Consider the following two quotes from recent Supreme Court cases. One: “Congress must speak clearly if it wishes to insulate officers from at-will removal.” Two: “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” The first comes from Kennedy v. Braidwood Management, Inc., where the Supreme Court upheld the constitutionality of the U.S. Preventive Services Task Force against an Appointments Clause challenge, relying at least implicitly on unitary executive theory. The second is from NFIB v. OSHA, where the Court rejected the Occupational Safety and Health Administration’s attempt to implement a vaccine mandate on certain businesses, relying on the major questions doctrine. So, it is fair to ask if the Court employed a method of statutory interpretation in Braidwood akin to what it has done in its major-questions-doctrine context. The Supreme Court recently heard oral argument in Trump v. Slaughter, a case that many suspect will be one of the most consequential of the term as it could overturn the almost century-old precedent of Humphrey’s Executor v. United States. But there is a reason the case may not be as consequential as people think. As the similarities between Braidwood and the Court’s major questions cases show, the Court has already come up with a way for it—and, importantly, lower courts—to avoid confronting Humphrey’s or finding an agency structure unconstitutional in a wide swath of challenges to executive agencies.
This Essay asserts that Braidwood bears a striking resemblance to the Court’s major-questions-doctrine line of cases and attempts to tease out what that means for future litigation. In both situations, the Court presumes that Congress’s legislation conforms to the Constitution—to Article I’s vesting of legislative power in Congress in the major-questions-doctrine cases and to Article II’s vesting of executive power in the President in the unitary-executive cases. So although unitary executive theory applies to agencies’ structure and the major questions doctrine speaks to an agency’s attempted exercise of substantive power, the similarity between the two hints that the Court’s presumptions in each context are the same. These similarities reveal the Court’s trend towards a clear statement rule for cases raising unitary executive questions and could also mean that whether Humphrey’s survives may not be as practically significant as people think.
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