During the oral arguments for Kennedy v. Braidwood Management, Inc., Supreme Court Justice Sonia Sotomayor asked an attorney about independence in agency management.
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00:00So if the director has the power, the secretary has the power.
00:02And that includes, doesn't it, subdivision B2, which transfers to the secretary the power to make such provisions as she shall deem appropriate, authorizing the performance of any of the functions of the director?
00:19That's correct, yeah.
00:20And so if they have to convene something and no one else is appointing them, then the director appoints them, right?
00:26That's right, and importantly.
00:27And removes them.
00:27Correct, and Mr. Mitchell's point about the Reorganization Act, what he focused on is whether the task force is an advisory board.
00:35But that's irrelevant to the question we're talking about right now, because that's a question about whether the task force powers have invested in the secretary.
00:42Now, the chief asks you a question about supervising technical advice.
00:49That might be true of even us.
00:52We're given law clerks to help us on some of the things we don't know anything about.
00:56That's the nature of an agency, isn't it, that they hire experts to help the decision makers come to a conclusion?
01:06Right, that was the essential reasoning in holding a free enterprise fund, in fact, was that you would have bureaucrats but not be ruled by them.
01:13So, yes, you have bureaucrats who contribute their expertise, but ultimately the final decision power is in a politically accountable head of an agency.
01:22And that word independent could mean that people on the task force have an obligation to give their independent opinion.
01:32But that doesn't mean that the secretary has to accept it, correct?
01:37That's exactly right.
01:38And I would point this court to how.