Understanding Trump's victories at the Supreme Court
“No one on the Supreme Court has gone further to enable Donald Trump’s extreme exercise of presidential power than the chief justice of the United States, John Roberts,” says legal scholar Peter Shane, author of “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency,” in The Atlantic.
“His opinions taken together create a dangerously authoritarian and largely ahistorical narrative about the constitutional presidency,” Shane says.
Shane says the Reagan administration accelerated the mainstreaming of what until then had been a marginal view of presidential authority under the Constitution: the “unitary-executive theory.” The core idea of the unitary executive was that the president, as the single head of the executive branch, was entitled to direct the way all discretionary authorities of that branch would be exercised.
In court opinions written by Roberts, the president “alone composes a branch of government” and holds the ‘entirety’ of executive power. All the federal civil servants work on the president’s behalf. What gives this system “legitimacy and accountability” is that “We, the People” vote for president. The thousands of people administering the federal government are accountable to “We, the People” only because they’re tied to the president through “a clear and effective chain of command.” The point of absolute-removal power is to enable the president to keep his subordinates in line. The powers of removal and supervision, Roberts writes, are “conclusive and preclusive.”
“That is to say, at least in Roberts’ narrative, Congress may not regulate the president’s supervisory powers by statute, and courts may not examine their exercise,” Shane says.
“The alternative to this narrative — the understanding of the constitutional presidency that, at least in broad strokes, had represented conventional wisdom until the advent of the Roberts Court — is an account of executive power woven into a system of checks and balances,” Shane says.
“Article II vests executive power in a president, to be sure. It assigns the president a number of exclusive roles, such as the negotiation of treaties and serving as commander in chief of the Army and Navy,” Shane says.
“But Article II also envisions a branch that includes ‘executive departments.’ These departments have duties, most of which are to be set forth in statutes. Fulfilling statutory duties is the job of the agencies, which, in doing their work, act not on behalf of the president, but on behalf of Congress,” Shane says.
“The president’s role in this scheme is one of supervision, not command. He is charged to ‘take care that the laws be faithfully executed.’ The Constitution underscores the president’s supervisory position by providing that he may ‘require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices.’ This is not at all a one-person branch of government, and its design is not the prerogative of the president, but of Congress,” Shane says.
“The Roberts Court so far has been mostly generous to the administration, handing it a set of technically narrow procedural wins that, for the moment at least, have blocked relief in the lower courts,” says Shane.
“When the Court must finally resolve the controversies concerning birthright citizenship, the capricious withholding of government grants, the unauthorized dismantling of government agencies, or the use of extortionate tactics to secure the submissiveness of independent institutions, John Roberts will likely again write opinions for a majority,” says Shane. “Ideally, he will be open to rethinking his extreme version of what the presidency represents and what the chief executive may do without meaningful legal accountability. But given the path he has taken so far, optimism seems naive.”