In weakening checks on executive power, the Roberts Court overlooks the wisdom of its predecessors.
The majority opinion in Trump v. Slaughter defends a dangerous holding with a dreadful opinion. Writing for the majority, Chief Justice John G. Roberts, Jr., pays no serious attention to constitutional text. He mangles history, both of the American founding and of the 19th century. He cherry-picks evidence, minimizes ambiguity and conflict, and assigns events too much or too little weight depending on whether they support the majority’s foregone conclusion. His treatment of precedent, and thus his excuse for bypassing stare decisis, is grossly misleading. The opinion blithely assures us that Slaughter is not intended to “determine the fate of officials not before” the Court, including the judges of the Article I Tax Court and Court of Federal Claims. Yet the opinion rests on a wooden separation of powers formalism, including as expansive a definition of “executive power” as one could imagine: “When an agency ‘executes’ a congressional mandate against private parties, it exercises executive power—no ifs, ands, or quasis about it.”
If that is what “executive power” means and all “executive power” must be “controlled by the Chief Executive, in whom such power is vested,” then the prospects for independent judgment in Article I courts looks dim. Such was the analysis Chief Justice William Howard Taft proffered among his dicta in Myers v. United States, the 1926 precedent on which Slaughter relies. Even if the President could not legally command the result in a particular case, Chief Justice Taft wrote that he “may consider the decision after its rendition as a reason for removing the officer, on the ground that the discretion regularly entrusted to that officer by statute has not been, on the whole, intelligently or wisely exercised.”
As categorical as Slaughter sounds, the Court complicated matters in Trump v. Cook, the Court’s companion exercise in faux-historical legerdemain. Technically, Cook posed only the question whether the President was entitled to stay a lower court order keeping Lisa Cook, a member of the Board of Governors of the Federal Reserve System, in office while litigation proceeded over whether President Donald J. Trump properly removed her for “cause,” the statutory standard. Yet the majority clearly implied—as Justice Brett Kavanaugh’s concurrence said straight out—that the Court approves a “longstanding historical practice and understanding that the Federal Reserve is an independent agency whose Governors enjoy for-cause removal protection consistent with Article II of the Constitution.” Unfortunately, Justice Clarence Thomas’s dissent eviscerates that historical account. The Federal Reserve was not designed to be a bank in the tradition of the First and Second Banks of the United States but rather as an independent regulatory body, much like the Interstate Commerce Commission.
Synthesizing Slaughter and Cook, the rule now seems to be that “all” executive power must be controlled by the President unless the U.S. Congress invaded that power early enough for the Court to be satisfied that the usurpation is ratified by history. Unfortunately, the Court was simply dismissive in Slaughter regarding evidence of a more general understanding in the early Congresses that agencies could legitimately be set up to render decisions independent of presidential control. One is left with the impression that the Court now identifies a “historical understanding” with constitutional legitimating force just as Justice Potter Stewart once identified pornography: The conservative justices know it when they see it.
Read the full piece at
Article II Removal Power and the Roberts Court’s Reckless Hubris
