More from Leah Litman on the PHH Case

by Jeff Sovern

We posted the first part of California-Irvine professor Leah Litman's take on the PHH case last week.  Here is part two. Professor Litman offers a perspective on Humphrey's Exec, the Supreme Court case that held an independent agency–there, it was the Federal Trade Commission–was constitutional. I have wondered for some time how the original PHH panel could reconcile its view that an agency helmed by a single director is unconstitutional with the Supreme Court's determination that a five-member commission is fine.  Professor Litman's answer is that the panel didn't. She wrote:

The panel in PHH had to conclude (and it was apparent from the opinion that it did conclude) that the Supreme Court’s decisions in Humphrey’s Executor v. United States, Wiener v. United States, and Morrison v. Olson were all wrong.  * * *

On Humphrey’s Executor, the panel wrote:

“In 1935, however, the Supreme Court carved out an exception to … Article II by permitting Congress to create independent agencies that exercise executive power.”

The panel elsewhere described Humphrey’s Executor as “notwithstanding Article II.” The panel did not describe Wiener v. United States above the line.

Maybe if you think constitutional decisionmaking should proceed anew issue by issue, the panel’s treatment of precedent might not trouble you.  I do not share that view. I think there is a reason for respecting precedent (be it judicial precedent or congressional precedent). The decision in PHH discarded decades of precedent with nothing more than a turn of phrase.

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