As President Trump continues to amass authoritarian power, we should consider the shocking role of the Supreme Court in facilitating his power grab. Trump v. United States declared the President immune from prosecution for breaking any criminal law as long as he uses his Presidential powers to commit his crimes. It allowed Trump to get away with gross violations of the Constitution’s foreign emoluments clause. It foreclosed all feasible paths for enforcing the 14th Amendment’s Insurrection Clause against Trump and other participants in the attempted coup of Jan. 6.
In the emergency docket this year, the Court has been overwhelmingly solicitous to Trump’s assertions of unconstrained Presidential power. For the time being, it’s a-okay with Trump destroying the Department of Education, deporting undocumented immigrants to countries where they may face torture, firing 16,000 civil servants from 6 agencies without cause, even firing heads of independent agencies, deporting U.S. citizens on the pretext that the 14th Amendment doesn’t establish birthright citizenship, canceling millions of dollars of research grants already awarded, etc.
As I have previously argued, the Supreme Court’s lawless and massively destructive actions regarding Presidential power have little to do with Constitutional reasoning (which it often doesn’t bother to present in the emergency docket), but with its authoritarian mindset. Here I’ll trace their mindset to a particular understanding of executive power derived from the authoritarianism of the capitalist workplace.
The emergency the Court sees in the shadow docket is not that Trump is attacking the core Constitutional right of citizenship, illegally impounding Congressionally appropriated funds, or deliberately destroying the capacity of government agencies to execute the laws. The emergency is that anyone is challenging his exercise of executive power. On their view, when Article II of the U.S. Constitution declared that “The executive Power shall be vested in a President of the United States,” “this does not mean some of the executive power, but all of the executive power” [Scalia, dissenting in Morrison v. Olson, 487 U.S. 654 (1988)]. This view is known as “the unitary executive.”
But what, exactly, is the executive power? Here is where what my colleague Leah Litman calls “vibes“–conservative ideology posing as Constitutional reasoning–help out. They are thinking: C’mon, you know what being the chief executive means! It means he’s the boss! And not just any kind of boss. Not the boss of a public corporation who is accountable to an independent Board of Directors. No, he’s more like the boss of a private firm that he owns and is entitled to rule at his own pleasure, according to his private interests, whether these be personal profit, vengeance, mass adulation, self-glorification, or bullying everyone around him. It’s not anyone’s place to question his motives! To be the boss means he’s got the power, and he can use it however he likes. It’s a view of Presidential power not coincidentally aligned with Trump’s view of his power as CEO and owner of his family firm, which he has run like a mob boss. He sees his election as simply adding the U.S. government to his other businesses within the Trump Organization.
Essentially, the Court is importing an authoritarian view of executive power drawn from the common law of master and servant into its interpretation of the President’s executive power, for the purpose of overturning or at least temporarily disregarding Federal statutes and even Constitutional provisions that limit his power. The U.S. inherited the feudal common law of master and servant from England, and tinkered with it in the 19th century by adopting the rule of employment at will: the right of the employer to fire an employee at any moment for any reason or no reason at all (along with the corresponding right of the employee to quit). The Court sees this absolute right of removal of any civil servant as a core executive power of the President. This power entitles him to effectively shut down administrative agencies or irreparably damage their ability to function by firing its essential employees. More generally, the unitary executive theory is a way to completely detach the President’s power from any Congressional limitations. The Court sees these as unconstitutional infringements on the executive, not as constitutional means to ensure that the President exercises his power for the sole purpose of faithfully and impartially executing the laws and not for corrupt purposes such as self-enrichment, rewarding cronies, or punishing his enemies.
There is a long history of American federal and state courts citing the common law of master and servant to overturn statutes that establish employee rights and thereby limit employers’ power over them. Karen Orren has argued that this practice (which predates the Lochner era of libertarian attacks on worker protections) is rooted in a long contest between the courts and the people with their democratically elected legislatures over the ultimate seat of sovereignty. The common law is simply judge-made law not grounded in prior legislative acts. It’s judges making stuff up by the seat of their pants, mostly according to their conservative inclinations. Through the doctrine of judicial review, the courts have claimed the last word in interpreting the law. As Chief Justice Roberts recently put the point, “The most important thing for the people to understand is . . . They don’t elect us. If they don’t like what we’re doing, it’s just too bad.” The Supremes will go on overturning Congressional statutes attempting to limit the President’s executive power until what was once thought to be the most powerful branch of government is reduced to a merely advisory body. Not quite burning down the Reichstag, but close.
Yet what else could the executive power of the President be, if does not amount to making him the authoritarian boss of the Executive branch? Here is where the Supremes could learn a lesson if they actually practiced the originalism that they profess to follow. My colleague Julian Mortenson has undertaken a comprehensive survey of the original understanding of the executive power when the U.S. Constitution was written. The short answer is that the executive power contains no inherent powers of its own. It is simply the power to “take Care that the Laws be faithfully executed,” where the Laws originate from other authorities altogether–namely, Congress. The executive power is the power to carry out the orders of Congress as expressed in its statutes.
In his capacity as executive, then, the President is more the agent of Congress than a principal in his own right. Congress is therefore free to specify and thereby limit how the executive carries out its orders. So, in the interest of ensuring that civil servants have the requisite competence to achieve the public purposes Congressional statutes are aiming at, and are not reduced to being mere sycophants of the President, Congress is free to limit the President’s removal power by enacting civil service protections. In the interest of insulating policy making from partisanship and corrupt Presidential motives, Congress is free to establish independent agencies.
But what about the specific powers of the President enumerated in Article II of the Constitution, such as being commander-in-chief of the armed forces, negotiating treaties, and granting pardons? Aren’t these inherently executive powers? No. When the Constitution was framed, these were not understood to be “executive” powers, but “prerogative” powers. These distinctions matter, because they expose the legal baselessness, danger, and corruption inherent in the “he’s the boss” theory of the unitary executive.
Still, you might wonder whether these distinctions really do matter, in the face of Justice Roberts’s confident assertion that “If [the people] don’t like what we’re doing, it’s just too bad.” Roberts concedes an exception to this generalization in the case of impeachment–an instrument of removal that is so difficult that it has succeeded only 8 times in U.S. history.
Yet Roberts is either ignorant of U.S. history or afraid to inform the people of the many instruments at their disposal to rein in a lawless Court. The U.S. has a long history of popular constitutionalism–the idea that the people, not the judges, are the ultimate arbiters of what the Constitution means. Besides impeachment, the people’s representatives in Congress can freeze judges’ salaries, impose a unanimity rule on Court decisions, strip the Court of jurisdiction over certain cases, regulate its procedures, require Justices to step down to District court positions after a fixed term, shrink or enlarge the Court, even completely reorganize it. Instead of having the same 9 Justices decide all cases, it could, for example, constitute the Supreme Court as a randomly selected panel of Appeals Court judges chosen for each case. Moreover, the people themselves can vigorously organize and demonstrate against the Court’s lawlessness, launch campaigns for comprehensive reform of the Judicial branch, and vote for Congressional candidates who promote reform. The American people have successfully contested the Court’s authority in the past. It’s high time that we do so again.
{ 41 comments }
Alex SL 07.20.25 at 10:04 pm
Yes, that theory is one theory of what is going on. Another is that they are not even thinking this through and would decide that the powers of the president are sharply limited if it was currently president Harris, just so that the Democrats are never getting anything done. Unless I misremember, isn’t that how they operated under Biden, e.g., student debt? Not a coherent worldview of workplace authoritarianism but whatever works today to either allow their movement to implement its policies or to frustrate the other side in its attempts to implement theirs.
That being said, workplace authoritarianism is clearly one of the appeals of Trump to his petty bourgeoisie and billionaire supporters: enough with the woke, I should again be able to fire well-performing employees for being gay, for getting pregnant, or for rolling their eyes behind my back.
Liz Anderson 07.21.25 at 12:53 am
Yes, Alex SL, I should have said, to the extent that the Supremes have a theory of executive power at all, it’s the unitary executive. But of course you are correct that they have invented a bevy of doctrines, such as the major questions doctrine, the nondelegation doctrine, and the end of Chevron deference, to override any executive action by a Democratic president that they disapprove of.
Alan White 07.21.25 at 2:27 am
A very sobering account of the destruction of what’s left of a democratic society that is spot-on. Other than a revolution of the lower classes that are being destroyed, I can’t see any redemption. The fact the the election of Obama–a blip of hope demographically orchestrated twice–led to all this racist hateful backlash has crushed my own soul because it did then give me false hope. I have none now.
J-D 07.21.25 at 3:25 am
So what you’re saying is that the people who wrote the Constitution wrote into the text specific explanation of the powers and responsibilities of the President, including the responsibility for execution of the laws, and then dimwittedly failed to realise there was no need to include an additional reference to ‘the executive power’? That sounds about right. I’ve never done the detailed research your colleague has done, but many times I’ve looked at that sentence ‘The executive power shall be vested in a President …’ and wondered ‘Well, what’s that supposed to mean? Why is it even there in the text? Wouldn’t it work just as well if you left it out? If I were writing a Constitution, I wouldn’t include any sentence like that.’
Those are instruments at the disposal of the Congress rather than the people. What’s the Congress been doing lately? John Roberts and other Supreme Court Justices aren’t acting as if Congress causes them much concern.
True, those are instruments at the disposal of the people. We can always hope.
The boss of a public corporation? As in one public corporation? Which one would that be?
engels 07.21.25 at 12:33 pm
In Britain the Tories started a fad, which was enthusiastically carried on by Labour, of ministers referring to the PM “the boss”. Somehow even more cringe-making and authoritarian than the US’s traditional “commander-in-chief”.
Liz Anderson 07.21.25 at 1:23 pm
J-D at 4 says:
Mortenson’s review of how the term “executive power” was used in the late 18th century reveals consistent usage: an authority issues an order to someone, and that person “executes” the order–carries it out. This implies that the authority has delegated to the “executive” the powers needed to carry out the other. The “executive power” is thus delegated to the person expected to carry out the order, and not inherent in that person’s office. Everyone understood this, since this usage was univocal. So the term “executive” didn’t have to be defined in the text.
The Constitution needs an executive branch of government, because Congress is not in a position to enforce its own laws. It’s too small, and too busy legislating, and not in a position to judge individual cases. Congress passes a law authorizing patents for inventions. It can’t judge if a patent application for an invention is valid by its own standards, so it creates an executive agency–the Patent Office–to decide these things. The President as executive is authorized by Congress to nominate someone to run it but himself lacks the knowledge to determine whether any particular patent application meets the standards the merit a patent and is not authorized by Congress to make these decisions himself even though he is the chief executive. So the President must delegate this determination to someone competent to execute that task and is not entitled to take over these determinations himself. And it is difficult to imagine the President wanting to do so for other than a corrupt purpose–e.g., collecting a bribe or rewarding a crony or extorting personal submission from the applicant. Awarding or denying patents for any of these reasons would be an abuse of executive power and a violation of his oath of office to faithfully execute the laws. Whereas the unitary executive theory assumes that “all the executive power” means that the Constitution endows the President with the right to make any decisions himself for any reason he likes.
This idea would have been treated as patently absurd by the Framers. It’s like an employer orders his secretary to personally convey a contract to someone a few miles away, because it must be signed quickly. The secretary is thereby authorized and empowered to do that, and hence is empowered to hire a coach to get there because that’s the only way to get there in time. But the secretary’s executive power to convey the contract and take the necessary means to get it there in time does not entail that the secretary is authorized to rip up the contract or demand personal fealty from the intended recipient as a condition of conveying the contract. To put the point another way: since the executive power is a subordinate power to Congress, the President wholly lacks any powers to subvert Congress’s orders or turn delegated powers to his own personal interests. The Supremes are confused because we use the term “executive” today to refer to bosses, when back in the day they were more like executive secretaries. For the Framers with respect to “the executive power,” the boss was Congress and the President merely the executive secretary. It’s still a lot of power (back in the Framer’s day, secretaries were much more high-ranking than today with lots of discretion, sort of like a COO today), but it’s still subordinate power.
Tm 07.21.25 at 2:29 pm
“the boss was Congress and the President merely the executive secretary”
Reminds me of the times of the Soviet bloc when the title of the de facto dictator was “general secretary”. Secretaries can be powerful…
You are correct of course, the term “executive power” means nothing other than the power (and obligation!) to execute the laws made by Congress, as opposed to making his own laws. It is unfortuntate that the framers didn’t make this more explicit.
J-D 07.22.25 at 12:19 am
The sentence ‘He shall take care that the laws be faithfully executed’ expresses this idea more clearly than the sentence ‘The executive power shall be vested in a President’. If a document contains a sentence which expresses an idea and also contains another sentence which expresses the same idea less clearly, then the incorporation of the less clear sentence reduces the clarity of the document as a whole and it would be better to leave it out.
Kenneth Schulz 07.22.25 at 5:29 am
J-D @ 8: “If a document contains a sentence which expresses an idea and also contains another sentence which expresses the same idea less clearly, then the incorporation of the less clear sentence reduces the clarity of the document as a whole and it would be better to leave it out.”
Yes, better, but not essential. For purposes of interpretation, certainly the clearer statement must take priority. Then I suppose the argument would turn to the question of whether the two statements were both intended to ‘express the same idea’.
DCA 07.22.25 at 5:53 am
Re (8) I don’t see one sentence as less clear than the other. in “the executive power”, executive is an adjective–so this just means “the power to execute”, that is, carry out instructions. Now we think “executive” is a noun. The OED records the adjectival use (as “carry out”) back to 1676. The noun version fist shows up in the late 1790’s, US only, applied to the President as “Chief Executive”. The “boss of a firm” usage is also of US origin, first example from 1902. The adjectival form “executive privelege” shows up in 1940. So I don’t think the Framers were unclear, the vocabulary changed.
Boss, from the Dutch, shows up as “US version of master” by about 1800.
But good luck getting the originalists to actually pay attention to history.
John Q 07.22.25 at 7:17 am
As Alex says @1, the crucial issue here is not the executive power vested in the office of President. It’s the fact that Donald Trump personally controls pliant majorities in both Houses of Congress and the Supreme Court. If three or four Republicans in each of these bodies changed sides, Trump’s executive power would be greatly diminished. And in the unlikely event of a free election producing a Democratic president, Republicans would immediatly rediscover the importance of checks and balances.
Tm 07.22.25 at 7:30 am
J-D 8: Have you noticed the structure of this document:
Art I: All legislative Powers herein granted shall be vested in a Congress of the United States
Art II: The executive Power shall be vested in a President of the United States of America.
Art III: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
These clauses make it clear that there is a legislative, executive and judicial power and what they consist of. They were spelling out the separation of powers doctrine. That was clear to every educated person at the time. Perhaps not any more? The authors of this constitution made several big blunders, but the use of the adjective “executive” isn’t the problem.
Gar Lipow 07.22.25 at 7:35 am
I think there are both philosophical and historical reasons for the founders mistakes. Now the founders were not trying to created a democracy. Half of one branch of the US government, the Congress was democratic if you ignore things like women and people of color being unable to vote plus slavery. The Senate was designed to be undemocratic from day one. The Judiciary was appointed for life. The Presidency was chosen by an electoral college which was weighted against democracy just by the allocation of electors and was never intended to reflect a popular vote. But you are right that the founder wanted their oligarchy to be broad based and not tyrannical. However, the US experience with England made them fear tyranny from the legislature just as much or more than from a monarch. So they created a separation of powers. So yes, the legislature was intended to check executive tyranny. But the executive was given a great deal more power than that required simply execute the legislature’s will because they feared legislative tyranny as well. This, IMO, was one of their great mistakes, even given their objective of creating a non-tyrannical oligarchic government. For example: Federalist paper 51: https://avalon.law.yale.edu/18th_century/fed51.asp
” We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. ”
If you read the whole thing, you will note that argument is that in a Republic, the natural center of power is the legislature. Thus to keep the executive and legislature able to balance each other and act as check on one another, the executive must be strengthened and the legislative weakened. I will add that even at that time, some of the founders warned that the executive as constituted was too strong. But I would argue that the overpowered executive created by the Federalist constitution might have been the institutional sin that lead to Trump.
I think, aside from experience with an extremely tyrannical parliament, this strong executive idea may have been influenced by Locke: https://press-pubs.uchicago.edu/founders/documents/v1ch10s3.html
Where the Legislative and Executive Power are in distinct hands, (as they are in all moderated Monarchies, and well-framed Governments) there the good of the Society requires, that several things should be left to the discretion of him, that has the Executive Power. For the Legislators not being able to foresee, and provide, by Laws, for all, that may be useful to the Community, the Executor of the Laws, having the power in his hands, has by the common Law of Nature, a right to make use of it, for the good of the Society, in many Cases, where the municipal Law has given no direction, till the Legislative can conveniently be Assembled to provide for it. Many things there are, which the Law can by no means provide for, and those must necessarily be left to the discretion of him, that has the Executive Power in his hands, to be ordered by him, as the publick good and advantage shall require: nay, ’tis fit that the Laws themselves should in some Cases give way to the Executive Power, or rather to this Fundamental Law of Nature and Government, viz. That as much as may be, all the Members of the Society are to be preserved.
And yes, Trump (and to a lesser extent past Presidents) have abused their executive powers in ways the founder never intended and that I’m sure that would have appalled Locke. But you can see how how the seeds of him were planted in the institutions created by the US Constitution and some of the philosophy behind it.
J-D 07.22.25 at 10:52 am
I wouldn’t entrust responsibility for writing a constitution to somebody who wasn’t concerned with the objective of making it as clear as possible.
One sentence is explicit about what the President is to execute (the laws); the other isn’t, and that makes it less clear.
Yes, I have noticed that they are at any rate referring to the doctrine of the separation of powers (it’s less clear that they actually spell it out), but just because they are referring to it is not sufficient reason for me to endorse it. I don’t. If you do, why?
At least to some extent, they were trying to avoid democracy, but that’s not to their credit.
If anything about their experience with England influenced them in that direction, it wasn’t the actuality of that experience, it was a misinterpretation of that experience, failing to recognise that (as the saying goes) the Cossacks work for the Czar.
What actual experience was that conclusion based on? Which republic had that experience?
TM 07.22.25 at 11:55 am
Gar Lipow: “So yes, the legislature was intended to check executive tyranny. But the executive was given a great deal more power than that required simply execute the legislature’s will because they feared legislative tyranny as well.”
Interesting. What I find hard to understand however is the blunder of letting the president hand-pick the judges supposed to check his power, and to give them life terms to boot. Some of the dysfunctional constructions in the constitution have to do with elite fear of democracy, as you point out, but why they – who were not stupid after all – had so little concern for the independence of the judiciary is beyond me.
NomadUK 07.22.25 at 12:14 pm
That’s being far too generous.
SamChevre 07.22.25 at 4:10 pm
It seems to me that “how are powers divided between legislature and executive” is somewhat unrelated to the key question “unitary executive theory” is intended to answer.
The key question is relatively new relative to the US Constitution: that question is, “to what extent does the civil service have power independent of the elected parts of government?” Unitary executive theory says “it doesn’t, it’s under the President’s direction.” It’s certainly possible to imagine a similar “it doesn’t, it’s under Congress’ direction.” But there is a strong perception that the civil service is substantively partisan, and it is not really usefully under the direction of either the President or Congress.
TM 07.22.25 at 4:28 pm
SamChevre: there are actually laws that regulate this question. Nobody claims that the civil service is “under Congress’ direction”, but the executive up to the president have to follow the laws that Congress made relating to the civil service. At least everybody (including the fascist Junta masquerading as Supreme Court) agreed that was the case until Trump became president and they suddenly discovered that the intention of the US constitution – hidden in plain sight for more than two centuries – was to make the president king.
Litano 07.22.25 at 4:52 pm
JD at 4 says:
I don’t think this follows at all? “The executive power shall be vested in a President” establishes an executive office known as the Presidency and enshrines it in the Constitutional order such that the office cannot be legislated out of existence by a simple act of Congress. (This was not at all an obvious arrangement of affairs coming out of a system where the nation’s executive power was spread across a whole set of dysfunctional offices and committees with no chief executive, all created by acts of Congress.) “He shall take care that the laws be faithfully executed,” on the other hand, establishes a clear limit on the president’s executive power by mandating that laws passed by Congress are executed properly.
I agree that the affirmative obligation to implement laws seems important enough (especially given the political issues of our day) that it seems like it should be front-loaded here: something like “The executive power shall be vested in a President, who shall take care that the laws be faithfully executed.” But I think this misses the broader logic at work with the organization of Article II. Section I creates the office of the presidency and sets up a framework for filling it, while Sections II and III elaborate on the powers and obligations associated with the office. This is why something like “He shall hold his Office during the Term of four Years” goes in Section I, while something like “The President shall be Commander in Chief of the Army and Navy of the United States” does not. In programming terms, it’s like they’re working in a language where you’ve got to declare the new variable and set its parameters before you can start defining and referencing it.
LFC 07.22.25 at 5:11 pm
Gar Lipow @13
Re Locke’s reference to “all the members of the society are to be preserved” — sounds almost like a proponent of the welfare state, though that would be an anachronistic way of putting it. At any rate his assumption seems to be that the executive will, at a minimum, act not to enrich himself but on behalf of (some notion of) “the public good.” But that presumes an executive who is not corrupt or self-dealing.
Gar Lipow 07.22.25 at 7:32 pm
JD quoting me:
Then asks: What actual experience was that conclusion based on? Which republic had that experience?
The above was a quote from John Locke. It was a belief of Locke and the founding fathers. In part, I suspect this was definitional. The idea of Republics was not new, but the idea was very old. So according to John Locke and most theorists of the time, if the legislative authority did not predominate it was not a Republic.
Gar Lipow 07.22.25 at 8:15 pm
I can give some concrete historical examples of how the Founding Enslavers errors in constructing the US constitution lead to Trump by putting thumbs on the scale for reaction. I call it an error because even though they opposed democracy (which was the source of some of their errors) they also opposed tyranny. I suspect that this is the root of their errors. You cannot, in the long run, oppose both democracy and tyranny. But the particular form they gave the constitution, the details of the institutions they created, helped preserve reaction at key moment.
1) The impeachment of Andrew Johnson, who as president was a leading force in opposing the Reconstruction in 1868. In the House, which was as democratic an institution as existed at the time anywhere int the world, 2/3rds of the votes were for impeachment. In the Senate however, which is basically a constitutionally mandated rotten district system – with each state getting two senators regardless of population – the defection of 7 Senators was enough to prevent conviction. If Johnson had been convicted, that would have been a victory for the radical reconstructionists who favored land reform and other economic changes that would have not just made equality for Black people a matter of law but given them economic power to defend their newly obtain rights. A more radical reconstruction, especially if it had not been betrayed as soon would have given us a very different history with racism as force weakened in US history compared to our actual history.
2) Under a more radical reconstruction, in addition to more economic power for Black people, more Confederate leaders would have been held to account. There might have been a slightly larger circulation among the pro-Reconstruction press, possibly even more pro-reconstruction papers. Deprived of some their leadership, the violent backlash against the Reconstruction might have been weaker. Tilden might have lost the popular vote in 1876, and the Republicans run on a less anti-Reconstruction platform. So the Reconstruction might have lasted a few more years before its betrayal.
3) Without the Electoral College Gore would have beat Bush for the Presidency, even with the corrupt Judicary.
4) Without the Electoral College, Hillary Clinton (or whoever) would have beat Trump, assuming that without the changes that occurred under Bush, Trump would have even been a force.
And I’m not even mentioning (because it has been discussed extensively) the role appointing judges for life played in how bad our system became. So yes, Trump could not have run as wild if the Republicans did not control every part of every branch of the US government. But if the Constitution had a different form, it would have been harder for all this to have happened. The constitutional form, something that might be dismissed as “superstructure” played a huge role in how we ended up where we are. I am not dismissing the root causes, capitalism, racism and gender oppression. But institutional forms matter a great deal.
mw 07.22.25 at 9:17 pm
Here’s a view that I don’t expect to get much traction here, but one way to make sense of all this is that the Supreme Court is trying to force Congress do its job again. That means that it’s no longer going to allow Congress to pass vague aspirational laws and set up nominally executive agencies to fill in all the details (and deflect any blame from the legislators — Chevron deference) and also structure them in a way such that they aren’t really under control of the executive they purportedly work under (unitary executive). Not to mention enforcing the agencies’ regulation-cum-laws with cases brought before ‘administrative law judges’.
One big test of this theory — Trump’s tariffs have not been yet adjudicated on their substance. There’s a case working through the courts challenging the notion that emergency law Trump is relying on for tariff authority is sufficient to grant him that power AND whether or not it is even it would be constitutional for Congress to fob off that much power to the president even if it wanted to (e.g. would it violate ‘major questions’). How shocked are you going to be if the Supreme Court ultimately invalidates Trump’s tariffs-by-executive order under this logic? I, personally, won’t be shocked.
Litano 07.23.25 at 2:23 am
mw: As you predicted, I don’t find this persuasive at all. A few points:
-In practical terms, how would one distinguish this explanation from the alternative possibility that the Supreme Court is exploiting the gridlock and dysfunction of this Congress (much of which this very court has created) in order to hand the president massive and unprecedented powers? Fascists and their enablers first deepening a crisis of ineffectual democratic institutions and then exploiting that crisis to consolidate power to a Caesarist figure because “he alone can solve it” is not a new phenomenon.
-How does this theory account for places where the Court has issued precedent-shredding opinions that bend over backwards to hand Trump power even at the expense of Congress?
-Connected to the previous point: how would you explain the fact that in many of these cases the court is not actually giving the office of the Presidency itself powers, but rather abrogating powers to itself by creating incredibly vague legal tests that have little precedent-setting value and then using that newfound power to deliver wins to one specific president along highly ideological lines? (Your invocation of the Calvinball “major questions doctrine” here is a great example of the phenomena.)
-Coincidentally, many other elements of the court’s behavior fit this pattern. Their decisions to decline cert, issue “shadow docket” rulings, and reach the merits on certain cases consistently seems to be used in such a way that it is not the executive but rather An executive who benefits. For instance, the Biden administration brought cases in which the government’s action had been frozen by a nationwide injunction to the court several times and even indicated that they were prepared to litigate the constitutionality of the practice. The “do your job, Congress” explanation doesn’t explain why the Court consistently blessed these injunctions when they constrained Biden but only now belatedly realize their unconstitutionality when it can be used as a fig leaf to delay ruling on the merits of Trump’s flagrantly unconstitutional behavior in Trump v. CASA, inc. But my “crooked court” explanation does just fine!
In conclusion: I would be very surprised if the court ultimately invalidates Trump’s tariffs-by-executive-order under the major questions doctrine. Trump v. United States, Trump v. CASA, Ginni Thomas’s QAnon ramblings, and Alito’s J6 Appeal to Heaven flag have all convinced me that they are either highly ideologically motivated true believers who yearn for authoritarian rule by a quasi-king figure or so afraid of the costs for defection that they practically feel the need to act the exact same way as true believers would.
To the extent I say “surprised” and not “shocked,” it’s because the court has already shown willingness to create totally meritless distinctions so they can bless Trump’s authoritarian project without giving him a “turn the economy off” button in Trump v. Wilcox, where they functionally overturned Humphrey’s Executor but made a super-special exception for the Fed because of its status as “a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.” I can see them doing a similar thing here by (for instance) shooting down the totally fictional emergency justification for these tariffs while allowing a totally fictional “invasion” justification for deploying the army/National Guard in border enforcement to stand.
J-D 07.23.25 at 6:16 am
I am aware of the style of ‘declaration before use’, but the sentence ‘The executive power shall be vested in a President…’ is not an example of that style, but rather confuses ‘declaration’ and ‘use’ in that stylistic sense. The text could be clearer if it did follow that style, and the way a text would do that would be first to declare ‘There shall be a President …’, then in following text to specify the the conditions for entry into, tenure of and departure from that office, and then later to specify the powers and duties attached to that office (at which point the text might include, as the actual text does, ‘he shall take care that the laws be faithfully executed’.) Beginning with ‘The executive power shall be vested in a President …’ is less clear than beginning with ‘There shall be a President …’ If the people who wrote the Constitution had been familiar with computer programming language style, it might possibly have helped them to make a better job of it.
Were the theorising on the basis of actual evidence or republics with the legislative authority predominating, or were they doing the equivalent of assuming a spherical cow in a vacuum? I’m not aware of any instance of a system of government where the legislative authority predominated and I’m not sure how such a thing would be possible. John Locke and the people who wrote the American Constitution must have been aware of the Roman Republic, and I can’t figure how anybody could study the history of the Roman Republic and imagine it was an example of the legislative authority predominating, and yet I’d be surprised to find out that John Locke did not consider it to be a republic in his sense of the word, or that the people who wrote the American Constitution did not.
TM 07.23.25 at 7:01 am
Gar Lipow: “Trump could not have run as wild if the Republicans did not control every part of every branch of the US government. But if the Constitution had a different form, it would have been harder for all this to have happened. The constitutional form, something that might be dismissed as “superstructure” played a huge role in how we ended up where we are. I am not dismissing the root causes, capitalism, racism and gender oppression. But institutional forms matter a great deal.”
Agreed with all of the above. Legal structures matter a great deal and a better designed constitution wouldn’t have been so easy to rip up by the first president depraved enough to try. This was true of the Weimar Republic as well. But laws and constitutions are not self-enforcing. Institutions are not abstract entities but consist of people. If too many of those people are not willing to maintain a democratic constitution, it won’t maintain itself. Ultimately it comes down to whether the majority of the political and economic elites support democracy or not. In the US, clearly, a critical mass among the elites have decided that liberal democracy doesn’t serve their interests any more, and have rallied behind Trump.
Tm 07.23.25 at 7:19 am
A further observation regarding the executive power clause (re 12, also 17):
Among he explicitly enumerated powers of Congress are the following:
“To make Rules for the Government and Regulation of the land and naval Forces;”
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Here it is made explicit that Congress has the power to legislate how the government operates, and the “unitary executive” bullshit is refuted. It is interesting though that the framers here refer to the powers vested not in the president but in the government. In light of this I agree with J-D that the vested clause at the beginning of Article II is poorly worded and confusing. They could have said that the executive power is vested in the government and the president is the head of government.
German constitution:
Art 62 The Federal Government shall consist of the Federal Chancellor and the Federal Ministers.
Art. 20: The legislature shall be bound by the constitutional order, the executive [orig.: die vollziehende Gewalt] and the judiciary by law and justice.
mw 07.23.25 at 10:23 am
Litano @24 In conclusion: I would be very surprised if the court ultimately invalidates Trump’s tariffs-by-executive-order under the major questions doctrine.
Well, I see this morning that apparently some people with skin in the game are willing to bet otherwise. Now, of course, they wouldn’t care whether it’s overturned on ‘major questions’ grounds — or simply that what Trump has been doing far exceeds the authority in granted by the “International Emergency Economic Powers Act”.
How does this theory account for places where the Court has issued precedent-shredding opinions that bend over backwards to hand Trump power even at the expense of Congress?
Which opinions are those?
and reach the merits on certain cases
Same question.
Litano 07.23.25 at 7:47 pm
It’s interesting that you see this as “betting big on tariffs being struck down” rather than “hedging our bets in case our insider trading positions from the tariffs suddenly collapse.”
As to your other questions: I’d suggest you look at Don Moynihan’s recent article on the Court’s behavior, as well as the Adam Bonica post that he cites from. https://donmoynihan.substack.com/p/when-youre-a-star-the-supreme-court
KT2 07.24.25 at 7:16 am
Litano, it is mw you are replying to.
mw, for you to respond with;
“Which opinions are those?”
[Litano] “and reach the merits on certain cases
“Same question.”
… and not offer something in rerurn is one of the more disingenuous comments I’ve read here.
mw, dyor, but as to your “question”, and to fill in your eliding…
“The Law-Breaking Supreme Court: On Stephen Vladeck’s “The Shadow Docket”
…
“Vladeck concludes that the court’s new use of its injunction power is “indefensibly lawless.” In these cases, there has been no trial and no opportunity to develop an evidentiary record. The court reproaches lower courts for failing to heed its earlier orders—orders issued without any opinions explaining them, which makes them hard to heed. Justice Elena Kagan observed that henceforth “officials must guess which restrictions this Court will choose to strike down.” Vladeck writes that the Court was “[o]blivious to the irony of complaining about a lower court’s failure to apply an analytical framework that the Court itself had never articulated.”
…
https://lareviewofbooks.org/article/the-law-breaking-supreme-court-on-stephen-vladecks-the-shadow-docket/
mw… back atcha.
Which opinions are those?
and reach the merits on certain cases
Same question
And don’t bother using me as a whipping boy or fool, rebut Steve Vladeck.
And please don’t be pedantic about “opinion” as the topic… “He’s the Boss: Unitary Executive Theory and Workplace Authoritarianism” is a bit bigger than pedantry. Unless your trolling.
Happy to be in the wrong mw. I’ll apologise as needed. Don’t worry. I’m not holding my breath.
Over to you mw.
mw 07.24.25 at 10:44 am
Litano @29. I’m not seeing examples of either of those things in the linked piece. For example, AFAIK, none of the impoundment cases have been yet decided on their merits. And some may be moot by the time that happens as the Republican majority has passed it’s first recission bill.
Also there’s no real distinction between “betting on tariffs being struck down” and hedging. One side of the deal is making the bet. The other side, if they take it, is hedging. Obviously, if tariffs aren’t struck down, Cantor Fitzgerald will lose many millions, whereas if they are struck down, they’ll earn a large profit. Even if you suspect they’re hedging their own ‘insider trading positions, they wouldn’t bother to do it if they didn’t think there was a substantial chance of the tariffs being struck down, as the hedging would reduce their profits from such a ‘sure thing’.
mw 07.25.25 at 8:59 am
KT2 @30 In these cases, there has been no trial and no opportunity to develop an evidentiary record
Yes, but that does not mean there won’t be an opportunity — these cases have not yet been decided on their merits, and there’s no reason that they won’t be (or that Trump won’t lose some of them) in the future. In these ‘shadow docket’ cases it appears that they are trying to address the problem discussed by Elena Kagan (watch the section at about 39 minutes about the emergency docket). Has the court gone overboard in trying to end government-by-national-injunction by unelected, forum-shopped district court judges? Perhaps so. But it certainly has been a problem.
LFC 07.26.25 at 2:44 pm
mw @32
More recently Kagan has criticized the Court’s overreliance on unreasoned orders issued on the emergency docket.
mw 07.26.25 at 6:17 pm
LFC @33. “More recently Kagan has criticized the Court’s overreliance on unreasoned orders issued on the emergency docket.”
Yes, she did. Both can be true — that the blizzard of national injunctions by district court judges is a problem AND also that the Supreme Court is slapping some of them down with too little consideration.
J-D 07.27.25 at 4:39 am
It seems the Supreme Court was not inclined to treat it as a major problem when it was a Democratic administration which was being hindered but has much more inclined to treat it as a problem now that it is a Republican administration which is being hindered.
ice 07.28.25 at 2:15 am
There’s no principles involved with the Supreme Court decisions.
If we had a Democratic president, they would decide the opposite.
If we had a different set of justices, they would decide the opposite.
The current makeup of the court includes some extremely mediocre minds (not to mention some harassers). It’s an utter waste of your time to read their justifications because the decision is known in advance, and the reasoning is just casting around for something that seems sorta logical.
Nobody is trying to make the Congress take their own action. These are essentially bought people serving their masters.
Here’s some simple evidence – I am not a lawyer (although I live with one), and I barely pay attention to the legal issues surrounding these cases – and yet somehow, I’m able to predict the decision about 95% of the time. It’s almost like I know which team has control, and nothing else matters…
TM 07.28.25 at 8:03 am
I pointed this out before:
Many of the lower court judges who have been working hard to defend constitutional governance against Trump’s lawlessness were actually nominated by Republican presidents – some even by Trump himself. (https://crookedtimber.org/2025/07/08/whatever-happened-to-romney-republicans/#comment-846476)
In the lower courts, almost 100% of decisions went against Trump. The fascist Junta masquerading as a Supreme Court has overturned most of these decisions, not by deciding them on the merits and giving legal reasons but by using unsigned shadow docket orders that don’t even pretend to be based on legal reasons and amount to nothing but rubberstamping fascist dictatorship.
mw’s bald-faced lies (” trying to end government-by-national-injunction by unelected, forum-shopped district court judges”) really do not deserve a response, other than pointing out that they are bald-faced lies.
mw 07.28.25 at 11:22 am
ice @36 “There’s no principles involved with the Supreme Court decisions.”
I think this is false. That is to say, there is a judicial philosophy at work that is definitely not “approve everything Trump does”. These justices can’t be fired by Trump and will be on the court long after Trump is out of office (some of them, well after he’s no longer even living). So I do not expect them to do a 180 on nationwide injunctions when a Democrat is in the White House. You apparently do. We’ll see who’s right about that — eventually.
LFC 07.28.25 at 3:27 pm
The issue of nationwide injunctions is somewhat separate from the issue of the shadow docket. The SCOTUS disapproval of nationwide injunctions did not use the shadow docket as a vehicle; instead, the Court issued a full opinion nixing nationwide injunctions (Trump v. CASA, majority opinion by Barrett, with dissents).
What the Court has mostly been doing on the shadow docket recently is staying (overturning) district court injunctions that are often not nationwide injunctions but injunctions preventing the Trump admin from, for example, firing board members of an independent agency without cause. And the SCOTUS majority (using the shadow docket) is saying basically: we think these actions fall w/in the scope of “executive power” and we think Trump is thus likely to prevail eventually on the merits, and therefore we’re going to allow Trump to do this while the litigation winds its way through the courts. And they’ve effectively overruled a 90-year-old precedent on this (whether the Pres can fire independent agency members), the case called Humphrey’s Executor, without explicitly overruling it. And this prompted Kavanaugh to say recently, in effect: I agree w the majority that the Pres can do this, but if we’re going to discard Humphrey’s Executor we should just grant cert now (“certiorari before judgment” is what this is called in this context) and overrule it explicitly.
Tldr: even one of the Trump-appointed justices is having some qualms about this way of proceeding.
Tm 07.28.25 at 5:49 pm
LFC: “And the SCOTUS majority (using the shadow docket) is saying basically”
The fascist Junta masquerading as a Supreme Court aren’t even actually saying this; in most cases, they have overturned injunctions without giving any reasons.
It’s also not an open question how they would act if the president were not a fascist, because we all know how they acted during Biden’s presidency and nobody should pretend not to know it. Nobody should pretend not to know that they are partisan hacks because everybody knows what they are.
mw 07.29.25 at 11:18 am
LFC @39 It appears that there is disagreement among the court’s conservatives about Humphrey’s Executor. Kavanaugh, it seems, would grant cert and overrule, but would a majority? Here’s an analysis from one of the Volokh Conspiracy guys. It seems like a reasonable analysis of the justices’ leanings, but I’m no expert court watcher.
Taking a step back, it’s pretty easy to see the constitutional problems with Humphrey. Was the Republican nominated head of the FTC really acting in a purely professional and non-partisan manner under FDR, and would a Democrat-nominated NLRB head being doing so under Trump? The answer in both cases seems to be ‘clearly not’. Should Congress really have the power to create ‘independent’ agencies that are nominally part of the executive branch but not actually under control of the executive (or any direct democratic control at all really) — and may, indeed, actively oppose the actions of the elected president? I don’t know how this is going to come out, but it seems like another way that Trump’s presidency may end up being kind of a bookend to FDR’s.
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