Who Wrote Synar? A Judge Who Types and Why It’s Important

In Synar v. United States, a per curiam three-judge district court held that the Gramm-Rudman-Hollings Act violated the separation of powers because the statute had given the Comptroller General executive powers and Congress previously held the qualified power to remove the Comptroller for cause. Chief Justice Burger’s majority opinion in the direct appeal, styled as Bowsher v. Synar, very substantially relied on the district court’s formal analysis — citing and quoting from it several times — that the congressional removal power made the Comptroller General “here-and-now subservient” to Congress.

Academics and commentators (including Anthony Lewis) either speculated or assumed that of the three judges on the panel — Oliver Gasch, Norma Holloway Johnson, and then-D.C. Circuit Judge Antonin Scalia — Scalia most likely penned the per curiam opinion. Amy Spare, Villanova Faculty Services Librarian, recently unearthed for me an unappreciated oral history of the late honorable Oliver Gasch that ends the speculation.

Then-Judge Scalia authored the district court's opinion in Synar.

According to Judge Gasch, “[t]he Burger [Bowsher v. Synar] opinion adopted the same line as the decision that Justice (sic) Scalia had advocated when the case was before us….Synar was probably the most important case from the standpoint of the nation’s welfare that I was confronted with and I shall always remember it.” Gasch elaborated on Scalia’s drafting influence. Apparently, it was Scalia’s ability to type and word process that gave him control of the pen. “I shall always remember going up to confer with Nino Scalia after we heard argument — Norma Johnson was again involved in some criminal case — and here he was in front of his computer banging out things he wanted to say and erasing lines and restoring some lines with some changes. It was the first time I had ever seen a judge work at a computer. I suppose that was the detail that impressed me. But I understand that many do that. I wish I had that facility but I don’t.” With Gasch unable to type and with Johnson absent and preoccupied with a criminal trial, Scalia penned Synar. The Court’s heavy reliance on the Scalia opinion below means that the substance of its analysis can be fairly added to the Scalia separation-of-powers canon.

But the addition of Bowsher creates a curious tension with other Scalia separation-of-powers cases. For example, in Bowsher, the Court concluded that an officer removable only for malfeasance, neglect of duty, and inefficiency was “here-and-now subservient” to the removing officer. That is hard to square with Scalia’s position in Morrison v. Olson that the independent counsel, likewise removable only by the Attorney General for cause, was not an inferior officer because she was not subordinate (read “here-and-now subservient”) to the AG. Indeed, Scalia’s dissent quipped that good cause removal is “somewhat like referring to shackles as an effective means of locomotion.” I’m inclined to agree with this latter view, but that means only that I am disinclined to agree with his view in Synar. The two opinions appear to be at odds with each other.

Of course, Morrison involved intrabranch removal authority whereas Bowsher involved cross-branch removal authority. But it remains that a qualified power to remove amounts to subordination (and thereby control) in one context but not in the other.

Now a charitable account to reconcile the apparent inconsistency is possible, i.e. that the level of control that is constitutionally inadequate in one context — because impairing the unitary executive’s constitutional duty to take care that the laws be faithfully executed — is constitutionally impermissible in the other — because allowing a minute breach in the wall of separation between executive and legislative power not otherwise provided for by the Constitution. That account has yet to be offered. The Free Enterprise Fund v. PCAOB case might provide such an occasion. Justice Scalia might want to explain why, per Bowsher, the PCAOB members are not “here-and-now subservient” to the SEC commissioners and they, in turn, not “here-and-now subservient” to the President.

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4 Responses

  1. Justice Scalia (all praise be unto him) has always been rather firm on his reading of what a separation of powers entails and I honestly don’t see your example as disproving of that. I think the Court found that the removal scenarios of “malfeasance, neglect of duty, and inefficiency” were hardly of the “only” variety – the “inefficiency” reason alone could justify almost any removal. Indeed as the Court mentions in its very next sentence:

    “These terms are very broad and, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will.”

    Meanwhile, in Morrison, Justice Scalia again finds fault with a regime that disperses executive powers and functions into the legislative branch:

    “As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute, but I cannot refrain from pointing out that the Court greatly exaggerates the extent of that “some” Presidential control.”

    In both cases, leakage of powers was understandably and consistently subject to Justice Scalia’s disfavor. The problem in both instances was that subservience could be inferred to two branches – Justice Scalia reads the Constition as not allowing that.

  2. T Samahon says:

    MD Conservatarian: The statutory terms of removal at issue in Bowsher appear no less potentially broad than those in Morrison. The AG could have removed Alexia Morrison “for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel’s duties.” What counts as “good cause” strikes me as highly elastic, at least as elastic as malfeasance, inefficiency, or neglect of duty. A colorable argument could be made that “good cause” means failure to abide by an executive superior’s orders. Assuming, arguendo, SEC commissioners are removable for inefficiency, neglect of duty, or malfeasance (note that no statute grants such tenure, it’s just been assumed — or in other words, the grounds for removal could potentially be very, very broad), I doubt very much that we would hear Justice Scalia say that such officers are “here-and-now subservient” to the President.

    Again he has not necessarily painted himself into a corner, but we do need a reconciliation, or at least a clarification. If a qualified removal power grants control in one context but not control in the other, there are ways to harmonize that apparent inconsistency (my brief attempt in the post above), but I don’t think they involve the particulars of the statutory terms of removal.

  3. Okay , now I’m not sure how much we disagree. The issue in PCAOB seems to be the level of control the President has over the Board. Does he still have sufficient Executive Powers over the Board? This isn’t a case of executive powers leaking into Congress or the Courts so I suspect Justice Scalia just has to be convinced that the presidential authority over the SEC is sufficient to control PCAOB.
    This is a tough case for me – tainted as I am by my absolute loathing for SOX (and, as a Marylander, I continue to apologize for my state’s role in sending Mr. Sarbanes to the Senate). I believe a strong, confident president – at ease with the concept of a unitary executive – could probably bring the PCAOB under his thumb (should he so desire)…but if that president had an R after his name, I suspect that would merely serve to unleash a wave of pundits and law professors out for the scalp of whatever counsel told the president that the arguments made for the PCAOB in this case were applicable in real life.