Sotomayor v. Plain Language

Call it the case of Sonia Sotomayor v. Plain Language. How else to comprehend the justice’s refusal to accept the plain language of the federal parchment granting the president authority over the executive branch? The Framers ordained this in the first line of Article II: “The executive Power shall be vested in a President of the United States of America.” Justice Sotomayor cavils that this delegation of authority is merely “the unitary executive theory.”Under the Roberts Court the unitary executive is proving more a matter of practice than theory. Feature the rulings strengthening the president’s power over so-called independent agencies, like the Federal Trade Commission, in the executive branch. The Nine in June affirmed President Trump’s power to fire leaders of such agencies. The majority held that presidents need this power per their obligation to “take Care that the Laws be faithfully executed.”Justice Sotomayor, in remarks Wednesday at Tulsa, pointed to this firing dispute, captioned Trump v. Slaughter, as evidence that “people don’t understand our system of government,” Bloomberg reports. “Some of my colleagues don’t either, by the way, and I’m not joking about that,” she added. “We created a government with checks and balances, and the unitary executive theory is overturning that balance,” she lamented.The high court’s vindication of the unitary executive reflects what George Washington Law’s Alan Morrison calls a “strong strain” in the thinking of Chief Justice Roberts. The ruling in Slaughter was the culmination of earlier rulings, in Free Enterprise Fund v. Public Company Accounting Oversight Board and Seila Law v. Consumer Financial Protection Bureau, that had chipped away at “for cause” protections on firing executive branch agency chiefs.“Nearly 250 years ago, the Framers decided to vest ‘the executive Power’ in one person — ‘a President of the United States of America,’” Chief Justice Roberts averred in Slaughter, adding that “the choice was not made lightly.” Edmund Randolph had warned that “unity in the Executive magistracy” could prove “the foetus of monarchy,” the chief explained. Yet the Framers rejected this concern, Chief Justice Roberts said: “Unity won out.”In Slaughter, Justice Sotomayor dissented that the majority had performed a “bait and switch on a coequal branch.” For 90 years, she said, “Congress believed, with this Court’s express approval,” that it could “create certain agencies” that had “some independence from Presidential control.” Rejecting that structure now, she said, “creates an Executive Branch that Congress never dreamed of establishing and that it now has little hope of ever reining in.”The Justice concluded that “doing so upends rather than upholds the separation of powers.” Yet the Framers, per Chief Justice Roberts, “knew from experience” that “plurality in the executive” impairs the “activity, secrecy, and dispatch” needed for “good government.” The Founders got that an executive branch lacking a single head “tends,” per the chief justice, “to conceal faults and destroy responsibility.” Feature the rise of the administrative state. Presidential authority was reinforced by the Roberts Court, too, by the conservative majority’s ruling in Trump v. United States, Mr. Morrison reckons. The ruling finds that the Constitution gives “the President virtually complete immunity from criminal prosecution for almost anything he did while in office,” Mr. Morrison asserts. That clears away prospective hindrances that could impede what Hamilton described as “energy in the executive.”Justice Sotomayor groused at Tulsa that her colleagues’ embrace of the unitary executive shows lack of respect for precedents as they focus on “what the law should be.” It’s more accurate to say that the high court is coming around to Justice Antonin Scalia’s view in Morrison v. Olson, in which he was the lone dissenter arguing that Article II’s grant of authority to the president “does not mean some of the executive power, but all of the executive power.”

Sotomayor v. Plain Language

Sotomayor v. Plain Language

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