During Steve Calkins’s very funny (as usual) lunchtime talk at the Spring Meeting on Wednesday, he noted derisively that the Supreme Court issued the following order on the FTC v. Schering-Plough cert petition: “The Solicitor General is invited to file a brief in this case expressing the views of the United States.” This is the case in which the Eleventh Circuit unceremoniously dumped the FTC’s deeply held views on patent settlements. That had everyone (except me) fuming at last year’s Spring Meeting. The Supreme Court’s request for the “views of the United States” seems funny to all of us, of course, because the FTC was the loser in the Eleventh Circuit and it was the FTC’s cert petition on which the Supreme Court wanted “the views of the United States.” Hadn’t “the United States” already expressed its views???

No. The FTC is not “the United States,” and let everyone annoyed by this recall that it can’t be so long as Humphrey’s Executor remains good law. Humphrey’s Executor is the 1935 case in which the Supreme Court held that the President’s power to remove commissioners of the FTC is limited to the statutorily prescribed criteria (inefficiency, neglect of duty, or malfeasance in office). The broad implication of the case is that Congress can create federal agencies that have executive power but are immune from direct Presidential control, what Justice Scalia refers to as the “headless fourth branch” of government.

If you like Humphrey’s Executor, then you can’t be upset when the Supreme Court asks for the “views of the United States” on a cert petition by the FTC. There can only be one “United States.” (I’m not sure if that’s true grammatically, but it’s true politically). If the FTC wants to speak for “the United States,” it has to be wholly accountable to the President.

I hold no illusions that my unitary executive preferences are likely to be realized any time soon. (However, this did not stop me from exploiting the fact that Bill Kovacic and I were the first two to show up at the Milton Handler Lecture dinner last fall to harangue poor Bill about the unconstitutionality of his office). Still, it’s gratifying to get the occasional moral victory, like the Supreme Court’s order in Schering.

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