A couple of seemingly disparate points that will come together in an unholy embrace:First, there have long been philosophical debates among Constitutional scholars about the role and nature of the office of the presidency, which are not as defined as those for Congress.
The debate has revolved around two lines in Article II: “The executive Power shall be vested in a President” (Section 1) and the president “shall take Care that the Laws be faithfully executed” (Section 3).
The latter provision, it has been argued, means that the role of the president is to carry out, to execute, the will of Congress as expressed in the laws. Through the veto power, the president has a say in what the laws are, but once a law is passed, that say is limited to what Congress allows - somewhat like a CEO subject to oversight by a board of directors. In its extreme versions, the president is reduced to little more than a functionary of Congress.
The former, on the other hand, claims that “as night follows day,” in the words of one advocate, giving the president “the executive power” means giving them direct and personal control over all matters that could be considered executive functions, including those related to staffing and the heads of agencies, distribution of funds, establishment and administration of regulations, and more. In addition, any federal-level board or agency carrying out any executive function such as regulatory oversight or enforcement is likewise under the president’s control, as are, therefore, their staffs.
That theory of the presidency is known as the “Unitary Executive”* and perhaps because of the enormous amount of power this would concentrate in one person’s hands, it was long considered a fringe theory, only to emerge from the shadows in recent decades, particularly since about 2010.
Okay, point two is that the Supreme Court has something called the “emergency docket,” where it takes up “emergency” appeals of lower court rulings, usually injunctions of some sort, in cases where the issue is at least supposedly of such immediate and pressing importance that it can’t wait to go through the normal appears process. The rulings are made without a full briefing, without oral argument, and, it appears, often with the justices discussing them at all. It seems to often be just “Here’s the appeal, how do you vote?”
The decision is issued often without any legal reasoning and frequently with no record of who voted which way. Because of the opaque nature of the whole business, this “emergency docket” is often called the “shadow docket.”
Point three is a Supreme Court decision called Humphrey’s Executor v. United States. The case dates from 1935 and in it, the Court unanimously held that Congress has the authority to create independent agencies, not under the direct management of the president, and to insulate their members from presidential removal unless a good cause for the firing existed.
Okay, how do these points come together?
Over recent months, various federal courts, at both district and appellate levels, have blocked the Orange Overlord and his minions from carrying out mass firings and mass deportations, kicking trans folks out of the military, cancelling various grants, moving to dismantle the Education Dept., undermining birthright citizenship, trying to take over various agencies by firing their boards or administrators, giving DOGE’s (pronounced “dodgy”) band of grizzled veterans of high school access to our personal data - and more. And SCOTUS has repeatedly used the shadow docket to get rid of many of those injunctions, letting King Spray Tan continue his rampage. (It should be noted - while unnecessary to say - that almost all of these were by votes of 6-3, so “who voted which way” isn’t exactly a Final Jeopardy!-level challenge.)
Perhaps even more to the point, a good number of these rulings are in stark contradiction to the Humphrey’s Executor case, the one which found that Congress could put precisely the sort of limits on Executive action that the Scurrilous Six (AKA the SS) are allowing.
“Piffle,” the SS reply. “We’re not deciding these cases. These are not final decisions.” Oh, yeah, that’s right. They are just “while appeals continue.” No harm, no foul.
Except, of course, to the irreparable harm that is done to those who, to name a few, will be kicked out of their jobs or their careers or the country, the irreparable harm done to scientific research, to health care, to the environment, the irreparable harm to the aspirations for justice among those, like trans folks**, who are stripped of anywhere to seek it if “the Messiah of America” (as wild-eyed Xian fundamentalist Shane Vaughn calls him) is given continued free rein. Or reign.
Which is the real point. In a technical, legal sense, it’s true, these actions are not final. But in a practical sense, for those people and agencies impacted they are.
And it’s more than that, which is the ultimate point I wanted to make, what brings this all together. Because it won’t be the end. By consciously choosing to allow the slaughter of reason, of ethics, of functioning government agencies built up over decades to continue, by empowering the mass firings, the mass deportations, the stripping of rights, the destruction of independent agencies, and doing it all in direct defiance of 90 years of Supreme Court precedent, these reactionaries in robes, the Scurrilous Six, have de facto embraced an extreme version of the Unitary Executive, one in which, as a mirrored version of the alternative that could make the presidency just a functionary of the Congress, could and if they have their way would make Congress little more than a piggy back for an Executive Branch controlling all the levers of power in the federal government.
So don’t be fooled for a minute, a second, by the “while appeals continue” blather. I see no reason to think that if and when an appropriately useful case gets to them, they will not contrive some reason, some justification, for kicking Humphrey’s Executor to the curb in favor of centralized power, even if that power is not in the hands of our present pretender to a nonexistent throne.
This does not mean give up, it does mean stop going to the federal courts, if only because SCOTUS can’t take up every case, with some wins at the district and circuit levels having gone unappealed for just that reason.*** And it definitely does not mean not hitting the streets or ignoring state-level pressure and organizing.
It does, however, mean that this is the reality of the legal universe in which we are operating and we have to be prepared to fight on that basis.
I gave a much-shortened version of this to a group of folks with who I join in a weekly rally and was chided by one afterwards for not including something hopeful. I’m afraid on this matter I don’t see a lot of cause for hope at least in the short make that middle run - but I will say it makes whatever we actions we do take even more vital.
***To the contrary, it suggests filing more suits, as many as can be justified and maybe some that can’t, flooding the system with more cases and findings than SCOTUS would have the room on its docket to overturn even if the SS wanted to.
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