The Unitary Executive is just the first punch

This isn’t surprising, given that it’s effectively already been made the law by the shadow docket, but it was made clear at oral arguments the Supreme Court is going to forbid Congress from putting job protections in place for members of congressionally created independent agencies, with such arbitrary exceptions as John Roberts deems appropriate. Overruling Humphrey’s Executor does create one problem for the Court, however, which is that it will difficult to cabin the decision to allow only Republican presidents to remove agency officials without cause.

The solution, as Neil Gorsuch proposes, is to prevent executive agencies from doing anything no matter who is in the White House:

And in the second half of the arguments, he led the attack in the other direction. The Court’s right wing, as a bloc, countered the realistic fears about a compromised Fed or Article I courts with dramatic hypotheticals about removal protections so robust that no one can ever be fired. 

“Are there some Cabinet departments that you say Congress could just take over?” Roberts asked the lawyer for the fired FTC commissioner. “Department of Veterans Affairs, Department of Education, they think, well, experts can do a better job of it so we’re going to say there is now an agency, the agency for education…and its authorities will be everything the current Department of Education has except it will be run by a commission and they can only be removed for cause.” 

Justice Elena Kagan, seemingly tiring of the performance, quipped that a more “realistic” fear at this point is an Education Department that exists in name, but is staffed by zero employees. 

The chorus of fearmongering about out-of-control agencies is old-school Republican politics. The right has opposed muscular executive branch agencies and their regulations for decades, and Roberts grew out of that tradition. So did his allies on the Court, including Justice Neil Gorsuch, who at one point suggested ameliorating the liberals’ concern about runaway presidential power by declaring that Congress can’t outsource any of its legislative power at all, rendering agencies unable to create rules and all but powerless (this is the nondelegation theory recently embraced by the right). “Is the water warm?” Gorsuch asked giddily. 

This plan was actually explicitly laid out last week by family separation enthusiast Sarah Ishgur. Step one is to insult your intelligence by claiming that increasing executive control over executive agencies is actually a solution to congressional gridlock and a path to increased public accountability:

This is the question at issue in Slaughter. If the Supreme Court changes the rules around presidential control of independent agencies, it will be a good first step at re-establishing political accountability over our federal government.

This makes sense only if you think that the presidency, not Congress, should be the central governing institution — very MAGA, but definitely not the system established by the Constitution.

But, again, what happens if a president Ishgur disagrees with is ever allowed to obtain power again? Don’t worry, here comes…MAJOR QUESTIONS DOCTRINE:

Eventually, the branches started to adjust to this new reality. Presidents used executive orders to advance their agendas and to bypass Congress, which avoided hard votes. Presidents got to take credit for big stuff. Activists didn’t have to compromise. Virtually everything ended up in court. But a headline would read, “Court Strikes Down Student Loan Forgiveness” instead of “Court Says Only Congress Can Enact Student Loan Debt Forgiveness.”

Headlines that said the former would in fact be correct, because Congress did in fact explicitly give the executive the power to “waive or modify” student loans. Ishgur does not like that policy, so what is needed is a dumb theory that holds that if Congress tries to accomplish something she doesn’t support it must not mean it and the Court should replace Congress’s policy judgments with its own, hence “major questions.”

The court has been trying to revive congressional power with a constitutional defibrillator called the major questions doctrine. The doctrine requires Congress to speak clearly before allowing the executive branch to make big policy changes. In this arrangement, the unitary executive theory can ensure the president gets to do his job, while the major questions doctrine (or what we should start referring to as the unitary legislative doctrine) can make Congress do its job.

Needless to say, the idea of “major questions” and/or “nondelegation” doctrine is not to force Congress to do its job, but to prevent either Congress or the executive branch from doing things Republicans don’t like. The Roberts Court has to do both because only Republicans should be permitted to govern.