During Monday's Supreme Court oral arguments for 'Kennedy v. Braidwood Management', Justice Amy Coney Barrett questioned an attorney about agency jurisdiction.
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00:00I take that point, and the government concedes that a decision not to list something is unreviewable,
00:08but says that Free Enterprise Fund blessed that arrangement already.
00:15What are your thoughts?
00:15The difference in Free Enterprise Fund was the SEC had all sorts of supervisory authority
00:21over the PCAOB, the Public Company Accounting Oversight Board, that is not present here.
00:27The SEC could review and alter any rulemaking done by the Board.
00:32The SEC could review and overrule any sanction that was being imposed by the Board.
00:37But what about any non-action by the Board?
00:39Well, if you look at page 504 of the Court's Opinion of Free Enterprise Fund,
00:42it lists all the ways in which the SEC had these oversight authorities.
00:46And this is not, with all respect, Your Honor, this is not a situation of non-action.
00:49When the task force decides to issue a C, D, or I rating rather than an A or B rating, that is action.
00:55It's not inaction.
00:56If the task force decides to withdraw an A or B rating that it previously conferred,
01:00that is also action and rather than inaction.
01:03So the government's brief tries to rely on the act omission distinction.
01:06It just doesn't hold up here.
01:07There will be situations in which the task force can take affirmative actions
01:11that cause a certain type of preventive care not to receive the A or B rating,
01:16and the government concedes that's unreviewable.
01:18So that means they're still principal officers.
01:19But there's a second problem as well.
01:21Even if this court were to think that task force members become inferior officers under
01:26the government's interpretation of the statute, these are still unconstitutionally appointed
01:31because Congress has not vested the Secretary of Health and Human Service with the authority
01:36to appoint the task force.
01:38And the Court of Appeals did not reach this question, as Justice Gorsuch noted during the
01:41questioning of Mr. Boupon.
01:42But the Court would have to conclude that there was vesting of this authority in the Secretary
01:48before it can say that they're constituting appointed now.
01:50So are you saying we should remand to the Fifth Circuit to let them address that for the first time?
01:54The Court should not remand unless it disagrees with our principal officer argument
01:58or if the Court wants to impose the severance remedy suggested by the government.
02:04So if we disagreed with your principal officer argument, you would say,
02:08say that you disagree with our principal officer argument, but then remand to the Fifth Circuit
02:12to give them a crack at the appointment.
02:13I think there would have to be a remand in that situation, Justice Barrett,
02:16unless the Court thought the issue was so open and shut.
02:18Do you think, why do you...