SCOTUS Takes A Holiday From The Separation of Powers On The Hampton Dellinger Jitney

Apart from the Appointments Clause, I think we are standing at the precipice of federal courts revolution.

On Friday evening (after I signed off), the Supreme Court issued a terse statement in Bessent v. Dellinger. The Court didn't grant, or deny, the government's motion to vacate the TRO. Instead, it did nothing. The Court simply ruled that the government's application "is held in abeyance until February 26, when the TRO is set to expire." This document is not exactly an order. I'm not even sure what to call it. It's basically a status update. BRB if you will.

I searched the Supreme Court database on Westlaw for similar updates and couldn't find anything on point. The Court will sometimes hold a petition in abeyance while deciding another case. Ardoin v. Robinson (2022) was such a case. When a petition has already been granted, and the government switches positions, the Court will hold the case in abeyance to figure out how to proceed. The Court took this step in Arkansas v. Gresham (2021) and Becerra v. Gresham (2021). But that is putting ongoing proceedings in abeyance. Here, the Court puts in abeyance an application. And in some cases, where the Court has granted an administrative stay that will expire on a certain date, the Justices will extend that stay. These shadow docket delays occurred in the "Frame or Receiver" case and the Mifepristone case. (Remember, different rules apply to the Fifth Circuit.) But again, that is putting in abeyance an existing stay.

How does a court hold a motion in abeyance? There is no deadline by which the Court must rule. This document reminds me of a district court issuing an unappealable administrative stay of an executive order. That's not a thing. The courts are really starting to get creative.

I've been unable to find any case where the Solicitor General sought emergency relief by a date certain, the Court declined to grant that relief by the requested date, and instead the Court issued an order to simply hold the government's application in abeyance. If anyone has seen such an order, pleases email me.

The votes in Dellinger are a bit unusual. Justices Sotomayor and Jackson would have denied the government's application outright, and did not vote to hold the application in abeyance. Justices Gorsuch and Alito noted their dissent from the order holding the application in abeyance. That means there were five votes to hold the case in abeyance: Chief Justice Roberts, Justice Thomas, Justice Kagan, Justice Kavanaugh, and Justice Barrett. I predicted that the government would lose by a 5-4 vote, with Justices Thomas, Alito, Gorsuch, and Kavanaugh in dissent. I was, as usual, wrong.

What's going on here? Obviously, there was some sort of compromise afoot. I would suspect that Justice Thomas, and probably Justice Kavanaugh, agrees with Judge Katsas on the merits. But that only gets to four votes. Perhaps to forestall the Court denying the government's motion now, they agreed to join the Chief to simply do nothing for the time being. On February 26, when the TRO expires, the Court can come back and issue a ruling for the ages without any of the unusual procedural hurdles. In other words, no precedent is set now. But Hampton Dellinger has received his eviction notice for February 26. He should not get too comfy.

I would commend Justice Gorsuch's dissent. He explains quite cogently why this suit does not belong in federal court. In short, Hampton Dellinger has no equitable cause of action to seek reinstatement. At most, if he is denied his pay, he can seek backpay. And a suit for backpay would a sort of property interest. And even at equity, I think there would have been a cause of action to recover that property interest from the government. However, both Meyers and Humphrey's Executor began in the Court of Claims, and did not invoke any sort of equitable jurisdiction.

Gorsuch writes:

Under this Court's precedents, however, a federal court may issue an equitable remedy only if, at the time of the Nation's founding, it was a remedy "traditionally accorded by courts of equity." Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 319 (1999). That limitation would seem to pose a problem here, for courts of equity at the time of the founding were apparently powerless to "restrain an executive officer from making a . . . removal of a subordinate appointee." White v. Berry, 171 U. S. 366, 377 (1898) (internal quotation marks omitted). "No English case" involved "a bill for an injunction to restrain the appointment or removal of a municipal officer." In re Sawyer, 124 U. S. 200, 212 (1888). And state courts "denied" the "power of a court of equity to restrain . . . removal" in "many well considered" decisions. Ibid. Given that pattern of restraint, by the 1880s this Court considered it "well settled that a court of equity has no jurisdiction over the appointment and removal of public officers." Ibid.

Dellinger is not using the Constitution as a shield. By seeking reinstatement, he is attempting to wield it as a sword. But he cannot seek affirmative relief (that is, reinstatement) absent a statutory cause of action. And Justice Gorsuch recognizes that no such equitable cause of action existed at equity when the Constitution was ratified.

Seth Barrett Tillman and I developed these arguments during the Emoluments Clauses litigation. (BTW, has anyone sued Trump yet for violating the Emoluments Clauses??)

The Supreme Court has not recognized a free-floating equitable cause of action to challenge ultra vires government conduct. Cases like Ex Parte Young, Free Enterprise Fund, and Youngstown Sheet & Tube Co. v. Sawyer did not provide the plaintiffs with a cause of action. Absent a viable equitable cause of action, the federal district courts lacked equitable jurisdiction to hear the three Emoluments Clauses cases. . .  .

With respect to the cause of action question, the Emoluments Clauses cases were not unique. During the Trump presidency, other courts also concluded that federal courts had equitable jurisdiction to enjoin ultra vires government conduct. 314 These holdings were flatly inconsistent with Grupo Mexicano.315 And DOJ vigorously advanced this straightforward argument—based on Grupo Mexicano—that federal courts lack equitable jurisdiction to enjoin purported ultra vires government conduct

Gorsuch's opinion is consistent with one of the sleeper cases from last term, DeVillier v. Texas and Justice Thomas's dissent in Wilson v. Hawaii. The Constitution cannot be invoked offensively without a statutory cause of action. Justice Thomas explained that "constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose."

A long line of cases stretching back to Chief Justice Chase's decision in Griffin's Case recognizes this sword-shield dichotomy. Seth Barrett Tillman and I developed this doctrine in our Section 3 article. I realize most people were focused on our arguments about whether Trump was an "Officer of the United States," but the real important contribution was about Griffin's Case. Even if you agree with Baude and Paulsen that Chase got Section 3 wrong, Chase was right about federal courts jurisprudence. Justice Samour on the Colorado Supreme Court, in dissent, fully understood this principle, and cited our article.

¶293 For now, though, it is worth stressing that, despite detractors in some quarters, the other premises have withstood the test of time: Section Three is not self-executing, and Congress has the exclusive authority to enforce it. See Cale v. City of Covington, 586 F.2d 311, 316 (4th Cir. 1978) (citing Griffin's Case for the proposition that Section Three is "not self-executing absent congressional action") . . .

¶299 Certain legal scholars have sought to explain this purported incongruence by surmising that Chief Justice Chase's application of Section Three in Griffin's Case was politically motivated. Consequently, they criticize Griffin's Case as wrongly decided and the result of flawed logic. See Baude & Paulsen, supra (manuscript at 35–49). Other legal scholars, however, question whether the statement quoted above from the Federal Reports accurately represented Chief Justice Chase's views. They point out that the case reporter, a former confederate general, was the very attorney who represented Judge Sheffey in Griffin's Case.7 See Blackman & Tillman, supra (manuscript at 15). Even assuming Case of Davis warrants any consideration at all, there is no need to join this affray because these cases can be reconciled in a principled manner by recognizing that there are two distinct senses of self-execution. Id. at 19. I find this distinction both helpful and borne out by the case law.

¶300 First, there is self-execution as a shield, allowing individuals to raise the Constitution defensively, in response to an action brought by a third party. Second, there is self-execution as a sword—such as when individuals invoke the Constitution in advancing a theory of liability or cause of action that supports affirmative relief. When acting as a shield, the Fourteenth Amendment is self-executing. Cale, 586 F.2d at 316. The Fourteenth Amendment, however, cannot act as a self-executing sword; rather, an individual seeking affirmative relief under the Amendment must rely on legislation from Congress. Id.

¶301 The Fourth Circuit aptly adopted this distinction in Cale, thereby reconciling any apparent inconsistencies in Fourteenth Amendment jurisprudence.

Anderson v. Griswold, Colo., 543 P.3d 283, 348, 351 & n.7, 356 (Colo. Dec. 19, 2023) (Samour, J., dissenting).

Justice Samour was exactly right. And I think the Supreme Court is trending in that direction.

Apart from the Appointments Clause, I think we are standing at the precipice of federal courts revolution. All of these tick-tack suits against Trump will likely set some extremely significant precedents to reaffirm the separation of powers. If the Court follows through with DeVillier and Dellinger, and holds that statutory causes of action are needed to seek affirmative relief, entire swaths of suits will be barred from the federal courts. Overruling Bivens would just be the tip of the iceberg.

Comments

[Noscitur a sociis]

On the merits, I agree that Dellinger’s claim for equitable relief is extremely unpersuasive, and Gorsuch demolishes it as well as anyone.

The problem, of course, is whether the Supreme Court has jurisdiction to opine on that in this case right now, and there Gorsuch’s argument is much shakier.

The main fault, I think, lies with the administration for failing to find the right procedural vehicle. Which is concerning, because I suspect this may not be the only time this issue presents itself!

[Commenter_XY]

I had a somewhat related thought (procedural vehicle). One observation I've read from multiple Justices is they get cases with an insufficient record. The case lands in their lap, without the benefit of arguments being made in lower courts. I interpret SCOTUS' actions as taking some time (4 business days) to let the process play out (TRO). You're right, this will come up again and again.

The DOJ should use the time wisely and improve their argument.

[Noscitur a sociis]

No, Commenter_XY, that’s not the issue at all. The issue is that you can’t generally appeal a TRO directly, and the administration thus needs to demonstrate that this isn’t a TRO at all. I’m not at all convinced that they’ve done that, and since that question will become moot in a couple of days, I can see why the court wanted to hold off.

What the administration probably should have done was seek mandamus relief. But they didn’t, so they’ll have to try again if the district court issues a preliminary injunction (which I assume it will).

[post hoc ergo propter hoc]

they did ask for mandamus, but it was denied as premature. https://media.cadc.uscourts.gov/orders/docs/2025/02/25-5028LDSD.pdf ~pp12-15.

[Noscitur a sociis]

Fair enough. It doesn’t appear that they asked the Supreme Court to reverse that, though.

[MollyGodiva]

"Separation of Powers" is nowhere to be found in the Constitution. If you read the Constitution without any preconceived notions, you will find that the President has no independent authority under the Constitution (other than pardons). Every authority the President has comes from Congress. Every position in the Executive branch (other than P and VP) were created by Congress. The proponents of the imperial presidency take a few words out of Article II and ignore the rest of the document.

Congress can impeach the president, provides every penny the Executive Branch gets, and makes the laws the President is bound to faithfully execute. The President does not have squat powers over Congress.

We have built an entire mythos about Presidential power that has no basis in the Constitution.

[Mr. Bumble]

You forgot the "mythos" of judicial power.

[ReaderY]

The President has a number of other real sources of power. The Commander in Chief power is a real power, as is the power to receive ambassadors, which I agree is a power to recognize of not recognize coumtries and regimes (I agree choosing whether to receive or not to receive an ambassador implies a power to recognize and negotiate with, or not recognize or negotiate with, the country and regime the ambassador represents.) Likewise, the President has a power to get an opinion in writing from any officer he chooses to.

I think the problem with the unitary executive theory is that it doesn’t account for why the enumerated Presidential powers exist. If the President were already all-powerful, with all his powers derived from the Vesting Clause alone, as the theory holds, then these various clauses granting specific enumerated powers would be meaningless and superfluous.

[Riva]

You're all fairly confused. "There is an explicit grant of power to the President, which contains the power of removal. The executive power is granted; not the executive powers hereinafter enumerated and explained." John Adams, Notes of a Debate in the Senate, 15 July 1789Works 3:408—12

[David Nieporent]

That was certainly the words of one person, yes.

[post hoc ergo propter hoc]

that's recording what sen. ellsworth argued during the senate debate, so leg history. adams recorded 13 separate speakers, and added montesquie and blackstone's views even though they were (presumably) not present. https://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s44.html

[David Nieporent]

It should also be noted that when you say "the senate debate," it wasn't a debate over the constitution itself. (Obviously, since no senate existed before the constitution.) This was a post-ratification debate over a bill.

[Riva]

Ok, so what? "The executive power is granted; not the executive powers hereinafter enumerated and explained." seems a pretty clear and cogent answer to those who claim that the grant of full executive authority is somehow limited by the identification of certain core executive functions, regardless of who said it.

Whatever the troll says, however, is of no consequence.

[Krayt]

"Well, I have finite resources, and cannot implement or enforce every law."

People blink a few times, confused, and say, "Yeah, I guess. That kind of makes sense."

Some years later, deliberately ignoring chunks of the law, with stated official policies as to why, having nothing to do with shortages, and sometimes with the policy in direct contravention of Congress' goal, becomes a thing.

A few years later, courts treat these things as something that must be carried forward, implicating future presidents, and cannot be reversed without due process of hearings and comment periods and whatever that can be pulled out of a pocket.

It takes two to tango when creating an imperial presidency.

Imperial for me, but not for thee.

[ReaderY]

The problem with this prosecutorial discretion argument is it ignores a great deal of history. Over the half century or so before Lawrence v. Texas, most states and even more cities within states had gradually stopped enforcing their various consensual sexual morality laws. The same is increasingly true today with marijuana and prostitution; in many places where it still remains illegal, the law is largely unenforced. And it was true before the 20th Century too. Many local prosecutors more or less ignored laws against not just fornication and adultery but against gambling, prostititution, liquor, tobacco (it used to be illegal in many places), closing businesses on Sundays, and much else. Some did so corruptly, for bribes and such. But many did so because they did not believe enforcing these laws was in the public interest.

And declining to enforce these laws caused great controversy among in many places and times. For example, in the 1970s, when gay rights was coming on the horizen, the North Carolina legislature passed a draconian law authorizing the removal of a elected district attorneys, mayors, and city councils in towns whose police and courts refused to enforce these laws caused sodomy laws, and there were citizens groups regularly lobbying for stricter enforcement. And in the Clinton impeachment, sodomy was, by Act of Congress, still a felony in the District of Columbia. Lawrence’s dictum saying adultery is still punishable suggests that adulterous sodomy may be criminalizable even today. But the law had so fallen into abreyance that nobody in Congress even so much as brought up the fact that the President had unquestionably and admittedly committed what Congress had made a crime.

Given this very long history of members of the Executive branch at all levels - municipalities, states, and the federal government - not enforcing highly controversial laws, I think it’s pretty well established that it’s within the power of the executive branch to do.

Here the executive branch has not merely failed to enforce a law against third parties. The people filing these lawsuits are claiming that officials or agents of the Executive branch themselves committed illegal acts. The two are totally different concepts. Failing to enforce the law when violated by private parties is a matter of prosecutorial discretion discretion not reviewable by courts. But claims that the executive branch itself did something illegal is, or at least very often is, something that courts can review.

[wvattorney13]

I think this somewhat overstates the non-enforcement policies. Sure, the so-called "sin laws" were not harshly enforced because it was generally agreed that those were hortatory goals that nobody thought would actually eliminate those activities. So prosecutors mostly had an "if I don't see it, it didn't happen" philosophy.

The laws did at least keep those activities from being in the public eye. Gambling, for example, would be done in the back room at the pub or with the underhanding of a betting slip instead of a giant neon sign advertising a casino. And that largely was what the public wanted.

I'm not sure how you extrapolate the sin law enforcement into a general policy that includes laws that some people really do want strictly enforced like immigration laws. Prosecutors (and executives) in these cases are simply substituting their will for the public will. I think that is a difference in kind and not of degree.

[MaddogEngineer]

I appreciate you (unintentionally) documenting why Lawrence v Texas was an illegitimate Supreme Court decision. I'm not in favor of criminalizing sodomy. I'm against specious decisions unmoored in any legal principle for creating a subjective animus standard for striking down particular laws allegedly targeting classes not specifically identified in the Constitution.

If you want to strike down some of them as equal protection violations (only enforced against same-sex interactions or selectively enforced in general) fine. Arguing that such laws violate the US Constitution because a judge has discerned a specific animus by its authors is not valid application of judicial power. Like Scalia liked to say, stupid but constitutional.

[Dr. Ed 2]

Talk about ignoring law -- Marijuana is STILL a Schedule I substance, same as Heroin, strictly prohibited.

By Stella's logic, the DEA would be required to raid every pot store...

[Bob from Ohio]

"as the theory holds"

Not really. The theory is whatever Executive Powers there are, all of them rest with the President. It neither grants nor withholds a specific power, it just says who has the powers.

You and Molly make the President a mere clerk with a couple of specific powers.

[ReaderY]

Could you explain why the Constitution contains a specific enumerated power pertaining to the relationship between the President and other members of the zexecutive Branch? I’m referring to the power to demand a written report.

What’s it doing there? Standing?

[MollyGodiva]

They take the position "If the power is not enumerated to the Judiciary, Congress, or the President, it is a power of the President."

[Lee Moore]

https://constitution.congress.gov/browse/essay/artII-S2-C1-2/ALDE_00013694/

In the Federalist No. 74, Alexander Hamilton credited Article II, Section 2, Clause 1 with little importance, stating that he considered the provision to be a "mere redundancy" because "the right for which it provides would result of itself from the office." Discussing the provision in his Commentaries on the Constitution of the United States, Justice Joseph Story opined that while the President’s right to require such opinion "would result from the very nature of the office," the provision serves a purpose by "impos[ing] a more strict responsibility, and recognizes a public duty of high importance and value in critical times."

[David Nieporent]

The theory is whatever Executive Powers there are, all of them rest with the President.

That's not an unreasonable theory, except of course for the ones that Congress chooses to give to others as per Article II, Section 2, Paragraph 2, but it begs the question. "Whatever Executive Powers there are" is entirely the issue under debate.

[Lee Moore]

Article II, Section 2, Paragraph 2 refers only to the appointment of inferior officers, who are, by definition, answerable to the principal officers above them, who are in turn answerable to the President.

Congress cannot give executive powers to anyone beyond the President's control. That's what "The executive Power shall be vested in a President of the United States of America" means.

Congress certainly has the power to grant or decline to grant executive powers to the executive branch. It's just that it doesn't have the power to grant them to people outside the President's command.

[David Nieporent]

Article II, Section 2, Paragraph 2 refers only to the appointment of inferior officers, who are, by definition, answerable to the principal officers above them, who are in turn answerable to the President.

And? Let's take someone who is an inferior officer: an ALJ. Is appointing an ALJ an executive power? Yes. And thus, if Congress creates the office of ALJ, then (in the absence of a statute to the contrary), the president can appoint one. But if Congress passes a law saying that, say, the head of the department shall appoint ALJs, then the president loses the authority to appoint them. He cannot exercise that power, despite it being executive in nature.

Congress certainly has the power to grant or decline to grant executive powers to the executive branch. It's just that it doesn't have the power to grant them to people outside the President's command.

That's wrong. The constitutional provision I cited also allows Congress to vest the power to appoint inferior officers in the courts of law. (Which are, of course, outside the President's command.)

[Lee Moore]

"Congress certainly has the power to grant or decline to grant executive powers to the executive branch. It's just that it doesn't have the power to grant them to people outside the President's command. ....except the power to appoint inferior officers in the courts of law."

Happy ?

But Congress has no power to grant any further executive powers beyond the control of the President, because the appointment power is the only such power granted in the constitution.

Thus inferior officers appointed either by heads of departments, or by the courts of law remain within the Presidents chain of command.

[Jason Cavanaugh]

The Framers did not immediately set out to create a King after rebelling against one. You continue to ignore the numerous historical, structural, and textual deficiencies in your argument.

You're welcome to continue to repeat yourself as frequently as you'd like to keep being wrong.

[Lee Moore]

Thank you for your indulgence.

Aside from Mr Nieporent's correct, if very limited, exception expressly stated in Article 2, what other departures have you found in the text of the constitution, from Article 2 sentence 1's vesting of the executive power in the President ?

[Ghost of Patrick Henry]

Actually, the anti-Federalists thought this is exactly what Hamilton was doing with the "new" Constitution. The Articles of Confederation had no such sweeping executive powers. The "Framers" rejected the Articles exactly BECAUSE of the weak executive powers. The anti-Federalists were exactly right. The Constitution created what is, in effect, an elected King. Take your argument up with General Hamilton.

[Bob from Ohio]

"it begs the question."

It was a correction to ReaderY 's misstatement of the theory. The president is not "all-powerful", he's limited by the constitution.

[JoeFromtheBronx]

You should not read the Constitution completely without "preconceived notions" because the reason and background of its text help clarify its meaning. It is rather artificial merely to read the text, which can mean any number of things in various cases.

Separation of powers and checks and balances is a thing. ReaderY has helpfully explained one major concern with unitary executive theory. Preconceived notions there are problematic and reading the text is helpful to show why.

[Sarcastr0]

I do agree that preconceived notions are part of just about any method of Constitutional interpretation whether originalist or modern language or what-have-you.
That's part of what makes the 'illegal immigration' crowd so awful; they blow up both everything from originalism to current practice to get at their desired policy outcomes. As bad as the policy-oriented living constitutionalists they conjure.

But! There is plenty of originalism that executive branch discretion is basically limited to what the legislature envisions.

The Executive Power Clause
Julian Mortenson
"Article II of the Constitution vests “the executive power” in the President. Advocates of presidential power have long claimed that this phrase was originally understood as a term of art for the full suite of powers held by a typical eighteenth-century monarch. In its strongest form, this view yields a powerful presumption of indefeasible presidential authority in the arenas of foreign affairs and national security. This so-called Vesting Clause Thesis is conventional wisdom among constitutional originalists. But it is also demonstrably wrong. Based on a comprehensive review of Founding-era archives—including records of drafting, legislative, and ratification debates, committee files, private and official correspondence, diaries, newspapers, pamphlets, poetry, and other publications—this article not only refutes the Vesting Clause Thesis as a statement of the original understanding, but replaces it with a comprehensive affirmative account of the clause that is both historically and theoretically coherent."

As someone with no single favorite jurisprudential theory, the above doesn't do a ton for me. Except it sure is fun to point out that originalist unitary executive types are making a lot of outcome oriented assumptions that require more support than they have at the ready.

[Bob from Ohio]

"But it is also demonstrably wrong. "

The Supreme Court disagrees.

"Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it. "

"very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations -- a power which does not require as a basis for its exercise an act of Congress"

United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)

[Sarcastr0]

You sure did wreck that originalist argument with your 1936 precedent.

[Bob from Ohio]

See, I have a SCOTUS case for my position, you have some obscure law professor.

Sutherland was making an originalist argument. He even cited John Marshall!

[post hoc ergo propter hoc]

please read that case again, with your eyes open this time. jackson's (controlling) concurrence in youngstown steel FN 4, kills your argument better than I could, but suffice to say, your understanding is very, very wrong.

It is in this class of cases that we find the broadest recent statements of presidential power, including those relied on here. United States v. Curtiss-Wright Corp., 299 U. S. 304, involved not the question of the President's power to act without congressional authority, but the question of his right to act under and in accord with an Act of Congress. The constitutionality of the Act under which the President had proceeded was assailed on the ground that it delegated legislative powers to the President. Much of the Court's opinion is dictum, but the ratio decidendi is contained in the following language:

"When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the President's action -- or, indeed, whether he shall act at all -- may well depend, among other things, upon the nature of the confidential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign relations. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U. S. 299, 239 U. S. 311,"

"As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality, it has the powers of nationality, especially those which concern its relations and intercourse with other countries. We should hesitate long before limiting or embarrassing such powers."
"(Italics supplied.)" Id. at 239 U. S. 321-322.

That case does not solve the present controversy. It recognized internal and external affairs as being in separate categories, and held that the strict limitation upon congressional delegations of power to the President over internal affairs does not apply with respect to delegations of power in external affairs. It was intimated that the President might act in external affairs without congressional authority, but not that he might act contrary to an Act of Congress.

[Bob from Ohio]

"jackson's (controlling) concurrence in youngstown steel FN 4, kills your argument"

No it doesn't. Re-read Sarcasto's comment, he said "executive branch discretion is basically limited to what the legislature envisions." That is utterly false.

[Noscitur a sociis]

He probably should have said “outside of specifically enumerated powers etc.”.

[Sarcastr0]

I said "There is plenty of originalism that executive branch discretion is basically limited to what the legislature envisions."

That basically seems to cover your issue, and if not I'd adopt Noscitur's take.

I'm not surprised I've missed a step or two. As I said at the bottom of that comment, I'm not an originalist myself I'm just pointing how non-originalist you and your ilk have gotten.

[ReaderY]

While I agree that the Constitution vests power over immigration policy to Congress, and not the President, I think the reality is Congress has passed statutes vesting extraordinary discretion in the President, and in matters of foreign policy, including war but also immigration, there basically isn’t any non-delegation doctrine, essentially any grant of discretion is constitutional, so long as Congress authorizes it.

So while the constitutional arguments in favor of almost unlimited Presidential power over immigration strike me as bogus, under Congress’ statutes as currently enacted, statutory arguments making the same case are often legitimate.

[Dr. Ed 2]

Judicial review isn't mentioned either.

[Riva]

That is actually a very good rebuttal. These comments fail to appreciate that Marbury v Madison was one of the most famous cases setting out the separate of powers doctrine. Judicial review is not something wholly distinct. It stems from the separation of powers. Apparently the vast majority of commentators here don’t understand this.

[SRG2]

Right, because only you understand that when the Constitution refers to "the judicial power", it really means, "the judicial power".

[Riva]

Don't think I'm the only one. The thought seems to have occurred to the drafters. "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Art. III, section 1.

[Michael P]

Is this different from "the executive power", which vests in the President?

[MollyGodiva]

We understand it, we just don't like the idea of SCOTUS looking at the Constitution and saying "We don't like what it says and thus we will just change it."

[MollyGodiva]

Hmmm. So you are telling me the founders did not give the Supreme Court the power to void any law they don't like and re-write the Constitution on a whim? A committee of lifetime appointed people should not ultimate and borderline un-reviewable power?

[SRG2]

I think that "separation of powers": can readily be deduced from the Constitution, though. If you take the view that there are four major power headings, legislative, executive, judicial, and military, each is assigned to a different authority. Congress can't carry out the laws it has passed, the president can't try cases. the courts can't order troops into battle. This is distinct, for example, in Britain, where part of the legislature tried cases (the House of Lords), where part of the legislative executed the laws (the Cabinet), etc.

But co-equality is a myth, as almost everything flows from the legislature.

[Riva]

To argue against checks and balances is to argue against the separation of powers. You’ve just essentially rewritten over two centuries of constitutional interpretation. We’re not the UK by the way.

[Sarcastr0]

You favor Trump ignoring the legislature and judiciary, so wrapping yourself in checks and balances is nonsense.

[Michael Ejercito]

Not that you can show.

[SRG2]

Fuckwit, when I say "this is distinct from Britain" everyone except a fascist moron like yourself understands the implication that we're not Britain, and I use Britain - from which the US got much of its common law BY THE WAY - to show how other systems can work.

And you misunderstand "checks and balances". How surprising.

[Riva]

The guy who argues for legislative supremacy is claiming that I misunderstand checks and balances. Not actually all that compelling an argument you got there, mate.

[SRG2]

I did not argue for legislative supremacy, I argued for non-co-equality, which is obviously the correct position. If the legislature were supreme they could usurp the role of the Executive and Judiciary,. They can't, ergo...

And yes, you do misunderstand checks and balances. That you confuse non-co-equality with supremacy is strongly suggestive of the limitations of your comprehension abilities.

[Riva]

A "non-co-equality" where "almost everything flows from the legislature" is not legislative supremacy? Uh huh. Good thing you're here from across the sea to rewrite our Constitution.

[Bob from Ohio]

"non-co-equality"

Clumsy phrase for a flawed theory.

Congress can remove presidents and controls taxes and appropriations. Other than that, each branch has its own sphere which Congress cannot invade.

[Michael P]

Obviously the correct position! One only need ignore lots of quite plain text that shows independent powers of the presidency.

[SRG2]

""Independent" still doesn't mean "co-equal".

I am reminded of those morons who say the US is a republic, not a democracy, because they're so used to the phrase they repeat it without thinking about whether it's right.

[MollyGodiva]

It is absurd to call the military a branch of the government. It is clearly under the control of the President and subject to the laws of Congress. The military has no powers of it's own. To raise the military to the level of a fourth branch of government is to open the door to a military coup.

[ReaderY]

The Framers made a big deal anout not doing so. The whole purpose of the militia provisions, and the 2-year limit on appropriations, was to avoid doing so.

[SRG2]

It is not whether the military is a branch of the government. There is no requirement that the number of power headings and the number of government branches should be equal and separate.

[David Nieporent]

If you read the Constitution without any preconceived notions, you will find that the President has no independent authority under the Constitution (other than pardons).

A bit of an overstatement. It also says that he can veto proposed bills, he is CinC of the military, he can negotiate treaties, he can receive ambassadors, and he can nominate officers/judges.

[Kazinski]

This very clearly separates powers:
"All legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and House of Representatives."

"The executive Power shall be vested in a President of the
United States of America."

"The judicial Power of the United States, shall be vested
in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish."

Those powers and the institutions, and the people holding the offices in those institutions are very clearly separate.

None of which is to say that Congress' powers should they be wielded with cohesion and determination can't dominate the other two powers and make their views prevail.

[MollyGodiva]

Agreed. But the "separation of powers" has been interpreted so broadly that it over rides the explicit "shall faithfully execute" provision.

[MaddogEngineer]

Of course the separation of powers is found in the Constitution. The exceptions being noted are explicitly in the text of the Constitution, to override the default separation.

It is certainly true that if Congress did not fund a government, the President would have almost nothing to do. Yes, he could receive ambassadors, but that's about it. Even though he's the commander-in-chief, if Congress does not fund a military, he would have nothing to command. Not remarkable, merely common sense with how the rule of law and the power of the purse works.

[Frank Drackman]

It’s probably my Dyslexia(some would say Stupidity)but I can’t see “Gorsuch” without thinking of “Groucho”

[Longtobefree]

"I was, as usual, wrong."

Don't learn to code; you will make a great weatherman.

[Noscitur a sociis]

What would happen if Trump fired him again before Wednesday, but this time articulated a cause?

[MollyGodiva]

Yes, following the law is an option that Trump has. Some would say it is his only option.

[Alpheus W Drinkwater]

Also the least likely option.

[ReaderY]

I think the problem with Justice Thomas’ position is that the “core” Due Process Clause - beneath all the substantive Due Process layers - is the idea that before a state can deprive a person of property, it has to provide some sort of process, particularly a fair hearing.

The plaintiff here is making the straightforward argument that a process that never reaches a conclusion - an administrative proceeding that just sits on things more or less forever - is not a fair process. Due process implies a process with a due date.

If we except this proposition, then a Catch-22 whereby the state administrative remedy gets to just sit on things, and the state judicial remedy can’t begin until the administrative agency decides in its own good time to complete it, means that the state has, in the totality of its rules and procedures, not provided plaintiff with the Due Process guaranteed by the 14th Amendment.

Perhaps the federal court below could have ordered the relief the plaintiff initially sought, a writ of mandamus directly ordering the state administrative agency to get it over with and issue a decision, rather than ordering the state court to accept an appeal without one.

But it seems to that it is one thing to object to “substantive due process” that makes everything and anything an individual right. But it is quite another to let states deprive people of core enumerated constitutional rights by allowing them to give people the run-around.

[John F. Carr]

The Supreme Court allows deprivation first, hearing second. Culley v. Marshall.

[ReaderY]

But the hearing has to come, and a decision made, in some reasonable amount of time.

[not guilty]

Mr. Dellinger was appointed in February 2024 to a five year term. Per 5 U.S.C. § 1211(b), he may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office -- none of which was alleged as to Mr. Dellinger. By disregarding this mandatory Congressional enactment, President Trump here has unquestionably overstepped his constitutional bounds.

"There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes." Clinton v. City of New York, 524 U.S. 417, 438 (1998). "Repeal of statutes, no less than enactment, must conform with Art. I." Ibid., quoting INS v. Chadha, 462 U.S. 919, 954 (1983). As Justice Robert Jackson, concurring in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), famously opined:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Id., at 637-638 (footnote omitted).

The Constitution tasks the President to take Care that the Laws be faithfully executed. Art. II, § 3. It confers on the President neither the power to disregard Congressional enactments nor the authority to unilaterally declare unconstitutional any such enactment. As SCOTUS declared in Clinton, supra:

Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes.

There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself.

Id., at 439. If SCOTUS is going to eviscerate the separation of powers between Congress and the President, it is unlikely to do so on a truncated record via the shadow docket.

[Noscitur a sociis]

Clinton is speaking to a wholly different situation. Trump isn’t purporting to repeal anything: he’s not abiding by a statute that he contends is unconstitutional. (Obviously, Clinton didn’t suggest that the line items he vetoed were unconstitutional.) Likewise, Trump’s position is that he does have his own constitutional power to remove executive officers at will, and that congress has no constitutional power to restrict him, thus satisfying the Youngstown test.

That’s not to say that Trump’s constitutional reading is correct. But if there’s any authority that presidents are required to follow unconstitutional restrictions on their authority, you certainly haven’t provided it.

[not guilty]

The President has no authority to determine unilaterally that an Act of Congress is unconstitutional. If there is a dearth of authority to that effect, that is because no previous president has deigned to do so in a manner comparable to Donald Trump, who is attempting to work a de facto amendment to a statute he doesn't like.

[Noscitur a sociis]

Suppose that Congress passed a law saying that a president could not issue a pardon without pre-approval from the Supreme Court, or couldn’t veto legislation unless Congress gave its consent. Are you saying that the president would be acting improperly by issuing a pardon or veto anyway?

[Katall]

Would this be a law overriding a veto? If so, it might be different. Once it became law, the president should violate it and see about litigation. Congress, Of course, having enough votes to override the veto, could impeach and convict.

[Noscitur a sociis]

“Violat[ing] it and see[ing] about litigation” is exactly what happened here, and what not guilty is saying is illegitimate.

[Katall]

No. This does not involve a law enacted by overriding a veto. This involves a president conceding the law is constitutional and a successor president disagreeing.
Congress does have recourse. It can refuse to fund Article I activities.

[DaveM]

The English language is really quite horrible for the kind of precise things we are describing. Not guilty, you should tighten your argument up, I think.

You say a President has "no authority to determine [things] unilaterally". If that were true, then he would be no executive. To be an executive is to take unilateral action, that's what it means to be one. I'm not even sure what you're trying to say here, but at the very least you'll have to give us specifics, not broad generalizations like this one.

And, you say he has no authority to determine that "an Act of Congress is unconstitutional". That's way too broad, as well. Of course Congress could pass an Act that was later deemed to be unconstitutional. If memory serves, that's happened several times already. As co-equal branches of government, not only is it possible for the President to say an Act is unconstitutional, he would have an affirmative duty to refuse to implement something he considered to be unconstitutional. It would be an illegal order, from his point of view.

The very need for judicial review is that the balance of powers will necessarily result in disagreements of this kind.

[not guilty]

It is settled law that:

"It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.

Cooper v. Aaron, 358 U.S. 1, 18 (1958), quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

Congressional enactments are entitled to a presumption of validity. If the President seeks to overcome that presumption, the Declaratory Judgments Act, 28 U.S.C. § 2201, provides a vehicle for judicial determination or constitutionality vel non.

[Kazinski]

"for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."

And that is exactly why Trump is going to prevail in this case.

[Bob from Ohio]

Read Myer v. US and Seila Law LLC v. Consumer Financial Protection Bureau for a different view.

[Bob from Ohio]

This was directed to not guilty's comment.

[not guilty]

Uh, neither Myers nor Seila Law was a shadow docket ruling. In the Dellinger matter, the District Court has scheduled a preliminary injunction hearing for February 26. The ruling arising out of that hearing will be appealable under 28 U.S.C. § 1292. If a preliminary injunction issues, the defendants can seek a stay in the first instance from the D.C. Circuit Court of Appeals, with discretionary review by SCOTUS of the stay ruling being a possibility.

[CindyF]

I knew that the left has decided there is a "Trump exception" to the Constitution, all laws, regulations, and any legal precedent.

However, I didn't realize until today that it had gotten to the point of now insisting the President is just a ceremonial position and he actually has no powers over the Executive branch at all. Why such a fight over who is President? The career bureaucracy of federal agencies is actually in charge. All hail the bureaucracy!

[Noscitur a sociis]

What, may I ask, the fuck are you talking about?

[Katall]

That is not the case. For example, noone is arguing the firing General Brown was unconditional or illegal. Misguided, perhaps, but no law was violated.

Also, almost noone is arguing that Trump cannot, for example, conduct reductions in force that pare certain parts of the executive branch, no matter how silly it is to do so. But he should follow civil service rules. The failure to do so will potentially cost billions.

[Dr. Ed 2]

Cindy, remember the pallets of cash to Iran???

[Dr. Ed 2]

I'm thinking SCOTUS is giving the judge enough rope to hang himself.

[wvattorney13]

I've been wrong before, but that is how I am reading it:
"Get this one right or we will be back on February 27. And there will be a lot more coming."