struck down this agency now they didn't provide backward looking relief as around maty by a vote of seven to nine in the th circuit and i'd like to pick up by answering the most recent submission by my friends at the department of judges of legislation overriding role that is beyond the judiciary's power close quote so quite simply they have no answer to our a p a language about shout set aside illegal government conduct even if th were to look beyond the a p a sure it's controlling there's only one time that the united states supreme court has actually had to grapple with do we provide backward looking relief where the president's removal of party was infringed upon and it was about sugar and then basher they fake aided the illegal sequester ational order that had been provided earlier that let's go back to accountability for cause yes wouldn't for cause include insubordination your honor for cause it's deemed to be a very high standard that is sort of the way and where it doesn't even say for good cause just as for cars right it says for cars and free enterprise suggest that the way for cause can for significant protection upon the director your own good for cost say there has to be something else it addition to for cause well a nd layer that's what distinguished the members of the balancer is and back in that period of time the eighty's the supreme court did many of those which required a joint resolution of congress to decide on it was done in the u s sentencing commission it was done on many agencies where congress invalid where the the court invalidated what congress had the power to appoint executive people we don't have that here in fact you say there's no congressional oversight right so they're different browsers very different case it's different but it's the same in this one respect which is it's the only time where the supreme court has grappled with ok there was an infringement on the president's ruble ability what do we do about backward looking myers's that to well there wasn't backward looking relief your that number one free enterprise was not brought under the administrative procedures act so it didn't have that shall set aside language number two there was nothing to vacate there there was an investigation and the supreme court said quote no  imposed so there was nothing backwards to vacate now they also point to free enterprise and they say for the separate question of forward looking relief well look to free enterprise and just strike down the for cause so removal protection that would be very inappropriate in this context because in free enterprise both before and after the supreme court's remedy the p c a will be remained an independent agency but here if this court were merely to strike down the for cause removal protection it would take the most independent unaccountable agency in the nation's history and turn it into a deep pendant agency an agency that the of lee you just not want to after the balance that congress had in mind and this would radically transform an agent say that was mandated under four thousand five hundred and eleven dollars a to be independent into one that is no longer you're familiar with the th circuit's opinion and consumer financial protection bureau yeah ok they say this is a very straightforward issue because you cite more sent you read a black letter marson you read a black letter of humphr court highlighted number one and number two there was no policy making and it had a limited jurisdiction those were all points that were emphasized by the supreme court here everyone agrees we're not dealing with an inferior officer the director of th multi member board and that's really important from the perspective of liberty we know from about sure that the purpose of the separation of powers is to preserve liberty and when you've got a multi member board you have deliberation you have compromise and you can only go as far as that center vote will let you go so you are anchored to the center and we also know and there's of course the opportunity for decide which is another important track and we don't have that here also in humphreys executor that agency was subject to appropriation control that's important because the president can veto an appropriations bill if he wants to try to control an agency we don't have that here the want to expand it and i think that's the teaching of free enterprise is that it should not be expanded i would like if i may to turn to the appointments caller's question we have account for the way that says that marco was in an acting capacity for three years at the time of the network's week the position of the defendants in this case make no mistake is that it doesn't matter how  long somebody is in an acting capacity but they can be there for over four years the appointments crosses indifferent it's that much about speed bump that counts a bit about that we know from our own cases it's been forever you can correct different well your honor what we know from a ten from the supreme court is that it has to be a temporary office if it cannot be you know for an indefinite period of time but in an acting director different than a that appointment between terms i mean it's you don't it doesn't function the same way well your honor this officer has the same power as acting director he has the exact same power in the appointments clause the purpose of it of course is to make sure that the president puts in someone who will be able to get through senate confirmation and it is it will not be very much of a protection for liberty under their rule they say there is no standard there is nothing any court can do and they say it's a political question and that just can't be right if you look at all canning no law canning this was the exact same question that was before the united states supreme court and for cause provision even apply to an acting director yes your honor for a couple of reasons number one under four thousand five hundred and eleven essay it says that it shall be an independent agency and it won't make a lot of sense to say ok we're going to be really independent when we have a director but when we have an acting director it will it shall no longer be independent when the president decides on who the permanent director is going to be there's no cause for removing the acting person r confirms somebody else and if we look at the under the winner case your honor winner was a case of statutory interpretation assessing when should we infer in a statute that there is for cause removal protection  you look at the nature and function of what the officer is doing and hear that the function of the acting director has the exact same powers that he would have otherwise so for that reason alone under winger  vacancies reform act and only of those statutes that you know exist about acting officers the supreme court has said over and over again your honor that there are lots of reasons why the branches may barter with each other and barter away their rights under the separation of power but the separation of powers is not to protect the branches it's to protect the people your honor it's to protect the liberty but these are the people's representatives and the president and the congress are doing this so i don't try to that but that argument's been made now on delegation doctrine or majority of the th circuit sitting in bank said one of the reasons they were interpreted in the a p a the way the plaintiffs wanted interpret their words because there would be no principle and here there is no intelligible principle by which they are operating these agencies they say they can do it either for the interests of the agency or the interest of the regulated and to taste or any other interest because they point listed why that's far better than some of the stuff supreme court's done just and reasonable rates regulate in the public interest fair and equitable the supreme court is approve those and in twenty one thousand of the in the gandhi case summarized  here is the key distinction the fundamental distinction in every one of those cases where it talks about public interest congress says you shadow regulate in the public interest and here they didn't say that they said you may regulate in the interest of the entity or of the owner of the agency and by using the word may under saxton we're told that gives them destruction to do the opposite so there is no principle here and i'd like if i may to reserve the remaining time for my confirmation they can be removed for cause but an acting director is a designated at the will of the president if the president doesn't like what the acting director is doing judge grinder as you mentioned he can appoint it permanent director or he can take  rescind that designation it doesn't de someone else in the former acting director is placed in quotes are supposed to construe statutory problems to avoid statutory provisions to avoid constitutional problems not to create them but that's just the st reason there's a lack of traceability the nd one and more important in my view is this was a two way transaction where the counterparty it was a necessary indispensable party to the very thing they're complaining about was fully under control of the president their executor more center close tie because both of them applied the independence of an agency and really the relevant question here is simply whether having a single director as opposed to a nazi member board materially as the insulation from the president and nothing's in what plaintiffs a provider with the cards majority opinion says provides any reason to think it that's the case the scholarship the academic literature that got people started thinking about this issue in the st place ironically it talks about multi member leadership as something that enhanced his independence it contributes to the independence of an agency bipartisan character it's very ironic to me to hear that that's something that promotes presidential control because what it means is when the president has a spot come open and they're able to fill they may actually have to promote to have to appoint somebody from the opposite political party now they say that boards make better quality decisions you know you get a multiple deliberations between multiple people and you get  better decision making than you might with an individual and maybe so maybe not we can think of a lot of occasions where that might be the case but there are other situations where quick expedited leadership is club for that's a policy question for congress when looking at the functions that the agency performs to determine what model collegial decision making versus individual decision making is better suited for those functions another thing that's been said is that with a single director a president  term that depends on a lot of things how that sort of presidential terms line up on the calendar with the f h i fake directors term whether a president is elected to a nd term whether a director leaves or sometimes directors liberally but you could have the very same a multi member board at least the president can have the opportunity opportunity to appoint a chair because sometimes the chairs of the multi member agencies you know wield significant control over the direction of the agency  but the reason that doesn't work for them is that when the f t c was upheld and humphries executor the members of the f t c actually chose their own share statute to subsequently amended and today the president like the chairman of the c but it was not that so at the time of thumb for six seconds or so it's impossible to see that fact is animating the reasoning for the supreme court's decision i'd like to briefly address the remedial the acting director claim the appointments clause claim there is no case after that as hell but an acting official state longer than the constitution allowed and let alone invalidated a administration has had acting commissioners now seventy six months since february of two thousand and thirteen that's more than twice the amount of time that acting director to barca had been in his position at the time the rd minute but you don't have over a longer period of time because they've been things that are not meant to be put together their alternative back argument is the constitutional test should be reasonable under the circumstances but they can't begin to explain how that would actually translate into a workable standard that courts could apply in practice sought a court of course retain the power to it is not a matter of right that interest of relief is entered and courts especially retroactive injunctive relief and courts must consider the equities they must consider the public interests and thrust of their argument is that the president lacked control of reformation if a at the time but treasurer was the county party and of course the president had control of treasury could have demanded a different deal nd president obama and now president trump have both appointed a permanent directors of each f a they could have selected individuals who didn't like the rd amendment or instructed those individuals to work on renegotiating it but contrary and this is again as the th circuit found the directors who have been permanently appointed have defended it unanimously as they are doing here today in addition there are other equitable considerations as the th circuit mentioned plaintiffs here are cherry picking the rd and then which they don't like which they feel doesn't benefit shareholders but their theory would five years to bring this suit they could have brought suit immediately after the rd amendment was enacted they did not they waited to see how that would turn out and again treasury could have lost money they could still lose money out of the deal if there's another crisis and that delay alone i s a reason to deny that backward looking relief so for those reasons this can this court should should consider the equities and must consider the equities before granting any retrospective equitable relief i also want to turn just quickly to the  and the idea of that the acting director here served to long for others obviously nothing in the text of the constitution that defines or that discusses acting directors that are let alone defines their tenure and as judge benton pointed out  this is an issue that has been since president washington time left to the political process to decide the congressional process that's not quite true to say political when we have the vacancy reform act and the other statute you're well aware of well yes but  political doesn't sound right unless you consider every law political yes i mean maybe that's a poor phrasing on my part your honor but i meant what i mean it's been left to congress to decide and congress has thought about these things they fought very hard they've been active in a number of statutes over the years and most including the federal vacancy for macra people can serve much longer and have served much longer than the two years the plaintiffs are proposing or even the three and a half years that the acting director here served and it's always been up to congress to decide in congress has made those decisions and and here plaintiffs are asking this court to come up with an arbitrary or seemingly arbitrary line at two years that would invalidate if they are in many of its applications where people have sort of the longer than the two years and just again talk for a moment about the acting director again not being subject for cause or move about so that's a reason why this court doesn't need to even reach the constitutional issues here the rd amendment was decided by an acting director the statute is clear it lays out in the one subsection the permanent director how that person is appointed how long they are to serve how they can be removed for cause three subsections later talks about the appointment of an acting director and how baked how long they can serve and how you know in a can be removed when someone new comes or when a permit director is appointed it doesn't discuss for cause removal so in fact plaintiffs are asking this court to take the opposite of constitutional avoidance principles to read encroached upon branch approves the encroachments rather policing the enduring structure of constitutional government when the political branches fail to do so is one of the most vital functions of this court so the fact that congress congress  acquiesces it's not of any moment now they raise the standing question obviously they were asked that fourteen and with good reason because footnote twelve the free enterprise tells us that it's a matter of law we do not have to create a counter factual world in a separation of powers case we see that illustrated in the line from two thousand and three where it was a unanimous annele of the th circuit setting that affirmed a conviction and the government argued hey don't invalidate  president would have been confronted with very different incentives in a world in which he had control over the f a a jeff it was on the eve of a presidential election i had a republican controlled house if you could have spent that money on affordable housing or other goals for him self that might have been quite attractive also you want to just look at a counterfactual world at the time of the sweep you'd have to create an entire counterfactual world going back to two thousand and nine of what is a dependent agency look like they talk about boucher canning lucina shot up the line item veto case of clinton versus city of new york backward looking relief was in all of them and they can't cite a single a p a case that ignored the pla text of the statute they've been invoked to france reprise and said well that proves their point on remedy but by the time that and they point to the complaint but by the time that case came to the united states supreme court investigation of us over and there was no sanction imposed and there was nothing to get vacate they say there's no appointments cross case because my way there is none that goes their way and even is certainly much more favorable to me as it has to be for a limited time and about in the canning well you know they mixed and matched and they got the ten days from history they didn't tell you where they got the three days from they got three days from looking at the adjoining square they went and they looked at other related parts of the constitution didn't hear was a suggestion that well look the directors have been appointed by other presidents that continue to defend the sweep the rector's once they're in they're independent know that because they disagree right now the administration