We are sitting in an uncanny valley regarding law.
Once independent agencies are no longer independent, partly due to the expansion of the unitary executive viewpoint in both the Supreme Court and the current executive branch, and the rather obsequious Congress we have that instead of being “jealous to protect its power” is kowtowing to anything the Trump administration wants.
The supreme courts ruling on presidential immunity, chevron deference, and the dismantling of the ideas of an independent agency have all come together to create a dangerous situation for all of us.
The Supreme Court, whether because the of their own alignment with partisanship or some other more nefarious reason, have gutted the idea of an independent agency (except for the Federal Reserve, which is special, but not for any legal reason, but rather because even conservative SCOTUS is not willing to risk the fallout of logically applying their unitary executive view of government to the Fed).
So Congress put a lot of regulatory power in these once independent and non-partisan agencies, and that’s gone. Combine that with a president that is overtly partisan and vindictive, and you have a problem where SCOTUS has created a situation that has elevated the whims of a president above the law Congress created.
We will be feeling the affects of this decision for generations, and I wouldn’t be surprised if this was the catalyst for the failure of the American form of government.
Our system cannot sustain when coequal branches of government kowtow to politics.
I'm just excited for the next POTUS to use SEAL Team 6 to quell his political opposition as "an official act" and then I'm sure SCOTUS and Congress start reevaluating some things.
Right after that ruling, I really wanted the Biden administration to construct some "official act" that would, say, cut-off power or water to the justices' houses.
Not that it would do much if most justices had no shame/principles beyond "if I like it then it's okay."
Something that is nearly completely harmless though inconvenient, yet also illustrative of the short-sightedness of such a ruling would have been so satisfying to witness. But the Democratic Party is clinging to the ideals of “norms” and “conventions” and “tradition” that Trumpism has set fire to.
I genuinely believe that once the current administration is out of office the new President should strongly campaign in favor of the strongest possible changes to prevent dictatorship: constitutional amendments to reverse some of the most egregious harm done by the Supreme Court and the general inaction in response to fascism. Then if the opposition party isn't supportive, the new President should set a date after which they threaten to abuse their powers in exactly the same ways Trump has abused his. Surely that would motivate the opposition party, right?
IMO just start with SEAL Team 6's "official actions" and then you can start proposing changes. That way you just need to motivate the people who didn't already attempt a coup.
Where did the constitutional idea of an independent agency come from and what was its justification? I’ve heard a lot about the “unitary executive” but I never see what the counter argument is except for “it would be good to have independent agencies because sometimes democratic input produces bad outcomes and experts do better.” Which yeah, makes sense, nobody argues that democracies make sane decisions - but it’s always an outcome-based argument instead of a legal one.
The debate began with the First Congress, but largely petered out in the early 1800s and didn't really pick up again until the rise of the regulatory state in the early 1900s.
There are newer law review articles but none quite so comprehensive and earnest as Cass R. Sunstein & Lawrence Lessig, "The President and the Administration," 94 Columbia Law Review 1 (1994), https://chicagounbound.uchicago.edu/journal_articles/7779/
That's the same Lawrence Lessig who fought (and lost) copyright extension. 1994 is long before tribal politics became as pervasive and extreme in academia as it is today (not that it didn't exist back then). The paper pulls its punches and assumes unitary executive proponents are arguing in good faith, rather than rationalizing a foregone conclusion.
Thank you for the link. I will certainly give it a read but I'm sure the HN thread will be long dead by the time I read and absorb it.
My main beef with the tenor of this whole thread in general is people do not seem aware of the historical rises and falls in executive power. For example, perhaps they did not call it a "unitary executive" then, but the executive power surely reached its zenith under FDR, with all sorts of behaviors and actions we would regard now with boggled eyes and before which even Trump's more radical actions tend to pale. [Perhaps most applicable to this thread, FDR openly wielded the power of the 'independent' FCC to silence his opposition, to the point where NBC and CBS felt compelled to announce they "would not air any broadcast that was in any way critical of any policy of the Administration.".] Everything worked out OK.
Ironically, of course, that's also the guy who was probably most responsible for the explosion of the size of the administrative state - he really, in a meaningful sense, refounded American government. And while there was good and obvious reasons for the immense expansion of the administrative state, and I'm open to legal reasons either way, I'm becoming increasingly convinced that there's really good social reasons to not have "independent" agencies - I suspect more direct democratic input (the President does X) nets out better in terms of social trust and cohesiveness even when it makes often much dumber decisions.
The unitary executive approach is pretty extreme. In one recent opinion before they pulled the trigger, Roberts court admitted that they could have reigned in the excesses that followed Humphrey's Executor, implicitly admitting its fundamental reasoning was well grounded. That was quite an admission because Roberts had been championing the unitary executive since the 80s.
In fact, few legal scholars dispute that the executive power is unitary, though they might disagree on the implications. As Humphrey's explained in detail, the issue is about areas of the government where the executive nominally overseas work that has a congressional or judicial character. For example, administrative judges and Federal prosecutors exercise a kind of judicial power. And the whole Federal Reserve exception SCOTUS quickly formally carved out is because the Fed exercises a kind of congressional budgetary power.
Humphrey's said that when an agency or officer is exercising a non-executive power, Congress can limit the president's control over how it can be exercised, including reasonable limits on the president's ability to fire the officer.
Ignoring unitary executive proponents like Thomas who choose to ignore the ambiguous intentions of the constitutional drafters, or the early history of the first congresses actually limiting some executive power over officers, people like Roberts primarily argue that Humphrey emphasis on the character of the power is just too difficult for the courts to police; they want a brightline distinction defined by whether the office is nominally under the executive branch, even though that approach is in tension with the actual, if equivocal, original meaning of the constitution. But not too brightline, because letting the president control the Fed was a bridge too far. So they created that exception which clearly is rooted in the same logic as Humphrey's, but they (ironically) pretend it's just something they pulled out of thin air as a one-off.
It came from Congress creating those agencies as is their right to do so, and they were created with the idea of not being weaponize for partisan purposes. We really don't want the DOJ to be the personal enforcement of the president's whims against his political enemies.
It seems controversial that Congress could create independent executive agencies. Could they make the entire executive independent except for the military? Why or why not?
And while I agree we don’t want the DoJ treated that way, that’s how it’s been operated since its beginnings! If anything the past few decades have been relatively not so bad. And regardless of what I want that doesn’t answer whether it would be within Congresses power to make it independent of the President.
> It seems controversial that Congress could create independent executive agencies.
To whom? The U.S. Constitution says that Congress has the power
"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
That's rather clear.
The legislative branch makes those laws and the executive branch executes them. Beyond that its role is limited ... commander-in-chief of the military, pardon power, making treaties (with approval of the legislature), appointing ambassadors, judges, and other officers (with approval of the legislature).
The legislature creates (or removes) the departments and sets forth their duties. The role of the executive is to see to it that the departments carry out those duties as established by the legislature.
The "unitary executive" is not to be found in the U.S. Constitution ... it's a creation of authoritarians.
The Congress, representing the will of the people as their reps, has the most power of three branches. The president is technically elected by the states via the Electoral College unlike Congressional representatives.
The president is supposed to answer to Congress. The purpose was not to have an exectuive wielding the power of a king or a tyrant, which the US founding fathers were worried about.
Actually, the founding fathers were mostly worried about the President being dependent on Congress. They were very worried about that and didn’t want him to be! That impeachment cases would be tried in Congress was very controversial and ultimately agreed to because they figured they wouldn’t become politicized.
You can read the Convention notes yourself! Don’t let other people tell you what they thought.You might be surprised! For example, many argued that the President should not be impeachable at all!
> Such ad hominems are tiresome and more often than not are projection.
Nowhere did I engage in ad hominem. Do you disagree or agree about my statement about executive power waxing and waning? It certainly appears to be the case that people are generally unfamiliar with the details. If you think almost anything Trump has done is meaningfully "unprecedented", that is almost certainly the case! Of course, having a precedent doesn't mean its good, either.
> You have made a number of claims here that simply aren't true.
Feel free to point out what specific claims you believe to be untrue, rather than simply blanketly claiming them so. The only post I see that you responded to before you don't even seem to have understood my question, which was not about the ability of Congress to create agencies, but about its power to create independent agencies, which is indeed heavily circumscribed even under the non-unitary perspective, under any reasonable definition of "independent". The question is how dependent can they legally be.
Here is a direct link the the Convention notes I was discussing, since possibly you take issue with that?
> Mr. PINKNEY & Mr. Govr. MORRIS moved to strike out this part of the Resolution. Mr. P. observd. he ought not to be impeachable whilst in office
> MORRIS: He can do no criminal act without Coadjutors who may be punished. In case he should be re-elected, that will be [FN9] sufficient proof of his innocence. Besides who is to impeach? Is the impeachment to suspend his functions. If it is not the mischief will go on. If it is the impeachment will be nearly equivalent to a displacement, and will render the Executive dependent on those who are to impeach.
> Mr. PINKNEY did not see the necessity of impeachments. He was sure they ought not to issue from the Legislature who would in that case hold them as a rod over the Executive and by that means effectually destroy his independence. His revisionary power in particular would be rendered altogether insignificant.
> Mr. KING expressed his apprehensions that an extreme caution in favor of liberty might enervate the Government we were forming. He wished the House to recur to the primitive axiom that the three great departments of Govts. should be separate & independent: that the Executive & Judiciary should be so as well as the Legislative: that the Executive should be so equally with the Judiciary. Would this be the case, if the Executive should be impeachable? It had been said that the Judiciary would be impeachable. But it should have been remembered at the same time that the Judiciary hold their places not for a limited time, but during good behaviour. It is necessary therefore that a forum should be established for trying misbehaviour. Was the Executive to hold his place during good behaviour? The Executive was to hold his place for a limited term like the members of the Legislature: Like them particularly the Senate whose members would continue in appointmt the same term of 6 years he would periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it. Like them therefore, he ought to be subject to no intermediate trial, by impeachment. He ought not to be impeachable unless he held his office during good behaviour, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised. But under no circumstances ought he to be impeachable by the Legislature. This would be destructive of his independence and of the principles of the Constitution. He relied on the vigor of the Executive as a great security for the public liberties.
> Mr. RANDOLPH. The propriety of impeachments was a favorite principle with him. Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections. He is aware of the necessity of proceeding with a cautious hand, and of excluding as much as possible the influence of the Legislature from the business.
The Supreme Court already gave you an answer by pussyfooting around the FED's independence, despite their own legal reasoning that independent agencies can't exist.
If Congresspeople can be pushed out of the party or out of the party's favor (and therefore office) by POTUS, then they de facto do not have power.
The best distillation of our current conundrum I've heard is that our framers architected a system where the branches of government would compete (i.e. protect their power) against each other. Today, we have people in each branch willing to forego their own branch's power in exchange for greater party power.
Once independent agencies are no longer independent, partly due to the expansion of the unitary executive viewpoint in both the Supreme Court and the current executive branch, and the rather obsequious Congress we have that instead of being “jealous to protect its power” is kowtowing to anything the Trump administration wants.
The supreme courts ruling on presidential immunity, chevron deference, and the dismantling of the ideas of an independent agency have all come together to create a dangerous situation for all of us.
The Supreme Court, whether because the of their own alignment with partisanship or some other more nefarious reason, have gutted the idea of an independent agency (except for the Federal Reserve, which is special, but not for any legal reason, but rather because even conservative SCOTUS is not willing to risk the fallout of logically applying their unitary executive view of government to the Fed).
So Congress put a lot of regulatory power in these once independent and non-partisan agencies, and that’s gone. Combine that with a president that is overtly partisan and vindictive, and you have a problem where SCOTUS has created a situation that has elevated the whims of a president above the law Congress created.
We will be feeling the affects of this decision for generations, and I wouldn’t be surprised if this was the catalyst for the failure of the American form of government.
Our system cannot sustain when coequal branches of government kowtow to politics.