Will Chief Justice Roberts "Protect the Institution" in Collins?

and the importance of J. Barrett's "will Treasury have to write a check" oral argument question.

As we enter the 24th week of SCOTUS deliberation since oral argument in Collins, many are wondering, “What’s taking so long?”

The most likely answer is that one can expect dissenting opinions in Collins on each of the two separate claims (APA and unconstitutional structure)…indeed, we may see concurring in part, dissenting in part opinions on the unconstitutional structure claim…and these dissenting opinions require additional time to be written, reviewed by each Justice, and likely responded to by the Justices in the majority.

But there is something else at play in Collins that distinguishes it from the normal SCOTUS case with a dissenting opinion. Collins presents Chief Justice Roberts with another “protect the institution” opportunity.

One may recall that it was CJ Roberts who (reportedly) changed his vote in the ACA case at the last moment to uphold ACA’s constitutionality as a tax as opposed to an exercise of Commerce Clause power. Put perhaps uncharitably, CJ Roberts protected SCOTUS from overturning a significant piece of Congressional and Executive branch action because he was fearful of the political repercussions that invalidating ACA might generate.

Was the outer limit of the Commerce Clause so hazy that CJ Roberts felt he could not strike down the ACA without “fair warning?” No, CJ Robert agreed that the ACA mandate provision was beyond Congressional Commerce Clause power. He simply avoided any decisional fallout by supporting the ACA mandate as a tax where neither POTUS, Congress nor the solicitor general in briefing supported the mandate as a tax. To put it again perhaps uncharitably, CJ Roberts was protecting the institution from taking on heat.

In the Collins unconstitutional structure claim, one might argue that the unconstitutionality of the single agency director removal only for cause is at least as hazy as the outer limits of the Commerce Clause during the period of time when the Net Worth Sweep served to provide the Executive branch with well over $100 billion of cash in excess of what it would have received if the NWS was not executed. This unworldly windfall is staring CJ Roberts in the face, and as a self-annoited protector of the institution, one might expect that he will strive doctrinally to avoid the situation where SCOTUS tells POTUS to cough up over $100 billion. The only doctrinal reed available that passes the “red face test” (and if so, just barely) is that one might interpret the HERA statute to have made the Acting Director removable at will.

If this is the way CJ Roberts goes, then Collins would be another instance of the old legal aphorism that bad facts (having to order Treasury to pay up over $100 billion) makes for bad law (a holding that the Acting Director was removable by POTUS at will, which flies in the face of the Weiner case precedent and defies a reasonable reading of the statutory language).

So, one might expect CJ Roberts to be engaged in a process within these time consuming SCOTUS deliberations to find a way to support constitutional doctrine (which only became clear with respect to agency structure with the Seila Law case, taken up by SCOTUS at the same time as Collins), while also avoiding having POTUS tell its sibling Executive branch to write a twelve figure check.` If the doctrinal route, discussed above with respect to the Acting Director, is too weak, then CJ Roberts will need to go “all along the Watchtower” to look for “some way outta here”, to quote Bob Dylan.

J. Barrett provides that check-writing escape route in her question at oral argument, the last question posed. J. Barrett’s presence on the Court may prove pivotal if she represents the sixth “conservative” Justice that was absent during the ACA case.

Focusing on remedy, J. Barrett made clear to the other Justices, by having Collins counsel respond to her question, that no unseemly directive from the judicial branch to the executive branch to write a very big check will be required. Just mostly a write down of Treasury’s senior preferred stock preference. The other Justices may or may not have understood what this might mean at the time, but in my view this may be the subject that is requiring time to sort out as we maintain our Collins SCOTUS watch.