Since Trump v. United States was decided, I have remained uncertain how the case would fit into the constitutional canon. It was unlikely that a former President would be indicted for actions taken while he was in office. How would this case interact with other aspects of the Supreme Court's separation of powers jurisprudence?
Trump v. Slaughter provides an answer. During oral argument, there was an extended discussion of the "conclusive and preclusive" standard. That phrase appears more than thirty times in the transcript! Indeed, I'm not even sure how Slaughter would have been argued without Trump v. United States. Then again, if Trump had come out the other way, we likely would not have a President Trump, and Rebecca Kelly Slaughter would still be working at the FTC.
Solicitor General Sauer repeatedly invoked Trump v. United States. For example, Sauer said the President's removal power was "conclusive and preclusive, so any review of arguably bad reasons for the President to remove an executive officer would be subject to the political process." He maintained that removal is not "subject to judicial review and certainly not subject to statutes regulating that."
Amit Agarwal, counsel for Slaughter, also favorably cited the immunity decision several times. Agarwal was pressed on which executive agencies could be converted into five-member commissions. His answer, given in various ways, turned on the "conclusive and preclusive" standard. For example, Agarwal told Chief Justices Roberts:
I think it's probably a pretty small universe in terms of the numbers that could be wholesale transformed [into commissions] as they are currently constituted. Why? Because it appears that the vast majority of executive departments wield at least some powers that this Court would deem to be conclusive and preclusive, including under the standard that this Court enunciated in Trump.
However, Agarwal couldn't quite pin down how much "conclusive and preclusive" powers would prevent Congress from converting an agency into a commission.
JUSTICE GORSUCH: I want to know where the threshold of preclusive and conclusive comes in. . . . Is it a mere scintilla? . . . So long as one person in the agency's exercising conclusive and preclusive, whatever that means, that's enough?
MR. AGARWAL: Yeah. So it's enough to have a separation of powers. And I wouldn't just say a person. I would say a principal officer. It's enough to generate a separation-of-powers problem.
Later, Justice Alito returned to the scintilla point, and Agarwal seemed to backtrack, though I am not certain:
ALITO: Okay. I thought . . . you said a mere scintilla would not be enough. But now you say a mere scintilla would be enough to cause a problem.
AGARWAL: I may have misspoken before, Justice Alito, and if I did, I apologize. But our position is that if a multi-member agency is vested with the President's conclusive and preclusive powers and it is insulated from at-will presidential approval --supervision, that is a separation-of-powers problem.
So what does "conclusive and preclusive" actually mean? Here is the key passage from Trump v. United States, which borrowed from Justice Jackson's Youngstown concurrence:
No matter the context, the President's authority to act necessarily "stem[s] either from an act of Congress or from the Constitution itself." Youngstown, 343 U.S., at 585, 72 S.Ct. 863. In the latter case, the President's authority is sometimes "conclusive and preclusive." Id., at 638, 72 S.Ct. 863 (Jackson, J., concurring). When the President exercises such authority, he may act even when the measures he takes are "incompatible with the expressed or implied will of Congress." Id., at 637, 72 S.Ct. 863. The exclusive constitutional authority of the President "disabl[es] the Congress from acting upon the subject." Id., at 637–638, 72 S.Ct. 863. And the courts have "no power to control [the President's] discretion" when he acts pursuant to the powers invested exclusively in him by the Constitution. Marbury, 1 Cranch, at 166. . . . Congress cannot act on, and courts cannot examine, the President's actions on subjects within his "conclusive and preclusive" constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President's actions within his exclusive constitutional power.
The irony, of course, is that Justice Jackson favorably cited Humphrey's Executor in his discussion of "conclusive and preclusive" powers.
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. [FN4] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
FN4: President Roosevelt's effort to remove a Federal Trade Commissioner was found to be contrary to the policy of Congress and impinging upon an area of congressional control, and so his removal power was cut down accordingly. Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611. However, his exclusive power of removal in executive agencies, affirmed in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, continued to be asserted and maintained. Morgan v. Tennessee Valley Authority, 6 Cir., 115 F.2d 990, certiorari denied 312 U.S. 701, 61 S.Ct. 806, 85 L.Ed. 1135; In re Power to Remove Members of the Tennessee Valley Authority, 39 O.A.G. 145; President Roosevelt's Message to Congress of March 23, 1938, The Public Papers and Addresses of Franklin D. Roosevelt, 1938 (Rosenman), 151.
And as Gerard Magliocca pointed out in a recent post, Justice Jackson listed Myers and Humphrey's Executor as Category 2 and Category 3 cases, respectively.
Of course, the Justices do not actually know what "conclusive and preclusive means." Justice Barrett, whose vote in the immunity case remains unclear, asked "how do you decide what's conclusive and preclusive?" Justice Gorsuch joked that conclusive and preclusive "rhymes, but I don't know what it means." Agarwal said, "I don't know the scope of this Court's holding in Trump v. United States." Join the club.
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