"the Supreme Court has almost always ignored the presidents’ role in Major Questions policies and has instead blamed the agency for overstepping its delegated power"
- Jed Shugerman and Jody Shott
A central contradiction in the rulings of the current Republican Supreme Court majority is identified by Shugerman and Short: The painting of Presidential power as monarchical [the President is a branch of government] when it fits the judges objectives, and the deprecation of the branch the President leads as an overweening, uncontrolled bureaucracy when Presidential agents impinge on cherished turf.
This contradiction is troubling because it leaves Republican judges free to pick one or the other based on their preferred outcomes. For example the pending Jarkesy v. SEC case is an opportunity to weaken the bureaucracy, strip the SEC of enforcement powers (via reliance on `house' ALJs) by placing decision-making in the hands of lay juries,, a more cumbersome process. This traditional Republican attack (see John Fabian Witt's Patriots and Cosmopolitans) was long deployed to weaken the Roosevelt-era "alphabet agencies" by moving power to local lay juries. But in the Newt Gingrich era Republican hostility to product liability claims against manufacturers led to the "contract with America" platform which demanded "tort reform".
The most effective method proved to be shrinking the civil justice system by the shrink-wrap contracts of software and service providers. In At&T v. concepcion the Supreme Court approved such mandatory arbitration contracts - and later barred class action arbitrations.
The imperial presidency has been a banner held high as in Winter v. Natural Resources Defense Council (NRDC), empowering the Commander in Chief's tactical decision-making to override Congressional efforts to protect endangered species. Recently denominated as the "unitary executive" the theory has served two Republican purposes; elevating the military, and disparaging environmental controls.
- GWC
Abstract
A contradiction about the role of the president has emerged between the Roberts Court’s Article II jurisprudence and its Major Questions Doctrine jurisprudence. In its appointment and removal decisions, the Roberts Court claims that the president is the “most democratic and politically accountable official in Government” because the president is “directly accountable to the people through regular elections,” an audacious new interpretation of Article II; and it argues that tight presidential control of agency officials lends democratic legitimacy to the administrative state. We identify these twin arguments about the “directly accountable president” and the “chain of dependence” as the foundation of “Roberts Court presidentialism.”
Meanwhile, each of the policies in dispute in the Major Questions cases over the past three decades are the product of the “directly accountable president” and the “chain of dependence” in action. This Article documents seven MQD cases, from 1990s tobacco regulation to the recent student debt waiver: presidents campaigning on the policy, directing agencies to adopt the policy, and then publicly taking credit and responsibility for the policy. Nevertheless, the Supreme Court has almost always ignored the presidents’ role in Major Questions policies and has instead blamed the agency for overstepping its delegated power. The erasure of presidents serves the Court’s narrative of blaming “unaccountable bureaucrats,” rather than either granting the policy more democratic legitimacy for its presidential backing or holding the president who ordered the policy accountable for overstepping the separation of powers. The erasure also suggests the Court has an underlying ambivalence or anxiety about the problems of presidential power, which Roberts Court presidentialism has exacerbated. Ironies abound: relying on a theory of presidential accountability, but then retreating from holding presidents accountable; unaccountable judges expanding judicial power based on a narrative of “unaccountable bureaucrats.”
The rule of law requires consistent reasoning. We suggest five doctrinal opportunities to resolve the contradictions between the Roberts Court’s Article II presidentialism and its Major Questions’ erasures of presidents: 1) SEC v. Jarkesy on the removal of administrative law judges; 2) future MQD cases crediting or blaming presidents; 3) the applicability of MQD to presidents; 4) the future of Chevron deference; and 5) in applying the non-delegation doctrine. The Roberts Court can untangle the “chain of dependence” with more consistency in either direction, but perhaps the most important lessons from these contradictions are for judicial restraint and of acknowledging the costs of direct presidential power, not just the benefits.
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