To no one’s surprise, the Court appears to be leaning towards accommodating Trump in the Slaughter case. The following observations are pertinent:
- The issue should not be partisan; President Newsom would have the same rights as Trump. Nevertheless, the vote will likely fall on partisan grounds.
- The Court will be overturning a precedent that is 90 years old.
- In addition, it will be invalidating clear language in a wide range of statutes. SCOTUS is only supposed to do that as an absolute last resort.
- It will also reject a distinction in a previous Roberts opinion between agencies with a single head and no legislative or judicial power and other independent agencies. In separation of power terms, that made some sense. Roberts will have to either lie about the facts in the instant case or repudiate his own arguments.
- The basis for the decision will not really be either textual or originalist. Independent agencies of the type created in the early 20th century didn’t exist at the time the Constitution was written.
- The basis will actually be the views of six justices on a political question relating to the proper implementation of the separation of powers. In that sense, the decision will be reminiscent of the immunity case, which was not based on facts, text, legislative history, or case law, but on the manner in which the majority felt the Constitution should have been written.
- The most interesting section of the majority opinion will be the part in which the justices try to distinguish the Fed from all other independent agencies without sounding cynical or ridiculous. Will they succeed? TBD.