Kent Barnett Paper on Separation of Powers Litigation

Kent H.Barnett of Georgia has written To the Victor Goes the Toil–Remedies for Regulated Parties in Separation-of-Powers Litigation, in which he mentions the Big Spring case over the validity of the president's recess appointments, including to the Consumer Financial Protection Bureau.  Here's the abstract:

The U.S. Constitution imposes three key limits on the design of federal agencies. It constrains how agency officers are appointed, the extent of their independence from the President, and the range of issues that they can decide. Scholars have trumpeted the importance of these safeguards with soaring rhetoric. And the Supreme Court has permitted regulated parties to vindicate these safeguards through implied private rights of action under the Constitution. Regulated parties, for their part, have been successfully challenging agency structure with increased frequency. At the same time, regulated parties, courts, and scholars have largely ignored the practical question of “structural remedies”—i.e., how to remedy the violation of structural safeguards for prevailing regulated parties. This inattention may arise because courts often provide what seems at first blush to be an appropriate remedy: severing the structural defect from an agency’s “organic” act. In fact, however, structural remedies often fail to satisfy core remedial values relevant to regulated parties—namely, compensating past harm, preventing future harm from the past defect, incentivizing regulated parties to seek redress, and deterring structural violations—and may leave regulated parties in a worse place than they occupied before asserting the challenge. These ineffectual remedies thereby undermine the very safeguards that judicial decisions purport to vindicate and rendering any “private right” potentially illusory. Courts, in response, can improve the status quo. They could select (or Congress could provide) better remedies, and this article considers how they could do so. But if structural remedies cannot be sufficiently improved, courts should either become more candid about the underlying safeguards’ limitations, or reconsider altogether the nature of the safeguards and regulated parties’ relationship to them.


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