Right before the July 4 fireworks, the Supreme Court delivered a mixed bag of presents in time for the nation’s 250th birthday party. Its Slaughter decision seemed especially gauche for the occasion (kind of like the bad children’s fabled Christmas lump of coal). Slaughter celebrated the colonists’ rejection of George III by expanding the power of our own would-be King Donald. It gives the President power to dismiss officials of what Congress created as independent regulatory agencies according to his whims — which seems less in the spirit of Jefferson and Franklin than that of King George himself.
The case was a big deal not because of the immediate Federal stakes –- whether or not a fired trade commissioner could get her job back –- but because of the precedents scrapped and principles advanced and their implications for increased Presidential power.
Rebecca Slaughter was a member of the Federal Trade Commission (FTC). Under the law with which Congress created the FTC, she could only be fired for cause. Without alleging any cause, Trump fired her anyway. Slaughter sued to get her job back. A lower court found in her favor. The Trump administration appealed to the Supreme Court.
The Court’s oral arguments last December telegraphed pretty clearly that the decision would not go Slaughter’s way. The conservative justices were ready to ditch a 1935 decision, Humphrey’s Executor, that found a President couldn’t fire an FTC commissioner without cause. Humphrey had been that commissioner. In the early years of the New Deal, President Franklin D. Roosevelt had fired him. If he had been fired illegally, Humphrey would be entitled to back pay. After Humphrey died, the executor of his estate sued to get the money. (Hence “Humphrey’s Executor.”) The Court ruled unanimously in the executor’s favor.
Chief Justice John Roberts made it plain that he figured Humphrey’s 89 years of precedent were more than enough. He called the decision a “dry husk” – which happened to be the same phrase that Solicitor General John Sauer had used only minutes before. Hmm. One might have suspected that Roberts and Sauer were using the same play book, and that all subsequent testimony and deliberation would only be for show.
Well, not only for show. The conservatives also got a chance to tout their ideology of the “unitary executive.” And to engage in a little judicial necromancy, invoking the spirit – and dissents – of the late Justice Antonin Scalia to chart their path to the future. (Sauer had cited Scalia during the oral argument, too.)
It’s one thing to treat the Declaration of Independence as a kind of national scripture (especially if you skip over the cringy line about “merciless Indian savages” and the implicit exclusion of people who weren’t white and male.) But Scalia’s lone dissents? Really?
Not that the current conservative cult of a unitary executive started with Scalia. Arguably, the real father of the movement was former vice-President Dick Cheney, back when he was President Gerald Ford’s White House Chief of Staff. Subsequently, Concordia University political scientist Graham G. Dodds wrote in The Conversation, the notion of a “unitary executive” was “[f]ormed by conservative legal theorists in the 1980s to help President Ronald Reagan roll back liberal policies.” (Not just coincidentally, in the Reagan White House, a young John Roberts served as an Associate Counsel to the President. Samuel Alito was a Deputy Assistant Attorney General then. And it was Reagan who named Scalia to the Supreme Court.)
Dodds writes that Cheney “will be remembered for many things. He was arguably the most powerful vice president in American history. . . . But Cheney’s legacy…will also include a crucial development that dates back a half-century, when…Cheney’s experience in the Ford years set in place a decades-long effort to enhance presidential power, to reinvigorate an office that he believed Congress had wrongly diminished. When [George W.] Bush surprisingly picked Cheney to be his vice president in July 2000, Cheney finally had a chance to right that perceived wrong.
“Bush was happy to expand his own power, and…Bush and others sought to justify his actions by invoking the unitary executive theory.”
And exactly what is the unitary executive theory? Dodds says that’s not entirely clear. “There is no widely agreed upon definition of the theory,” he writes. “And even its proponents disagree about what it says and what it might justify. But in its most basic version, the unitary executive theory claims that whatever the federal government does that is executive in nature – from implementing and enforcing laws to managing most of what the federal government does –- the president alone should personally control it.”
Sound familiar? “As a political science scholar who studies presidential power,” Dodds writes, “I believe Trump’s recent actions mark the culmination of the unitary executive theory, which is perhaps the most contentious and consequential constitutional theory of the past several decades.”
Roberts, writing for the Slaughter majority, makes it sound as if the theory has deep roots in constitutional history. “Nearly 250 years ago,” Chief Justice John Roberts began his majority opinion, striking a proper semi-sesquicentennial note, “the Framers decided to vest ‘[t]he executive Power’ in one person—’a President of the United States of America.’ The choice was not made lightly. Indeed, ‘delegates to the Constitutional Convention pushed for a multimember council instead of ‘unity in the Executive magistracy,’ which they feared would serve as ‘the f[]etus of monarchy.’
But unity won out. Our Constitution’s drafters knew from experience that a ‘plurality in the executive’— the model in use by most states at the time—not only ‘diminishe[s]’ the ‘activity, secrecy, and dispatch’ necessary to ensure ‘good government’ but ‘tends to conceal faults and destroy responsibility.’
Roberts cites Federalist 70, written by Alexander Hamilton. Hamilton does talk about executive “unity.” But he’s theorizing about power at the very top, suggesting that a single chief executive would have more “energy” than, say, “two or more magistrates of equal dignity and authority; or…one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him.” He’s not talking about trade commissioners.
Executor and Slaughter as a mere blip in American Constitutional history –- even though it spans nearly 40 percent of the nation’s existence. In contrast, Justice Sonia Sotomayor paints the era of this Roberts Court as the blip –- and paints the current court majority as arrogant for creating it.
“Although the majority suggests that its view reflects a settled construction of the Constitution,” Sotomayor argues in her dissent, “the opposite is true. For more than a century, the Nation has firmly rejected the majority’s view and has recognized that Congress, not this Court, has primary say over whether multimember commissions like the FTC should have some insulation from direct Presidential control.”
In fact, she writes:
“[f]or most of this Nation’s history, Congress and the President together have decided that some Government functions should operate at a distance from partisan politics. Those include the management of nuclear energy; the security of the monetary supply; and the safety of American workplaces, consumer products, and chemical hazards. In these and many other areas, the wisdom of the centuries has taught that some decisions should depend not only on who is in office—much less on who is disfavored or owed a favor by those in office—but also on judgment, expertise, and the public good.. . .
“Today, this Court undoes centuries of political practice and concludes that all three branches of Government have been acting in open defiance of the Constitution all this time. Its conclusion is wrong. The text of the Constitution, along with its history, the longstanding practices of the political branches, and the precedents of this Court, make clear that Congress may limit the causes for which the heads of Commissions like the FTC can be removed by the President. In holding otherwise, the Court gives the President a power unknown even to the English Crown against which the Founders revolted, elevating him above his once-coequal branches by transforming a duty to take care that the laws be faithfully executed into a license to act in defiance of those very laws . . .
Perhaps worst of all, the Court today forgets its place. For most of our history, the Court has rightly left the removal question primarily to its coequal branches. Today’s majority, however, decides that it knows better: better than members of the founding generation . . . better than a century and a half of Congresses and Presidents.”
Respecting precedent, she argues, would imply “a recognition that, whatever our confidence in the theories of the present moment, the wisdom of our founding document does not belong to today’s Justices alone.”
Right. But most of today’s justices seem to think it does. Cheney couldn’t know where his touting of the unitary executive would lead. “Judicial approval of the unitary executive theory might well have pleased Cheney,” Dodds writes. But “ironically, the former vice president would be displeased for such power to be accessible to the current president, whom Cheney criticized, calling Trump a ‘threat to our republic.’”
The former Vice President may not have foreseen a malevolent, off-the-rails chief executive like Trump, but Scalia did, at least kind of. Maybe he really did provide a view of the future.
“The question naturally arises,” Scalia wrote in his 1988 Morrison dissent. “What about a President who abuses his power? Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue?” Scalia asks. Well, no:. “A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused.” As I’ve suggested before, that is kind of like arguing that the occasional schoolroom massacre is a price worth paying for a largely unlimited right to keep and bear arms. In effect, you can’t make an omelet without breaking eggs.
In other words, it was a price Scalia seemed more than willing to pay. Is the current Court majority equally willing? Not for some imagined future chief executive but for the very real, very dishonest and destructive one we have now? The evidence is mixed, but so far, it doesn’t inspire much hope.
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