John Roberts’s lie about democratic accountability

Jamelle Bouie observes that Donald Trump is barely present in his own administration:

Abraham Lincoln once remarked that it would “never do for a president to have guards with drawn sabers at his door, as if he fancied he were, or were trying to be, or were assuming to be, an emperor.” A president has to be engaged — attentive to both the government and the public he was elected to serve.

Trump is neither. He is uninterested in anyone except his most devoted fans, and would rather collect gifts from foreign businessmen than take the reins of his administration. “The president doesn’t know and never will,” Susie Wiles, the White House chief of staff, said in an interview with Vanity Fair, commenting on the work of Elon Musk in the first months of the year. “He doesn’t know the details of these smallish agencies.”

Instead, the work of the White House has been delegated to a handful of high-level advisers. Russell Vought, the director of the Office of Management and Budget, is the de facto shadow president for domestic affairs. As one senior government official told ProPublica, “It feels like we work for Russ Vought. He has centralized decision-making power to an extent that he is the commander in chief.” It was Vought who orchestrated the administration’s assault on the federal bureaucracy, including the wholesale destruction of U.S.A.I.D. It was Vought who either froze or canceled hundreds of billions of dollars in funding for anti-poverty programs, H.I.V. reduction initiatives and research into science, medicine and technology. And it is Vought who has been pushing the boundaries of executive power as he attempts to turn the federal government into little more than an extension of the personal will of the president — as channeled through himself, of course.

If Vought is the nation’s shadow president for domestic policy, then Stephen Miller is its shadow president for internal security. Miller, Trump’s top domestic policy adviser, is using the president’s authority to try to transform the ethnic mix of the country — to make America white again, or at least whiter than it is now. He is the primary force behind the expansion of Immigration and Customs Enforcement and Customs and Border Protection into a roving deportation force. He has pushed both agencies to step up their enforcement operations, targeting schools, restaurants, farms and other work sites and detaining anyone agents can get their hands on, regardless of citizenship or legal status. It is Miller who is behind the militarization of ICE, the use of the National Guard to occupy Democrat-led cities and assist deportation efforts, and the plan to blanket the United States with a network of detention camps for unauthorized immigrants and anyone else caught in his dragnet.

Bad as this is on its own, the Supreme Court is about to vastly expand the unilateral power of the executive branch at the expense of the institution the Constitution actually puts at the center of government:

For Chief Justice John Roberts and the conservative majority on the Supreme Court, the answer is to deliver that president an expansive grant of executive power. In a series of decisions on the court’s so-called shadow docket, Roberts and his allies have backed Trump’s repeated claims to virtually uncontested authority over the entire executive branch. The court has allowed the president to fire officials otherwise shielded by for-cause protections created by Congress, and has signaled quite clearly that it intends to overturn a New Deal-era decision that affirmed the power of Congress to create agencies that are independent of the president’s direct control.

The theoretical basis for the court’s expansion of executive power is the unitary executive theory. Devised by lawyers in the Reagan administration, themselves frustrated by the many legislative obstacles to presidential ambition, the theory holds that the Constitution’s executive vesting clause — “the executive power shall be vested in a president of the United States of America” — is a broad grant of inherent authority. This inherent authority — drawn as well from Article II’s command that the president “take care that the laws are faithfully executed” — includes the power to dismiss executive branch officials at will.

This sounds reasonable until you realize that legislative limits on removal are one of the key ways that Congress holds the president accountable. A nonpartisan official tasked with carrying out the public good or investigating executive branch malfeasance cannot do her job if the president can dismiss her at will for any reason under the sun — or for no reason at all. Imagine a member of a regulatory body, fired because she might threaten the interests of a favored donor, or an inspector general pushed out because he uncovered wrongdoing.

The double blows against American democracy about to be delivered by the Supreme Court under the labels of “unitary executive theory” and “nondelegation doctrine” constitute a usurpation of power from Congress under the false flag of protecting it. And it will be the judiciary empowered above all.