As I discussed in yesterday’s coverage of the oral arguments in Trump v. Slaughter, the argument went poorly for those who sought to sustain the 90-year-old precedent in Humphrey’s Executor, limiting a president’s power to fire members of independent commissions. It seems unlikely that Humphrey’s Executor will live to see 91 after Chief Justice John Roberts called it “just a dried husk.”
As is increasingly becoming the case, Justice Ketanji Brown Jackson stole the show with some of her comments on her view of the underlying constitutional issues. She suggested that “experts” in the Executive Branch generally should not be subject to termination by a president. It is a virtual invitation for a technocracy rather than a democracy.
Jackson continued her signature role in oral arguments by effectively arguing the case of one side. At points, Jackson interrupted counsel to instruct him on his “best arguments” and spoke at length to counter the questions of her conservative colleagues.
What was most striking was Jackson’s dismissal of the executive power claims in such agencies. As with Justice Elena Kagan, Jackson raised “real-world” concerns rather than articulate a clear constitutional theory supporting the creation of these hybrid bodies — part legislative and part executive — resting in the executive branch.
In confronting U.S. Solicitor General D. John Sauer (who did another masterful job) in a difficult oral argument, Jackson said she did “not understand” why “agencies aren’t answering to Congress.” Jackson simply brushed aside the fact that the president is given authority to execute the laws and that the executive branch is established under the Constitution.
The argument was maddeningly circular: since Congress created the commission, it must necessarily be Congress’s right to dictate how commissioners can serve or be fired. It was conclusory and shallow in its analysis.
Jackson expressed frustration: ‘I really don’t understand why the agencies aren’t answering to Congress. Congress established them and can eliminate them. Congress funds them, and can stop. So, to the extent that we’re concerned that there’s some sort of entity that is out of control and has no control, I guess I don’t understand that argument.”
She then added her support for a virtual technocracy:
I guess I have a very different view of the dangers, and real-world consequences of your position than what you explored with Justice Kavanaugh. My understanding was that independent agencies exist because Congress has decided that some issues, some matters, some areas should be handled in this way by non-partisan experts, that Congress is saying that expertise matters — with respect to aspects of the economy, and transportation, and the various independent agencies that we have. So, having a president come in and fire all the scientists, and the doctors, and the economists, and the PhDs, and replacing them with loyalists and people who don’t know anything, is actually not in the best interest of the citizens of the United States. These issues should not be in presidential control. So, can you speak to me about the danger of allowing, in these various areas, the president to actually control the Transportation Board and potentially the Federal Reserve, and all these other independent agencies. In these particular areas, we would like to have independence, we don’t want the president controlling. I guess what I don’t understand from your overarching argument is why that determination of Congress — which makes perfect sense given its duty to protect the people of the United States, why that is subjugated to a concern about the president not being able to control everything.
The suggestion is that a president should not be able to fire “scientists, and the doctors, and the economists, and the PhDs.” It is a telling statement from a justice who also suggested that the death of the Chevron doctrine would bring ruin to the country.
The use of “real-world consequences” seems to overwhelm any true separation-of-powers protections for presidents against the administrative state. It also allows the Court to delve into effective policy or legislative impacts in support of the expert class over what are framed as ignorant or vengeful presidents. After all, Justice Jackson heralded the choice made by Congress as making “perfect sense given its duty to protect the people of the United States.” Conversely, she portrayed those that the current Administration is seeking to add to the commissions as “loyalists and people who don’t know anything.”
It is difficult to see any limiting principle in any of this, a problem previously raised regarding Jackson’s emerging jurisprudence. It remains more cathartic than constitutional in my view.
Republicans have always wanted to eliminate the limitations Congress imposes on the President, particularly those who subscribe to the Unitary Executive theory. Which two of the conservatives on the bench clearly seem to be inclined to believe in.
Professor Turley neglected to mention that the court’s conservatives had already decided they wanted to get rid of the Humphreys’ executor decision long before this hearing. As I have said before, the goal is to give a Republican President more power while limiting a Democrat President. However, if Humphrey’s overturned, it is likely that Republicans will regret it in the future, as they always do.
With Trump in power and his increasing incompetence and tenous grasp of reality granting him the ability to wield more power, puts the country in serious jeopardy, and of course, the MAGAs and their never-ending ignorance will follow like lemmings without a clue.
Turley neglected to mention that Justice Kagan has also noted the problem with the conservatives’ almost fanatic need to overturn Humphrey because they deem it an obstacle to President Trump’s agenda. Forgetting the all-important fact that it was Congress that set the parameters on the reasons the President can fire the heads of these independent agencies. It was pretty clear why they did it, and it is more relevant now. But that does not matter to the conservatives who want MORE power for the President…until a Democrat is chosen to run the office.
With the way things are going for Trump, the sagging poll numbers, the poor economy, and the increasing chances the Democrats will retake the House, they will certainly hobble Trump’s agenda for the rest of his term. It may even turn the Senate back to Democrat control after Trump leaves office, and Republicans will have to contend with the mess they created.
I sincerely hope your self-lobotomy was extremely painful to you, for it is debilitating to us.
I would prefer a system where NO members of these commissions can outlive the terms of the Presidents who appointed them. It may not be fitting within our Constitutional system, but these “independent” agencies aren’t a part of the same system, either.
Congress does have the power “to regulate” those areas of the nation’s affairs that are listed in Article 1, Section 1. Justice Jackson was correct in asking why these agencies don’t report to Congress. However, almost nothing else she said was correct. If Congress is supposed to have the power to regulate (properly understood as “to make regular”), then they have to be the only ones making the rules for how this regulation is supposed to occur; the agencies shouldn’t be able to make any rules, since that would be an improper delegation of Congress’ Article 1 powers. In a similar manner, the administrative courts are a crossing of the responsibilities of Congress, the President, and the Supreme Court. But that’s a longer matter not completely related to the case.
KJB is a prima facie example of DEI Dumb! And should be removed!
So is Justice Thomas. He was picked because he benefitted from DEI as well. Should he be removed too?
Did his Thomas’ elector point out they were looking only for a black man to fill the position?
Biden did. He got a “black woman” but please don’t ask her what that means cause she don’t know, she needs an ‘expert’ like a biologist to figure it out for her.
You know what is more disturbing than Ketanji’s Supreme Court performance? It’s thinking about her involvement in cases where she was a lone judge in the Court of Appeals and District Court. You look at her resume and she should be a super star but she is the dimmest bulb on the SCOTUS. #DEI
“She suggested that “experts” in the Executive Branch generally should not be subject to termination by a president. …”
Justice Jackson is unaware that some people aren’t experts, but merely credentialed.
“experts”? By practical definition, anyone sitting on a board, committee etc. is an “expert”. What pieces of paper they have on their walls, is irrelevant, just their politics.
I am reminded of the old piece of humor that defined ‘expert’ – an ex is a has been, a spurt is a drip under pressure. So, and expert is a has been drip under pressure.
I am becoming an expert myself, on the depths of KBJ’s ego overruling the Constitution.
You outlined magnificently the reason millions upon millions of us no longer have any respect for the judiciary. Let’s apply Jackson’s argument to the current court system! Why should a branch of government, with no identifiable skills in areas they review and questionable interpretations of the Constitution, have the ability to hold power over decisions by the citizenry in federal, state and local matters? The judiciary, especially the federal court system, is currently functioning as the godhead of decision making in the United States. We vote; they deny the will of the people. We elect our representatives; they deny us the decisions we make through them. We elect a President; they override his authority and neutralize his power to execute the will of the electorate. Tyranny in black robes, ruling with impunity, is creating a new environment of rage that will bid ill for the future. No good will come of this unlimited power to disobey the will of the people.
“no longer have any respect for the judiciary.” If yo don’t get the decision you want, then you’re right. I’d add, that all SC decisions are political. What is happening nowadays is hardly a crisis, its SOP. Unfortunately having women on the SC is a serious problem.
Blah, blah, blah, blah, blah. Blah, blah, blah. Blah, blah, blah, blah, blah, blah, blah.
Justice Jackson’s statement about the real-world implications of what Trump wants and the intent of Congress in giving these agencies the kind of independence from political meddling Republicans want is actually the most valid point in the whole discussion. What Professor Turley wants is for readers to ignore it by calling it a “virtual technocracy,” which is weird, since those agencies rely on the expertise of experienced scientists, analysts, engineers, and people with extensive experience in the fields they regulate. It’s the equivalent of removing a surgeon from the surgical team because it’s not loyal enough to do what the CEO of the hospital wants him to do with a patient when the CEO has no experience or expertise about medical issues. Congress made sure surgeons run the OR, not crony loyalists to the CEO who are there purely because they are loyal and subservient to the president.
Conservatives will change their tune real quick the moment a Democrat is president. Suddenly, those executive powers will be restricted, and Congress will once again be the authority in charge. Not the President. That is one reason why the Supreme Court’s conservative wing stops short of giving the president the power to fire Federal Reserve members, because they don’t want a Democrat to have the ability to make profound changes to the economy when the time comes.
The double-edged scalpel is a clear and progressive principle of liberal license and an omnipresent Choice… choice that threatens the viability of demos-cracy… democracy with empathetic support.
Justice Jackson has never looked more like a DEI hire than she does right now. The academic class are THEORETICAL experts in their narrow fields, and only in those fields. You need the political class to weigh the suggestions of the academic class with other factors. Modern societies and economies are too complex for so-called ‘experts’. Tunnel vision!
X reads minds and see into the future.
BTW, X sees ghosts too.
X, Mr Opposite, is our very own George Costanza.
HullBobby,
That is why I just scroll past. Not worth reading. The only time I do, is for context when Lin, John Say or others takes her down with facts, logic and common sense. Then it is a good time!
Hullbobby, is that all you have? As usual, instead of providing a real reason for overturning Humphrey, you focus on Jackson because that is what Turley prompted you to do. That is not an article for critical thinking. It’s an article for the perpetually ignorant and easily distracted.
How did those experts do with COVID? How are those experts doing with gender ideology. Has a biological man ever given birth to a baby? Aren’t we decades overdue for the world melting according to “scientists and experts”? Would you refer to Pete Buttigieg and an “expert” in transportation?
The problem is, they are exercising power outside the confines of the Vesting clause.
If there is to be an exception, it must either be deeply rroted in our Nation’s history and tradition, or in the text of the Constitution.
Quite simply, Justice Jackson ain’t. Not only could she fail to define a woman, but each time she opens her mouth she demonstrates a complete and utter ignorance and disregard for the role of the Supreme Court in our system of government. Heck, she has no clue of the roles of the other two branches either. There should be a way for the Senate to remove Justices for supreme ignorance.
The Democratic/dictatorial duality.
“Jackson raised ‘real-world’ concerns rather than articulate a clear constitutional theory” – to no one’s great surprise. KJB showed a stunning knowledge deficit in her confirmation hearing, from her inability to weigh in on what a woman is to her utter lack of knowledge of Constitutional Amendments when questioned by Senator Kennedy. It appears that her “judicial” reasoning is based on her social and political opinions rather than consideration of the Constitution and / or settled law.
What’s clear is that Democrats have two sets of beliefs about the presidency and the separation of powers. One is for Donald Trump and the other is for every other president. Democrat fascists are so full of rage that Trump is standing up to them and exposing their leftwing schemes to destroy the democratic republic that they are willing to shred the Constitution to fight Trump. Shame on “justice” Jackson and the rest of the fascist left.
“Democratic fascists”! Talk about an unintelligent phrase.
The problem with a lightweight, such as Jackson, on the court is that she is the youngest among them. Should she become a deciding vote in the future, jurisprudence will become once again political rather than rational. Jackson was chosen exclusively for her skin color by a group managing a senile office holder. I wonder how many PhDs and other “experts” whose jobs she is defending were chosen the same way?
Lightweight you say? Guess what, she’s a SC justice. Stinks like racist misogynism.
She’s still a lightweight. And that’s being kind.
Lightweight? Not at all, she has an agenda. She’s smart enough to get her statements on the record, for future cases.
And you’re stuck on this silly blog ranting like a fool.
here statements which have are completely removed from the Constitution? The law and Constitution aren’t aren’t an opinion.
Agreed, her statements will be historically reviewed as foundation for never allowing an unqualified candidate to be positioned on the Supreme Court again.
I was listening to the oral arguments, which are always mesmerizing however…
It is virtually impossible to follow without extensive knowledge of the LAW! I do enjoy hearing the oral arguments but I am always left in the dust! It would be a dream come true if one of you “legal” experts would break things down so “we” knew what actually occurred. It would be a kindness to those of us who are not legal scholars!
Golder, you certainly won’t find that here. This is the peanut gallery, where the riff raff come to heckle and peddle their ignorance. You’re better off somewhere else where real discussions are held.
Ah, the classic tactic of using Justice Jackson to distract from the real issue with the Trump administration’s argument. She raised a valid point, which is why Professor Turley tries to divert attention with a pointless drama about KBJ’s “antics.”
She is correct that Congress creates laws and can determine how they should be enforced, including through dismissals. The reason for imposing limits on firings and ensuring independence of these agencies is to prevent their politicization, especially against the kinds of antics Republicans are engaging in. Of course, the conservative wing of SCOTUS already indicated they want to overturn the precedent to give Trump the power he desires. That was expected.
It’s notable that while conservatives seem willing to grant Trump the ability to fire officials at will, they draw the line when it comes to the Federal Reserve. They aren’t eager to give Trump the power to fundamentally destabilize the U.S. economy. He’s already withholding critical economic data because the economy isn’t doing well.
Professor Turley clearly prefers to focus on Justice Jackson rather than the case’s arguments, because it provides a convenient distraction from the case’s actual merits.
Morning george, lets get the day started.
What insanity are you propagating today?
I honestly don’t know how anyone could rationally argue that the president is not as chief executive (unquestionably, the chief exective) also the administrative head of the federal government. To do so would seemingly violate “executive” (Article II) in its entirety, and the separation of powers, while depriving the voting majority of presidential choice.
The president has power over the executive branch. His job is to ensure the law Congress passed along with his own signature is followed. If Congress sets limits on the President they can certainly do that. Because it’s not just Congress that signs off on it, the President does too and he’s obliged to follow the law and it’s limitations. Supporters of the Unitary executive theory believe the President has more power than Congress when it benefits Republicans. Not when Democrats are in power.
The leftwing D Sens. knew who they were getting. The few idiot Rs who chastised Sens. Cruz and Blackburn
for asking responsible questions are to blame. If you watched the hearing, you knew.
With Justice Ketanji Brown Jackson ruminating on Presidential authority, we merely need ask what would have been her line of questioning had the President been Obama rather than Trump? It’s that simple. KBJ should recuse herself on every case that involving politics.
“what would have been her line of questioning had the President been Obama? Why would “it” ever make it to the SC?
And guess what, it wasn’t Obama, it was Trump.
Get a grip on reality.
Might I suggest a slight edit to your remarks: KBJ should recuse herself on every case. Thank you.
Whereas Democrat Brandon — the “Slug at 1600” — was indisputably the worst chief executive marionette since the founding of the Republic, KBJ is well on “her” way to claiming the title of the worst Democrat SCOTUS Justice since the same date, Democrat Justice Roger B. (“Black-folks-are-property-not-citizens”) Taney currently holding that title.
Hard to defend a Justice who is supposed to be listening to arguments and asking questions who is advocating for one side of the issue. Kind of ruins the appearance of non-partial objectivity. Yet I am sure a liberal ‘Brainiac’ will give it a try and fail miserably.
KJB knows nothing about the law, nothing about the Constitution, nothing about the Bill of Rights, she is an liberal activist that doesn’t give a damn about the Constitution, she only cares about DESTROYING THE USA, she is not qualified to be a Supreme Court Justice. Corrupt Merrick Garland that got shot down would have still be a better pick.
You had me until the last sentence.
“she is not qualified to be a Supreme Court Justice…” So what are the qualifications?
She’s fir as any other SC justice, she simply has a different opinion. Not one I share, but it is what it is.
a qualification is that the President sign off on them….Biden’s Autopen isn’t good enough
The autopen is just the finger pointing at the moon. The moon was the Politburo. I was calling them the Politburo before I found out they called themselves the Politburo.
A maddening circular argument you say? From a DEI Democrat that is nothing more than an appeasement to their affirmative action program. Gee, go figure.
What be a woman?
What be a man?
Not a woman…
Jackson is a full blown poster idiot of DEI. I move to have the word “Circular” designated word of the year 2025.
Idiot enough to be on the SC. And you on a silly blog.
And Biden was idiot enough to be president. Your point??
You are the point wally. Any idiot can have a stage from which to show their stupidity.
Where are the Brainiacs this morning? Sleeping in? I’m here, so let’s go people.