Our only recourse is for a Democratic President, one with morals and one who cares about the American people and the Constitution itself (or Republican, if one exists), to increase the number of SCJ to bring equilibrium back to the court. This court is corrupt and is playing politics, not interpreting what the Constitution and the laws dictate. This must be done, or the country is no longer what it was intended to be...of the people, by the people and for the people.
Having worked for a so called Independent Agency at a staff level and having spent decades dealing with with nearly all of them I think the notion of Independence is overblown. The only thing that makes an Agency Independent is that they must have a fixed number in of Appointees from each party And there decisions are reviewed by the Courts under the APA
Congress either has the power to create independent agencies or it doesn't. The Supreme Court ruled that Congress has the power to protect executives of independent agencies from termination without cause in Cook, and that it doesn't have that power in Slaughter, and that they get to decide what agencies Congress can make independent. The only place in our constitution that a concept is written twice is that the President shall faithfully execute the law and that the President must take an oath to faithfully execute the law. The Supreme Court majority's made-up theory of the unitary executive is in direct conflict with the President faithfully executing the law, so it is unconstitutional. It is absurd that We the People would have to amend the constitution to correct the Supreme Court's error. Jurisdictional stripping is reasonable in this case.
There is no inconsistency between the Slaughter and Cook decisions, ideologically. Each empowers the "money power" (the ruling class). With Slaughter, agencies that restrain capitalism, e.g. the FTC or, indirectly, the MSPB, now cannot. With Cook, the agency that is a creation of the ruling class, the Fed, cannot be restrained by an actual populist (Trump is just an actor and doesn't count).
"That may be true in the short term, but that comes at the enormous expense of (1) Congress, which will find itself increasingly hamstrung in trying to exert any control over how the executive branch exercises the powers Congress authorizes and delegates; and (2) the American people, who will find themselves subject to executive branch agencies doing the bidding of the incumbent administration rather than the goals Congress set for them by statute."
1) That horse has already left the barn. Congress can't be weaker than it is now. It's not possible.
2) The American people still determine who is in charge of the executive branch, so this is what they have decided they like.
I also think Slaughter is "good" in that I hope it will convince a future president that the Republic as it was originally envisioned, with strong checks and balances between three co-equal branches of government, is a dead letter. And what we actually need is a new constitution and a Second (Third if you count the Articles of Confederation?) Republic. That is an extraordinarily heavy lift, of course, (requiring an Article V constitutional convention) but I think it's the only long-term solution. Otherwise...
I was curious if the provisions in some of the independent agency laws that require x number of the members to be Republican or Democrat are still valid under Slaughter. Those requirements would seem to fly in the face of the President being able to appoint whom he/she wants.
I think that you have missed one of the key short term concerns with Slaughter. European Data Protection Law (and similar laws in Australia, New Zealand, Hong Kong, etc.) require an independent Data Protection Authority. For the US, that was the FTC, and the independence of the FTC under Humphrey's Executor was the legal basis for the Transatlantic Data Privacy Framework (TADPF). Suddenly, the basis for TADPF is undercut, and no European firm will be able to send any personal data to the US utilising TADPF.
Under Article 8(3) of the EU Charter of fundamental rights, compliance with privacy and data protection law must be overseen by an independent supervisory authority. Today the Supreme Court made clear that there cannot be an independent supervisory authority within the US executive branch, and now we have a significant problem. I certainly see EU firms pausing before onboarding US vendors. Beyond that, under the Supreme Court's rule, the privacy framework will swing with each US election cycle, making it very difficult for firms subject to GDPR to plan around what the framework for the US might be.
Trump v. Slaughter was looked at in the US as a fairly narrow, US-only focused case. But from the perspective of cyber liability, and legal risk, this is a very, very, very important case internationally, as individuals have a legal right to sue firms which violate their fundamental rights (by in this case passing data to a US vendor). I see nobody looking at the financial impacts of Slaughter on US firms (and international ones).
Excellent point Michael. It will reinforce the pressure internationally to favor Trump's and Trump -supported businesses, and for US businesses to be obeisant to Trump to protect their foreign interests. The US will continue to fall down in the ranking of countries on the Index of press freedom while it moves up the ranks on the Corruption Index.
This is a very good point about how these rulings have broad (and I suspect unintended) effects. I would like to know if the Court had any understanding of the broader implications. I am not sure this Court does too much of that hard thinking, though Roberts has the background where it is plausible that he does understand this. (Nix on the rest of the far right Court members.)
You must have specialized knowledge of this? I know I'd never have thought of the ruling in these terms.
In Slaughter Roberts asserted without any reasoning whatsoever that the executive could fill in the gaps of congressional legislation. But if we are stuck with the unitary executive, we should also be consistent and say that so-called filling in the gaps is an inherently legislative activity which only Congress has the right to do by amending legislation that is incomplete. We should say the whole notice and comment procedure provided by the Administrative Procedure Act is bogus and an unconstitutional abrogation of legislative power which only Congress can exercise. What’s sauce for the goose is sauce for the gander. If that’s too much work for our tiny brained legislators, perhaps a new constitution is in order, because this one is obviously outdated and beyond fixing.
Exactly. A solution is for Congress to write laws creating federal agencies very narrowly so that all substantive rule making has to go through Congress. Then we'll know whom to blame.
Spot on about Slaughter, Mr Vladeck. Even Justice Barrett pointed to the inconsistencies - sorry, I mean 'tensions' - between Roberts' across-the-board ruling in Slaughter and his carve-out for the Fed in Cook. Could there be a more blatant example of pulling off contradictory interpretations of congressional statutes to suit a justice's political leanings?
The Court enabled Trump's malevolence against the Constitution while limiting the damage his impulsive stupidity could inflict on the oligarchy. As for enabling the next Democratic president to clean house of the shills he's appointed, watch the Court about-face when that time comes.
I would also add that the lasting damage of that Trump has done will come as a result of his judicial appointments, Bove, Kacsmaryk, and the Freisler's (and others like them) who gave life sentences to those kids in Texas.
Slaughter is a sadly appropriate name for this decision by the Supreme Six or the Sick Supremes given its obviously destructive impact on the effectiveness of Congress to exercise the power which I thought it had when I became a citizen 50 years ago, should it chooose to do so in future. They seem to be operating in an alternate universe in which the realities of science, the foreseeable harmful consequences no matter how harmful or widespread of their decisons, and appreciation of the qualities and characters of the opposing parties before them are totally irrelevant. While they may try to justify their decisions on the basis of some legal theory or sophistry, in effect they are acting as the infamous wartime quote expressed it, "In order to save the Constitution, we have to destroy it."
The credibility of the US as an ally or as a participant in any negotation is being eroded on the global stage with substantial geopolitical consequences to the detriunent of democratic forces everywhere. The grwoing lack of trust and respect for the US as a nation and its allinstitutions will encompass the worlds of law and business and other reationships as well. Obviously we cannot put all the blame on Trump or even Trump and the Cngress he controls though the Republican party or cult, since the Supremes - whom he cannot fire, I assume - are not cowed into silence but are actively and knowingly implementing his agenda.
"That some of those positions (like in the mail-in ballots case) were too extreme for the “middle” of the Court doesn’t somehow prove that the Court is, in fact, “moderate”; it just suggests that, for as emboldened as right-wing litigants have become, the Court isn’t all the way there yet."
"Yet"....one could read a lot into that one word...
I'm old enough to remember when the Chief Justice was hailed as an authentic moderate who cared about the reputation of the Court.
Slaughtering Democracy. With Rucho the Court catalyzed gerrymandering and diminished Art 1 effective powers. Thune's support for the Senate filibuster is the last finger in the dike against the imaginary unitary President theory (ditto- originalism). Slaughter starts to unwind the administrative state. Even without Sch F (Sch Policy/Career) before the Court, leadership at an agency that wants to keep their jobs will execute Trump's EO. Gd lawyers know the law, great lawyers know the judge. Position is power. Alito wants hypothetical jurisdiction, even though we now have a hypothetical Court. Art 3-Art 1= Art 2.
Our only recourse is for a Democratic President, one with morals and one who cares about the American people and the Constitution itself (or Republican, if one exists), to increase the number of SCJ to bring equilibrium back to the court. This court is corrupt and is playing politics, not interpreting what the Constitution and the laws dictate. This must be done, or the country is no longer what it was intended to be...of the people, by the people and for the people.
Having worked for a so called Independent Agency at a staff level and having spent decades dealing with with nearly all of them I think the notion of Independence is overblown. The only thing that makes an Agency Independent is that they must have a fixed number in of Appointees from each party And there decisions are reviewed by the Courts under the APA
Congress either has the power to create independent agencies or it doesn't. The Supreme Court ruled that Congress has the power to protect executives of independent agencies from termination without cause in Cook, and that it doesn't have that power in Slaughter, and that they get to decide what agencies Congress can make independent. The only place in our constitution that a concept is written twice is that the President shall faithfully execute the law and that the President must take an oath to faithfully execute the law. The Supreme Court majority's made-up theory of the unitary executive is in direct conflict with the President faithfully executing the law, so it is unconstitutional. It is absurd that We the People would have to amend the constitution to correct the Supreme Court's error. Jurisdictional stripping is reasonable in this case.
What about the first sentence of Article II?
Thank you Professor
There is no inconsistency between the Slaughter and Cook decisions, ideologically. Each empowers the "money power" (the ruling class). With Slaughter, agencies that restrain capitalism, e.g. the FTC or, indirectly, the MSPB, now cannot. With Cook, the agency that is a creation of the ruling class, the Fed, cannot be restrained by an actual populist (Trump is just an actor and doesn't count).
"That may be true in the short term, but that comes at the enormous expense of (1) Congress, which will find itself increasingly hamstrung in trying to exert any control over how the executive branch exercises the powers Congress authorizes and delegates; and (2) the American people, who will find themselves subject to executive branch agencies doing the bidding of the incumbent administration rather than the goals Congress set for them by statute."
1) That horse has already left the barn. Congress can't be weaker than it is now. It's not possible.
2) The American people still determine who is in charge of the executive branch, so this is what they have decided they like.
Thanks for the work you do. This is helpful.
Hmmm, Steve. Maybe take Thursdays off for a while? I mean, it's summertime! You should have a life! And you've given us a LOT to absorb. (Thank you.)
I also think Slaughter is "good" in that I hope it will convince a future president that the Republic as it was originally envisioned, with strong checks and balances between three co-equal branches of government, is a dead letter. And what we actually need is a new constitution and a Second (Third if you count the Articles of Confederation?) Republic. That is an extraordinarily heavy lift, of course, (requiring an Article V constitutional convention) but I think it's the only long-term solution. Otherwise...
Nova Anglia secedenda est
I was curious if the provisions in some of the independent agency laws that require x number of the members to be Republican or Democrat are still valid under Slaughter. Those requirements would seem to fly in the face of the President being able to appoint whom he/she wants.
I think that you have missed one of the key short term concerns with Slaughter. European Data Protection Law (and similar laws in Australia, New Zealand, Hong Kong, etc.) require an independent Data Protection Authority. For the US, that was the FTC, and the independence of the FTC under Humphrey's Executor was the legal basis for the Transatlantic Data Privacy Framework (TADPF). Suddenly, the basis for TADPF is undercut, and no European firm will be able to send any personal data to the US utilising TADPF.
Under Article 8(3) of the EU Charter of fundamental rights, compliance with privacy and data protection law must be overseen by an independent supervisory authority. Today the Supreme Court made clear that there cannot be an independent supervisory authority within the US executive branch, and now we have a significant problem. I certainly see EU firms pausing before onboarding US vendors. Beyond that, under the Supreme Court's rule, the privacy framework will swing with each US election cycle, making it very difficult for firms subject to GDPR to plan around what the framework for the US might be.
Trump v. Slaughter was looked at in the US as a fairly narrow, US-only focused case. But from the perspective of cyber liability, and legal risk, this is a very, very, very important case internationally, as individuals have a legal right to sue firms which violate their fundamental rights (by in this case passing data to a US vendor). I see nobody looking at the financial impacts of Slaughter on US firms (and international ones).
Excellent point Michael. It will reinforce the pressure internationally to favor Trump's and Trump -supported businesses, and for US businesses to be obeisant to Trump to protect their foreign interests. The US will continue to fall down in the ranking of countries on the Index of press freedom while it moves up the ranks on the Corruption Index.
This is a very good point about how these rulings have broad (and I suspect unintended) effects. I would like to know if the Court had any understanding of the broader implications. I am not sure this Court does too much of that hard thinking, though Roberts has the background where it is plausible that he does understand this. (Nix on the rest of the far right Court members.)
You must have specialized knowledge of this? I know I'd never have thought of the ruling in these terms.
In Slaughter Roberts asserted without any reasoning whatsoever that the executive could fill in the gaps of congressional legislation. But if we are stuck with the unitary executive, we should also be consistent and say that so-called filling in the gaps is an inherently legislative activity which only Congress has the right to do by amending legislation that is incomplete. We should say the whole notice and comment procedure provided by the Administrative Procedure Act is bogus and an unconstitutional abrogation of legislative power which only Congress can exercise. What’s sauce for the goose is sauce for the gander. If that’s too much work for our tiny brained legislators, perhaps a new constitution is in order, because this one is obviously outdated and beyond fixing.
Exactly. A solution is for Congress to write laws creating federal agencies very narrowly so that all substantive rule making has to go through Congress. Then we'll know whom to blame.
Spot on about Slaughter, Mr Vladeck. Even Justice Barrett pointed to the inconsistencies - sorry, I mean 'tensions' - between Roberts' across-the-board ruling in Slaughter and his carve-out for the Fed in Cook. Could there be a more blatant example of pulling off contradictory interpretations of congressional statutes to suit a justice's political leanings?
The Court enabled Trump's malevolence against the Constitution while limiting the damage his impulsive stupidity could inflict on the oligarchy. As for enabling the next Democratic president to clean house of the shills he's appointed, watch the Court about-face when that time comes.
I would also add that the lasting damage of that Trump has done will come as a result of his judicial appointments, Bove, Kacsmaryk, and the Freisler's (and others like them) who gave life sentences to those kids in Texas.
Slaughter is a sadly appropriate name for this decision by the Supreme Six or the Sick Supremes given its obviously destructive impact on the effectiveness of Congress to exercise the power which I thought it had when I became a citizen 50 years ago, should it chooose to do so in future. They seem to be operating in an alternate universe in which the realities of science, the foreseeable harmful consequences no matter how harmful or widespread of their decisons, and appreciation of the qualities and characters of the opposing parties before them are totally irrelevant. While they may try to justify their decisions on the basis of some legal theory or sophistry, in effect they are acting as the infamous wartime quote expressed it, "In order to save the Constitution, we have to destroy it."
The credibility of the US as an ally or as a participant in any negotation is being eroded on the global stage with substantial geopolitical consequences to the detriunent of democratic forces everywhere. The grwoing lack of trust and respect for the US as a nation and its allinstitutions will encompass the worlds of law and business and other reationships as well. Obviously we cannot put all the blame on Trump or even Trump and the Cngress he controls though the Republican party or cult, since the Supremes - whom he cannot fire, I assume - are not cowed into silence but are actively and knowingly implementing his agenda.
"That some of those positions (like in the mail-in ballots case) were too extreme for the “middle” of the Court doesn’t somehow prove that the Court is, in fact, “moderate”; it just suggests that, for as emboldened as right-wing litigants have become, the Court isn’t all the way there yet."
"Yet"....one could read a lot into that one word...
I'm old enough to remember when the Chief Justice was hailed as an authentic moderate who cared about the reputation of the Court.
Was CJ John Roberts ever truly a moderate?
Slaughtering Democracy. With Rucho the Court catalyzed gerrymandering and diminished Art 1 effective powers. Thune's support for the Senate filibuster is the last finger in the dike against the imaginary unitary President theory (ditto- originalism). Slaughter starts to unwind the administrative state. Even without Sch F (Sch Policy/Career) before the Court, leadership at an agency that wants to keep their jobs will execute Trump's EO. Gd lawyers know the law, great lawyers know the judge. Position is power. Alito wants hypothetical jurisdiction, even though we now have a hypothetical Court. Art 3-Art 1= Art 2.