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.
It is very interesting that Justice Jackson echoes here an interesting theme that has been the mantra of most authoritarian leftists since the Covid Pandemic (“The People don’t actually know who the true experts are. Only we do. So you have to only listen to people that we endorse.”) It has also been a great strategy for slapping down free speech and a free press.
Jackson should be impeached. She knows nothing about the law. Anyone who can’t answer a simple question like “What is a woman?” should never have been appointed to the Supreme Court.
Perhaps the esteemed Justice Jackson should be reminded of the unconstitutional Tenure of Office Act.
You Know What – Screw Everything
The Government dose not care about behaving like a Government.
It is one big self-interested self-consuming self-serving Blob, that will not govern within the Law that created it.
And it dose not matter what kind of Government is it; Constitutionalism, Communism, Socialism, Tribalism, … Xism.
Mankind is completely doomed.
This blog gives a Day by Day analysis of it. Our Eye’s wide shut.
I’m already for the Dinosaur killing asteroid to strike again. Amen
If there are exceptions to the general rule that any office or agency Congress establishes that wields executive power must be under presidential control, these exceptions must be deeply rooted in our Nation’s history and tradition, or from an exceptional grant of power to Congress. As such, an independent agency or office can not exercise any executive powers that were not exercised by independent agencies or offices in the time period between 1776 and roughly 1870 or so.
Otherwise, without strict restraints on exceptions, they would swallow the rule, even going so far as to allow Congress to create the Office of First Expert with lifetime tenure and authority over the entirety of the executive branch apart from the President.
Congress passes laws that create agencies and the President, owing to separation of powers, can ignore those laws and dissolve those agencies.
That is the separation of powers into a dictatorship.
The problem isn’t having a technocracy, a genuinely meritocracy; scientists and engineers try to bring about a better world. The problem is the looming of the Idiocracy where drug addicts and felons are given control of the political machinery of America.
Hilarious Poppycock ! Spoken like a true partisan political party propgandist ,and nothing to do with the Constitution or the Law. But entitled to your open !
Justice “Embarrassment” Jackson provides daily fodder for the argument that Autopen judicial appointments should be revoked.
She is so annoying to the rest of the justices that the Court might go along with it.
Perhaps Ms. Jackson could save us all a lot of time by simply saying, “I do not understand” whenever there’s a lag in the conversation. Concise, elegant, and truthful.
Expert Trump Appointees
The Trump administration has tapped a man who has repeatedly claimed that millions of people voted illegally in the 2016 presidential election to be one of the most important officials at the Federal Emergency Management Agency.
Gregg Phillips, though, has not managed disasters or emergencies in an official capacity or within government bodies. He is not well known in the emergency management world, a former senior FEMA official said. His background, however, reflects how the nation’s disaster response system is likely to function as this administration continues to shrink FEMA’s role, experts said, with private companies having more power and a say in the recovery.
FEMA’s newly appointed interim leader, Karen Evans, does not have major management experience in the field, either.
https://www.washingtonpost.com/climateenvironment/2025/12/09/gregg-phillips-fema-election-fraud/
I don’t see how having an opinion about the legitimacy of an election has anything to do with anything. If that were the case, there are numerous people on the left/Democrats who wouldn’t be qualified to hold any office either. I have also found, having worked in both the public and private sector, that an organization does not need someone steeped in the specifics of a field to manage that organization. In fact, in most cases, being too in the weeds of a field is a huge detriment to being able to manage a team. You want people who know how to coach, set priorities and goals, recognize potential, deal with internecine issues within a team effectively and delegate effectively and responsibly. Most smart people can learn enough about a particular field to know how to manage if they have those management skills. On the other hand, people who are experts and steeped in the weeds of a field often are terrible managers; they don’t care or want to deal with the people issues.
BTW – if the only thing this new FEMA administrator manages to do is excise all the mid-level managers at FEMA who are: 1) mismanaging/stealing FEMA $s (see the Dem representative who was able to steal $5 million of FEMA funds for her campaigns); 2) politicizing where FEMA resources go, then it will be a triumph of leadership over the next 3 years.
Unfortunately any Reference to the Washingtom Post or the NYT ,for that matter carries scant weight. Furthermore, after my family voting democrat for 30 plus years and seeing the extent of the fraud, waste, and corruption , men in girls bathrooms and Sports, open Boarders, seriously dangerious criminals released without Bale.; 9.1% Inflation when Larry Summers said don’t do it, a total Afganistan embarrassment and loss of Billions of dollars, I think it is time for a serious change. Now all that is just a by-product to this ARTICLE ! The Constitution allows The President, whether you like him or not, to exercise his right to fire these “so-called” experts. I actually do not think there were ANY experts in the last administration. I am now neither democrat nor republican.
Leon-Craig Offenhauser
Considering the Democrats TWICE were in denial about Bush (2000 – Florida & 2004 – Ohio) I’m thinking you’ve got nothing to say worth listening to…
There is no such thing as a “non-partisan expert”.
What party did those in the Manhattan Project back?
Better to ask about other efforts which were not run in a time of war … such as the EPA, or USAID which I guarantee you are primarily Democrats.
Circling back to the previous article about the ABA, here’s a link to the ABA’s rating of Justice Jackson prior to her S.C. nomination hearing back in 2022. You can draw your own conclusions about the quality of the ABA’s analysis now that you’ve seen Jackson in action on the S.C.
https://www.abajournal.com/web/article/judge-ketanji-brown-jackson-gets-well-qualified-rating-for-scotus-by-unanimous-aba-committee/
Yeah, Jackson’s well-qualified. Hence the reason Turley was poo-pooing the ABA.
Most attorneys pooh-pooh the ABA, which is more akin to the National Lawyers Guild than a truly professional organization.
Justice Ketanji Brown Jackson 5
Apparently Judge jackson is unaware that the constitution can be amended to reflect precisely her policy preferences should she be able to convince her fellow citizens of the wisdom of her positions.
Who is the we in this.” In these particular areas, we would like to have independence, we don’t want the president controlling “. Does she have a mouse in her pocket?
The juristocracy amends by “interpretation,” which appears nowhere in the Constitution.
“I really don’t understand why the agencies aren’t answering to Congress.”
So much for the efficacy of government licensing.
The Harvard grad struts her stuff…again!
Remember when it was widely considered that Harvard grads were exceptional? Another temple falls…
DEI has eroded the reputation of many once-elite entities.
Her lack of judicial/constitutional acumen is irrelevant. Biden made it crystal clear the only thing that mattered is she is black and calls herself a woman, despite her swearing under oath not to know what a woman is because she’s not a biologist.
Jackson’s position, if I understand correctly, is that a President should not have the power to fire someone, a so-called expert in their particular field, in order to prohibit him from installng “loyalists” to a given position. I would posit that Jackson is a partisan progressive “loyalist” and now has a lifetime appointment to the highest court in the United States.
Has anyone actually considered that Ketanji Jackson besides not being qualified, was also appointed illegally by the infamous auto-pen and not by Biden personally? She doesn’t understand how the legitimate United States government has 3 equal branches and each branch operates under the separations of powers with different responsibilities.
Really? Wackjob.
She is not a wackjob and here decisions are deliberate because she is a communist that wants a liberal dictatorship and is working hard to bring one about.
No dictatorship is liberal. She is a destroyer.
Well it would very quickly become a Supreme Court case because the Senate confirmed Jackson, including a lot of Republicans. Would Justice Jackson recuse herself from such a case? I don’t think so. Could she be forced to recuse herself? I don’t know but I don’t think any Justice can be forced to recuse themself.
This auto-pen sh_t only plays to those INSIDE the rightwing bubble. Outside that bubble, Trump is seriously more senile than Biden was during his first year.
Nice one, Katanji!
Speaking of bubbles.
Our branches of government are *not* equal, nor were they designed to be. Their roles are different, but not equal
Regardless, it is the President who is given the authority to fire those in the agencies. Even the First Congress in 1789 debated whether the president had the authority and they decided the president has the power to do it.
The fact that even a SCOTUS Justice appears to be totally indifferent to the Separation of Powers was dismaying. But the bold defense of basic constitutional doctrine was a gratifying answer to a generation that truly believes that the Constitution means whatever any political grouping thinks or wants it to mean.
That generation has so poisoned the news media that they are incapable of evaluating any constitutional conflict before the Court as anything but pure practical politics. The oral argument was dramatic and wonderful.
The court is a part of a political system, so it is de facto practical politics.