Libertarianism under the false cover of formalism

This colloquy among Kate Shaw, Steve Vladeck, and Will Baude is useful in clarifying what’s at stake when the Court overrules Humphrey’s Executor. Baude, for his part, makes clear here that the goal is not to increase presidential power over the executive branch per se — which, after all, would mean power for Democratic presidents — as to simply rule most of the modern administrative state unconstitutional:

This is the old problem of “severability,” which used to ask the justices to imagine what Congress would have wanted if it had known that the court was going to hold part of the statute unconstitutional. As textualists have now realized, it’s not clear you can coherently answer the question of what Congress would have wanted. All we know is it wanted to enact the statute it enacted.

Maybe, counterintuitively, the most restrained thing for the court to do would be to start taking the original separation of powers more seriously across the board. That means reckoning with the constitutional problems in the rise of the administrative state. If agencies didn’t effectively write our laws and try our cases, maybe we wouldn’t freak out so much about letting the president control them.

To frame “the Constitution implicitly enacts Mr. Robert Nozick’s Anarchy, State, and Utopia” as the position of “judicial restraint” would be an amusing insult to people’s intelligence if a perhaps somewhat diluted version were not about to become the law of the land.

As Vladeck points out here, the completely illogical two-step here is to argue that nearly a century of tradition has to be dispensed with for “formalist” reasons (and please don’t notice that this is a “formalism” suspiciously unbound by specific provisions in the constitutional text)… only with functionalism and traditionalism making astonishing reappearances whenever following the underlying logic leads to conclusions Republican judges don’t want:

Vladeck: As my Georgetown colleague Josh Chafetz has pointed out, this has been a major problem in the court’s separation-of-powers jurisprudence since 1983, when it invalidated legislative vetoes (and opened the door to a bevy of pre-1983 statutes delegating powers to the executive branch that Congress might never have intended to provide on these revised terms but that now essentially can’t be repealed without veto-proof majorities in both chambers).

Among other things, it’s a good critique of “formalism” in separation-of-powers analysis. The basic premise of formalism is that the Constitution creates bright lines among the three branches of government when it divides powers among them. But even if you are attracted to formalism in theory (and I’m not), even formal analysis tends to require far more functional and practical solutions when it comes time to fix things, such as what happens to agencies like the F.T.C. if or when the court invalidates parts of their statutory structure. The inescapability of functionalism in separation of powers cases seems like a pretty significant rejoinder to Justice Neil Gorsuch’s (and Will’s) plea during Monday’s argument for a return to some idyllic, hyperformalist original understanding that never existed.

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Vladeck: I don’t understand, and have never understood, how folks like Will can be so equivocal about the necessary implications of endorsing the unitary executive theory. It seems to me that, if the court is going to overrule a 90-year-old precedent on the ground that Congress can never interfere with the president’s ability to fire someone who exercises even a little executive power, waving our hands and saying, “That doesn’t answer the question of how it applies to different facts” is both inconsistent with the logic of the unitary executive theory, and oblivious to how the court has already established its understanding of the theory through rulings on emergency applications.

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Vladeck: As ever, Will is more nuanced than the justices whose efforts he’s defending. But at the risk of being a bit impolite, ambiguity is and ought to be a stake in the heart for the unitary executive theory, entirely because it’s premised on the idea that, to quote the Supreme Court’s majority opinion in Seila Law, “the ‘executive power’ — all of it — is ‘vested in a president.’” If it turns out that the historical answer has been “the executive power — well, at least some of it, anyway — is vested in the president,” then that’s more than just an inconvenience for defenders of this understanding, much like the fact that the original draft of the Judiciary Act of 1789 would have had the attorney general, the chief law enforcement officer in the country, appointed by the Supreme Court. (The final version used the passive voice to describe who would pick the attorney general.) The unitary executive theory makes sense only if it’s absolute.

Selective “formalism” is not “formalism” at all. But without the gestures toward formalism — selectively pretending that there can be bright lines completely separating “legislative” and “executive” power like married couples sleeping in separate beds in a 50s sitcom — there’s no case to be made for the judiciary blundering in and asserting that the careful balance of powers that has evolved through the political decisions of the elected branches needs to be uprooted. The results are going to be both legally incoherent and substantively disastrous.