The Right-Wing Justices Know Their Favorite Legal Theory Is Bunk |
The media’s takeaways from the December oral arguments in the Trump Justice Department’s bid to the Supreme Court to invalidate multimember “independent agencies” were unanimous: They were a big win for Trump and for legal conservatives’ decades-long drive to free presidents from congressionally imposed checks on presidential control over executive agencies and personnel. The widely anticipated result would render two dozen commissions and boards that have wielded political authority for decades unconstitutional at a stroke.
To provide a modicum of insulation from political interference, these bodies’ governing statutes prescribe that the president may only remove commissioners or board members for “cause”—usually defined as “inefficiency, neglect of duty, or malfeasance in office.” Such limitations on presidential removal authority run counter to the “unitary executive theory” treasured by the conservative legal movement. On all sides, pundits heard all six conservative justices signaling that they would likely apply that theory to uphold Trump’s unexplained dismissal of Federal Trade Commissioner Rebecca Slaughter, eliminating for-cause removal safeguards and with it, multimember agency independence.
This consensus take is accurate as far as it goes. But beneath the conservative justices’ convergence around that bottom line, the lengthy session exposed reservations, confusion, and differences across the conservative bloc, potentially heralding divergence, uncertainty, proliferating lawsuits, and regulatory gridlock in years ahead—perhaps even this term.
The right-wing justices’ emergent disarray seemed to reflect their awareness of pitfalls lurking in and around their hitherto unquestioned unitary executive gospel—including logical, legal, and most of all, real-world consequences that menace the economy, the nation, and the court itself. With these threats suddenly hoving into view, the conservative justices were flailing to figure out credible strategies to head it off.
Obviously, the gritted-teeth dogmatism of the conservative justices is the engine that has driven this kooky theory forward, despite its evident lack of grounding in constitutional text and history. But liberals also deserve blame. They have stood by while conservative presidential absolutists have framed the debate with labels, shibboleths, and catchphrases that, while misleading or outright false, have tilted the playing field rightward.
Since first hoisted by President Ronald Reagan’s second-term Attorney General Edwin Meese, the unitary executive banner has flown as an originalist imperative, catchily articulated by wordsmith-in-chief Justice Antonin Scalia. Quoting the so-called vesting clause of Article 2 of the Constitution—“The executive Power shall be vested in a President of the United States”—Scalia spun that text to “not mean some of the executive power, but all of the executive power.” Scalia’s chestnut bred an asserted (though not demonstrated) corollary: that to effectively deploy this sweeping authority, presidents must hold an indefeasible power to remove senior executive officials, certainly agency heads, at will, for any reason or no reason.
But in the oral argument testing this claim, the conservative justices seemed to reckon with the fact that recent scholarship had obliterated unitary executive theorists’ claims to an originalist birthright. Here, hammer blows had been struck by both eminent conservative as well as liberal-leaning academics. In the courtroom, the justices’ grudging recognition came across in a variety of ways.
Justice Amy Coney Barrett, perhaps because she repeatedly vaunts her originalist fidelity, tried two countertactics, neither of which seemed to resonate with her conservative colleagues. First, she attempted to trivialize the real-world importance of the several agencies enacted in the 1790s with leadership structures recently shown to lack untrammeled presidential removal authority. Even if this was factually accurate, her contention would have little or no legal probative weight. But Barrett was, indeed, demonstrably wrong on the facts.
In postrevolutionary America, the agencies that Congress saw fit to wall off from presidential at-will removal wielded significant economic and societal power. An example was the Revolutionary War Debt Commission, enacted in 1790, in response to a proposal by Treasury Secretary Alexander Hamilton. He called for an entity to be run by “commissioners, vested with … final authority,” not “with the President … nor Hamilton himself as Secretary of the Treasury,” as noted in Georgetown administrative law expert Victoria Nourse’s friend-of-the-court brief. Hamilton estimated that this Commission was tasked with........