A constitutional principle like the "unitary executive theory" isn't worth all that much if the Supreme Court can conjure new, unprincipled exceptions to it by simply asserting that they exist.
It seems that in the past the Court would try to find a somewhat plausible theory for its decisions, which to a degree constrained its actions. That justices are abandoning this and just ruling on their preferences without any real justification is a bad sign.
Agreed it's a bad sign, but not that this is a new thing: Bush v. Gore was arguably the Court's first-ever case decided along brazenly, obviously partisan lines. It's also not yet clear of the extent to which Trump's smorgasbord of EOs has more or less poured molasses into the Court's inner workings.
Put another way: did the justices decline to issue written dissents in the above instances because they're "just ruling on their preferences," or because they're saving their intellectual ammo for potentially more important cases down the road? Yes, I'm surprised & chagrined to see myself typing something that would've been unthinkable before Trump 2.0: being forced to "pick and choose" among matters of constitutional import to decide which should take priority – which is utterly appalling, but still. (The contra argument here would likely be Roberts's inexplicable six-week stay in the Wilcox case. Why wait THAT long to issue a two-page ruling? It could simply be one or more justices waffling on it, but still.)
We are in truly unprecedented times measured solely by the sheer volume of Trump's EOs. Trump issued 220 EOs in his first term. He signed 129 EOs just in the first HUNDRED DAYS of Trump 2.0. The first graph in this NYT article is insightful:
I know the Supreme Court's goings-on are heavily cloaked in secrecy, but they can't exactly go out and rapidly bring on more clerks on short notice. So: how are they handling such a heavy load, aside from occasional tells like the post-midnight ruling in the Abrego Garcia case? And is the load of EOs sustainable, given that the Court obviously can't give up its primary duty of hearing cases? (The number they decide each year has fallen considerably over the years, and Prof. Vladeck already noted that they've only granted cert thus far to eight cases on the fall docket.)
I'm not sure anyone's fully clear yet of the EO volume's impact on the Court, including its own machinations, so I'd hesitate to jump to a premature conclusion here. (But, again, it's obviously a discouraging sign.)
As analytical as you are, you seem to have a hard time adjusting to what you know. Court(s) is political- "transactional" the current terminology. In a era of alternative facts, Ipse Dixit is no surprise. Legally analogous to timing errors in accounting.
Brooks, this isn't a matter of a scholar failing to adjust to reality (and Professor Vladeck is not only a scholar). This is a matter of SCOTUS justices failing to comply with what they know Article III actually means. Judges never were intended to have (Article III did not vest in them) the tyrannical power to rule by fiat.
In Federalist No. 81, Alexander Hamilton emphasized that Courts have “jurisdiction” which necessarily means that the court “pronounces the law.” In footnote 3, Hamilton explained that jurisdiction “is composed of JUS and DICTIO, juris dictio or a speaking and pronouncing of the law.”
“Article III of the Constitution establishe[d]” a “Judiciary” that must be “independent” of all except the law, so the judiciary was assigned the constitutional “duty to say what the [governing] law is” in “particular cases and controversies;” judges “who apply [a] rule to particular cases, must of necessity expound and interpret that rule.” Bank Markazi v. Peterson, 578 U.S. 212, 225 (2016) (quoting Chief Justice Marshall in Marbury v. Madison).
The reasons for such rule are crucial. Each “Judge” is “required to declare the law” because if he “states it erroneously, his opinion” must “be revised; and if it can have had any influence on the” judgment, it must “be set aside.” Etting v. U.S. Bank, 24 U.S. (11 Wheat.) 59, 75 (1826) (Marshall, C.J.).
Jack, I don't disagree with you or with Professor Vladeck, who I believe strains to apply what otherwise would be legal norms. The reality is that SCOTUS is highly political and our Art II has left the range. Art I has abdicated and the unitary Presidency will swallow Art III. Fed District Courts are trying to maintain our rule of law, but economics, not legal precedent, will matter, as things stand now.
Brooks, I certainly understand your sentiment. But acquiescing is no solution. The reason for the occurrence of the things you mentioned is that too many people know too little about our Constitution. Judges like to look smart. They don't like to look stupid.
Chief Justice Roberts alluded to this issue by quoting another chief justice in the SCOTUS 2024 Year End Report:
Chief Justice Taft is the only person to have served as head of the judicial and a political branch. As he put it, “Nothing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice than the consciousness that every act of theirs is to be subject to the intelligent scrutiny of their fellow men, and to their candid criticism.” (citing W. H. Taft, Remarks at the Annual Meeting of the American Bar Association, American Law Register and Review 43(9) 577 (1895)).
Judge Taft said much more worth reading on that subject. For example, immediately before the language quoted above, he said:
"The opportunity freely and publicly to criticise judicial action is of vastly more importance to the people than the immunity of courts and judges from unjust aspersions and attack."
Later, he added:
"There are few men, whether they are judges for life or for a shorter term, who do not prefer to earn and hold the respect of all, and who can not be reached and made to pause and deliberate by hostile public criticism. In the case of judges having a [purported] life tenure [e.g., federal judges] . . . the right freely to comment on their decisions [is] of greater importance because it is the only practical and available instrument in the hands of a free people to keep such judges alive to the reasonable demands of those they serve."
See file:///C:/Users/emobi/Niko/Cases-Statutes-Regs%206-20/Constitutional%20Challenge/1st%20Am/Speech/Roosevelts%20&%20Taft/Taft%20Recent%20Criticism%20of%20the%20Federal%20Judiciary.pdf
So I'm grateful for Professor Vladeck and people like him who know and care enough to say something intelligent and insightful about what we're experiencing and how to remedy it.
It’s not really surprising that the majority conjures exceptions to its also-conjured “history and traditions” rules, which they themselves conjured to make a personal second amendment right where none existed. This court, like Republicans writ large, espouses the motto “anything that delivers my desired outcome is constitutional.”
I may be displaying my ignorance here, but it seems to me that Article I section 8 is relevant here. It vests power in the legislature to enact laws to effectuate the constitution. So if in congresses judgment, certain officials need protection from political influence, then so be it. But I never see this point made.
My impression is that this fact is considered a given in Prof. Vladeck's writings, that Congress has the right to do so and this Court is simply choosing to ignore that right in service to the concept of a unitary executive, which clearly had no basis in the Constitution
There's a decent argument for Myers, the Taft opinion about firing cabinet members. The Constitution makes cabinet members the President's team of advisors, so it's plausible that he should be able to fire someone whose advice he doesn't trust.
The rest of "unitary executive" is just the policy preferences of the Post-Watergate GOP though.
There's even a case to be made for the idea that Humphries was decided incorrectly (though I personally don't think so). But that would need to be part of a robust discussion of the balance of power between the three branches, not a largely arbitrary, vibes-based definition by the majority of this Court
This is maybe the deeper point Prof. Vladeck is making, but the existence and importance of the Federal Reserve is actually evidence that Humphrey's is rightly decided.
Conservatives sometimes don't get this, but as Holmes said, the life of the law isn't logic but experience. The point of the legal system is to get the cases right, not simply to be a perfectly logical and formalistically sound system.
If one's jurisprudential theory requires that the US lose its independent central bank and turn into 20th Century Argentina, it's a bad theory. Now to be clear, if the Constitution literally prohibited creating an independent central bank, that would be one thing. We'd have to follow it, and if that means we turn into Argentina, well, hopefully there'd be bipartisan agreement to amend the Constitution before that happened.
But the Constitution doesn't prohibit that. Instead, conservatives are adopting really broad and tendentious readings of "vest" and "executive power" to conclude that the President has to have control over everything in the government, and then when they realize that would mean we can't have an independent central bank, adopting a kludge to exempt the federal reserve, rather than concluding that their readings of "vest" and "executive power" might not be as foolproof as they think they are.
Now to be clear, that kludge is better than nothing. I'd rather have the President be able to fire the NLRB but not the Federal Open Market Committee than turn into Argentina, but we could just, as Prof. Vladeck says, admit that this is all a balancing test and try to be reasonable about what offices really do require Presidential control and what ones do not.
Entirely agree. It's also worth continuing to note that SCOTUS has more or less succeeded in moving the Overton window on the theories of originalism and textualism to the point that we now discuss them in terms of whether the Court applies them fairly or reasonably, when they are, in fact, fringe theories they have elevated to justify decisions made in accord with their world view. Robust constitutional scholarship this is not.
E.g., originalism has done some real good in the Confrontation Clause context. And there are areas where reasonable people may disagree with originalist theories but they are definitely not fringe (for instance, Gorsuch's opinion in Grants Pass saying that any objection to status laws is a due process rather than a cruel and unusual punishment issue seems like an entirely reasonable argument).
The notion that you should consider original understanding when interpreting text is not a horrible jurisprudential principle. But it's one ingredient in the stew-- text also counts, as does precedent, history, and, however much conservatives hate it, pragmatism. (Indeed, what is SCOTUS doing with the Federal Reserve Exception other than pragmatism?)
The problem is conservatives won't admit this and are attached to their "we're the only ones doing Con Law and all those liberals are just making it up" narrative.
I agree with Reid, but the throughline here is more or less the fact that Trump is knowingly & willingly defying federal law – up to and including unanimous decisions like the original Abrego Garcia one – AND suggesting he can unilaterally "declare" new laws, or even "declare" absurdities like denying any/all visas to foreign students attending Harvard or cutting off billions in funding with zero notice.
Many if not most of these types of EOs were either DOA when signed, or after even a cursory examination of Trump's motives in signing one.
And our GOP-controlled Congress will likely remain unwilling to change the status quo short of Trump somehow doing something to alienate his supporters – which, considering they're members of a personality cult, remains sadly unlikely.
And he's been given cover by this Court to be entirely lawless. Even DOA, these EOs do real harm, and absolutely no one is ever going to be held accountable, least of all Trump
I think "entirely lawless" is a stretch. Trump's had some high-profile wins, but they don't change the fact that at least 175 of his EOs (at minimum) have already been paused – or altogether negated – by the courts, and many of the temporary pauses are likely to become permanent ones.
And again, they decided Abrego Garcia 9-0. Merits of the AEA issue aside, the Court is highly unlikely to just let the habeas/due process stuff "go" without further comment, as one example. (I'd actually argue Congress is derelicting its duties to a greater degree than the courts at present: they could stop most of Trump's actions with their power of the purse, but most are too much of a pussy to do so and risk MAGA's wrath.)
That said: yes, the entire Trump administration is acting in a fashion suggesting it's *assuming* "no one is ever going to be held accountable" for its deeds. (I'd note here that at least one judge has already broached the subject of potentially holding federal officials like Kristi Noem in contempt. I'd expect more the longer Trump officials stall & dodge the matter.) Trump's also "assuming" he can unilaterally usurp or preempt any given congressional act he wants, and that's also in stark defiance with the core notion of separation of powers.
Additionally, I would argue that it's not just Congress that decided so, but usually the president as well when signing the law. If the President was of the opinion that the special protections afforded to certain officials violated the constitution or their ability to exercise their office in the manner they see fit, they could have vetoed it.
Now, of course, the current President has not signed that law, but that is not a problem because the current congress also hasn't passed the laws, yet they obviously remain in effect. That is also supported by the notion of pacta sunt servanda: meaning we don't look at the individuals (for example Presidents Biden or Trump), but at the institutions (that is the Office of President and the Congress) as they have acted over the centuries.
This above argument is also not undercut by the fact that Congress can overturn the Presidents veto for two reasons: first, well the constitution expressly allows it (duh), and second, if a 2/3 majority is sufficient to change the constitution (+ states approval ofc) then that should suffice for an ordinary federal law as well.
I of course agree with everything you said and that here is just supplementary to the bigger point you made.
Great stuff, and thanks for pointing to the Chabot bsky commentary, which links to a forthcoming piece about originalism with an intriguing abstract—look forward to reading the whole thing
Question: given the idiosyncratic basis for the Court’s exception for the Federal Reserve, won’t smart financial people and central bankers take into consideration the Fed’s now more precarious footing? Is that not worth some basis points?
Ok last night you explained your blogging policies and principles after some (misplaced) criticism. Fair enough. BUT please continue the valuable main business that you are doing so well and in the future ignore stuff like the Bluesky comments. 85,000 + subscribers can't be wrong:) MM
"Fair enough. BUT please continue the valuable main business that you are doing so well"
If we're being technical, Prof. Vladeck's "main business" is teaching con law at Georgetown Law. But agreed that the criticism over internet cheapskates who think any/all content should be "free" is silly, especially since Vladeck already goes above & beyond merely with the abbreviated version.
I know we have a ton of legal pundits nowadays, but there's absolutely a difference between, say, any given reporter with a law degree and a full professor at one of America's best law schools. Even most of us who *have* JDs may not remember a lot of the details here: most cover con law in their first year of school, and extremely few ever need to apply it in practice.
This is all very interesting, but why does not all this detail in the context of current events lead you to declare that the Supreme Court has abandoned the rule of law, embodying an ideology that supports President Trump's many attempts to override the clear meaning of the Constitution?
There seems to be tension between the SCOTUS “major questions” and the “unitary executive” theories. Surely, if the founders had intended the president to have such expansive powers, they would have said so clearly!
One of the disappointing lessons out of this week for me, is that Justices Barrett and Kavanaugh have apparently given up on bringing any kind of order to the shadow docket. (Justice Jackson is talking good game now, but I wouldn't be surprised if she gives up in a few years as well.)
I'd be curious to hear Prof. Vladeck's thoughts on this one, but I'm not sure a single week's events suffice to argue that either Barrett or Kavanaugh has "given up" on the shadow docket. This may all be more akin to a pick-your-battles situation: since it's a given that Trump will have a meltdown over any given Court issue that doesn't go his way, they may be primarily focused on preventing any of multiple worst-case scenarios that could threaten the institutional stability of the Court.
I'm also assuming Roberts is likely having a number of second thoughts about quite a few of his earlier rulings that helped Trump (including absolute as well as presumed immunity). He's been an institutionalist for most of his nearly 20 years as chief justice, and if anything recent events have made clear just how strikingly fragile many of those institutions are if Trump gets his way.
It was mostly Libby v Fecteau that made me think this, not any of the Trump cases. (Cases involving the government are usually just going to boil down to the merits, so reasonable minds can disagree.)
But in Libby v Fecteau, the right to relief wasn't "indisputably clear" and the harm didn't seem that serious. The justices love complaining about the emergency docket, but their votes here tell a different story. If I ran an appellate practice, I would take this as an open invitation for more emergency applications.
Use this spreadsheet as a resource to call/email/write members of Congress. Reach out to your own, as well as those in other states on a specific committee important to a topic you’re sharing. Use your voice and make some “good trouble.”
This spreadsheet is comprehensive, easy to navigate, invaluable - thank you.
And, thank you for posting it again here in One First comments (I actually went to bed last night thinking - 'shoot - forgot to download that Federal Contact spreadsheet posted in today's First One comments... Must. Remember. To Pull Up. First Thing. Tomorrow.').
Speaking of last night's First One, I think one of the ideas Steve touched on if not alluded to in his discussion about the paywall is, quite simply, it is reasonable and just that people are paid for their work. With that said, I want you to know that if I found your spreadsheet on TPT (https://www.teacherspayteachers.com) I would pay for it.
That's my law school bestie! You cited my law school bestie! (Christine's doing some really timely and great work - and of course I remain grateful as ever for your analysis.)
On Baude's "this is not executive power" kludge, sure, central banking is an Article I power. But so is regulating labor (commerce clause) and determining the pay of federal workers (spending clause, necessary and proper clause). Most of what executive agencies do is execute Article I powers within the limits set by Congress. The Fed and FOMC are no different in this respect.
It seems that in the past the Court would try to find a somewhat plausible theory for its decisions, which to a degree constrained its actions. That justices are abandoning this and just ruling on their preferences without any real justification is a bad sign.
Agreed it's a bad sign, but not that this is a new thing: Bush v. Gore was arguably the Court's first-ever case decided along brazenly, obviously partisan lines. It's also not yet clear of the extent to which Trump's smorgasbord of EOs has more or less poured molasses into the Court's inner workings.
Put another way: did the justices decline to issue written dissents in the above instances because they're "just ruling on their preferences," or because they're saving their intellectual ammo for potentially more important cases down the road? Yes, I'm surprised & chagrined to see myself typing something that would've been unthinkable before Trump 2.0: being forced to "pick and choose" among matters of constitutional import to decide which should take priority – which is utterly appalling, but still. (The contra argument here would likely be Roberts's inexplicable six-week stay in the Wilcox case. Why wait THAT long to issue a two-page ruling? It could simply be one or more justices waffling on it, but still.)
We are in truly unprecedented times measured solely by the sheer volume of Trump's EOs. Trump issued 220 EOs in his first term. He signed 129 EOs just in the first HUNDRED DAYS of Trump 2.0. The first graph in this NYT article is insightful:
https://www.nytimes.com/interactive/2025/04/29/upshot/trump-100-days-charts.html
I know the Supreme Court's goings-on are heavily cloaked in secrecy, but they can't exactly go out and rapidly bring on more clerks on short notice. So: how are they handling such a heavy load, aside from occasional tells like the post-midnight ruling in the Abrego Garcia case? And is the load of EOs sustainable, given that the Court obviously can't give up its primary duty of hearing cases? (The number they decide each year has fallen considerably over the years, and Prof. Vladeck already noted that they've only granted cert thus far to eight cases on the fall docket.)
I'm not sure anyone's fully clear yet of the EO volume's impact on the Court, including its own machinations, so I'd hesitate to jump to a premature conclusion here. (But, again, it's obviously a discouraging sign.)
As analytical as you are, you seem to have a hard time adjusting to what you know. Court(s) is political- "transactional" the current terminology. In a era of alternative facts, Ipse Dixit is no surprise. Legally analogous to timing errors in accounting.
Brooks, this isn't a matter of a scholar failing to adjust to reality (and Professor Vladeck is not only a scholar). This is a matter of SCOTUS justices failing to comply with what they know Article III actually means. Judges never were intended to have (Article III did not vest in them) the tyrannical power to rule by fiat.
In Federalist No. 81, Alexander Hamilton emphasized that Courts have “jurisdiction” which necessarily means that the court “pronounces the law.” In footnote 3, Hamilton explained that jurisdiction “is composed of JUS and DICTIO, juris dictio or a speaking and pronouncing of the law.”
“Article III of the Constitution establishe[d]” a “Judiciary” that must be “independent” of all except the law, so the judiciary was assigned the constitutional “duty to say what the [governing] law is” in “particular cases and controversies;” judges “who apply [a] rule to particular cases, must of necessity expound and interpret that rule.” Bank Markazi v. Peterson, 578 U.S. 212, 225 (2016) (quoting Chief Justice Marshall in Marbury v. Madison).
The reasons for such rule are crucial. Each “Judge” is “required to declare the law” because if he “states it erroneously, his opinion” must “be revised; and if it can have had any influence on the” judgment, it must “be set aside.” Etting v. U.S. Bank, 24 U.S. (11 Wheat.) 59, 75 (1826) (Marshall, C.J.).
Jack, I don't disagree with you or with Professor Vladeck, who I believe strains to apply what otherwise would be legal norms. The reality is that SCOTUS is highly political and our Art II has left the range. Art I has abdicated and the unitary Presidency will swallow Art III. Fed District Courts are trying to maintain our rule of law, but economics, not legal precedent, will matter, as things stand now.
Brooks, I certainly understand your sentiment. But acquiescing is no solution. The reason for the occurrence of the things you mentioned is that too many people know too little about our Constitution. Judges like to look smart. They don't like to look stupid.
Chief Justice Roberts alluded to this issue by quoting another chief justice in the SCOTUS 2024 Year End Report:
Chief Justice Taft is the only person to have served as head of the judicial and a political branch. As he put it, “Nothing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice than the consciousness that every act of theirs is to be subject to the intelligent scrutiny of their fellow men, and to their candid criticism.” (citing W. H. Taft, Remarks at the Annual Meeting of the American Bar Association, American Law Register and Review 43(9) 577 (1895)).
Judge Taft said much more worth reading on that subject. For example, immediately before the language quoted above, he said:
"The opportunity freely and publicly to criticise judicial action is of vastly more importance to the people than the immunity of courts and judges from unjust aspersions and attack."
Later, he added:
"There are few men, whether they are judges for life or for a shorter term, who do not prefer to earn and hold the respect of all, and who can not be reached and made to pause and deliberate by hostile public criticism. In the case of judges having a [purported] life tenure [e.g., federal judges] . . . the right freely to comment on their decisions [is] of greater importance because it is the only practical and available instrument in the hands of a free people to keep such judges alive to the reasonable demands of those they serve."
See file:///C:/Users/emobi/Niko/Cases-Statutes-Regs%206-20/Constitutional%20Challenge/1st%20Am/Speech/Roosevelts%20&%20Taft/Taft%20Recent%20Criticism%20of%20the%20Federal%20Judiciary.pdf
So I'm grateful for Professor Vladeck and people like him who know and care enough to say something intelligent and insightful about what we're experiencing and how to remedy it.
I will never understand why this Court insists on expanding the executive's power while they've repeatedly proven that they're abusing that power
It’s not really surprising that the majority conjures exceptions to its also-conjured “history and traditions” rules, which they themselves conjured to make a personal second amendment right where none existed. This court, like Republicans writ large, espouses the motto “anything that delivers my desired outcome is constitutional.”
I may be displaying my ignorance here, but it seems to me that Article I section 8 is relevant here. It vests power in the legislature to enact laws to effectuate the constitution. So if in congresses judgment, certain officials need protection from political influence, then so be it. But I never see this point made.
My impression is that this fact is considered a given in Prof. Vladeck's writings, that Congress has the right to do so and this Court is simply choosing to ignore that right in service to the concept of a unitary executive, which clearly had no basis in the Constitution
There's a decent argument for Myers, the Taft opinion about firing cabinet members. The Constitution makes cabinet members the President's team of advisors, so it's plausible that he should be able to fire someone whose advice he doesn't trust.
The rest of "unitary executive" is just the policy preferences of the Post-Watergate GOP though.
There's even a case to be made for the idea that Humphries was decided incorrectly (though I personally don't think so). But that would need to be part of a robust discussion of the balance of power between the three branches, not a largely arbitrary, vibes-based definition by the majority of this Court
This is maybe the deeper point Prof. Vladeck is making, but the existence and importance of the Federal Reserve is actually evidence that Humphrey's is rightly decided.
Conservatives sometimes don't get this, but as Holmes said, the life of the law isn't logic but experience. The point of the legal system is to get the cases right, not simply to be a perfectly logical and formalistically sound system.
If one's jurisprudential theory requires that the US lose its independent central bank and turn into 20th Century Argentina, it's a bad theory. Now to be clear, if the Constitution literally prohibited creating an independent central bank, that would be one thing. We'd have to follow it, and if that means we turn into Argentina, well, hopefully there'd be bipartisan agreement to amend the Constitution before that happened.
But the Constitution doesn't prohibit that. Instead, conservatives are adopting really broad and tendentious readings of "vest" and "executive power" to conclude that the President has to have control over everything in the government, and then when they realize that would mean we can't have an independent central bank, adopting a kludge to exempt the federal reserve, rather than concluding that their readings of "vest" and "executive power" might not be as foolproof as they think they are.
Now to be clear, that kludge is better than nothing. I'd rather have the President be able to fire the NLRB but not the Federal Open Market Committee than turn into Argentina, but we could just, as Prof. Vladeck says, admit that this is all a balancing test and try to be reasonable about what offices really do require Presidential control and what ones do not.
Entirely agree. It's also worth continuing to note that SCOTUS has more or less succeeded in moving the Overton window on the theories of originalism and textualism to the point that we now discuss them in terms of whether the Court applies them fairly or reasonably, when they are, in fact, fringe theories they have elevated to justify decisions made in accord with their world view. Robust constitutional scholarship this is not.
Some of them are fringe, some aren't.
E.g., originalism has done some real good in the Confrontation Clause context. And there are areas where reasonable people may disagree with originalist theories but they are definitely not fringe (for instance, Gorsuch's opinion in Grants Pass saying that any objection to status laws is a due process rather than a cruel and unusual punishment issue seems like an entirely reasonable argument).
The notion that you should consider original understanding when interpreting text is not a horrible jurisprudential principle. But it's one ingredient in the stew-- text also counts, as does precedent, history, and, however much conservatives hate it, pragmatism. (Indeed, what is SCOTUS doing with the Federal Reserve Exception other than pragmatism?)
The problem is conservatives won't admit this and are attached to their "we're the only ones doing Con Law and all those liberals are just making it up" narrative.
I agree with Reid, but the throughline here is more or less the fact that Trump is knowingly & willingly defying federal law – up to and including unanimous decisions like the original Abrego Garcia one – AND suggesting he can unilaterally "declare" new laws, or even "declare" absurdities like denying any/all visas to foreign students attending Harvard or cutting off billions in funding with zero notice.
Many if not most of these types of EOs were either DOA when signed, or after even a cursory examination of Trump's motives in signing one.
And our GOP-controlled Congress will likely remain unwilling to change the status quo short of Trump somehow doing something to alienate his supporters – which, considering they're members of a personality cult, remains sadly unlikely.
And he's been given cover by this Court to be entirely lawless. Even DOA, these EOs do real harm, and absolutely no one is ever going to be held accountable, least of all Trump
I think "entirely lawless" is a stretch. Trump's had some high-profile wins, but they don't change the fact that at least 175 of his EOs (at minimum) have already been paused – or altogether negated – by the courts, and many of the temporary pauses are likely to become permanent ones.
And again, they decided Abrego Garcia 9-0. Merits of the AEA issue aside, the Court is highly unlikely to just let the habeas/due process stuff "go" without further comment, as one example. (I'd actually argue Congress is derelicting its duties to a greater degree than the courts at present: they could stop most of Trump's actions with their power of the purse, but most are too much of a pussy to do so and risk MAGA's wrath.)
That said: yes, the entire Trump administration is acting in a fashion suggesting it's *assuming* "no one is ever going to be held accountable" for its deeds. (I'd note here that at least one judge has already broached the subject of potentially holding federal officials like Kristi Noem in contempt. I'd expect more the longer Trump officials stall & dodge the matter.) Trump's also "assuming" he can unilaterally usurp or preempt any given congressional act he wants, and that's also in stark defiance with the core notion of separation of powers.
Additionally, I would argue that it's not just Congress that decided so, but usually the president as well when signing the law. If the President was of the opinion that the special protections afforded to certain officials violated the constitution or their ability to exercise their office in the manner they see fit, they could have vetoed it.
Now, of course, the current President has not signed that law, but that is not a problem because the current congress also hasn't passed the laws, yet they obviously remain in effect. That is also supported by the notion of pacta sunt servanda: meaning we don't look at the individuals (for example Presidents Biden or Trump), but at the institutions (that is the Office of President and the Congress) as they have acted over the centuries.
This above argument is also not undercut by the fact that Congress can overturn the Presidents veto for two reasons: first, well the constitution expressly allows it (duh), and second, if a 2/3 majority is sufficient to change the constitution (+ states approval ofc) then that should suffice for an ordinary federal law as well.
I of course agree with everything you said and that here is just supplementary to the bigger point you made.
Thank you for this great explanation. I am disgusted with this court. I call it smelly.
https://hotbuttons.substack.com/p/cruel-capriciously-smelly-supreme?r=3m1bs
Great stuff, and thanks for pointing to the Chabot bsky commentary, which links to a forthcoming piece about originalism with an intriguing abstract—look forward to reading the whole thing
Question: given the idiosyncratic basis for the Court’s exception for the Federal Reserve, won’t smart financial people and central bankers take into consideration the Fed’s now more precarious footing? Is that not worth some basis points?
Ok last night you explained your blogging policies and principles after some (misplaced) criticism. Fair enough. BUT please continue the valuable main business that you are doing so well and in the future ignore stuff like the Bluesky comments. 85,000 + subscribers can't be wrong:) MM
"Fair enough. BUT please continue the valuable main business that you are doing so well"
If we're being technical, Prof. Vladeck's "main business" is teaching con law at Georgetown Law. But agreed that the criticism over internet cheapskates who think any/all content should be "free" is silly, especially since Vladeck already goes above & beyond merely with the abbreviated version.
I know we have a ton of legal pundits nowadays, but there's absolutely a difference between, say, any given reporter with a law degree and a full professor at one of America's best law schools. Even most of us who *have* JDs may not remember a lot of the details here: most cover con law in their first year of school, and extremely few ever need to apply it in practice.
This is all very interesting, but why does not all this detail in the context of current events lead you to declare that the Supreme Court has abandoned the rule of law, embodying an ideology that supports President Trump's many attempts to override the clear meaning of the Constitution?
There seems to be tension between the SCOTUS “major questions” and the “unitary executive” theories. Surely, if the founders had intended the president to have such expansive powers, they would have said so clearly!
One of the disappointing lessons out of this week for me, is that Justices Barrett and Kavanaugh have apparently given up on bringing any kind of order to the shadow docket. (Justice Jackson is talking good game now, but I wouldn't be surprised if she gives up in a few years as well.)
I'd be curious to hear Prof. Vladeck's thoughts on this one, but I'm not sure a single week's events suffice to argue that either Barrett or Kavanaugh has "given up" on the shadow docket. This may all be more akin to a pick-your-battles situation: since it's a given that Trump will have a meltdown over any given Court issue that doesn't go his way, they may be primarily focused on preventing any of multiple worst-case scenarios that could threaten the institutional stability of the Court.
I'm also assuming Roberts is likely having a number of second thoughts about quite a few of his earlier rulings that helped Trump (including absolute as well as presumed immunity). He's been an institutionalist for most of his nearly 20 years as chief justice, and if anything recent events have made clear just how strikingly fragile many of those institutions are if Trump gets his way.
It was mostly Libby v Fecteau that made me think this, not any of the Trump cases. (Cases involving the government are usually just going to boil down to the merits, so reasonable minds can disagree.)
But in Libby v Fecteau, the right to relief wasn't "indisputably clear" and the harm didn't seem that serious. The justices love complaining about the emergency docket, but their votes here tell a different story. If I ran an appellate practice, I would take this as an open invitation for more emergency applications.
Prof. Vladeck, is it time to rename SCOTUS...perhaps the Court of Supreme Ad Hocracy?
Use this spreadsheet as a resource to call/email/write members of Congress. Reach out to your own, as well as those in other states on a specific committee important to a topic you’re sharing. Use your voice and make some “good trouble.”
https://docs.google.com/spreadsheets/d/13lYafj0P-6owAJcH-5_xcpcRvMUZI7rkBPW-Ma9e7hw/edit?usp=drivesdk
This spreadsheet is comprehensive, easy to navigate, invaluable - thank you.
And, thank you for posting it again here in One First comments (I actually went to bed last night thinking - 'shoot - forgot to download that Federal Contact spreadsheet posted in today's First One comments... Must. Remember. To Pull Up. First Thing. Tomorrow.').
Speaking of last night's First One, I think one of the ideas Steve touched on if not alluded to in his discussion about the paywall is, quite simply, it is reasonable and just that people are paid for their work. With that said, I want you to know that if I found your spreadsheet on TPT (https://www.teacherspayteachers.com) I would pay for it.
Thank you so much. Well worth my time if it helps us make extra noise right now 💙
And well worth my time for sharing it over and over again all over the place - haha.
That’s so nice! I had someone else reach out offering a paid subscription to help pay for the work I did. Thoughts like that mean a lot!
That's my law school bestie! You cited my law school bestie! (Christine's doing some really timely and great work - and of course I remain grateful as ever for your analysis.)
Well put.
On Baude's "this is not executive power" kludge, sure, central banking is an Article I power. But so is regulating labor (commerce clause) and determining the pay of federal workers (spending clause, necessary and proper clause). Most of what executive agencies do is execute Article I powers within the limits set by Congress. The Fed and FOMC are no different in this respect.