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.
I GUARANTEE you that if those “experts” did not agree with her worldview and it was Biden firing them, she would 100% be on board with Presidential power. She is not driven by principles, but partisanship.
There is a nation that is ruled by one hundred experts (Oligarchs). That country is known as Russia.
The superiority complex is deep in this one. How dare the Trump administration reach into the basket of deplorables to run the nation she says with nose in the air. Draw my bath water Reginald. Lukewarm for my constitutional will be just fine.
The government is democratically accountable to the people though Congress, not the President. Congress creating independent agencies is legal, the President violating federal law is not.
So Anonymous, independent agencies should be created with no oversight required. Just tell your boss when he decides to fire you that he can’t do it because your an independent agency. Duh factor ten.
Thinkitthrough, Congress exercises oversight through their committees and the power of the purse.
They do it all the time.
Odd. I thought that execution of the laws and spending passed by Congress and the President was the domain of the Executive branch. Congress has investigative powers but no actual regulatory powers outside of their branch, true? I don’recall the creation of a fourth branch with enforcement and regulatory powers over the nations people being part of the three branch system. Shut down all such institutions and use the Constitutionally defined process to put all, or part, or none of those institutions functions within the Executive branch.
If a length of term for an appointment is specified in a law it seems that firing for cause is the only way to cut it short. Cause seems a bit vague at times with terms like high crimes, midemeanors, and good behavior being used.
Example: mortgage fraud or other financial crimes should be an instant cause for firing, especially for an appointee in a financial department.
Another legitimate cause for dismissal would seem to be refusing to follow a Presidential order that is legal.
Elections have consequences.
Hey obstructionist Senators, get your corrupt butts in gear and get President Trump’s appointees approved.
Her argument died with “some areas should be handled in this way by non-partisan experts”, like that’s worked out so well (Fauci) given the experts are hardly non-partisan at this point. The coffin was further nailed shut by “determination of Congress — which makes perfect sense given its duty to protect the people of the United States” implying the president does not have a such a duty – in this she is exposed as meaning the current president. Logically, the President is elected by citizens (ok, ignoring the reality of illegal voting a moment), ditto for Congress. Both, to greater or lesser extent. responsible to the citizens. And who does an independent commission report to – no one, Congress can only defund it, but it can do whatever it wants within whatever mandate it was given until the money runs out.
Her approach to constitutional reasoning is: “If I were writing a new constitution from scratch, this is what I would write; therefore, I’ll pretend the actual Constitution we have says that, and make it the basis for my judicial decisions.” And she has lifetime tenure.
OldManFromKS,
Great comment!
In KBJ’s mind, “Should be” is reason enough for her. Why tax her tiny brain?
Professor Turley is just attacking Jackson because she’s the one making more sense than the others. Instead of addressing her valid points, he’s just attacking her credentials and her role as a justice, letting the crowd cheer him on like only a racist would. Justice Jackson didn’t come from a privileged, carefully crafted background like most of the other justices, who were specially chosen by the Federalist Society to push their agenda over everyone else’s.
X, name one, just one, point she made that made sense to you and I will tell you your fortune for free.
She portrayed those that the current Administration is seeking to add to the commissions as “loyalists and people who don’t know anything. And here I thought that she was in favor of DEI where hiring people that don’t know anything would level the playing field. Here we have a perfect example of the effect of DEI hiring. DEI for me but not for thee. Who would have thunk it?
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 (in delegating executive to legislative), while depriving the voting majority of presidential choice.
The only reason I conclude narrow exceptions may exist is because the Supreme Court already upheld narrow exceptions to Article III. In Ortiz v United States, No.16-1423 (Jun 22, 2018), it held it had jursidiction to hear appeals from the Court of Appeals from the Armed Forces, even though it was an Article I court. The opinion noted the history of courts and tribunals organized by Congress outside the strictures of Article III, and expressly noted that the court-martial is older than the Constitution. See also Ortiz, concurring op. of thomas, J. (explaining that courts-martial have a carve-out from Article III)
Jackson is the poster child for the idiotic notion that ‘credentials’ somehow magically transfer skill or intelligence, something a great many master’s and doctorate candidates take as gospel these days while their programs churn out some of the most ignorant and inept ‘professionals’ the world has ever seen.
Really: a modern degree might as well be a receipt for a transaction. It’s absurd, and it’s concerning to have such people anywhere within spitting distance of positions pf authority.
James,
Well said!
One of our annony morons always tries to equate higher education with intelligence. I have known more than a few of those so called educated with degrees who could not change a car tire and lacked common sense.
The Wizard of Oz said it better: “we have universities, seats of great learning, where men go to become great thinkers. When they come out, they think deep thoughts with no more brains than you have. But they have one thing you haven’t got: A diploma!”
What is astounding about all the comments on this topic is that universally KBJ is considered incompetent about the law. Even more remarkable is that she is unphased by such comments, even agreement from her SCOTUS colleagues. To say she’s had her day in court is an understatement. Everyday is her day in court. Next to the autopen, this may be Biden’s second biggest mistake.
When I took constitutional law in law school, at the beginning of the course the professor made us read the entire Constitution, and he remarked that most law faculties no longer require that. In doing so, we read many things, including the “take care” clause (the President “shall take Care that the Laws be faithfully executed”), and the fact that Congress is a legislative body, not the executive branch or some free-wheeling employer for any job it thinks should get done.
According to my professor, most con law professors nowadays (i.e., 30 years ago) start with Brown v. Board of Education, work from “constitutional principles” they like, and go from there. This seems to be how Justice Jackson took con law: she seems not to know what the Constitution actually says, or even more basic, that it is the fundamental law of the land. Her remarks are all about what “we” want to happen, not what the Constitution permits or commands. She has lifetime tenure and yet she doesn’t know the basics of how to do her job.
Reading and understanding it are two very different things. Just because you read it doesn’t mean you truly understood it.
It’s interesting that you imply you know more than Justice Jackson, who has far more legal experience than you do. The only reason you even consider criticizing her is because she’s a “DEI hire.” That kind of ignorance, combined with the thinly veiled racial undertones in your condescending attitude, says a lot about why you hold that view. She’s a woman and she’s Black, and that’s enough for you to doubt her qualifications as a justice. That’s likely why Turley chose to focus on Jackson instead of Kagan or Sotomayor, who have expressed similar dissenting opinions in the case. The professor clearly knows his audience and wrote this column with you in mind, knowing you’d whine and complain about Justice Jackson and spout nonsense instead of focusing on the real implications of overturning Humphrey. Turley doesn’t want you to consider the wider consequences—he’s just pointing out Justice Jackson’s so-called “crazy” opinions. It’s not surprising how easily he can manipulate you.
She understands the Constitution just fine. She just so happens to disagree with it but in order to do so, she must come up with some ‘reasoning’, anything will do in a pinch. Same way she responded to the ‘what is a woman’ question.
She disagrees with the premise. of the constitution. of America.
“Her remarks are all about what “we” want to happen, not what the Constitution permits or commands.”
And, apparently, the same can be said for her law clerks who likely will not realize how potentially damaging will be listing on their resume that they clerked for her.
OldManFromKS,
Well said.
I have met a number of so called “experts” who lacked common sense. They could not even change a car tire. One, with a PhD in computer science, did not know a cow had to have a calf in order to give milk.
Recall all those so called experts who told us that Bidenflation was only “transitional?” Turned out it wasn’t. I even knew and saw it happening and I do not have a degree.
What do you do when someone claims to be an “expert” and gets it wrong? You fire them and get someone who can do the job.
But! But! But! Look at all their credentials!! Yet, they cannot manage their way out of a paper bag.
Upstate – it would be particularly concerning if a dairy farmer didn’t know that. That’s what we have with Justice Jackson: a judge who doesn’t know that, in making judicial decisions, the written law takes precedence over what the judge thinks would be the best social or political policy. Knowing that is as basic to judging as knowing what you said about cows is to dairy farming.
Well said, Old Man From Kansas. Could you imagine NINE Justices like Ms. Jackson ? Thank you, Greg
“When I took constitutional law in law school, at the beginning of the course the professor made us read the entire Constitution.”
I never understood how one could become a lawyer in the United States without studying the United States Constitution. In fact, learning the Constitution is so valuable, Hillsdale College makes the reading and associated readings mandatory.
Hillsdale has free courses on the Constitution.
Meyer – it’s a mystery. When my con law professor said that his technique of requiring his students to read the Constitution was unusual for modern law faculties, I about fell out of my chair. I went to one of the few law schools where the faculty was not predominantly liberal, and the faculty instilled rigorous habits of mind – which as it turns out have served me well in my career from a practical standpoint. I believe it is a product of the left’s failure to require disciplined logic and reasoning that leads to a course in con law starting with Brown v. Board of Education and proceeding on the basis of liberal-friendly constitutional precepts developed by judges, rather than with the words of the Constitution itself.
In high school, I was so pleased to notice that the public library copy of the Constitution said it was available for sale that I put a quarter in the mail and bought a copy I still have, stamped 25¢ on the front. (I think it was a sandwich coin.)
“. . . most law faculties no longer require that.”
Same experience, different field.
Grad faculty who did not require grad students to read a word of Aristotle. Which students, 20 years later as faculty, then boasted that they had never read a word of Aristotle.
Thanks, Joe Biden.
The real goal for conservatives, or more aptly, the authoritarians in Trump’s administration, is to have complete control of the Federal Reserve. That is what Trump wants to control, given his inability to manipulate the Federal Reserve’s policies to mask his policy failures. He’s already withholding crucial economic reports under the weak excuse of delays caused by the government shutdown. The economy is not performing as he claimed it would, and the only way he can ‘save face’ is by manipulating the data. One caveat, though, is that he may be able to manipulate data but cannot control reality on the ground, and that is where his support will falter, when even his staunch supporters are not feeling the effects of his supposedly improving economy.
Under the reasoning of the learned Justice Kentanji Brown Jackson, Congress (not the President) would have the power and authority to nominate all the Judges who sit on all the Circuit Courts and District Courts … because, after all, Congress created all those Courts. Who needs an Article II President anyway?
That is not what she said.
It is no surprise that this Justice thinks having a piece of paper conferring credentials on you makes you an expert. KJB’s resume is top tier, as impressive as possible for a SCOTUS Justice and yet she is highly unqualified.
The people she is claiming should never be fired because they are “experts” are people like Mayor Pete as Sec Transportation, people with the paper credentials without an ounce of true understanding of the job they are in. People like those that led the CDS during Covid. PHSs, MDs etc etc and what did they do? They shut schools for a year or two, wrecked the economy, made granny sit alone as she died and had people in masks in their cars.
The credentials game is a racket that the elite, wealthy and now minority folks are using to gain power and money. Harvard, a KJB school, gives out only A’s so once you are in you are credentialed. Who gets in? Well rich legacies, connected people and minorities like this dim bulb. So when you hear that this Justice graduated Harvard all it means is that she got in (the same way she got nominated for the Court) and then she got all A’s. Then she went to other elite universities because she had a Harvard degree. Then she got into Harvard Law because she had all the credentials already in her pocket.
These result oriented arguments and decisions or dissents that KJB foists on us show her lack of understanding her role and how the Law Schools are now pushing far left jurisprudence.
Hullbobby, you sound like someone Chairman Mao would be proud of—complaining about smarter people out of jealousy or resentment.
X, you sound like someone who uses the same arguments as KBJ. Smarter people? because you think they are smart? and attributing opposing comments to negative emotions and not addressing the logic behind them? That is one childish response pal. Please explain the logic behind KBJ’s insane takes if you would like to contribute here. you can’t because there is none. here’s the taunt: your next reponse will be the most childish to date.
Yesterday, Georgie was the receiver of this message:
“Anonymous says:
December 8, 2025 at 1:36 PM
“naw, ’tis because Lin is stuck in your craw, already narrow and tight with resentment, grudge, and jealousy.”
Where do you think georgie got his inspiration for “jealousy and resentment?”
Now I understand what all the others are saying about him copying and learning from others.
Bobby, you bring up an interesting point. When it comes to credentials, the “real world effects” are of little importance, the ink on paper is what matters. But then once she gets into a job where she is unqualified, she starts yammering on about “real world effects” as if that is the standard by which judicial decisions should be made, rather than the Constitution’s text and meaning.
HullBobby,
Well said.
As I stated to OldManFromKS, I have known a number of so called “experts” without any common sense. I knew a guy with a PhD, who did not know a cow had to have a calf in order to give milk. Could not change a car tire either. I knew Bidenflation was real and not “transitional” like all those so called experts said it was. Who was right? Not them but me. The farmer without a degree. I knew and saw what a economy killer those so called experts policies were going to be in their moronic response to COVID, pull out of the stock market in Feb, got back in Sept. Dodged a -16% loss and ended the year up 23%. And I do not have a degree.
Upstate, if Covid did one positive thing it is that we saw how naked the “experts” really are when it comes to doing their job. Mayor Pete, a credentialed guy, ran Transportation into the ground. Fauci was a disaster and yet people had candles with his picture on them. The CDC, teacher’s unions, doctors and nurses that filmed PSAs saying stay home to save lives then cheered protesters and rioters after St George Floyd died, they all ruined their reputations and now we know better than to trust them.
We had 51 “intelligence experts” tell us the laptop was Russian. We had the FBI not able to find the J6 bomb guy. We had the WAPO and NY Times win Pulitzers for writing lies and mistakes. We saw schools call Hamas good and Israel bad. We have “experts” saying ICE is the Gestapo as they said nothing when 10 million came in without speaking English, zero education and no vaccines, something that got police, military and nurses fired.
HullBobby,
Great comment!!
My wife needed a surgical procedure. We consulted three different doctors. Were they “experts” in their fields? I would assume so, based on the fact they were licensed. However, we passed over the first two, and went with the third as we felt she would do a better job then the first two, both men.
I have also seen instances where they put a “expert” in charge and then watch them drive a program right into the ground.
1. The government responses to COVID are a great example of why “experts” should not be running governmental commissions or departments. They often have narrow viewpoints, inherent biases and ignore many consequences in their pursuit of their ideals.
2. The Legislative Branch should not be running departments, including the hiring and firing of leaders. Impeachment and conviction of Cabinet officers, etc. is the limit set on it.
3. These independent commissions are inherently political. The NLRB, for example. The EPA, for nearly the entirety of its existence. They are commonly staffed by activists working on their agendas.
4. A Commission Chairman or Board member, through recognizable accomplishments, would have some ability to weather changes in administrations as there would possibly be a political price to pay in their removal. Those who are clearly partisan would not, and should not, be carried forward.
Yeah, because dipsh#ts who have no idea what they are talking about should be more credible than experts who have been in their field for years. As long as the internet is available we don’t need experts.
So you’re saying we should be ruled over by an unelected oligarchy? The left’s mask slips again. As much as they talk about democracy, they hate it. They want a communist system where the “inner party” few control society.
Justice Jackson is a product of the Auto Pen and needs to be removed. She is a left wing woke unqualified Justice.
Agreed. The path is to taunt her with her own idiotic opinions until she relents. Same way I handle commies here.
Was Jackson’s nomination signed by autopen without Biden’s direct authorization? Someone should be looking at taking a very, very hard look at ways to get her off the Court. I say that in full knowledge of the dangerous precedent that would be set by removing a sitting Justice, but her un and extra Constitutional impact on the Court is nefarious.
As expected, most people posting are upset about Justice Jackson because of DEI. Professor Turley’s focus on Jackson instead of the actual case is just to stir up anger among racists and bigots who have no clue about what the case is about or its implications. It’s pretty sad.
“Professor Turley’s focus on Jackson instead of the actual case”
So even the resident woke Marxist idiot cannot come up with a single argument to defend Jackson’s unconstitutional SCOTUS activism. Man, that is damning!
Agree. DEI is racist and discussions of it pull the racists out of the woodwork. I think it’s great to know who among us are haters of other races and groups. people used to be ashamed to publicly spew hate. Democrats have weaponized it. DEI implies someone can’t be as good as another because they are of an inferior material. Even worst thing about DEI is it automatically pulls from the bottom of the pile, hoping for greatness from the least adept, thrust in way over their head. KBJ is a victim of that system and now she’s being mocked, not for her race, but for an obvious result that the best individual was not chosen, just a ‘representation’ of that group that ‘should’ have potential because of her immutable characteristics. DEI is illegal now.
The idea that “expertise” takes politics out of the decisions of these agencies is naive. It simply substitutes the politics of the majority of the commissioners for the policies of the President. This is especially the case where Congress has delegated broad discretion to agencies which have power over huge swaths of the economy and society.
What Sauer argued is that, while rule by experts is a possible form of government, it is not the one embodied in the constitution, which separates the enactment of laws from their implementation, which is delegated exclusively to the president, who is subject to political accountability through elections by the nation as a whole and impeachment. KBJ does not accept this, and believes that Congress (subject to a presidential veto which it may override) is free to enact a technocracy, whose experts are free to disregard the elected president’s policies. As a practical matter they are accountable to no one.
In the oral argument, Gorsuch made an interesting point, consistent with his longstanding concerns about excessive delegation. Once the president is free to force agencies to exercise their discretion consistently with his policies, Congress may conclude that historically broad delegation is no longer a good idea, and courts may tighten up on how it applies the “intelligible principle” standard. This will force Congress actually to legislate rather than delegating that power to agencies to do so through rule making and interpretation.
Nothing can force Congress to actually legislate. Pontificating and posturing, yeah. Legislating, not so much. I blame the 17th Amendment for this, giving “the people” the power to elect a Senator instead of the State legislature.
hey Gutless Republicans….REMOVE that waste of Space KJB