re: SCOTUS Roberts now has authority to appoint new Judges to SCOTUS under AG Garland rule.

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But it does, I think, show that Meese and them have something here.

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In United States v. Nixon, 418 U.S. 683, 694 (1974), the Court stated: “[Congress] has also vested in [the Attorney General] the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533.” In acting pursuant to those statutes, the Court held, the Attorney General validly delegated authority to a special prosecutor to investigate offenses arising out of the 1972 presidential election and allegations involving President Richard M. Nixon. Id. Miller contends, unpersuasively, that the quoted sentence in Nixon, 418 U.S. at 694, is dictum because the issue whether the Attorney General had statutory authority to appoint a special prosecutor was not directly presented and the Supreme Court did not analyze the text of the specific statutes. It is true that a statement not necessary to a court’s holding is dictum. See City of Okla. City v. Tuttle, 471 U.S. 808, 842 (1985); Sierra Club v. EPA, 322 F.3d 718, 724 (D.C. Cir. 2003); Martello v. Hawley, 300 F.2d 721, 722–23 (D.C. Cir. 1962). But Miller misreads Nixon, for the Supreme Court was presented with the question whether a justiciable controversy existed. When the Special Prosecutor issued a subpoena to the President to produce certain recordings and documents, the President moved to quash the subpoena, asserting a claim of executive privilege, id. at 688, and maintained the claim was nonjusticiable because it was “intra-executive” in character, id. at 689. The Supreme Court held there was a justiciable controversy because the regulations issued by the Attorney General gave the Special Prosecutor authority to contest the President’s invocation of executive privilege during the investigation. Id. at 695–97. In this analysis, the Attorney General’s statutory authority to issue the regulations was a necessary antecedent to determining whether the regulations were valid, and, therefore, was necessary to the decision that a justiciable controversy existed. The Supreme Court’s quoted statement regarding the Attorney General’s power to appoint subordinate officers is, therefore, not dictum. Moreover, under this court’s precedent, “carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative.” United States v. Fields, 699 F.3d 518, 522 (D.C. Cir. 2012).

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