Rod Rosenstein Makes a Timely Supreme Court Appearance.
' On Monday morning, the Supreme Court heard an argument that touched on the president’s power to fire subordinates. In the afternoon, Deputy Attorney General Rod J. Rosenstein, who has been the subject of reports that President Trump wants to fire him, argued before the justices.
The morning argument examined how to balance independence against accountability within the executive branch. The specific question for the court was whether in-house judges at the Securities and Exchange Commission had decided cases without constitutional authorization. But several justices acknowledged that their ruling in the case could have broad implications.
“There are different ways to interfere with decisional independence,” Justice Elena Kagan said. “One is by docking somebody’s pay. One is by having a removal power hang over your head. And another is by being the person who gets to decide who gets the job or not.”
But Chief Justice John G. Roberts Jr. said responsibility within the executive branch must ultimately belong to the president rather than “the administrative bureaucracy, which operates as insulation from the political accountability that the drafters of the Constitution intended.”
The in-house judges, known as administrative law judges, were appointed by the commission’s personnel office and a chief judge rather than by the five-member commission itself. That may have run afoul of the Constitution’s appointments clause, which requires “inferior officers” to be appointed by the president, the courts or “heads of departments.” The commission itself is a “head of department,” but the personnel office and chief judge are not.
If the in-house judges were “inferior officers,” their appointments were unconstitutional. If they were mere employees, there is no constitutional problem.
The Justice Department, which had long contended that the in-house judges were employees and not officers, switched positions in the Supreme Court in November 2017. In an unusual move, it urged the justices to grant review in the case, Lucia v. Securities and Exchange Commission, No. 17-130, even though it had won in the appeals court.
The Justice Department also asked the court to consider the separate issue of whether statutory restrictions on removing the judges from office are permissible. On Monday, Jeffrey B. Wall, a deputy solicitor general, urged the court to insist on a “clear line of accountability.”'>>>
https://www.nytimes.com/2018/04/23/us/politics/supreme-court-rosenstein-firing.html?
