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.