FHFA Director violated the Constitution. And, absent an unlawful act, the shareholders are not entitled to a remedy. The Fifth Circuit can certainly consider this issue on remand. Concurrence in part (Gorsuch) I agree with the Court on the merits and am pleased to join nearly all of its opinion. I part ways only when it comes to the question of remedy addressed in Part III–C. As the Court observes, the only question before us concerns retrospective relief. By the time we turn to that question, the plaintiffs have proven that the Director was without constitutional authority when he took the challenged actions implementing the Third Amendment. In response to such a showing, a court would normally set aside the Director’s ultra vires actions as “contrary to constitutional right,” subject perhaps to consideration of traditional remedial principles such as laches. Because the Court of Appeals did not follow this course, this Court would normally vacate the judgment in this suit with instructions requiring the Court of Appeals to conform its judgment to traditional practice. Today, the Court acknowledges it has taken exactly this course in cases involving unconstitutionally appointed executive officials. Still, the Court submits, we should treat this suit differently because the Director was unconstitutionally insulated from removal rather than unconstitutionally appointed. It is unclear to me why this distinction should make a difference. Either way, governmental action is taken by someone erroneously claiming the mantle of executive power— and thus taken with no authority at all. … For my part, rather than carve out some suit-specific, removal-only, money-in-the-bank exception to our normal rules for Article II violations, I would take a simpler and more familiar path. Whether unconstitutionally installed or improperly unsupervised, officials cannot wield executive power except as Article II provides. Attempts to do so are void; speculation about alternate universes is neither necessary nor appropriate. In the world we inhabit, where individuals are burdened by unconstitutional executive action, they are “entitled to relief.” Concurrence in part and concurrence in the judgment (Kagan, joined by Breyer and Sotomayor as to Part II Faced with a global financial crisis, Congress created the Federal Housing Finance Agency (FHFA) and gave it broad powers to rescue the Nation’s mortgage market. I join the Court in deciding that the FHFA wielded its authority within statutory limits. On the main constitutional question, though, I concur only in the judgment. Stare decisis compels the conclusion that the FHFA’s for-cause removal provision violates the Constitution. But the majority’s opinion rests on faulty theoretical premises and goes further than it needs to. I also write to address the remedial question. The majority’s analysis, which I join, well explains why backwards-looking relief is not always necessary to redress a removal violation. I add only two thoughts. The broader is that the majority’s remedial holding mitigates the harm of the removal doctrine applied here. The narrower is that, as I read the decision below, the Court of Appeals has already done what is needed to find that the plaintiffs are not entitled to their requested relief. I agree with the majority that Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. ___ (2020), governs the constitutional question here. In Seila Law, the Court held that an “agency led by a single [d]irector and vested with significant executive power” comports with the Constitution only if the President can fire the director at will. I dissented from that decision—vehemently. But the “doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike”—even when that means adhering to a wrong decision. So the issue now is not whether Seila Law was correct. The question is whether that case is distinguishable from this one. And it is not. As I observed in Seila Law, the FHFA “plays a crucial role in overseeing the mortgage market, on which millions of Americans annually rely.” It thus wields “significant executive power,” much as the agency in Seila Law did. And I agree with the majority that there is no other legally relevant distinction between the two. For two reasons, however, I do not join the majority’s discussion of the constitutional issue. First is the majority’s political theory. Throughout the relevant part of its opinion, the majority offers a contestable—and, in my view, deeply flawed—account of how our government should work. At-will removal authority, the majority intones, “is essential to subject Executive Branch actions to a degree of electoral accountability”—and so courts should grant the President that power in cases like this one.I see the matter differently (as, I might add, did the Framers). … My second objection is to the majority’s extension of Seila Law’s holding. Again and again, Seila Law emphasized that its rule was limited to single-director agencies “wield[ing] significant executive power.” To take Seila Law at its word is to acknowledge where it left off: If an agency did not exercise “significant executive power,” the constitutionality of a removal restriction would remain an open question. But today’s majority careens right past that boundary line. … [Breyer and Sotomayor join here] I join in full the majority’s discussion of the proper remedy for the constitutional violation it finds. I too believe that our Appointments Clause precedents have little to say about remedying a removal problem. As the majority explains, the officers heading the FHFA, unlike those with invalid appointments, possessed the “authority to carry out the functions of the office.” I also agree that plaintiffs alleging a removal violation are entitled to injunctive relief—a rewinding of agency action— only when the President’s inability to fire an agency head affected the complained-of decision.Only then is relief needed to restore the plaintiffs to the position they “would have occupied in the absence” of the removal problem. Granting relief in any other case would, contrary to usual remedial principles, put the plaintiffs “in a better position” than if no constitutional violation had occurred. .. My final point relates to the last sentence of the majority’s remedial section. There, the Court holds that the decisive question—whether the removal provision mattered— “should be resolved in the first instance by the lower courts.” That remand follows the Court’s usual practice: We are, as we often say, not a “court of first view.” But here the lower court proceedings may be brief indeed. As I read the opinion below, the Court of Appeals already considered and decided the issue remanded today. The court noted that all of the FHFA’s policies were jointly “created [by] the FHFA and Treasury” and that the Secretary of the Treasury is “subject to at will removal by the President.” For that reason, the court concluded, “we need not speculate about whether appropriate presidential oversight would have stopped” the FHFA’s actions. Ibid. “We know that the President, acting through the Secretary of the Treasury, could have stopped [them] but did not.” That reasoning seems sufficient to answer the question the Court kicks back, and nothing prevents the Fifth Circuit from reiterating its analysis. So I join the Court’s opinion on the understanding that this litigation could speedily come to a close. Concurrence in part and dissent in part (Sotomayor, joined by Breyer) Prior to 2010, this Court had gone the greater part of a century since it last prevented Congress from protecting an Executive Branch officer from unfettered Presidential removal. Yet today, for the third time in just over a decade, the Court strikes down the tenure protections Congress provided an independent agency’s leadership. Last Term, the Court held in Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. ___ (2020), that for-cause removal protection for the Director of the Consumer Financial Protection Bureau (CFPB) violated the separation of powers. As an “independent agency led by a single Director and vested with significant executive power,” the Court reasoned, the CFPB had “no basis in history and no place in our constitutional structure.” Law expressly distinguished the Federal Housing Finance Agency (FHFA), another independent Agency headed by a single Director, on the ground that the FHFA does not possess “regulatory or enforcement authority remotely comparable to that exercised by the CFPB.” Moreover, the Court found it significant that, unlike the CFPB, the FHFA “regulates primarily Government-sponsored enterprises, not purely private actors.” Nevertheless, the Court today holds that the FHFA and CFPB are comparable after all, and that any differences between the two are irrelevant to the constitutional separation of powers. That reasoning cannot be squared with this Court’s precedents, least of all last Term’s Seila Law. I respectfully dissent in part from the Court’s opinion and from the corresponding portions of the judgment. … After Seila Law, the Court reasons, all that matters is that “[t]he FHFA (like the CFPB) is an agency led by a single Director.” From that, the unconstitutionality of the FHFA Director’s independence follows virtually a fortiori. The Court reaches that conclusion by disavowing the very distinctions it relied upon just last Term in Seila Law in striking down the CFPB Director’s independence. On three separate occasions, Seila Law stated that its holding applied to single-director independent agencies with “significant executive power.” Remarkably, those words appear nowhere in today’s decision. Instead, the Court appears to take the position that exercising essentially any executive power whatsoever is enough. In terms of explanation, the Court says that it is “not well-suited to weigh the relative importance of the regulatory and enforcement authority of disparate agencies” and that it “do[es] not think that the constitutionality of removal restrictions hinges on such an inquiry.” The Court’s position unduly encroaches on Congress’ judgments about which executive officers can and should enjoy a degree of independence from Presidential removal, and it cannot be squared with Seila Law, which relied extensively on such agency comparisons. Not only did Seila Law contrast the CFPB’s powers against those of the 1935 FTC in Humphrey’s Executor, as well as the independent counsel in Morrison, it concluded that the FHFA (along with the Comptroller of the Currency, the Office of Special Counsel, and the Social Security Administration) does not possess “regulatory or enforcement authority remotely comparable to that exercised by the CFPB.” The Court today also suggests that whether an agency regulates private individuals or Government actors does not meaningfully affect the separation-of-powers analysis. That, too, is flatly inconsistent with Seila Law, which returned repeatedly to this consideration. Not only did Seila Law distinguish the CFPB from the independent counsel in Morrison on this basis, it distinguished the CFPB from both the FHFA and the Office of Special Counsel for the same reason. That the Court is unwilling to stick to the methodology it articulated just last Term in Seila Law is a telltale sign that the Court’s separation-of-powers jurisprudence has only continued to lose its way. The Court has proved far too eager in recent years to insert itself into questions of agency structure best left to Congress. In striking down the independence of the FHFA Director, the Court reaches further than ever before, refusing tenure protections to an Agency head who neither wields significant executive power nor regulates private individuals. Troublingly, the Court justifies that result by ignoring the standards it set out just last Term in Seila Law. Because I would afford Congress the freedom it has long possessed to make officers like the FHFA Director independent from Presidential control, I respectfully dissent. https://www.supremecourt.gov/opinions/20pdf/19-422_k537.pdf ulmont fucked around with this message at 23:08 on Jun 24, 2021 |
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Jun 23, 2021 23:42
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Platystemon posted:In the near future: Overturning the Civil Rights Act and associated laws is going to happen via religious freedom arguments, not work-related ones.
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Jun 24, 2021 01:03
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Platystemon posted:In the near future: The existence of this line in the decision... SCOTUS posted:The right to exclude is “one of the most treasured” rights of property ownership. ...actually makes me think your post isn't that far out of the realm of possibility. All we need now is someone to write "A man's home is his church" and we can combine all the worst legal precedents together into one big pile of poo poo. 
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Jun 24, 2021 01:26
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Evil Fluffy posted:Businesses and individuals are regularly required to allow people on to their property for a multitude of reasons. The SCOTUS ruling is the result of them wanting to continue the right's union busting and then crafting an argument from there. The idea that it's unfair to a business for it to be required to allow employees to engage in off-the-clock unionization efforts on the property is nakedly partisan and not grounded in any sound legal reasoning. It's just "unions and worker rights are bad, all hail the sacred business owner" at its core. I don't know how the CA law was written but I think the power company is allowed on your property as part of the contract you have with the power company (and which is presumably required by law to be in the contract). Similarly, I know some regulatory activities that involve on-site inspections happen because the regulated entity meets a condition to be regulated and is required to have a permit, which then contains conditions such as inspections etc - but the entity could avoid those on-site activities by ceasing to meet the threshold of regulation which requires a permit.
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Jun 24, 2021 02:14
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Hieronymous Alloy posted:if it's a taking so is all other regulation. How in the blue, blue blue hell are FAR [Floor Area Ratio] regs not also per se takings? Like, I can make peace with land use regs not being takings (A lot of that's still very bullshit tho), but the idea that "You can't build a 4 story building, you can only build 3" isn't a taking but this is?
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Jun 24, 2021 02:24
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Booklegger posted:How in the blue, blue blue hell are FAR [Floor Area Ratio] regs not also per se takings? In 20 years a generation of millennial legal text writers are going to dub this the Calvinball age of jurisprudence. You can't reason yourself into a position that SCOTUS didn't use reason to get to themselves.
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Jun 24, 2021 02:27
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Zachack posted:I don't know how the CA law was written but I think the power company is allowed on your property as part of the contract you have with the power company (and which is presumably required by law to be in the contract). Similarly, I know some regulatory activities that involve on-site inspections happen because the regulated entity meets a condition to be regulated and is required to have a permit, which then contains conditions such as inspections etc - but the entity could avoid those on-site activities by ceasing to meet the threshold of regulation which requires a permit. I'm not sure if this is the case everywhere, but at least where I live, utilities have an easement on all property within a certain distance of their power lines / meters. It's not just a contractual agreement.
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Jun 24, 2021 02:30
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Booklegger posted:How in the blue, blue blue hell are FAR [Floor Area Ratio] regs not also per se takings? Look, the Court hasn't figured out a way to use zoning regulations to bust unions yet. Give 'em time.
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Jun 24, 2021 02:31
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Zachack posted:I don't know how the CA law was written but I think the power company is allowed on your property as part of the contract you have with the power company (and which is presumably required by law to be in the contract). Similarly, I know some regulatory activities that involve on-site inspections happen because the regulated entity meets a condition to be regulated and is required to have a permit, which then contains conditions such as inspections etc - but the entity could avoid those on-site activities by ceasing to meet the threshold of regulation which requires a permit. Sounds like businesses could be required to allow off the contract union activities as part of the requirement to get a business license in the state then.
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Jun 24, 2021 05:41
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Booklegger posted:How in the blue, blue blue hell are FAR [Floor Area Ratio] regs not also per se takings? This needs to happen so we can all read the tears from the Silicon Valley types when postage stamp skyscrapers start going up.
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Jun 24, 2021 06:00
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It’s a taking to not allow me to store sixty-seven tons of fertilizer in a barn with wet hay in a residential area.
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Jun 24, 2021 06:07
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The thing the state wants is also broad enough that even if it were a taking, you could just practically skip it with a tax. "We will now pay each farm location $1000/year for access. There is also a new $1000/year tax applied to farms". 'All farms' is a general enough category to be a valid target for a tax.
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Jun 24, 2021 07:33
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Dead Reckoning posted:The fact that the people being given a right of access weren't state agents doing necessary inspection of the business but third parties that the state had decided had an interest on the property makes it worse, not better IMO. So do you just long to be a serf or what
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Jun 24, 2021 12:35
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https://twitter.com/BenWeiserNYT/status/1407887537629282304
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Jun 24, 2021 12:58
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Is it just me or is the cable box case being cited as precedent also completely insane. The state saying "no your tenants can watch TV if they want" is now stealing from your landlord? Are smoke detectors 365 days/year in your kitchen a taking too? Can't wait until we all live in Blackrock-owned homes and bringing any non Blackrock-branded personal belongings gets you prison time for stealing from your landlord.
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Jun 24, 2021 13:50
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VitalSigns posted:Is it just me or is the cable box case being cited as precedent also completely insane. The state saying "no your tenants can watch TV if they want" is now stealing from your landlord? Are smoke detectors 365 days/year in your kitchen a taking too? The many ways that this ruling will be stretched far beyond union busting is pretty expansive. You are correct in that.
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Jun 24, 2021 14:37
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Rezoning the property a mile down the street to allow for small apartments near the train station has lowered my property value by $0.005/sq. Foot. This is a taking!!!!
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Jun 24, 2021 14:46
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Laws requiring buildings to have wheelchair ramps, elevators, nursing rooms, bathrooms, and anything else I, the mighty Job Creator do not want, is a taking.
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Jun 24, 2021 14:53
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Doesn't California likely already provide numerous services / subsidies of value to these businesses? Just allocate some amount of the shared cost of all the negotiated water rights contracts as "union entry levies" and get back to it? Make it part of a state highway bill or something. Then give all the union advocates shirts that say " funded by your state taxes" Grip it and rip it fucked around with this message at 15:42 on Jun 24, 2021 |
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Jun 24, 2021 15:39
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looks like the court just delivered a hot take 
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Jun 24, 2021 16:21
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https://mobile.twitter.com/SCOTUSblog/status/1408113434495959048
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Jun 25, 2021 01:37
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In a 9-0 decision...
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Jun 25, 2021 01:49
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The whole part where you aren't allowed to film or picture the supreme court literally doing supreme court things on behalf of the entire nation is a strangely large part of their increasingly undeserved mythos as a noble arbitration body above the realm of petty politics and i am super for having cameras on
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Jun 25, 2021 02:21
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Roberts will have the last laugh when he makes all the cameras point at Thomas and the nation has to watch and hear him saw logs.
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Jun 25, 2021 02:28
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Today in SCOTUS v Garland, all 9 justices refused to recuse themselves from ruling on a case in which they were also the plaintiffs. Oral arguments on the constitutionality of the Cameras in the Courtroom Act are scheduled for 3pm
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Jun 25, 2021 02:33
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