Today’s Ad Law Reading Room entry is “Remedies in the Officer Removal Cases,” by Samuel L. Bray. Here is the abstract:

When a federal officer challenges her removal by the president, what forms of interim relief and what final remedies are available? This Article considers those questions. It shows that the appropriate remedy for a prevailing officer will typically be a declaratory one, either a declaratory judgment or quo warranto. The interim relief question is harder. The suggestion here is that if an officer sues immediately to challenge her removal, and remains the de facto officer, there should be a presumption that the district court should prevent her removal during the pendency of the litigation. But if the officer fails to sue immediately, and is no longer the de facto officer, the presumption should be against any interim relief. This suggestion is subject to some qualifications, but it would prevent “flipping” back and forth during the litigation with respect to who occupies the office and exercises its powers. These presumptions are supported by historical practice with respect to injunctions and quo warranto, by equitable considerations such as laches, and by normative concerns that are especially strong in the officer-removal context.

“Remedies in the Officer Removal Cases” is a tightly argued and timely piece by one of the nation’s foremost experts on remedies. While the ink spilleth over on whether the Supreme Court will overrule Humphrey’s Executor—and on what it will mean for the Fed if they do—a number of questions regarding the remedies available to (purportedly) removed officers have been percolating in the background. Those questions will not go away if, as is widely expected, the Supreme Court does away with Humphrey’s Executor while inaugurating the era of “Fed exceptionalism.” Indeed, their resolution may determine what kind of independence members of the Federal Reserve Board of Governors will enjoy in practice.

Bray’s article manages to be both rigorously grounded in doctrine and history while also remaining attuned to the relevant values and practical concerns. By focusing on the dangers of excess “flipping,” which occurs when de facto control of an office shifts back and forth between different actors, Bray argues persuasively for a context-dependent remedial scheme that would also have the benefit of administrability. “Remedies in the Officer Removal Cases” deserves careful attention from both scholars and courts.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.