The Humpty-Dumpty SCOTUS

In Lewis Carroll’s “Through the Looking-Glass,” Humpty-Dumpty says, "When I use a word, it means just what I choose it to mean – neither more nor less." Every since Marbury v Madison, the Supreme Court has used similar logic with the Constitution. Now the Roberts SCOTUS has used this superpower to discover that the Constitution places the President beyond the law and allows the President to dismantle independent agencies when they attempt to assert their independence with the ad hoc exception of the Federal Reserve.

“It is demonstrably the case that the U.S. 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.

 

“This week’s 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.”

*snip*

“That reference to a “distinct historical tradition” has the feel of the Court’s Second Amendment jurisprudence, which basically amounts to “things that happened a super long time ago are cool.” But if it happened in the 20th century, not cool. The Fed is okay under a kind of grandfather clause function: it’s a super old tradition. But it only became a super old tradition because it was apparently okay for Congress to do this kind of thing. And if it could do it in 1791 or 1816, there’s no reason it couldn’t do it again in the 1930s. The argument to antiquity collapses under its own weight.”

 

Look, let’s admit it. The Roberts Court is transparently making things up as they go. This is the jurisprudence of autocracy. Don’t pretend that it’s backed by scholarship. This is merely a perversion of the tradition of noblesse oblige.

 

https://talkingpointsmemo.com/edblog/the-courts-make-it-up-as-you-go-constitution/sharetoken/9109361c-3fd0-4e93-9b37-1b26494bde2f