Josh Marshall: The Court's 'Make It Up As You Go' Constitution

[Nevilledog]

https://talkingpointsmemo.com/edblog/the-courts-make-it-up-as-you-go-constitution

What interests me most about the Supreme Court’s telegraphed decision ending independent agencies is the ease with which they discard their governing theories (unitary executive) when the results are ones they find unpleasant (ending the independence Federal Reserve). Let’s make a note in passing that as long as they were going to make this disastrous decision I’m glad they were also hypocrites and exempted (or suggest they are going to exempt) the Federal Reserve because that would have made it even worse.

It’s very much of a piece with 2024’s presidential immunity decision. It is demonstrably the case the US Constitution does not provide the President with any immunity from prosecution. You can argue this from absence (it literally doesn’t provide it); you can argue it from general logic, which is admittedly an inherently slippery kind of argument (no one is above the law); perhaps most convincingly you can argue by the fact that the constitution writers very much knew how to provide immunity where they believed it should exist and did so in the case of members of Congress (speech and debate clause). They knew how to do it and decided not to for Presidents. The most generous reading of the aptly-named Trump vs United States is that Roberts et al. decided as a matter of policy that such immunity should exist and therefore decided to create it. But it is entirely a 21st century creation with no basis whatsoever in the actual constitution.

The independent agency decision is very similar. The Court doesn’t even make much attempt to explain why the unitary executive principle doesn’t apply to the Federal Reserve beyond a hand-wavy ‘it’s way old’ and ‘it’s different’. (The actual language: “The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”) The best real explanation is that independent agencies are in the regulation business, something the majority doesn’t like, whereas, despite it’s regulatory functions, the Fed is in the stable money supply business, something the majority does like.

Peer a bit into the Court’s logic and it disassembles itself. Much of the push behind the conservative legal movement’s obsession with unitary executive power is the idea that the elaboration of the regulatory state was in a sense extra-constitutional if not anti-constitutional, a novelty of the 20th century. To the extent we place the Fed in the lineage of the First and Second Banks of the United States this illustrates how this is very much not the case. The first bank was almost literally part of the Constitution inasmuch as Alexander Hamilton had the idea of its creation in mind when he was helping to write and advocate for the Constitution. Certainly key architects of the Constitution very much had the idea that something like the First Bank of the United States could and should exist under the Constitution. The existence of the first two banks, quite controversial in their own day, makes clear that the architects of the Constitution very much believed that these sui generis – in the executive branch or executive in nature but not entirely in it – entities could exist. Because they created them. And if they could create them in the 18th and 19th centuries why couldn’t they create them in the 20th and 21st?

*snip*