Bonus 196: What if Constitutional Law is ... Complicated?

Over and over again during Monday's oral argument in the Slaughter case, the Republican appointees waved their hands at the possibility that big constitutional law questions might have messy answers.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter and other unscheduled issues will remain free for as long as I’m able to do this, I put much of the weekly bonus issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

I wanted to use today’s bonus issue to write about Monday’s oral argument in Trump v. Slaughter—the case about whether statutes requiring cause before the President can fire members of “independent” agencies like the Federal Trade Commission are unconstitutional (and, thus, whether the Court should overrule its unanimous 1935 ruling in Humphrey’s Executor upholding them).

My own reaction to the argument was to bang my head into my desk, quite a few times—not because it’s clear that the Court is going to overrule Humphrey’s Executor (that was a given going in), but because of the utter lack of interest among the six justices who are likely to be in the majority in sorting out (1) what that would mean for other cases (besides the Fed, anyway); (2) whether overruling Humphrey’s Executor is a good idea given … what’s happening at this particular moment in American history; or, my favorite, (3) which provision of Article II is even the specific reason why these statues are unconstitutional?

Instead, the argument was principally devoted to fan service—except the fans the justices were servicing were themselves. One might have expected more depth in a case that is, at its core, about restructuring the separation of powers. And instead, we got a heck of a lot of hand-waving. All that matters is fidelity to the “unitary executive theory,” never mind that the historical evidence for the theory is equivocal at best; never mind that we’ve had 90 years of Humphrey’s Executor and the sky has not fallen; and never mind that the justices themselves don’t seem willing to take the unitary executive theory all the way to where it should necessarily lead them. The Court is so committed to the specific project of overruling Humphrey’s Executor that the details can be filled in later.

What this leads me to, and what I reflect upon a bit below the fold, is a mindset that seems to be especially prevalent among at least some of the justices—that law in general, and constitutional law, in particular, should be more straightfoward; that hard questions should have easy answers, and that courts should strive toward simplifying doctrine, whether by erecting presumptions; by narrowing doctrinal categories; or otherwise. To all of this, it seems to me worth asking whether it might just be more accurate, more realistic, and better for our entire constitutional system if we indulge the possibility that at least some of these questions are—and ought to be—hard?

For those who aren’t paid subscribers, we’ll be back Monday (if not sooner) with our regular coverage of the Supreme Court. For those who are, please read on.