John Roberts Believes In The Unitary Executive, Except For When It Might Crash His Investment Portfolio

from the no-real-principles-but-self-interest dept

It is zero surprise that the Supreme Court officially overturned its 91-year-old precedent first created in Humphrey’s Executor. That case held that when Congress designates an agency as independent of the executive branch, the president cannot just fire its commissioners. The Humphrey’s Executor opinion stopped FDR from trying to fire an FTC Commissioner he didn’t like, and reinforced the important idea that Congress could design independent agencies, staffed by experts, that should be less prone to partisan political influence.

The Roberts Supreme Court has been signalling it wanted to overturn Humphrey’s for years, and it finally took until the case brought by former FTC Commissioners Rebecca Slaughter and Alvaro Bedoya* (unceremoniously fired by Donald Trump for being Democratically appointed) to make it official. In Trump v. Slaughter, the Supreme Court said outright that the president can fire commissioners of government agencies and laughed off the idea that Congress could ever create truly independent agencies.

And yet, on the very same day, the same Court said in Trump v. Cook, that the president cannot fire members of the Board of Governors for the Federal Reserve. In that ruling, the majority makes it clear that of course the Federal Reserve should be seen as wholly independent from the Executive Branch and the president can’t fire its Board members, because that would cause chaos!

Both cases involve the same basic fact patterns — involving whether or not the president can fire board or commissioner members of independent agencies. Both decisions were written by Chief Justice John Roberts. Both seem to take wholly opposite views without even a remote attempt by Roberts to explain how he can say both things (on the same day, no less).

And, as many people are noticing, about the only thing you can say about these two contradictory rulings coming down on the same day is that John Roberts believes in the imperial presidency when it impacts everyone else, but believes in Judicial supremacy when it impacts his retirement funds.

There is no other consistent principle here at all. None. Zero. Zilch.

As Madiba Denne writes in that last Balls & Strikes link:

Throughout Slaughter, Roberts warned that the “unity” of the executive branch would be “destroyed” if presidents could not fire agency officials at will. But in Cook, Roberts was much more worried about the destruction of the stock market. Roberts traced the development of the country’s first banking systems and asserted that the Framers knew “calamities” could arise from “even the suspicion of political manipulation of monetary policy.” The chief recounted at length how President Andrew Jackson opposed a national bank that “he could not control,” and suggested that the president’s meddling directly contributed to “an era of ruinous financial panics.” 

Without an independent central bank, Roberts said, there would be “no way to contain the damage whenever a major institution fell,” “no lender of last resort,” “no elastic currency that could expand to meet demand,” and “no mechanism to ensure that small banks issued loans only within their means.” Roberts concluded that at-will removal would be “corrosive” to the Fed independence that Congress sought to safeguard. The possibility that at-will removal would be similarly corrosive to the independence that Congress sought to safeguard at dozens of other agencies seems not to have crossed his mind.

Roberts ignores that the same reasons the Fed is designed to be independent are why the FTC, FCC, and other agencies were designed to be independent. Congress relied (for basically a century) on the Supreme Court blessing this arrangement to create a variety of independent agencies that lived under the Executive Branch, but were designed purposely by Congress with strong independence in mind.

In the Cook decision, Justice Brett Kavanaugh is the one who actually comes close to blurting out the truth, which Roberts carefully avoids. Kavanaugh admits that Slaughter and Cook stand in contrast, but that contrast is okay to him, because Trump fucking up the Federal Reserve would really fuck with monetary policy, and that’s what he really cares about:

I agree with the Court, moreover, that we should not leave open the question whether the Federal Reserve can remain an independent agency in the wake of Slaughter. After Slaughter, there is a clear choice: Either the Federal Reserve may remain independent (with the Governors removable for cause, not at will), or it may not. Leaving that question open would create significant uncertainty about whether the Court might soon eliminate the Federal Reserve’s independence, and thereby expose the Federal Reserve to political influences and jeopardize the efficacy of U. S. monetary policy. Even temporary uncertainty about the status of the Federal Reserve could spark political upheaval, including confusion about whether the President could immediately remove multiple Governors at will, as well as turmoil in the U. S. and world economies.

I would not go down that road. I would not risk destabilizing the U. S. economy just so that we can further mull over an issue that, in various permutations, we have been thinking about for many years.

This is quite the admission, though it’s unclear if Kavanaugh recognizes how astounding it is. He is basically admitting that while Slaughter creates chaos for all sorts of policies — consumer protection, labor relations, financial protection, etc. — that’s all for the little people. As Slate’s Mark Joseph Stern notes, the ruling in Slaughter creates a hugely damaging scenario for all sorts of rights:

The impact of this decision is gobsmacking. It strips independence from a vast range of federal agencies, including those that regulate nuclear energy, consumer safety, unions, hazardous chemicals, mine safety, crypto, and large swaths of the economy.

But those policies don’t matter to the Justices like Kavanaugh. Monetary policy, however, impacts his bottom line, and we can’t have that.

Such is also the situation with Roberts. Those other policies don’t impact John Roberts. But a screwy economic system would really put a dent in his various investment funds.

Denne again:

Part of Roberts’s justification for the outcome in Slaughter is democratic accountability—that removal power is necessary for the president to be the one person “with whom the buck stops.” But Roberts was clear, in Cook, that he’s really just concerned about the bucks: Giving Trump unfettered control over most federal agencies could help the rich get richer, and only screw over the little people, but giving Trump control of the Fed could cause an economic crisis big enough to negatively affect Roberts and his rich friends, too. 

Of course, the reality is that this decision isn’t so much about giving the presidency more power, it’s about giving Roberts’ Supreme Court more power. Yes, in the immediate future, this gives Donald Trump, as president, much greater power over the federal government, which will have many dangerous and damaging results.

But does anyone actually believe that the same John Roberts, who blocked former President Obama’s immigration policies or former President Biden’s student loan forgiveness policies, really believes in giving the executive so much power? Of course not. The lesson from John Roberts is clear: when Republicans hold the presidency, they have nearly unlimited power, with the one exception being when Trump threatens to wreck John Roberts’ investment funds. But when a Democrat is president, then suddenly the Supreme Court tut-tuts about how Congress restrains the power of the Executive Branch and it just can’t do anything about it.

The end result is that the power really resides in the ever-consistent view of John Roberts: Republican presidents can do anything they want, so long as it doesn’t harm Roberts’ investments. Democratic presidents are rightly restrained by Congress, and Roberts’ biggest job is swinging that big dial back and forth depending on who is in the White House.

Roberts has spent years whining about how unfair it is that people think his decisions have a political bias. But, really, if he didn’t want that, he maybe shouldn’t have handed down two rulings on the same day that so nakedly confirm exactly what he’s denied.

* Bedoya had to drop out of the case because while he was suing to get his job back, he couldn’t wait around unpaid for the years this case took, and had to go get a real job.

Filed Under: alvaro bedoya, brett kavanaugh, donald trump, executive power, federal reserve, humphrey’s executor, independent agencies, john roberts, lisa cook, rebecca slaughter, supreme court, unitary executive