Kindle Notes & Highlights
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March 11 - June 19, 2024
The third theory agrees that the president has implied powers, but if Congress contradicts them by statute—even by implication—the president loses that battle.
The fourth view holds up executive power above that of Congress, full stop.5 It seems to put the presidency above the other branches too by confining the judiciary’s power to check a president if a case reaches the courts.
Somewhat incredibly, all four views from Youngstown Sheet & Tube can be found sprinkled in later Supreme Court cases, underscoring how judicial philosophy matters.
A group of people can agree on one thing in 1952, and a different group of people can take an entirely different view in 2019.
Oftentimes, which factors matter to you most are what determine which side you are on in a constitutional case—not the plain language of the Constitution. So when people talk about the benefits and downsides of appointing judges who will rely on policy judgments rather than on the Constitution’s plain text and tradition, they are setting up a false dichotomy. You now know why.
Justice Marshall pulled out a tool of constitutional interpretation that judges rely on to this day: invoking historical experience as a gloss on what the Constitution means. Because Congress created the bank after much debate, he reasoned, the bank was probably valid.
Interesting logic
“[T]o contain an accurate detail of all the subdivisions,” Marshall explained, a Constitution “would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.”15 In other words, Chief Justice Marshall pointed out as early as 1819 that the Constitution leaves lots of things unsaid and judges must fill in the blanks.
But to this day, the Supreme Court has mostly equated necessary with useful—not essential. This more flexible reading of the term has enabled Congress to do things like create the vast administrative bureaucracy—i.e., federal agencies—that sprawls across Washington, DC, among many other things.
Arent those under Exec?
(I raise this as a reminder that conservative and progressive justices alike make brand-new laws—or reverse old laws—under the Constitution.)
We want Congress to have enough leverage over national commerce to do good things, but not so much that its power becomes unlimited. Drawing meaningful and intellectually honest limitations is hard.
the Supreme Court held that the Equal Protection Clause and other parts of the Bill of Rights don’t bind private parties, so companies were free to discriminate prior to 1964. The court upheld the Civil Rights Act on the rationale that “voluminous testimony [before Congress] presents overwhelming evidence that discrimination by hotels and motels impedes interstate travel.”24 This interpretation—that people traveling from one state to another to purchase time in a hotel room is in fact participating in commerce—was key. The
Despite its mandatory language, the Take Care Clause reasonably contemplates that presidents will decide which crimes—and alleged violators—should be the focus of law enforcement efforts.
What this means is that “the President cannot suspend the law of the land at his whim, as British Kings had.”9 To do so would be akin to giving the legislative branch the proverbial finger—to treat it as if its role were constitutionally irrelevant.
A more realistic approach to prosecutorial discretion under the Take Care Clause might be to acknowledge that, although presidents can decide not to prosecute on a case-by-case basis, they must at least prosecute some people under every law that they are required to execute. In other words, the president cannot categorically refuse to enforce an act of Congress, but he can make decisions within that outer boundary.
And even a solidly conservative Supreme Court would be hard-pressed to dismember the entire administrative bureaucracy, save for its functions that are exclusively executive in nature. Practically speaking, it just wouldn’t be feasible. Congress can’t do it all. It doesn’t have the capacity, the expertise, or the political willpower. It’s easier to shrug off work to an agency, which is politically accountable via the president because voters don’t fully understand that a vote for president is a vote for his top officials in federal agencies too—and those people aren’t even chosen until after
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Because the president appoints heads of agencies under Article II, and has the implied power to remove them, agencies answer to the president. But Congress creates agencies pursuant to the Necessary and Proper Clause. Most agencies get their very own creation statute. Congress also gives agencies their powers.
O now this is interesting. Whats Will's gripe?
There are many possible reasons why Congress left blanks in the NICAC for the FCC to fill. It may be that the highly polarized legislature could not agree on the details of the policy, and its congressional supporters were aware that if anything was to be passed, the only way to do it would be with broad brushstrokes. Members could also have been eyeing the next election and realizing that taking a position on particular elements of a policy—such as banning or not banning certain kinds of online pornography—could prompt an outcry from industry, concerned parents, or some other constituent
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At the end of the day, it’s a fact that agencies makes laws. So Congress effectively created a statutory “employee manual” for agencies to follow when they make laws. It was enacted in 1946 for the precise objective of keeping agencies from overreaching when they used their newly minted New Deal powers, and it is known as the Administrative Procedure Act (APA).
The idea behind the process is to give lots of advance notice of the rule to the public and to invite anyone who might have a stake in the rule to weigh in with written comments that are directed at the people within the agency responsible for drafting the rule.
An agency regulation reflecting such a policy decision will not be perfect, but maybe we can sleep at night knowing that agencies must at least make rules that are reasoned and supported by sound and comprehensive information—because the rules have to be under the APA.
There are numerous additional statutes that agencies must comply with before they can get regulations on the books.
The Constitution does not refer to executive orders and there is no statutory authority for them.15 But historically, any writing by the president giving directives to subordinates constitutes an executive order. In 1873, President Ulysses S. Grant issued an executive order setting forth guidelines for issuing executive orders, which exists today in revised form.16 The order must go to the Office of Management and Budget and then to the attorney general for approval before it’s signed by the president.
Executive orders now number more than thirteen thousand.
The Constitution’s use of shall in other places—such as Article I, Section 1’s statement that “[a]ll legislative Powers herein shall be vested in a Congress of the United States”—has been riddled with holes. Kids are taught in school that the legislature makes laws. But as we’ve seen, so do federal agencies. And when federal agencies make laws, those laws function with the same power and authority that acts of Congress do. So we know that shall does not have one definitive meaning under the plain reading of the Constitution.
Under Schick, therefore, the same keen lawyer must ask whether a pardon offends some other provision in the Constitution. This is exactly the right next question.
The statute is called the War Powers Resolution, and it limited presidential power in response to the unpopular Vietnam War.32 The president may introduce armed forces only pursuant to (1) a declaration of war, (2) a specific statute, or (3) a national emergency created by attack upon the United States. The law also requires that the president report to Congress and withdraw troops after sixty days if there’s no formal authorization of war by Congress. But it hasn’t been enforced.
As a practical matter, there is no cop on the block willing to enforce Article I in this regard. To make its power to declare war meaningful again, Congress might have to cut off funding to the military until the president complies with the Constitution and the War Powers Resolution. This won’t happen, at least anytime soon. The power to wage a war is an area where the relative power of the presidency has steadily increased since the founding of America.
Although Congress ratifies treaties, the president can do a “treaty-lite” without Congress’s buy-in. Presidents can negotiate what is called an executive agreement, which, like a treaty, is between the United States and a foreign country. There is no substantive distinction between the two—an executive agreement can accomplish precisely the same things as a treaty—but the former does not require Senate ratification. And “[n]ever in American history has the Supreme Court declared an executive agreement unconstitutional as usurping the Senate’s treaty-approving function.”
At the end of the day, there is no king, but as construed by the Supreme Court, the US Constitution has tolerated some king-like powers inherent in the office of the president. Few Americans realize that many of these powers—including those surrounding foreign affairs—do not derive from an unambiguous reading of the plain language of the Constitution. It’s of critical importance that Congress, and ultimately the voters, keep a close eye on the escalation of presidential powers under both Republican and Democratic presidents. Once in the toolbox, they are there to stay.
Notably, the Constitution itself does not declare that federal courts have the authority to strike down unconstitutional laws enacted by Congress. The Marbury court came up with that rule, and the decision has stuck all these years. There would be nothing more concrete than respect for the rule of law to stop a renegade president from coming along and declaring that Marbury is wrong and that the president gets to interpret the Constitution however he sees fit.
Moreover, the Constitution makes clear that they have jobs for life (absent impeachment) and cannot have their pay docked simply because they make decisions that are politically unpopular.
The thing is, the US Supreme Court doesn’t have to take any one case. The justices pick and choose what cases they want to take (and the court takes only about eighty a year).
In Latin, habeas corpus means “you shall have the body.”7 The notion is that if the government has arbitrarily put you in jail, you can petition the courts to get out.
In theory, Congress could change its mind and eradicate all federal courts except for the Supreme Court with a statute, and change the composition of the Supreme Court to just one justice.
As distinct from the other branches, then, the beauty—in theory—of the federal judiciary is that it cannot be influenced by power, money, or survival. The assumption instead is that judges on the federal bench will make decisions neutrally, apolitically, and legitimately. The reciprocal problem is that federal judges are not tethered to the real-time will of the people.
We live in a society where one of the cultural norms and values is that we mostly obey judges’ orders. If people stop obeying court orders and get away with it—particularly at the highest echelons of government—our democracy is in big trouble.
It was not until Loving v. Virginia in 1967 that the Supreme Court invalidated laws prohibiting interracial marriage (known as anti-miscegenation laws) on equal protection and other constitutional grounds.
If we instead think of rights as a way to stop government from being too overbearing, then it becomes clear that the more rights that are recognized, the less power that the government has overall. When government has more constraints, all people get more freedom from government bullying.
greatest protection are not sacrosanct. Basically, the Supreme Court has set up a grading rubric. Certain things that we don’t care so much about get graded on a pass/fail basis. In other words, so long as the government can show what’s called a rational basis for a law restricting things that the court thinks aren’t that important, it’s good to go. (Setting the First Amendment aside, for the sake of example, a law that forces police officers to retire by age fifty gets rational basis review on the notion that we aren’t too worried about the government picking on people because of their
But the Supreme Court went further and said that the law wasn’t a prior restraint in the first place, so strict scrutiny didn’t apply—rational basis did. The court took this position even though the law made clear—in advance of anyone speaking—that people couldn’t express their views within the thirty-six-foot buffer zone. The court reasoned that people could do it in other places, and the restraint didn’t hinge on the content of what the protesters wanted to say, so it wasn’t a constitutional problem.
Strict scrutiny vs Rational basis
Bottom line: things can get messy when the court makes little tweaks in applying the Constitution.
The court’s later decision to ban mandatory union dues—regardless of what they are used for—made people upset, in part because it’s very rare that the Supreme Court reverses itself, and for good reason.
If the justices didn’t feel bound to stick with precedents they didn’t personally agree with, the law would be in constant flux and ultimately politicized, with the pendulum swinging back and forth on key issues every time the court’s composition shifts. Regarding this particular case, critics contend that the 5–4 decision reflected the political motivations of a conservative majority, because fewer union dues generally translate into a smaller voice for Democratic (versus Republican) voters.
Courts can pick which theories to apply. In doing so, judges can deliberately seize upon a theory that, if applied, leads to a certain result—and reject the one that, if applied, would lead to a different result. Judges on both ends of the political spectrum do this. It’s called legal analysis, and it’s one reason why law school—and lawyering—can be really hard.
Let’s talk next about defamation—also known as slander (if spoken) or libel (if written).
In most cases, the court applies a three-part test set forth in the Lemon decision I mentioned earlier, looking to whether a problematic law has a nonreligious reason behind it; whether it has a principal effect of helping or hurting religion; and whether it fosters government entanglement with religion.
Here’s the overarching problem: If the court draws the line too far in favor of the free exercise of religion, people can point to religion as an excuse for getting away with all kinds of stuff that general laws forbid. If the court draws it too far in favor of government regulation of religion, then the government can infringe upon religion so long as it comes up with a reason that’s neutral.
At the end of the day, the Supreme Court has basically held that a law that is neutral on its face (i.e., not expressly about religion) and applicable to everyone gets the lowest grading rubric: it is okay so long as there’s a rational basis for it. For those laws, any government excuse that is rational will do.
It is thus equally reasonable to read the plain language of the Second Amendment as only about militias, full stop. Under this reading, all the language in the Second Amendment modifies the first clause.
Someone who adheres to a plain-reading approach to constitutional interpretation might stop there and confine the reach of the Second Amendment to what the framers understood to be arms. Semiautomatic machine guns of the modern day would not count (and that makes some logical sense, as people don’t need semiautomatic weapons to protect themselves in their homes).
