President vs. the Supreme Court

www.americanthinker.com

The Supreme Court made a good decision on Slaughter, allowing the president to fire subordinates, but a bad decision on the SAVE America Act. SCOTUS unfortunately doesn't understand how to consistently link unitary power theory with larger national security, into a unified doctrine of constitutional law.

A former senior member of the Obama administration argues in the New York Times that the Supreme Court is giving the president too much power. He and his co-author debate the “unitary executive” theory via the Court’s recent landmark ruling in Trump v. Slaughter, whereby the role of the nation’s chief executive, thought in their reading to be strictly circumscribed by the Constitution, becomes a worrisome single power acting without sufficient checks and balances.

They misunderstand what unitary means, and why, and when, it is vital. Unfortunately, so does the Court in relation to vital national interest (more on that in a moment).

Nothing quite gets the progressive left and liberal law professors animated, and emotionally worked up than when the SCOTUS makes a ruling they don’t like. They also have a tendency to make sweeping generalizations about those rulings, usually predicting some vague dire consequence.

They also suddenly transform themselves into opportunistic advocates of constitutional law; that is, they cite the Constitution as a rock-solid stone tablet of meaning — theirs. of course — and they also suddenly become false constitutional textualists, and change their legal dogma to a constitutional originalism.

It’s not just a false act, but it greatly misleads the public about how their Republic is set up — and not only in what roles the different branches play, but more importantly, what the nature of executive power is, and why the country has a chief executive: It isn’t to debate legal theories, or barter constantly with Congress and the Court, but to lead. Leadership is what a president is for. That’s why there’s one president — and not a presidential committee.

One of the law professors, Harvard’s Cass Sunstein, previously headed up the “OIRA” or the White House Office of Information and Regulatory Affairs in the Obama administration. His wife, Samantha Power, was the administrator of USAID.

Those offices sought to diligently work around the Constitution, and helped turn the office of the president into something far more troubling than an unchecked power; they labored to turn the president, finally crystalized in Joe Biden, into a mere functionary of a unified, perpetual political party run by unelected self-appointed elites. They operated a shadow government, pursuing projects that, if ever fully investigated and disclosed, would upend fundamental public assumptions of government legitimacy. Now they worry about presidential power and Article II.

The way the progressive Left ran the White House, also led to an insidious corruption of their understanding concerning leadership. In the Left’s view, it is an institutional function that operates through a corporate body where no one is actually accountable, and especially, able to act as an independent voice of leadership. Leadership scares the left because it threatens their worldview of a global government made up of offices, apparatchiks, and networks — not individuals, and certainly not leaders.

So when a man like President Trump comes along, it throws that view into chaos. But it also confuses the unitary executive argument by making it an institutional issue, instead of seeing it as a way that individual human leadership can break through the chains of government bureaucracy, standing up as a single unified representative of citizen consent, and the sovereignty of a citizen country.

It doesn’t mean that a single individual discharging the laws acts alone or without counsel. But it does mean that he acts in the capacity of a civilian commander who must make command decisions, including the routine ones like a corporate CEO must make, one who makes decisions regarding people who he puts in charge of divisions and departments. They serve at the chief executive's pleasure. It is also not unlike a judge: they have clerks, paralegals, research staff and more, but in the end, they alone must make a decision, and put their name on it.

The SCOTUS case that has the progressive left all worked up involves whether the president can hire and fire individuals in government administrative roles.

In Trump v. Slaughter, the Court ruled in the president’s favor. They’re correct to do so and their opinion is sound, and simple. It isn’t a complex case but that the Left made it one by trying to preserve their prior appointees, and thereby their ability to govern through the administrative state. As Sunstein’s co-author, Columbia Law and AEI senior fellow Philip Hamburger argues, the Slaughter decision “foretells the disintegration of the administrative state.” I think he overstates its momentum, but it’s a good beginning, assuming it has the right chief executive behind it. Right now it does.

Sunstein goes on to argue that presidential appointment powers are clear, but removal is not. The Constitution, he says, is “silent” on that discretion. He argues that government “continuity” is critical to government integrity, and that a “removal” authority would upset that ideology. He’s wrong. It protects it. But that gets at what is meant by continuity. Continuity of what, and of whom? (in the Court’s carve-out via Slaughter, concerning the Federal Reserve, it rests on protecting a controversial DEI appointment under Biden that required a Senate tie-breaking vote by Kamala Harris).

Sunstein otherwise has the entire theory of U.S. government upside down: government integrity rests on consent. Consent is manifest through the election process exercised by U.S. citizens in an accountable, testable election outcome. Consent is by definition dynamic and subject to change. If it were not, and government “continuity” prioritized over public will, there would be no government as we know it — or would like it to be. It would be a permanent authority, and tyranny, presenting a facade of representation (obviously already a problem in many countries).

That comes to the other recent SCOTUS ruling concerning the SAVE America Act which is a profound failure of constitutional understanding by the Court, including how it fails to make the linkage between constitutional national security, and the necessary force of a unitary executive acting to advance it.

This is where the SCOTUS really doesn’t know its job (or the law professors the law), because it can’t put two and two together, and realize that the SAVE America Act is fundamentally driven by a unitary doctrine of leadership and sovereignty. Voter ID laws, and SAVE-like rules are present in some states, but only the president has the necessary visibility to see how it must be a law of the land.

The Court instead is playing politics at the expense of the nation, as it just did with birthright citizenship. It is failing in its very purpose of constitutional interpretation by making selective, disjointed decisions led by a wobbly Chief Justice. It is judicially “splitting the difference” in its various decisions, handing a victory to each side, without understanding how to produce a unified doctrine of constitutional law that upholds national security.

Instead, the Court is splitting the country by selectively interfering in or politically frustrating the president’s oath and duty to unify it. Justice Alito put it well concerning the SAVE America Act, voter ID, and late mail ballots: "Not only is today's decision inconsistent with statutory text, legal context, historical practice, and precedent; it also threatens to produce lamentable consequences. The majority's holding spawns a slurry of troubling election-law questions and risks further undermining Americans' confidence in election integrity.”

President Trump put it more clearly: the Left is determined to institutionalize election cheating.

Matthew G. Andersson is a former aerospace CEO and. law and policy author. He has testified before the US Senate and is a graduate of the University of Chicago.

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