The Supreme Court demolishes more guardrails. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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How will we remember this Supreme Court term? For Louisiana v. Callais, which demolished the 1965 Voting Rights Act. For near misses, too, as when the Constitution’s plain-language guarantee of birthright citizenship was recognized by only a bare majority of the justices. (As JD Vance crowed, that core protection is now “hanging by a thread.”)

I think the term may be remembered most as a time when the supermajority of very conservative, very pro-business justices bent the shape of American government. It was a power grab in legal garb, undermining Congress, granting presidents more authority, but with key decisions ultimately in the hands of the nine unelected officials now redesigning government.

In 2005, The New York Times Magazine published a story

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about a cadre of intense anti-government legal activists. They bemoaned “the Constitution in exile,” what they saw as an epic wrong turn in the 20th century. That was the era when Congress and presidents created expert independent agencies, such as the Securities and Exchange Commission, to police Wall Street, and the Federal Trade Commission, to protect consumers. To most Americans, that was how we grew a modern, fair, prosperous economy. To those activists, it was all a terrible mistake.

One of the few adherents of this eccentric theory, the Times reported, was an unknown young federal judge named John Roberts. Soon he would become chief justice.

Trump v. Slaughter, announced on Monday, marked a key moment in Roberts’s long drive to write pro-business dogma into the Constitution. On this, Roberts is far from a midwestern country club Republican cheerfully calling “balls and strikes

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.” This is not about wins or losses for Donald Trump. These justices have wanted to do this since Trump was cavorting at Studio 54.

Congress established the first independent agency, the Interstate Commerce Commission, to set railroad rates in the 1880s. Since then, laws created nearly 60 agencies to police the economy or serve as watchdogs over the government, and tried to wall them off a bit from political pressure and partisan politics.

Congress has now been blocked from imposing removal protections for the heads of most federal agencies, a critical xxxxxx against presidential meddling. Consider a consequential, complex current question: Could an effective new agency regulate artificial intelligence? The Slaughter ruling could make it considerably harder to insulate such a powerful body from political interference.

Of course, independent agencies are not a purely partisan issue. Over the course of American history, they have frustrated presidents of both parties, who want control of the sprawling federal bureaucracy.

The Slaughter ruling overturned a 1935 case, Humphrey’s Executor. William Humphrey was a reactionary and thoroughly unpleasant Federal Trade Commission member whom President Franklin D. Roosevelt wanted to fire. Humphrey kept going to work even after he was dismissed, then died while the legal challenge to pry him from his office was being heard. His heirs sued for his back pay.

The Supreme Court ruled that even FDR, at the peak of his power, could not fire grumpy old Mr. Humphrey. “That damn little case,” recalled FDR aide Robert Jackson (later a justice himself), “made Roosevelt madder at the Court than any other decision. . . . [He] thought they went out of their way to spite him personally.”

Slaughter is one of the most significant expressions of the pretentiously named “unitary executive theory.” This is the idea that because a single individual, the president, is elected to lead the executive branch, that means the whole executive branch serves at his whim. Of note, this case revolved around one aspect of it, firing of agency officials.

Indeed, the justices seemed to recognize the havoc their new doctrine would cause. On the same day, a different lineup of justices blocked Trump from firing Federal Reserve governor Lisa Cook. The Fed, too, is an independent agency, signed into law by President Woodrow Wilson in the Progressive Era, but the rationale for independent central banking is well known. The Cook ruling mumbles about tradition and history, but the real answer for the divergent outcomes seemed to be, well, the Fed is just . . . different. (Of course, business interests revere the Fed and often loathes the FTC.)

A limited version of the unitary executive theory is not entirely crazy. We want a strong president able to guide the balky executive branch. But advocates have taken this idea to a dangerous extreme, turning it into a fancy cloak for an authoritarian executive. By their logic, if all federal employees work personally for a president, as if they were gardeners at Mar-a-Lago, that could demolish civil service protections and other rules that can keep government from being the instrument of executive whim.

Who knows how far this rhetoric of presidential power will go? Russell Vought, the White House budget director, says we live in a “post-constitutional time.” And in Trump v. United States, Roberts wrote that the president is “the only person who alone composes a branch of government.”

Policymakers now must grapple with the justices’ handiwork. How can we have strong inspectors general or independent military lawyers if a president can bark “you’re fired” at will? Can Congress step up by, say, giving the Government Accountability Office greater responsibility to police the executive branch? Such obscure questions will determine how government can work going forward. Necessary reforms can follow abuse and scandal. That’s what happened after Watergate. Now such safeguards must be designed in a world where the Supreme Court has supercharged presidential power.

Let’s not forget Donald Trump is a lame duck. (He is! Really!) A future president may be a populist progressive, now with new levers of power to address climate change or boost union power. To quote Justice Brett Kavanaugh, “What goes around comes around.” Of course, this Court has also invented tools to stop policies it doesn’t like, such as the “major questions” doctrine it used to block Biden-era climate change rules. Stay tuned.

But it’s hard to escape the conclusion that this ruling will make government less effective, more chaotic, and more driven by politics and personality — steered there by a Supreme Court with too much power, now in thrall to an obscure and dangerous philosophy.





The Revolutionary Promise

As we celebrate the 250th anniversary of the Declaration of Independence this week, Americans have an opportunity to reflect on both the extraordinary promise and the enduring contradictions of the nation’s founding. The Revolution sparked a remarkable period of democratic experimentation and popular mobilization that had no precedent in world history, advancing the ideals of liberty, human rights, and self-determination. “Those ideals, which Americans have fought to realize in the years since 1776, still have the potential to inspire us today,” John Kowal writes. Read more

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Court Rebukes Election Power Grab

Last week, a federal court blocked provisions of President Trump’s executive order seeking to interfere in mail voting, ruling them unconstitutional. It held that the U.S. Postal Service can’t decide who gets to vote by mail, and the president can’t direct it to do so. More broadly, Sean Morales-Doyle writes, the decision reaffirms that “the president has no authority to make rules for elections.” Read more

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Troops in the Capital

Over the past two weeks, five governors who previously condemned the deployment of National Guard forces into Washington, DC, have sent troops from their own states to support the America 250 events in the capital. As at least two governors have acknowledged, this is a mistake, considering the Trump administration’s track record of misusing National Guard troops to police protests and street crime. To avoid further abuses and protect both civilians and service members, Elizabeth Goitein argues, these states must “recall their forces now.” Read more

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Supercharged Immigration Enforcement

Congress recently granted the Department of Homeland Security another $70 billion for immigration enforcement, bringing the combined budget for ICE and Customs and Border Protection to $200 billion. The cash injection will make it easier for the agencies to carry out the Trump administration’s mass deportation and mass surveillance agendas with few constraints. “It’s not too late for Congress to act,” Margy O’Herron writes, urging lawmakers to claw back any unspent funds and ensure DHS doesn’t receive additional money until it makes much-needed improvements to protect everyone’s rights and safety. Read more

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Hollow Win at the Supreme Court

The Supreme Court’s decision rejecting President Trump’s bid to eliminate birthright citizenship is an important win for the children and communities that would have been harmed. But the case shouldn’t have been a hard one — the 14th Amendment plainly guarantees citizenship to virtually all children born on American soil. “Ultimately, the court chose to follow the law,” Thomas Wolf and Samuel Breidbart write for MS NOW. Read more

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. . . And a Loss for Fair Elections

In another highly anticipated end-of-term ruling, the Supreme Court struck down campaign finance laws, giving mega donors another avenue to funnel unlimited amounts of money into elections. “This decision is likely to further the nationalization of our politics around conflict between ideological extremes,” Dan Weiner writes. Read more

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A More Representative Congress

The current Congress is the third oldest in the nation’s history, with 24 members aged 80 or older, even though the median age of Americans is decades younger. “Establishing an age limit for members of Congress would help narrow this mounting gerontocracy gap and create a legislature that is more inclusive, reflective, and responsive to the people it serves,” Maya Kornberg writes. Read more

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Podcast

The Lost Founder (with Jesse Wegman)

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In this week’s episode, Jesse Wegman joins Michael Waldman to discuss his new book, The Lost Founder: James Wilson and the Forgotten Fight for a People's Constitution

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, the first major biography of James Wilson. Wilson was a coauthor of the Constitution (his words: “We the People”). He signed both the Constitution and the Declaration of Independence, was one of the first Supreme Court justices — and died on the run from the law. Wegman explores Wilson’s long-lasting impact, his fall from grace, and the enduring relevance of his expansive vision for American democracy. YouTube

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// Spotify

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// Apple

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// SUBSTACK

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News

Rachel Levinson-Waldman on use of AI tools for government surveillance // STATELINE

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Michael Milov-Cordoba on attacks on state judicial independence // THE SALT LAKE TRIBUNE

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Eric Petry on Supreme Court ruling against campaign spending limits // THE GUARDIAN

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Michael Waldman on solutions to government dysfunction // Cardozo Law Review

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Jesse Wegman on lessons from American founder James Wilson’s legacy // THE NEW YORK TIMES

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Wendy Weiser on a renewed push for the anti-voter SAVE Act // LOS ANGELES TIMES

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