A profoundly irritating op-ed from Douglas Rooks in my lousy local newspaper, Foster's Daily Democrat, is headlined John Roberts as great a threat to constitutional order as Trump. (archive.today link, but opening in incognito mode works for me.)
John Roberts? Big news, if true. What's his sin?
Well, first you have to get by the mandatory Trump-bashing. Fine, anyone who's read this blog even sporadically since 2011 or so knows how I feel about Trump.
But Rooks eventually gets around to Roberts (and SCOTUS generally):
And in cases that have come before the court, the six-member supermajority led by Chief Justice John Roberts has made it all too clear where we’re headed. Such was the case with independent agencies, their members appointed by the president, often with equal numbers of Republicans and Democrats, that are protected against arbitrary removal precisely to guarantee this tenure even if their conclusions offend the president.
Considering the enormous concentrations of wealth and corporate power the 21st century has produced, one would think such independence is more vital than ever. Instead, Roberts made it clear in oral argument that the original 90-year-old precedent that prevented Franklin Roosevelt from firing an agency head, Humphrey’s Executor, is a “dried husk” the court should sweep away. If it’s a “husk,” it’s because the Roberts court made it so.
The National Labor Relations Board, Federal Trade Commission, Securities and Exchange Commission and a dozen other agencies can’t perform their regulatory roles if a president is free to replace any member. The court hints it views the Federal Reserve Board differently, but there’s no legal distinction to ground it.
Now it's time to check Rooks' headline again, about Roberts being "a threat to constitutional order".
Where does the Constitution specify that "independent agencies" can wield regulatory power? Is that in Article VIII of Rooks' copy of the Constitution?
Spoiler alert: there is no Article VIII.
A remedy to Rooks' phony Constitution was provided earlier this month by the National Review editors, pointing out: There Is No Such Thing as an Independent Agency. (archive.today link)
Humphrey’s Executor has been under fire from defenders of a unitary executive since Justice Antonin Scalia’s brilliant lone dissent in Morrison v. Olson (1988), and was eroded in cases such as Free Enterprise Fund v. Public Company Accounting Oversight Board (2010) and Seila Law LLC v. Consumer Financial Protection Bureau (2020), both of them written by Chief Justice John Roberts. Now, Trump is rightly asking the Court to overrule Humphrey’s Executor outright.
The justices appear ready to do so. The signs of Humphrey’s Executor’s imminent demise were clear enough over the summer, when a 6–3 majority stayed lower-court orders that had tried to restrain Trump from firing members of the Consumer Product Safety Commission, the National Labor Relations Board, and the Merit Systems Protection Board. Roberts told Amit Agarwal, arguing for the fired FTC commissioner, that “the one thing Seila Law made pretty clear, I think, is that Humphrey’s Executor is just a dried husk of whatever people used to think it was . . . putting Humphrey’s Executor aside, what’s your next good case?” That’s as clear a signal as one could hope that Humphrey’s Executor is circling the drain.
Not a moment too soon. The power of the FTC is back in the news this week with the need for its regulatory approval hanging over a potential Netflix acquisition of Warner Brothers. That’s precisely the sort of decision for which someone in the government should be politically accountable.
My suggestion for Douglas Rooks: If you think "independent agencies" should be crammed into the "constitutional order", do it the right way: amend the Constitution. Don't try to invent things that aren't there.
Also of note:
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Seventeen is a good start. Ryan Bourne has "affordability" suggestions: 17 ways politicians can make things cheaper, from food to health care and more. I'll just list all 17, you can click over for his explanations (like if you want to know what the "Chicken Tax" is):
- End Sugar Quotas
- End Tariffs on Food
- Expand Agricultural Immigration Visas
- Expand the Scope of Independent Practices
- Allow More Over-the-Counter Medicines
- Recognize Foreign Drug Approvals
- Scrap the Tariffs
- Relax Licensing Requirements for Repairmen
- Release Land for Building
- Upzone
- More By-Right Permits
- Approve More Pipelines, More Quickly
- End Tariffs on Goods Needed for Electrical Grids
- Repeal the Jones Act
- End the 'Chicken Tax'
- Allow Direct Sales
- End or Ease Buy American Rules
A little redundant on the tariffs, Ryan.
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