I am so glad you were there to report. Supreme Court cases can often be excellent foundations for lessons in history and civics. Reporting too often focuses on the win-loss ratio between “liberal” & “conservative” instead of the philosophical and logical underpinning of those who are recognizably one or the other.
I am unpersuaded by both extreme arguments. The Constitution clearly gives Congress the legislative authority to structure the Executive branch however they see fit. Once Congress has created the legal infrastructure, it is up the Executive Branch, i.e., the President, to implement within the structure that Congress has created and Congress should not meddle in the exercise of that executive authority. If the Executive crosses legal boundaries, then courts are there to check them.
The Constitution clearly states that the President may not appoint officers without the advice and consent of the Senate; this establishes a limit on Presidential authority. Otherwise, there would be nothing to prevent the President from appointing anyone he chooses to any Cabinet-level position, which I expect many Presidents would have been much happier doing.
Similarly, Congress should be able to impose certain limitations on when the President may fire an Officer. It is not unreasonable to establish a limit that requires cause for firing someone once the Senate has confirmed them.
Could Congress have created multi-head Agencies such as Labor or Agriculture? Why not? That they chose to do otherwise reflects a particular approach to executive implementation. Whether it would be a good idea or not is not justiciable.
You leave out the fact that Humphrey's Executor was decided by a conservative court wanting to hem in a liberal president, and that not that long ago, many of the justices whose words you cited were, for that reason, in favor of Humphrey's Executor to stay in place. If a Democratic president was in office, this case wouldn't be heard.
As stated in the piece, the current Supreme Court majority has ruled in cases during presidencies of both parties to peel back Humphrey’s Executor and expand presidential power over personnel. Do you have any recent examples of the court ruling in the opposite way during Democratic presidencies?
This is Brett Kavanaugh prior to becoming a SCOTUS judge under Trump (he wrote it in 2011 when Obama was president and Hillary Clinton was widely expected to succeed him as president- there was an imperative among conservatives to hem in Democratic presidents as they feared there might never be any more Republican ones):
That opinion makes my point, not yours -- that is Kavanaugh criticizing Humphrey’s Executor during a Democratic presidency, as part of an opinion that sought to expand a Democratic president’s firing power. He was not a SCOTUS justice at the time, as you note, so was not in a position to overturn Humphrey’s Executor (he still had to apply it as president), but the opinion makes plenty clear his distaste for the ruling.
You wrenched that criticism out of its context. Kavanaugh states in that same footnote that, among other things, HE is settled and protected by stare decisis
My point is that conservatives loved Humphrey's Executor when they thought that Democrats were going to be holding the White House more often than not.
The concurrence you cite literally includes a quotation from a scholar calling Humphrey’s Executor “one of the more egregious opinions to be found on pages of the United States Supreme Court Reports.” If that is love, it sure is a funny way of showing it.
It was Kavanaugh’s concurrence -- he was the one who put the quote there. Obviously a lower court judge has to apply SCOTUS precedent, so there wasn’t an option for him at the time to not be “for” the ruling in the sense that he was unable to overturn it, but if you don’t take the inclusion of that scathing quote (or his other criticisms of Humphrey’s Executor) in the concurrence as evidence of Kavanaugh’s feelings towards the ruling, I really don’t know what else to say. Quotes blasting SCOTUS precedents don’t just get dropped into lower court rulings. Its inclusion there is very telling. Once again, the evidence you yourself linked points to a conservative justice’s distaste for Humphrey’s Executor during a Democratic presidency, not the opposite.
I’m pretty much with DerekF in this—Congress approves funding for the executive and it also confirms appointments to a variety of executive branch positions. What’s kept things more or less in balance over centuries is that power— irritate Congress and the funds go away, people don’t get confirmed. Having prepared testimony for Congress when I worked in the Department of Defense in the 1990s and being present during the hearings that examined what we wanted, I know how that process can work.
But with a supine Congress as we have now, the balance slips in favor of an authoritarian president who seeks fewer guard rails. One other question you don’t grapple with, Gabe, is whether these federal agencies would function better or worse with such power as this case seeks to give the executive. I think you—and of course the court— needs to examine that question.
It's certainly a very complicate question. The most critical part, I believe, is the question you mentioned "the Fed, which was designed to keep monetary policy (and the ability to make or break recessions) out of partisan hands." The Federal Reserve was created specifically to be independent of federal fiscal policy. Giving the President power to fire at will Federal Reserve members is almost guaranteed to lead the U.S. into a major fiscal crisis.
This whole issue seems to me to throw shade on ‘orginalists’ who claim to be able to determine what the founders thought 250 years ago and apply to the very different world of today. While ‘independent agencies’ may not have been specifically articulated in the Constitution they appear to have evolved as practical structures to deal with an increasingly complicated governing task yet still keeping some check on the executive from becoming a king.
Thank you I will be curious to see the second part. The idea of originalism or textualism has some serious flaws
As you pointed out the Constitution is only a few pages How does one deduce from that all the intent?
Yes, that makes it interpretive but it is just that There are many things that aren't in the Constitution that courts have to deal with There is no textualism, originalism or intent involved
The perfect example is abortion Whatever side you come down on is someone's, including the courts, perspective
The senate also must confirm cabinet appointees That would seem to say other positions might have some Congressional control
For many years we had political patronage That didn't work out very well so they created the civil service
The ruling in Humphreys basically created an overview that said the president may dismiss for cause There has been no cause in Trumps administration other than his agenda
You also have staggered appointment dates and, to a very large degree, lower courts have concurred with Humphreys
The extremist segments of the three Abrahamic religions have used the same type of argument That has brought us chaos, death and destruction
As the one comedian would say, "Here's your sign."
Gabe I certainly understand you try to stick with the "cold hard facts" and not go off on some political diatribe That is why you are one of my two favorite "political" columnists.
I have to get my little zinger in:>) You and a number of others poo pooed Heather Cox Richardson when she suggested (notice the word) that Kirks assassination might be a groyper She never said that was for sure it was what it was I thought that within two to three hours after the killing based on a lot of the objective things I had read The point is have you paid attention to what is going on with the alt right In all seriousness it is getting very ugly
This is one AMAZING newsletter submission. I work and work at following the information, but by god I CAN! Thank you for making these themes, which were once, “Greek to me,” actually approachable.
Small point, but I was surprised to see that Justice Kagan doesn't think bankruptcy judges are part of the Judiciary, given that they are appointed by the Circuit Courts of Appeal and exercise their jurisdiction as adjuncts of the District Court under which they serve. Having been one for 20 years, I'm now shocked to learn I was "technically not part of the Judicial Branch." That's simply not correct.
Thank you, too, for an incisive discussion of the Constitutional underpinnings (or lack of thereof) of the administrative state. The shifting sands under Humphrey's Executor teach us that politics, partisan or otherwise, generally underlies a lot of what courts do because politics (with a small p) underlies nearly every aspect of our lives.
I am so glad you were there to report. Supreme Court cases can often be excellent foundations for lessons in history and civics. Reporting too often focuses on the win-loss ratio between “liberal” & “conservative” instead of the philosophical and logical underpinning of those who are recognizably one or the other.
Always learn something good from you! It certainly changes my perspective on things!! Thank you.
I am unpersuaded by both extreme arguments. The Constitution clearly gives Congress the legislative authority to structure the Executive branch however they see fit. Once Congress has created the legal infrastructure, it is up the Executive Branch, i.e., the President, to implement within the structure that Congress has created and Congress should not meddle in the exercise of that executive authority. If the Executive crosses legal boundaries, then courts are there to check them.
The Constitution clearly states that the President may not appoint officers without the advice and consent of the Senate; this establishes a limit on Presidential authority. Otherwise, there would be nothing to prevent the President from appointing anyone he chooses to any Cabinet-level position, which I expect many Presidents would have been much happier doing.
Similarly, Congress should be able to impose certain limitations on when the President may fire an Officer. It is not unreasonable to establish a limit that requires cause for firing someone once the Senate has confirmed them.
Could Congress have created multi-head Agencies such as Labor or Agriculture? Why not? That they chose to do otherwise reflects a particular approach to executive implementation. Whether it would be a good idea or not is not justiciable.
You leave out the fact that Humphrey's Executor was decided by a conservative court wanting to hem in a liberal president, and that not that long ago, many of the justices whose words you cited were, for that reason, in favor of Humphrey's Executor to stay in place. If a Democratic president was in office, this case wouldn't be heard.
As stated in the piece, the current Supreme Court majority has ruled in cases during presidencies of both parties to peel back Humphrey’s Executor and expand presidential power over personnel. Do you have any recent examples of the court ruling in the opposite way during Democratic presidencies?
This is Brett Kavanaugh prior to becoming a SCOTUS judge under Trump (he wrote it in 2011 when Obama was president and Hillary Clinton was widely expected to succeed him as president- there was an imperative among conservatives to hem in Democratic presidents as they feared there might never be any more Republican ones):
https://www.yalejreg.com/nc/would-a-justice-kavanaugh-overturn-humphreys-executor-and-declare-independent-agencies-unconstitutional/
That opinion makes my point, not yours -- that is Kavanaugh criticizing Humphrey’s Executor during a Democratic presidency, as part of an opinion that sought to expand a Democratic president’s firing power. He was not a SCOTUS justice at the time, as you note, so was not in a position to overturn Humphrey’s Executor (he still had to apply it as president), but the opinion makes plenty clear his distaste for the ruling.
You wrenched that criticism out of its context. Kavanaugh states in that same footnote that, among other things, HE is settled and protected by stare decisis
My point is that conservatives loved Humphrey's Executor when they thought that Democrats were going to be holding the White House more often than not.
The concurrence you cite literally includes a quotation from a scholar calling Humphrey’s Executor “one of the more egregious opinions to be found on pages of the United States Supreme Court Reports.” If that is love, it sure is a funny way of showing it.
Was that Kavanaugh? No. We're talking about Kavanaugh here, not anyone else.
Kavanaugh was for HE when Democrats were in the ascendancy. Now that Republicans control the Executive Branch he switched his viewpoint
It was Kavanaugh’s concurrence -- he was the one who put the quote there. Obviously a lower court judge has to apply SCOTUS precedent, so there wasn’t an option for him at the time to not be “for” the ruling in the sense that he was unable to overturn it, but if you don’t take the inclusion of that scathing quote (or his other criticisms of Humphrey’s Executor) in the concurrence as evidence of Kavanaugh’s feelings towards the ruling, I really don’t know what else to say. Quotes blasting SCOTUS precedents don’t just get dropped into lower court rulings. Its inclusion there is very telling. Once again, the evidence you yourself linked points to a conservative justice’s distaste for Humphrey’s Executor during a Democratic presidency, not the opposite.
I’m pretty much with DerekF in this—Congress approves funding for the executive and it also confirms appointments to a variety of executive branch positions. What’s kept things more or less in balance over centuries is that power— irritate Congress and the funds go away, people don’t get confirmed. Having prepared testimony for Congress when I worked in the Department of Defense in the 1990s and being present during the hearings that examined what we wanted, I know how that process can work.
But with a supine Congress as we have now, the balance slips in favor of an authoritarian president who seeks fewer guard rails. One other question you don’t grapple with, Gabe, is whether these federal agencies would function better or worse with such power as this case seeks to give the executive. I think you—and of course the court— needs to examine that question.
It's certainly a very complicate question. The most critical part, I believe, is the question you mentioned "the Fed, which was designed to keep monetary policy (and the ability to make or break recessions) out of partisan hands." The Federal Reserve was created specifically to be independent of federal fiscal policy. Giving the President power to fire at will Federal Reserve members is almost guaranteed to lead the U.S. into a major fiscal crisis.
This whole issue seems to me to throw shade on ‘orginalists’ who claim to be able to determine what the founders thought 250 years ago and apply to the very different world of today. While ‘independent agencies’ may not have been specifically articulated in the Constitution they appear to have evolved as practical structures to deal with an increasingly complicated governing task yet still keeping some check on the executive from becoming a king.
As a peak Congress person, am looking forward to tomorrow.
Trump vs. Slaughter is a much more exciting case name than “Humphrey’s Executor”
Thank you I will be curious to see the second part. The idea of originalism or textualism has some serious flaws
As you pointed out the Constitution is only a few pages How does one deduce from that all the intent?
Yes, that makes it interpretive but it is just that There are many things that aren't in the Constitution that courts have to deal with There is no textualism, originalism or intent involved
The perfect example is abortion Whatever side you come down on is someone's, including the courts, perspective
The senate also must confirm cabinet appointees That would seem to say other positions might have some Congressional control
For many years we had political patronage That didn't work out very well so they created the civil service
The ruling in Humphreys basically created an overview that said the president may dismiss for cause There has been no cause in Trumps administration other than his agenda
You also have staggered appointment dates and, to a very large degree, lower courts have concurred with Humphreys
The extremist segments of the three Abrahamic religions have used the same type of argument That has brought us chaos, death and destruction
As the one comedian would say, "Here's your sign."
Gabe I certainly understand you try to stick with the "cold hard facts" and not go off on some political diatribe That is why you are one of my two favorite "political" columnists.
I have to get my little zinger in:>) You and a number of others poo pooed Heather Cox Richardson when she suggested (notice the word) that Kirks assassination might be a groyper She never said that was for sure it was what it was I thought that within two to three hours after the killing based on a lot of the objective things I had read The point is have you paid attention to what is going on with the alt right In all seriousness it is getting very ugly
This is what Gabe does best, better than any other journalist I've come across.
This is one AMAZING newsletter submission. I work and work at following the information, but by god I CAN! Thank you for making these themes, which were once, “Greek to me,” actually approachable.
ALOHA. On the COCONUT WIRELESS. ..........Please go to this page and see what the Cry baby orange face lolo taco decaying PEDO pig is up to. https://open.substack.com/pub/defiance/p/defiance-daily-doj-issues-shocking?utm_campaign=post-expanded-share&utm_medium=web
One suggestion that should make your narrative stronger and more ethical, especially on this topic: refrain from writing in the passive voice. Please.
Small point, but I was surprised to see that Justice Kagan doesn't think bankruptcy judges are part of the Judiciary, given that they are appointed by the Circuit Courts of Appeal and exercise their jurisdiction as adjuncts of the District Court under which they serve. Having been one for 20 years, I'm now shocked to learn I was "technically not part of the Judicial Branch." That's simply not correct.
Thank you, too, for an incisive discussion of the Constitutional underpinnings (or lack of thereof) of the administrative state. The shifting sands under Humphrey's Executor teach us that politics, partisan or otherwise, generally underlies a lot of what courts do because politics (with a small p) underlies nearly every aspect of our lives.