Comment Re:TL;DR: Gotta keep the bubble going (Score 2) 119
And anyway, Presidents cant make laws.
US Solicitor General John Sauer disagrees.
In the oral arguments for Trump v Slaughter, on Monday, Sauer said this isn't true when Justice Kagan pushed him on it. She said that the Founders clearly intended to have a separation of powers, to which he basically said "Yeah, but with the caveat that they created the 'unitary executive'", by which he seemed to mean that they intended the president to be able to do pretty much anything.
Kagan responded with a nuanced argument about how we have long allowed Congress to delegate limited legislative and judicial functions to the executive branch in the way we allow Congress to delegate the power to create and evaluate federal rules to executive-branch agencies, but that that strategy rests on a "deal" that both limits the scope of said rulemaking and evaluative functions and isolates them to the designated agency. She said that breaking that isolation by allowing the president detailed control over those functions abrogated and invalidated the deal, unconstitutionally concentrating power in ways that were clearly not intended by the Founders.
Sauer disagreed. I'll stop describing the discussion here and invite you to listen to it. The discussion is both fascinating and very accessible, and the linked clip is less than seven minutes long.
The court seems poised to take Sauer's view, which I think is clearly wrong. If they do, it's going to come back and bite conservatives hard when we get an active liberal president, as we inevitably will someday if the Trump administration fails to end democracy in the US.
What's very sad is that we already went through all of this and learned these lessons 150 years ago. After 100 years of experience with a thoroughly-politicized executive branch, we passed the Pentleton Civil Service Reform act in 1883 specifically to insulate most civil servants from presidential interference. Various other laws have subsequently been passed to create protections for federal workers and to establish high-level positions that are explicitly protected from the president. SCOTUS seems bent on overturning all of that and returning us to the pre-Pendleton era.
Those who don't learn from history are doomed to repeat it, and it's looking we're gonna repeat a lot of bad history before we re-learn those 19th-century lessons.