Justice Kagan Does Not Like INS v. Chadha

Another interesting tidbit from the oral argument in Royal Camin USA v. Wullschleger concerned what weight the Court should give unanimity on a question among the lower courts of appeals. (In this case, the lower courts of appeals have treated the post-removal amendment of a complaint in one way, but there is an argument the relevant statutory requires a different result.)

In the exchange, Justice Kagan suggests she is not a fan of INS v. Chadha (the decision in which the Court held that a unicameral legislative veto is unconstitutional).

From the transcript:

CHIEF JUSTICE ROBERTS: Counsel, we have had cases where we came out the other way than every court of appeals had come out, right?

MR. KELLER: Yes, you have, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Like what?

MR. KELLER: I think there are—that’s a great question.

(Laughter.)

MR. KELLER: And none spring to mind, but I am positive that I can find some.

JUSTICE KAVANAUGH: Central Bank?

CHIEF JUSTICE ROBERTS: Well, I mean, it’s pretty bold to take the position without knowing one.

MR. KELLER: Fair. Mea culpa.

CHIEF JUSTICE ROBERTS: Was that—was that the case in Chadha?

MR. KELLER: INS versus Chadha?

CHIEF JUSTICE ROBERTS: Yes.

MR. KELLER: I—I don’t know. I apologize.

CHIEF JUSTICE ROBERTS: Somebody will check. I just —

JUSTICE KAGAN: Gosh, I’m not sure which way that cuts.

(Laughter.)

CHIEF JUSTICE ROBERTS: I’m not sure that’s true. I just have it in the back of my
mind, but—okay.

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