Supreme Court’s So-Called Originalists Push Presidential Power Past the Framers’ Boundaries

The Supreme Court last week enlarged presidential power far beyond its already menacing dimensions, which are beyond anything the Founders could have imagined. Self-described “originalist” justices did so in the name of assuring the president’s democratic “accountability.” The original originalists, the Constitution’s framers, would have winced.They recoiled from the idea of the president as an emanation of, and responder to, popular sentiment. Not until the seventh president — Andrew Jackson, the first president not directly connected to the Founding — was the presidency enveloped in the drapery of democracy’s embodiment.Such presidentialism has long since become irreversible, but the court held that an even more swollen presidency is required by the separation of powers. The court diminished Congress by asserting an unhistorical and injudicious tidiness regarding distinct executive and legislative functions.The 6-3 decision held that the president has the power to remove “at will,” not just for cause (e.g., malfeasance), members of regulatory commissions, of which there are many. In the 139 years since Congress created the first such (the Interstate Commerce Commission), these have been structured by Congress to prevent what the court has now mandated: uncircumscribed presidential dominance.The majority opinion, written by Chief Justice Roberts, was joined, in whole or in part, by Justices Samuel Alito, Amy Coney Barrett, Neil M. Gorsuch, Brett Kavanaugh, and Clarence Thomas. Justices Elena Kagan and Ketanji Brown Jackson joined Sonia Sotomayor’s dissent.The court has now established the unitary executive theory, which holds that all executive power is vested in the president, who may remove any principal federal officer exercising executive power. The theory presupposes, however, a clear, easy demarcation between executive and legislative activities.The unitary executive theory says what the Constitution nowhere says: that any governmental activity with an executive aspect must be controlled by the president. Furthermore, Justice Kagan correctly insists that much of what the independent agencies do — making, within parameters set by Congress, rules that have the force of law — is mischaracterized as executive. Congress delegated this obviously legislative function on the assumption — true for decades, until last Monday — that the agencies would not be under presidential domination.Why, exactly, cannot Congress carve out, by laws, exceptions to the president’s removal power, exceptions that Congress thinks serve the public interest? The president should be duty-bound to take care that those laws are faithfully executed. Never until Monday has this been declared constitutionally forbidden.The court has made the congressional power exercised over multimember independent agencies irrecoverable. Any president will veto Congress’s attempt to claw back its power. So, it will be nearly impossible for congressional supermajorities to pass legislation reestablishing the bargain it struck when, in the 19th century, it began creating independent agencies.Although Justice Gorsuch participated in the majority’s mistaken enhancement of the executive, his concurring opinion summons the court and Congress to strengthen the separation of powers by asserting theirs. He notes that the (until last Monday) independent agencies wield, with scant statutory guidance, vast legislative authority. They define, outlaw and prosecute “unfair or deceptive” economic practices, enforce “fair and honest markets,” define broadcasting that serves “public convenience, interest, or necessity.”Such open-ended delegations of legislative power, Justice Gorsuch notes, “have not gone away.” Now they will be exercised by officials answerable to presidents, who “now will enjoy waxing authority over all those areas and more.” The so-called fourth branch of government endures, its powers wielded by presidents.The Constitution, Justice Gorsuch reminds, “created three branches of government — not four, and not just one led by the President either.” He intimates the court’s duty to limit Congress’s delegation of its legislative powers to agencies. Justice Gorsuch adds: “We face only two ways forward: Let Presidents exercise all those powers or begin subjecting them to the Constitution’s constraints. … From here, the only sure path is to … restore legislative and judicial powers to where they belong: in Congress and the courts.”This is the project of making today’s federal blob again resemble a government of limited, because enumerated, powers. The court’s desire — admirable, up to a point — was to enforce tidiness on the sprawl of today’s ever-metastasizing government. So, the court decreed a great simplification, a clean sorting of executive from legislative functions.In defending the theory of separated powers, the court should have heeded Albert Einstein’s admonition: The goal of any theory is to make irreducible elements as simple as possible — but not simpler. Monday’s misguided oversimplification calls for Justice Gorsuch’s agenda of accurately defining government’s powers, then enforcing their separation.The Washington Post

Supreme Court’s So-Called Originalists Push Presidential Power Past the Framers’ Boundaries

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