This Is the Presidency John Roberts Has Built

No one on the Supreme Court has gone further to enable Donald Trump’s extreme exercise of presidential power than the chief justice of the United States, John Roberts. Associate justices have also written some important opinions shaping executive power, and the Court has issued ever more important unsigned orders, but the most transformative opinions—the opinions that directly legitimize Trump’s unprecedented uses of power—are Roberts’s handiwork. This is not happenstance. Under Supreme Court practice, the most senior justice in the majority—which is always the chief justice when he so votes—determines who will write the main opinion. Roberts reserved these milestones for himself.

And what milestones they have been. Roberts upheld the first Trump administration’s “Muslim ban” on the grounds that the president’s national-security role precludes courts from taking account of the bigotry undergirding an immigration order. He remanded a lower court’s enforcement of a congressional subpoena for Trump’s financial information, writing that “without limits on its subpoena powers,” Congress could exert “imperious” control over the executive branch and “aggrandize itself at the President’s expense.” He has come close to giving the president an untrammeled right to fire any officer in the executive branch at will. And he took the lead in inventing a presidential immunity from criminal prosecution that could exempt the president from accountability for even the most corrupt exercises of his official functions.

Going beyond the precise holdings in these cases, Roberts’s superfluous rhetoric about the presidency has cast the chief executive in all-but-monarchical terms. The upshot is a view of the Constitution that, in operation, comes uncomfortably close to vindicating Trump’s: “I have an Article II, where I have the right to do whatever I want as president.” Trump’s confidence is surely bolstered also by the Roberts Court’s unsigned per curiam opinions blocking even temporary relief from his sweeping actions. In May, the Court held that Trump orders removing two federal officials at key independent agencies could remain in place while the issue of their legality makes its way through the judiciary. In June, it allowed the administration to proceed with so-called third-country deportations—that is, deporting undocumented noncitizens summarily to countries to which they had no prior connection, but where they might well face torture. On July 8, the Court effectively allowed Trump to proceed with a massive restructuring of the federal executive branch, notwithstanding that the power over executive-branch organization belongs to Congress, not the president. On July 14, the conservative majority allowed the sabotaging of the Department of Education to proceed. Trump’s use of executive power is not a distortion of the Roberts Court’s theory of the presidency; it is the Court’s theory of the presidency, come to life.

What America is witnessing is a remaking of the American presidency into something closer to a dictatorship. Trump is enacting this change and taking advantage of its possibilities, but he is not the inventor of its claim to constitutional legitimacy. That project is the work of John Roberts.

by Peter M. Shane, The Atlantic |  Read more:

Image: The Atlantic

[ed. See also: Trump officials accused of defying 1 in 3 judges who ruled against him (WaPo);

President Donald Trump and his appointees have been accused of flouting courts in a third of the more than 160 lawsuits against the administration in which a judge has issued a substantive ruling, a Washington Post analysis has found, suggesting widespread noncompliance with America’s legal system.

Plaintiffs say Justice Department lawyers and the agencies they represent are snubbing rulings, providing false information, failing to turn over evidence, quietly working around court orders and inventing pretexts to carry out actions that have been blocked.

and, On the Supreme Court's Constitutional Vandalism in Service of Inherited Wealth (NFTC):]

Peter Shane's devastating analysis in The Atlantic has performed the invaluable service of documenting what many suspected but few could prove: that Chief Justice John Roberts has systematically dismantled American constitutional government while claiming to restore it. But Shane's meticulous account of Roberts's "proto-authoritarian canon" reveals something even more damning—the entire Unitary Executive Theory project is essentially an exercise in motivated reasoning designed to render the New Deal's democratically popular reforms conveniently unconstitutional on behalf of oligarchic wealth.

The timeline makes the con obvious. This "ancient constitutional wisdom" mysteriously emerged in the 1980s—Shane notes Roberts was clerking for Rehnquist when Reagan won in 1980, then joined the administration that accelerated this theory's mainstreaming alongside the founding of the Federalist Society. But why did American intergenerational wealth suddenly need a constitutional theory that could dismantle regulatory agencies without the messy business of democratic politics?

Simple: the New Deal had created institutions that could actually constrain oligarchic power—agencies that could regulate business, tax wealth, and impose democratic accountability on concentrated capital. These programs remained politically popular, making them difficult to eliminate through normal democratic processes. So oligarchs funded a decades-long legal project to declare them constitutionally illegitimate instead.

“Unitary Executive Theory” is the solution: if the president must have absolute control over all executive functions, then independent regulatory agencies become unconstitutional by definition. If Congress cannot protect agency officials from presidential firing, then democratic constraints on oligarchic power become structurally impossible. The theory isn't derived from constitutional text or historical understanding—it's reverse-engineered from the political goal of eliminating democratic accountability.

Shane's documentation reveals how Roberts has systematically implemented this oligarchic wish list while maintaining the fiction of constitutional principle. Presidential immunity, unlimited firing power, subordinated Congress—each decision applies whatever interpretive framework serves the ultimate goal of making New Deal-style democratic constraints constitutionally impossible. (...)

The beauty of the scheme is that it sounds so respectably academic. "Unitary Executive Theory" rolls off the tongue with such scholarly authority that one almost forgets to ask why this crucial constitutional principle remained hidden from legal scholars for two centuries, only to be discovered by the same people who needed it to eliminate the regulatory agencies that threatened their inherited fortunes.

The funders and promulgators of this theory? American intergenerational wealth, channeled through think tanks, law schools, and the Federalist Society itself. The same oligarchs who needed a legal framework to dismantle New Deal constraints funded decades of constitutional scholarship to provide that framework, then acted surprised when their handpicked judges discovered that the Constitution had always forbidden democratic accountability.

Shane's analysis reveals the most contemptible aspect: not the transparent self-interest—oligarchs have always served their own interests—but the army of legal academics, federal judges, and constitutional scholars who've spent decades providing intellectual respectability for what amounts to a billionaire's constitutional shopping list. They've turned constitutional law into a protection racket for inherited wealth while maintaining the fiction that they're engaged in neutral jurisprudential analysis.