Over the past decade, the Supreme Court has bolstered the presidential removal power.1 But the Court’s expansion of this power has not translated to robust remedies for the regulated parties that bring removal-protection challenges.2 Recently, in K & R Contractors, LLC v. Keene,3 the Fourth Circuit declined to consider the constitutionality of the removal protections for administrative law judges (ALJs) at the Department of Labor (DOL) because the challenging party was not entitled to a remedy regardless of the answer to the constitutional question.4 It determined that the last-resort rule — which requires courts to resolve a case on nonconstitutional grounds, if possible, before reaching a constitutional question5 — constrained it from deciding the merits of the removal-protection claim.6 While the Fourth Circuit’s reliance on the last-resort rule does not align with how the Supreme Court has traditionally handled presidential removal power cases, the Fourth Circuit’s approach — not the Court’s — should be mirrored going forward.
In February 2017, Michael Keene, a retired miner, claimed benefits under the Black Lung Benefits Act7 (BLBA).8 The DOL’s district director issued a proposed decision that awarded benefits to Keene and ordered K & R Contractors — which operated a mine where Keene had worked — to pay those benefits.9 K & R subsequently requested a hearing on the matter before an ALJ.10 In June 2018, the case was assigned to ALJ Barto;11 K & R immediately moved to reassign the claim to another ALJ,12 alleging two constitutional violations. First, K & R relied on Lucia v. SEC13 to argue that DOL ALJs had originally been appointed by the agency’s staff, which violated the Appointments Clause.14 Even though the Secretary of Labor — the head of the DOL — had ratified incumbent ALJs’ appointments even before Lucia was decided,15 K & R insisted that a new hearing officer was still required.16 Second, K & R argued that the DOL ALJs were subject to unconstitutional removal protections given that they can be removed only for good cause by the members of the Merit Systems Protection Board, who, in turn, can be removed only for good cause by the President.17
In August 2018, ALJ Barto denied K & R’s motion because his appointment had been ratified by the Secretary of Labor before he “t[ook] any substantial action at all in [the] case.”18 Then, in January 2019, the case was reassigned to ALJ Applewhite for unrelated reasons.19 K & R filed another motion, contending that the DOL ALJs’ appointments and removal protections violated the Appointments Clause because incumbent ALJs still retained competitive-service status.20 ALJ Applewhite also denied K & R’s motion, noting that she “was appointed by the Secretary of Labor . . . prior to issuing this decision and order.”21 She reviewed the record and awarded benefits to Keene under the BLBA, holding K & R liable.22 K & R then appealed the decision to the Benefits Review Board.23 It argued that the decision should be vacated and remanded because ALJs Barto and Applewhite “were not appointed in accordance with the Appointments Clause,”24 and they “lacked the authority [under Free Enterprise Fund v. Public Company Accounting Oversight Board25] to adjudicate this case because the limitations on their removal violate the separation of powers.”26
The Benefits Review Board affirmed ALJ Applewhite’s decision.27 It clarified that an agency head may permissibly appoint an executive officer through ratification28 and that the Secretary of Labor had done so for ALJ Barto.29 It further noted that K & R failed to show that ALJ Applewhite’s appointment was not valid.30 The Board then turned to K & R’s objection that the ALJs’ removal protections violated the separation of powers. It declined to address the argument because K & R “failed to adequately brief this issue.”31 The Board explained that K & R had not developed an argument for this challenge, as it had “not specified how those provisions violate the separation of powers doctrine” or how Free Enterprise Fund applied to the case.32 K & R petitioned the Fourth Circuit to review the Board’s decision.33
The Fourth Circuit denied the petition for review.34 Writing for a unanimous panel, Judge Rushing35 held that ALJs Barto and Applewhite had both been constitutionally appointed.36 She determined that the Secretary of Labor had lawfully exercised his appointment authority when he appointed ALJ Applewhite after she transferred to the agency, and when he ratified ALJ Barto’s previous appointment as a DOL ALJ.37 Judge Rushing further repudiated K & R’s contention that “ratification by a department head cannot prospectively cure a prior unconstitutional appointment.”38 The Secretary’s ratification of ALJ Barto’s appointment, therefore, remedied any constitutional defect related to his original appointment through the competitive service.39
Judge Rushing then considered K & R’s claim that DOL ALJs’ removal protections unconstitutionally insulate them from presidential control.40 Recognizing that the constitutionality of ALJs’ removal protections has split the courts of appeals, Judge Rushing avoided deciding this constitutional question.41 She relied on Collins v. Yellen42 to explain that K & R was not automatically entitled to vacatur of the agency’s decision if the court determined that the ALJs’ removal restrictions were unconstitutional.43 The removal restrictions, after all, did not cause any harm to K & R.44 Rather, ALJs Barto and Applewhite had been lawfully appointed, meaning they had the lawful authority to “exercise the power of [their] office.”45 It would be one thing if the President had attempted to remove ALJ Barto or ALJ Applewhite from their positions but was thwarted by the removal restrictions.46 In that situation, the President’s inability to fire the ALJs would have clearly harmed K & R, since the ALJs should have no longer occupied their positions when adjudicating the claim.47 Their actions after the attempted firing would have been, in a sense, ultra vires. But the ALJs’ removal protections simply did not come into play here. The ALJs remained authorized to wield executive power against K & R, which meant K & R did not suffer a constitutional injury.48 Judge Rushing thus decided that K & R would not receive its requested relief even if the removal restrictions were found to be unconstitutional and denied the petition for review.49
The Fourth Circuit’s reliance on the last-resort rule fits uncomfortably with the Supreme Court’s recent precedents. From Free Enterprise Fund to Seila Law LLC v. CFPB50 to Collins, the Court has decided the merits of separation-of-powers claims before considering appropriate remedies. It has repeatedly struck down removal protections that impeded the presidential power to remove,51 only then offering hollow remedies to the regulated parties.52 Although the Fourth Circuit’s approach inverts the more common order of decisionmaking in such cases, it ultimately allows courts to better uphold separation of powers by limiting judicial interference with the President’s own judgments about his constitutional power and the proper functioning of his branch.
The Fourth Circuit’s decision to review the remedies before the merits of the constitutional question rested upon the last-resort rule: “[T]he Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.”53 This prudential rule was best articulated by Justice Brandeis in Ashwander v. Tennessee Valley Authority54 as part of the constitutional avoidance doctrine.55 Justice Brandeis would have resisted “passing upon” the merits of the constitutional questions in Ashwander because of nonconstitutional considerations that could have resolved the case instead.56 For example, Justice Brandeis pointed out that the plaintiffs had failed to demonstrate the “danger of irreparable injury” necessary for an injunction.57 Because the plaintiffs would not have received their requested remedy regardless of the Court’s decision on the merits, Justice Brandeis would have avoided needlessly sifting through the constitutional weeds.58 The Fourth Circuit did just that in K & R Contractors.
The Fourth Circuit’s reasoning was, therefore, entirely consistent with Justice Brandeis’s concurrence in Ashwander. But it was not consistent with the Supreme Court’s (non)application of the last-resort rule in recent removal-protection cases. Begin with Free Enterprise Fund. The Court concluded that the dual for-cause limitations transgressed the separation-of-powers principle.59 Because the Public Company Accounting Oversight Board (PCAOB) members had been properly appointed, however, Free Enterprise Fund was “not entitled to broad injunctive relief.”60 The Court instead severed the PCAOB’s removal protections from the relevant statute.61 But severing the protections did not “invalidate any past actions of the board, enjoin the board from investigating the regulated firm, [or] require a wholly new administrative investigation.”62 Free Enterprise Fund, therefore, did not receive any meaningful relief. The Court could have — or perhaps should have — refused to consider the removal-protection challenge given that the PCAOB members’ valid appointments precluded any actual remedies for Free Enterprise Fund. But it did not.
Other recent removal-protection cases show a similar trend. In Seila Law, the Court held that the challenged for-cause removal protection violated the separation of powers.63 After the Court dealt with the constitutional question, it remanded the remedial question to the lower courts.64 The Ninth Circuit decided that Seila Law was not entitled to a remedy,65 and the law firm thus “still found itself subject to the enforcement action in question.”66 Even in Collins itself, the Court first addressed the merits of the removal-protection challenge, determining that the for-cause removal restriction violated the separation of powers,67 and then remanded to the lower courts to resolve the remedial question.68 The U.S. District Court for the Southern District of Texas ultimately ruled that the petitioners were not entitled to a remedy.69 A striking pattern emerges: the Court has not harnessed the last-resort rule as the Fourth Circuit did in K & R Contractors. Especially given the serious doubts that the petitioners would obtain any relief on remand,70 the Collins Court could have attempted to determine whether the challengers were entitled to relief first and only then turned to the merits of the removal-protection challenges. But the Court instead followed the conventional order of decisionmaking — merits first, then remedies.
Although the Fourth Circuit’s approach in K & R Contractors reflects some dissonance with the Supreme Court’s recent precedents, this use of the last-resort rule is the right approach for such cases going forward. After all, the Fourth Circuit’s decision remains faithful to a fundamental justification for the last-resort rule: “Separation of [p]owers and [r]espect for [o]ther [b]ranches.”71 The Fourth Circuit would not address the merits of the removal-protection claim unless K & R demonstrated that it had experienced compensable harm, which would occur if the President challenged, resisted, or expressed displeasure with the allegedly unconstitutional removal limitations of an executive official. The last-resort rule thus allows courts to give “the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority,”72 namely the President. It calls upon the President to defend the constitutional powers of his office.
The Fourth Circuit’s deference toward the President’s prerogative to define the Executive’s role mirrors the D.C. Circuit’s reasoning when it held in FEC v. NRA Political Victory Fund73 that the constitutionality of a bipartisanship requirement on the President’s appointment power was not justiciable.74 The court emphasized that it could not “determine . . . whether the statute actually limited the President’s appointment power,”75 as the President may have appointed the same officials even without the statutory requirement.76 It suggested that the unconstitutionality of the requirement could be considered justiciable only if the President protested the alleged interference with his authority by violating the statute.77 The last-resort rule similarly prohibited the Fourth Circuit from addressing the merits of the removal-protection challenge unless K & R showed that the removal limitations interfered with the President’s removal decisions.78 Without that showing, the court could not simply assume that the President would have removed the relevant executive official if the removal restriction had not existed.
The Fourth Circuit’s approach in K & R Contractors thus allows the courts to “shar[e] the constitutional interpretive power with other branches” and prevents undue intervention into legislative and executive action.79 This approach admittedly raises the bar for regulated entities to present their constitutional challenges in court and “removes all incentive for individual citizens to invest the time, effort, and resources required to raise such challenges.”80 The downturn in the number of suits brought by these entities would likely leave many unconstitutional removal protections on the books. But why should we allow private parties to needlessly force courts to adjudicate difficult constitutional questions, which have the potential to disrupt the administrative state, when the President has not himself expressed concern with the executive official’s actions? Why should we allow private parties to “invoke the removal power in the abstract”81 when the President has not himself questioned the alleged attack on his authority? Unlike, for example, the Article III “guarantee of . . . adjudication by the federal judiciary of matters within the judicial power of the United States,” which “serves to protect primarily personal . . . interests,”82 the inherent Article II presidential removal power serves to protect structural interests. It protects the President from the other branches of government and, by extension, ensures that the President has complete confidence in his alter egos within the executive branch. Because the removal power safeguards not the public at large but rather the President himself, he should be charged with asserting his own constitutional powers.
The Fourth Circuit’s application of the last-resort rule is particularly relevant in the current legal moment. The Court has declared war on the administrative state in recent Terms, and this Term appears to be no different. In fact, the Court will soon speak on the very question that the Fourth Circuit refused to decide — the constitutionality of ALJs’ removal protections — in SEC v. Jarkesy.83 K & R Contractors offers a better approach. The Court should first look to whether the challenging party is even entitled to remedies before entering the constitutional thicket. By doing so, the Court will demonstrate deference toward the President’s own control and oversight of the executive branch and, thereby, adhere to its proper place within our constitutional structure.