The Supreme Court’s decision upholding the firing of members of independent regulatory agencies rewards the president for assuming authority he does not have.
As I write this, Donald Trump consolidates his power. Robert Reich, columnist for the Guardian, said today that there is language in the bill they are trying to pass that will make it easier for him to ascend to become America's first king.
And, the way I see it:
1. Congress is doing nothing. Absolutely, positively nothing.
2.The democratic party is taking a pen knife to a fight using automatic assault weapons (readily available most anywhere) and, like congress, is doing nothing.
3. Our mainstream media drowns us in finger pointing and Whataboutism after Whataboutism, being careful to avoid at all cost any discussion about just how close America is in replacing its democracy with its first Fascist state.
4. Our "supreme" court has given Trump immunity.
5. Trump, in his oval office meetings with Ukraine and South Africa have given all Americans something to be truly ashamed of.
6. Big business ( Walmart, Target, Amazon) dump DEI, thus piling higher our shame for what our country has become.
7. In foolish rage he (America's answer to agent orange) trashes all those around him (friend and foe alike) with absurd tariffs and bad manners to the point that even those who voted for him are now looking at themselves in the mirror and asking "why"? Allies are now also asking the same question.
In less than a half of a year our new president has made America unrecognizable.
Thank you Professor Sarat for such a clear and detailed exposition of the SCOTUS order on independent agencies - helping to make sure that this important order does not stay under the radar.
The Contrarian always asks what are you looking forward to - so in this case, I am looking forward to a backlash of legal and public opinion that might, just might, result in a change of direction when SCOTUS is asked to judge this case on its merits. May not win this one. But maybe... And if not, then your article forewarns us with knowledge we need to fight back.
Too little, too late. Do you guys honestly think that a "backlash of opinion" or "strong lobbying" is going to heal this? Are you so timid and tamed that you don't see the obvious?
Not a surprise. As the women of Strict Scrutiny say, "precedence is for suckers." The six Christian Nationalists on the Supreme Court continue to support the Felon's move to make the United States an authoritarian theocracy, with the Felon as its leader and the American oligarchs running the Country (Putin's Russia).
HEAVEN Help us ... we need ALL the help we can get and our feet on the ground...it is up to the People NOW...to take back our Country...and if Jan 6th was a preview...it will NOT be give back without a full on fight. But the alternative, living in Autocracy is unbearable...and with trumps evil, unimaginable! We no longer have a choice.
“ Gorsuch, …recently published a book expressing his concern about regulations issuing from the “fourth branch” that he thinks are crushing American freedom.”.
However, Judges aren’t supposed to decide policy and whether Congress should or should not “crush freedom.” Congress and the President signed these bills into law. It’s not Gorsuch’s to decide whether those laws are unwise. It is the Supreme Court’s role to maintain the separation of powers and uphold Congressional authority — including the authority to create independent agencies.
Unfortunately, allowing Presidents to fire independent agency officials and politicize appointments to these agencies does not ensure more freedom. On the contrary, it allows Presidents the complete authoritarian control of these agencies so that they can crush American freedom.
I am not surprised that Justices like Gorsuch, Alito & Thomas — who wield the authoritarian power of the Supreme Court — are supportive of an “authoritarian presidency, free of congressional restraint and independent oversight. Perhaps they think that they can “control” such an authoritarian president. Wait until they realize that Trump is coming after them … to attack their authority … to laugh at their inability to restrain him … and to crush their freedom.
I’ve started to think about a possible future where the US moves closer to a parliamentary system as a reaction to the unitary executive theory that the current Supreme Court is driving us toward. When it comes time to pick up the pieces from the current regime, suppose a future Congress were to establish oversight agencies whose members were appointed by and reported to the office of the Speaker of the House. The Speaker would take on powers more like that of a Prime Minister, though mostly for oversight and regulation, not federal spending. As a co-equal branch, I think they could do it as long as the President at the time signed the bill, or Congress overrode the veto, further emphasizing Congress’s Article I authority. We have to defeat the fascism first, but this might be part of the rebuilding process.
There is really no reasonable interpretation of the executive power than to faithfully execute the laws that Congress has enacted. The president cannot do anything until Congress has given him the power. Clearly the founders understood that. It is very apparent for example in the first amendment, which only limits the laws Congress can enact. The founders understood the president could not establish a religion or restrict freedom of speech because he only can do what Congress permits him to do. Everyone knows this unitary executive theory is BS simply constructed so that republican presidents can end the administrative regulation of business. Even SCOTUS understands this since they exempted the FED from this absurd decision. If they believed the president had some absolute power to do executive functions contrary to the laws Congress passed, then the FED would be subject to it.
It seems to me that a decision on the merits, to be intellectually sound, will require more analysis than is involved in the majority's statement. Assuming that "both the NLRB and MSPB exercise considerable executive power,” it does not follow that "because the constitution vests the executive power in the president…, he may remove without cause executive officials who exercise that power on his behalf, subject to narrow exceptions….” The real question is what the executive power of the president himself is. What is he supposed to be executing?
The answer to that, under the Constitution is "the laws." So if Congress has determined that these officers can be dismissed only for cause, that limitation is the law, just like any other provision adopted by Congress, if it is unconstitutional.
Therefore the first questions is one of statutory construction, i.e. has Congress in fact imposed such a limitation; and the second question is whether such a limitation is constitutional. If the answer to the first question is yes, the answer to the second must also be yes. The legislative branch has the right to tell the executive not only what provisions it must execute, but also how to execute them.
This situation, I believe, is quite different from the other doctrine dear to the supporters of a strong executive, the claim that Congress may not delegate wide, quasi-legislative, regulatory powers to agencies staffed by unelected officials.
Finally someone explains this with a term that everyone who took an American history course in high school learned: the spoils system. Remember that? It was abusive, corrupt, and inefficient. So we got rid of it with the Civil Service Act and other reforms. And now Trump is bringing back, disguised as something new--the unitary executive. But it's the same old thing. (I wanted to use another word there....) And the Supreme Court is functioning as an enabler.
As I write this, Donald Trump consolidates his power. Robert Reich, columnist for the Guardian, said today that there is language in the bill they are trying to pass that will make it easier for him to ascend to become America's first king.
And, the way I see it:
1. Congress is doing nothing. Absolutely, positively nothing.
2.The democratic party is taking a pen knife to a fight using automatic assault weapons (readily available most anywhere) and, like congress, is doing nothing.
3. Our mainstream media drowns us in finger pointing and Whataboutism after Whataboutism, being careful to avoid at all cost any discussion about just how close America is in replacing its democracy with its first Fascist state.
4. Our "supreme" court has given Trump immunity.
5. Trump, in his oval office meetings with Ukraine and South Africa have given all Americans something to be truly ashamed of.
6. Big business ( Walmart, Target, Amazon) dump DEI, thus piling higher our shame for what our country has become.
7. In foolish rage he (America's answer to agent orange) trashes all those around him (friend and foe alike) with absurd tariffs and bad manners to the point that even those who voted for him are now looking at themselves in the mirror and asking "why"? Allies are now also asking the same question.
In less than a half of a year our new president has made America unrecognizable.
Thank you Professor Sarat for such a clear and detailed exposition of the SCOTUS order on independent agencies - helping to make sure that this important order does not stay under the radar.
The Contrarian always asks what are you looking forward to - so in this case, I am looking forward to a backlash of legal and public opinion that might, just might, result in a change of direction when SCOTUS is asked to judge this case on its merits. May not win this one. But maybe... And if not, then your article forewarns us with knowledge we need to fight back.
I strongly agree with you, Wendy. I hope there is a powerful backlash of opinion.
Hoping same. I wish we the people could do more. Here's hoping for some strong lobbying from the lawyers in the land.
Too little, too late. Do you guys honestly think that a "backlash of opinion" or "strong lobbying" is going to heal this? Are you so timid and tamed that you don't see the obvious?
Not a surprise. As the women of Strict Scrutiny say, "precedence is for suckers." The six Christian Nationalists on the Supreme Court continue to support the Felon's move to make the United States an authoritarian theocracy, with the Felon as its leader and the American oligarchs running the Country (Putin's Russia).
trump and his administration must be impeached to save this Country.
HEAVEN Help us ... we need ALL the help we can get and our feet on the ground...it is up to the People NOW...to take back our Country...and if Jan 6th was a preview...it will NOT be give back without a full on fight. But the alternative, living in Autocracy is unbearable...and with trumps evil, unimaginable! We no longer have a choice.
“ Gorsuch, …recently published a book expressing his concern about regulations issuing from the “fourth branch” that he thinks are crushing American freedom.”.
However, Judges aren’t supposed to decide policy and whether Congress should or should not “crush freedom.” Congress and the President signed these bills into law. It’s not Gorsuch’s to decide whether those laws are unwise. It is the Supreme Court’s role to maintain the separation of powers and uphold Congressional authority — including the authority to create independent agencies.
Unfortunately, allowing Presidents to fire independent agency officials and politicize appointments to these agencies does not ensure more freedom. On the contrary, it allows Presidents the complete authoritarian control of these agencies so that they can crush American freedom.
I am not surprised that Justices like Gorsuch, Alito & Thomas — who wield the authoritarian power of the Supreme Court — are supportive of an “authoritarian presidency, free of congressional restraint and independent oversight. Perhaps they think that they can “control” such an authoritarian president. Wait until they realize that Trump is coming after them … to attack their authority … to laugh at their inability to restrain him … and to crush their freedom.
I’ve started to think about a possible future where the US moves closer to a parliamentary system as a reaction to the unitary executive theory that the current Supreme Court is driving us toward. When it comes time to pick up the pieces from the current regime, suppose a future Congress were to establish oversight agencies whose members were appointed by and reported to the office of the Speaker of the House. The Speaker would take on powers more like that of a Prime Minister, though mostly for oversight and regulation, not federal spending. As a co-equal branch, I think they could do it as long as the President at the time signed the bill, or Congress overrode the veto, further emphasizing Congress’s Article I authority. We have to defeat the fascism first, but this might be part of the rebuilding process.
There is really no reasonable interpretation of the executive power than to faithfully execute the laws that Congress has enacted. The president cannot do anything until Congress has given him the power. Clearly the founders understood that. It is very apparent for example in the first amendment, which only limits the laws Congress can enact. The founders understood the president could not establish a religion or restrict freedom of speech because he only can do what Congress permits him to do. Everyone knows this unitary executive theory is BS simply constructed so that republican presidents can end the administrative regulation of business. Even SCOTUS understands this since they exempted the FED from this absurd decision. If they believed the president had some absolute power to do executive functions contrary to the laws Congress passed, then the FED would be subject to it.
It seems to me that a decision on the merits, to be intellectually sound, will require more analysis than is involved in the majority's statement. Assuming that "both the NLRB and MSPB exercise considerable executive power,” it does not follow that "because the constitution vests the executive power in the president…, he may remove without cause executive officials who exercise that power on his behalf, subject to narrow exceptions….” The real question is what the executive power of the president himself is. What is he supposed to be executing?
The answer to that, under the Constitution is "the laws." So if Congress has determined that these officers can be dismissed only for cause, that limitation is the law, just like any other provision adopted by Congress, if it is unconstitutional.
Therefore the first questions is one of statutory construction, i.e. has Congress in fact imposed such a limitation; and the second question is whether such a limitation is constitutional. If the answer to the first question is yes, the answer to the second must also be yes. The legislative branch has the right to tell the executive not only what provisions it must execute, but also how to execute them.
This situation, I believe, is quite different from the other doctrine dear to the supporters of a strong executive, the claim that Congress may not delegate wide, quasi-legislative, regulatory powers to agencies staffed by unelected officials.
Correction: the last clause of paragraph 2 should read "if it is constitutional"
Finally someone explains this with a term that everyone who took an American history course in high school learned: the spoils system. Remember that? It was abusive, corrupt, and inefficient. So we got rid of it with the Civil Service Act and other reforms. And now Trump is bringing back, disguised as something new--the unitary executive. But it's the same old thing. (I wanted to use another word there....) And the Supreme Court is functioning as an enabler.
and still trump does what he wants...
The activist court that pretends it isn’t strikes another blow against separation of powers.
It’s time for states to not recognize decisions from this court that are anti-democracy and go against our constitution. Period.