Wrote Chief Justice John Roberts, 5 years ago, quoted in "Trump's firings of independent agency heads put 90-year-old Supreme Court precedent in crosshairs" (CBS News).
In what is likely to be the Trump administration's first Supreme Court emergency appeal of his second term, the solicitor general is expected to ask the high court to permit Dellinger's firing, according to documents obtained Sunday.
Dellinger = Hampton Dellinger, "who oversees the office that investigates whistleblower complaints"
The 90-year-old case = Humphrey's Executor. Justice Clarence Thomas, joined by Neil Gorsuch, called Humphrey's Executor "a direct threat to our constitutional structure and, as a result, the liberty of the American people," and said he "would repudiate what is left of this erroneous precedent."
(It's Humphrey's Executor because the man, who was fired by FDR, had died, and the family was suing for back pay.)
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40 comments:
First of many emergency appeals, apparently…
I think anyone empowered to issue binding regulations or decide where a federal dollar is spent should be employed only at the pleasure of the President. I would remove civil service protections for the senior executive service and two or three layers lower down.
The Federal government's janitors and secretaries and truck drivers who have nothing whatsoever to do with policy or disbursements may merit some protection from being replaced by cronies of the incoming president's party as happened under the old "spoils system". But when I voted for Donald Trump it's because I wanted him to give the boot to armies of partisan Democrat GS-12's and up who have been working for my enslavement and impoverishment. I hope the Supreme Court sees it the same way, or elections are just a joke and we really are slaves for the government scum. In that case we should free ourselves from the tyrannical filth by any means necessary.
It's obviously not fair to judge Trump so early on this.
He's working hard to get the Tate brothers out of Romania and obviously there'll be a place for them in the administration.
I imagine they have quite a lot of crypto experience that will be invaluable.
All part of the Great Weave.
LLR-democratical Rich has clearly not recovered from the kamala loss. A loss he claimed was impossible, particularly for a candidate as brilliant, as insightful, as amazingly effective at communications as kamala!
It seems like only yesterday.........though Abacus Boy would no doubt appreciate no one remembering any of that.
The "I wish everyone would forget everything I've written for the last x number of years" is the chief calling card of the Althouse Blog LLR-democraticals.
For good reason.
I believe that Elon Musk is on the verge of showing that Humphrey is still drawing Social Security.
So Humphrey was terminated, with prejudice.
It sure seems to me as though the Trump team spent a *long* time strategically and carefully plotting a bunch of quite forceful early moves, like using Obama's extant 2014 IT legislation as the Trojan Horse for DOGE, to intentionally charging ahead with firings in order to quickly bring SCOTUS cases designed to overturn the Pendleton Act (1883), the Impoundment Control Act (1974), and several Court rulings such as Humphrey.
This is what we desperately need, and what we voted for. I thoroughly enjoy watching the DC suburban housing market collapsing like the house-of-cards it always was.
Oh yeah, Kaki, Romania, isn't that the place where the election was annulled because the wrong guy won? Didn't they do that to "save our democracy" in Europe?
What the president of Romania did was refuse to leave office and unconstitutionally held that office for many many weeks, you know, the kind of thing that they were telling us Trump was going to do. Kaki, though? All for it, because that's what the globalists want.
"This is what we desperately need, and what we voted for."
Lots of people in DC (and their supporters around the country) don't care all that much about what you (or others like you) think we need. And voting? It appears "democracy" only matters when elections generate the correct results.
The executive power belongs to the President, but what he is supposed to execute is the laws passed by Congress, including those he disagrees with. The President is not like the CEO of a public corporation who has broad discretion to pursue his own vision subject only to weak oversight by a board of directors. So, are certain laws that affect what the President can do proper expressions of legislative power or improper limits on executive power? That's the question.
Before you answer, consider what will happen under your preferred theory of executive power as exercised by your least preferred President. If the President should be able to impound funds at will, will you be fine when a future President decides that the Pentagon should fund itself with bake sales, as a once-popular left-wing bumper sticker advocated? If the President should be able to fire all federal employees at will, will you be happy when the President takes personal control of monetary policy, which has never had good results under any form of government? If Congress has no real way to constrain the President other than impeachment and conviction, will you be happy when the President in question is Alexandria Ocasio-Cortez rather than Donald Trump? Althouse thinks about such things systematically rather than merely as an expression of political affiliation, and so should you.
Lots of people in DC (and their supporters around the country) don't care all that much about what you (or others like you) think we need.
We know. We had gotten used to everyone in DC not caring what we want. I think it's the obvious disdain so many of them had for anyone outside the beltway that finally got to us.
If you’re given a $10 million budget by Congress, but only need to spend $5 million to achieve your objectives, is it illegal not to spend the extra $5 million?
Kurt Schuler,
If AOC takes office as President, a little - - or even a lot - - of impounding funds will be the very least of our worries.
Lucien,
"... is it illegal not to spend the extra $5 million?"
How to say "I don't have the soul of a bureaucrat" without actually saying it...
"The executive power belongs to the President, but what he is supposed to execute is the laws passed by Congress, including those he disagrees with."
The problem is that Congress passes laws that allow for a wide range of interpretation and discretion. Like it or not, the subjective part is in the hands of the executive branch.
"Before you answer, consider what will happen under your preferred theory of executive power as exercised by your least preferred President."
We don't need to consider it, that's been the MO under Democrats already, and we've seen the results. Democrats fired US attorneys and no one squawked. They didn't need to fire thousands of federal workers at agencies because the agencies were already doing the Democrats' bidding. All that's happening now is that a Republican is finally trying to exercise the same level of power that Democrats have. The only difference is that it requires cleaning house after decades of accumulated rot.
Until Nixon, the president could impound funds at will. It was understood Congress's authorization was the max that could be spent. And POTUS could choose to spend less. Similar to a line item veto, but not quite. Only worked on fiscal spending. Still has to enforce the laws. Unless, apparently, it's a Democrat POTUS and immigration laws.
Kurt Schuler: "The executive power belongs to the President, but what he is supposed to execute is the laws passed by Congress, including those he disagrees with. The President is not like the CEO of a public corporation who has broad discretion to pursue his own vision subject only to weak oversight by a board of directors. So, are certain laws that affect what the President can do proper expressions of legislative power or improper limits on executive power? That's the question."
Nope.
Congress long ago abandoned any pretext of identifying spending specifics beyond high level dept allocations.
In their cowardice and corruption, they have purposely deferred to executive agencies to make detailed decisions on spending AND in law implementation rules.
Until now, ONLY democraticals have taken advantage of this reality. Other republican Presidents never even tried.
Trump is playing by the same rules now so many of us are entirely uninterested in the bitching and moaning by those who simply want Trump constrained when they never spoke up over the last 30 years when dems took full advantage.
No more Calvinball.
Our Republic has been disrupted with a progressive status quo, and Trump was elected to right the ship of state, and set us upon a viable course. The Kleptocracy is quaking.
Trump learned from the targeted violence, and misinformation, disinformation, and malinformation from domestic and foreign sources used to impeach him and forced a near miss of a constitutional crisis. The Sino-Fauci pandemic and Democratic collusion was another teachable moment not soon forgotten. And bureaucratic burrowing into his wife's drawers was unprecedented and done with prejudice. So, faster, faster, DOGE, before the rats return.
Before you answer, consider what will happen under your preferred theory of executive power as exercised by your least preferred President.
You mean like when a President unilaterally allocates funds for student loan forgiveness? Despite the SCOTUS ruling against it?
Like that?
"Like that?"
Pretty much everybody knows (even if they're not willing to say so out loud) that the rules are different depending on whether the president has a (D) or an (R) after his name.
You know Sockpuppet Rich has nothing when he starts frothing about something that is completely irrelevant to not only the thread, but irrelevant to, well, pretty much anything.
“Congress long ago abandoned any pretext of identifying spending specifics beyond high level dept allocations.”
“In their cowardice and corruption, they have purposely deferred to executive agencies to make detailed decisions on spending AND in law implementation rules.”
What that means here is that Trump is not refusing to spend the money, just not yet, and not for what the bureaucrats were intending to spend it for. That discretion has been delegated to the bureaucrats, and it can just as easily be undelegated. At most, it takes just a stroke of the pen, by either the President, or Department head.
That’s why Impoundment Act arguments are not relevant. The funds haven’t been impounded. Just not spent yet, or for where the bureaucrats wanted to spend it.
Upping the ante, the Trump Administration’s OMB has moved moved discretionary spending decisions, throughout the Executive Branch, from the bureaucrats to political (Trump appointed) officials. Great fun.
https://www.theepochtimes.com/us/reactions-muted-to-omb-directors-empowering-of-political-deputies-5811488?utm_source=ref_share&utm_campaign=copy (free account signup required)
"I imagine they have quite a lot of crypto experience that will be invaluable."
Kak, you're so unprepared.
Bruce Hayden at 11:59pm: yep.
Jim: Yes, like that. If you thought that it was wrong for Biden to unilaterally forgive student loans and that it would be wrong for Trump to do something similar, you are consistent. If you thought it was right for Biden and would also be right for Trump, you are also consistent, though less wise.
Mason G.: The rules equalize in the end, because no party will permanently deprive itself of an advantage that the other enjoys. but you can level up or level down.
With the direction the Supreme Court is going, Article III may be the only effective way to check the power of the executive branch. Congress will have to get busy:
Whistleblower Court
Inspected General Court
Federal Reserve Court
…
Also, as far as interpreting the existing statutes, even if the Supreme Court allows the President to fire officials without cause that hold their office for a term of years under statutes that say they can only be fired for cause, the President should have to pay the official for the full term.
Maybe the correct answer from the Court is: (1) yes, the President has to have control over the main personnel at the executive branch, so he definitely can fire people like Dellinger, but (2) Dellinger was hired for a five-year term (or whatever the term is), and he hasn't been engaged in any misconduct, so he still can get his pay. Does that work? Something like that may appeal to Roberts as a way to rule for the president without actually overruling Humphrey's Executor
Kurt Schuler said...
If you thought that it was wrong for Biden to unilaterally forgive student loans and that it would be wrong for Trump to do something similar, you are consistent
The relevant question is not what people believe but rather what the court has held. The question of whether Trump's actions are legal was settled when Obama refused to enforce the parts of immigration law he did not support. Regardless of whether someone wishes that outcome were different we operate in a world in which such decisions are legal.
Roberts is a squish. You’ve got to give the founders their due. The wrote a Constitution that blocked the Tyranny of the Administrative State. Light years ahead of us still.
Decline to uphold? What does that mean?
Also it seems to me a perverse ruling. Nobody wields executive power except at the pleasure of the chief executive. With, in the case of the Cabinet, the advice and consent of Congress.
It seems to me to be a vital and fundamental principle of our system of government, that the president have unlimited authority to remove anyone who wields executive power - especially those "acting alone".
The proper remedy here would be for Congress to create a Cabinet position, if they want to protect that seat of power from capricious staffing decisions by the President.
Kurt Schuler said...
There are things that are constitutionally illegal for the president to do. Not funding the Dept. of Defense is one of them. Our constitution specifically state that our government provide for our defense.
Yo could have picked a better example.
We're suffering now economically because the former administration controlled our monetary policy.
Oh. I think we all just lived through the equivalent of having AOC in the White House. Hence Trump.
When I last was General Manager of a mining operation I had authority to issue POs and sign contracts up to $1mm. That did not mean that I could spend and then say na na na na naaaa na to my management. These government bureaucrats act like they can spend on projects opposed to the direction of the president and just sit there and laugh. That is not how spending authority works.
If something is mandated for spending by congress then the boss will tell the subordinate to do it. The junior official does not make that decision adverse to a ruling by the senior. If ordered to break the law, you don’t act and must report to auditors and law enforcement, you don’t go around the senior officials ruling.
When the SC cited Seila Law as precedent in Collins v Yellen, I think everyone understood that they meant "But the Constitution prohibits even “modest restrictions” on the President’s power to remove the head of an agency with a single top officer. Id., at ___. Pp. 26–32."
What's open MAY be Morrison, and the issue of boards with multiple officers. So something like the NLRB. But Dellinger i the single head of agency, and I don't think the lower court is at all correct in issuing the TRO, given SC precedent.
Whatever else may happen, I do not expect the SC to suddenly decide that they don't have the right to decide such questions.
Kurt Schuler said...
The executive power belongs to the President, but what he is supposed to execute is the laws passed by Congress, including those he disagrees with.
Oh, you mean like immigration law?
There was this "shall" that the "Biden" Admin chose to ignore, and SCOTUS let them ignore, that would have kept them from releasing millions of illegals into teh US.
Before you answer, consider what will happen under your preferred theory of executive power as exercised by your least preferred President.
Too late.
1: The Democrats have not, any time in the last 50 years, let "this is against all the norms and rules" stop them. They didn't eliminate the filibuster in 2021 because Manchin refused to do it. They didn't eliminate it in 2023 because the GOP controlled the House, so getting rid of it wouldn't help them.
Beyond that, do share with us ANY point where the Dems allowed "the GOP didn't do it, so neither will we" to stop them.
I'll wait
And Bruce already hit the relevant point: Trump isn't refusing spend $$$ that Congress appropriated and budgeted. What he IS doing is exercising his discretion on funds where Congress granted the Executive Branch the discretion to decide how to spend the $$$.
That a Republican President hasn't done that to Democrats and RINOs before now is irrelevant, it is perfectly legal, and entirely appropriate.
What will also be legal and appropriate is for Trump to veto any CR / budget that tries to fund more of USAID etc than he wants.
Since the Dems have ALWAYS used their control of the bureaucracy to push their spending priorities and graft, no, I have NO problem with President Trump deciding to use his position as Chief Executive to push his priorities, instead
If you thought that it was wrong for Biden to unilaterally forgive student loans and that it would be wrong for Trump to do something similar, you are consistent.
There should be rules for all or rules for none. The Democrats have chosen rules for one.
So, it's rules for none until they get a good, hard dose of their own medicine.
I, for one, want to know how an Independent Agency even exists under our Constitution. Seems a bit extralegal, or perhaps even purposefully placed outside the possible checks and balances of the three branches of government. And thus very available for corrupt uses of the Agency by its members and its supporters.
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