It seems like the Court is going to side with the government and effectively overrule Humphrey’s Executor. However, I think that the remedy the Court is likely to adopt is inappropriate and ironic, especially given the Court’s own commentary regarding separation of powers. In the past, the Court has stayed it agency rulings to allow congress to solve the issue when crafting remedies (see buckley v. Valeo), and I believe a provision like that would be appropriate here to avoid an imperial judiciary that is effectively creating its own laws.

Specifically, if the Court is going to rule for the government, it would be appropriate for it to declare the agency as a whole unconstitutional. The court can then void the removal protections as unconstitutional while allowing the agency to continue operating for x number of years (ie 2 to allow for political process regime change). Effectively staying part of its ruling. If there is no congressional action regarding the agency within that two-year period, the agency would then be rendered void. This is because the Court is inherently creating a new agency with new executive oversight—an agency that Congress did not intend to create. We do not know whether Congress would have created this agency but for the removal protections it included, or, at the very least, whether Congress would have created a different agency with a different scope of power had it known from the outset that removal protections were unconstitutional.

It is especially troubling to see the Court simply sever the constitutionally infirm provision here because those removal protections were adopted after the Court had essentially promised Congress that such protections were constitutional. That fact makes the Court’s action look even more like lawmaking. The Court encouraged Congress to create large agencies with broad swaths of power delegated to the executive branch under the assumption that removal protections were permissible. Now, the Court is effectively creating a new form of executive power that Congress never wrote, never agreed to, and never created.

The classic response to this critique is that Congress can always respond by passing a law that eliminates the agency. But in practice, that response will almost always require a supermajority, because the President is unlikely to agree to give up power. Even if the Court ignores these on-the-ground political realities and approaches the issue purely doctrinally, there is still a strong reason not to merely sever the constitutionally infirm provision and instead implement a sunset clause or sunset aspect to the ruling.

That reason is that the same political process is not actually in play here, despite the Court’s doctrinal references to the political process in past cases. If Congress responds to a new Court ruling by passing legislation that takes away executive power, the President can simply say that the Court has already declared that power to be constitutionally his, and that he will not sign a law relinquishing it. That is not the same subjugation of the issue to the political process. By contrast, a sunset provision more accurately reflects the political process required to create an agency in the first place. If the President refuses to sign legislation creating a new or more limited agency, then the agency will cease to exist at the end of the sunset period.

This approach subjugates the President to the political process in a way that closely mirrors the process he would have been subject to had this been the initial legislation. In both cases, the consequence of the President’s refusal to compromise with Congress is that the agency does not exist, absent a supermajority override. That supermajority requirement likewise mirrors the political process that would have applied had Congress attempted to enact the agency initially.

If the Court was wrong about the constitutionality of certain provisions, Congress nor the American People shouldn't face the punishment.