Stefani
Reynolds/Bloomberg)
The
oral
argument
in
Trump
v.
Slaughter
lived
up
to
the
hype.
Not
so
much
like
a
sporting
event,
but
a
wrestling
match
where
everyone
knew
the
conservative
majority
would
reverse
engineer
their
way
to
the
result
they
wanted.
The
excitement
is
seeing
how
they
manage
to
do
it.
For
Slaughter,
those
obstacles
appeared
insurmountable
to
a
good
faith
actor.
The
Constitution,
mirroring
the
English
tradition
of
limited
executive
power
developed
during
the
English
Civil
War,
placed
restrictions
on
the
president
to
“take
Care
that
the
Laws
be
faithfully
executed.”
An
honest
Originalist
would
say
the
Framers
inserted
this
language
to
make
sure
presidents
could
not
ignore
legislative
edicts
by
simply
ignoring
laws.
The
Supreme
Court
justices,
as
it
happens,
are
Originalists
of
a
quite
dishonest
flavor.
And
so
the
stricture
that
presidents
can’t
ignore
Congress
transmogrifies
into
the
power
to
ignore
Congressional
commands.
And,
of
course,
the
Court
has
no
interest
in
allowing
Trump
to
replace
the
Federal
Reserve
with
the
sort
of
idiots
who
think
the
market
buying
Treasuries
at
a
record
clip
is
somehow
a
good
sign.
That
sort
of
executive
authority
could
crash
the
stock
market
and
the
justices’
healthy
investments.
Gutting
collective
bargaining
rights
or
transforming
antitrust
law
into
a
cudgel
for
Republican
donors
to
buy
media
companies…
those
are
acceptable
assaults
on
the
economy
because
who
cares
about
consumers,
am
I
right?
Justice
Keggerator
seemed
most
interested
in
laying
the
faux
academic
groundwork
for
distinguishing
the
Federal
Reserve,
appearing
satisfied
with
Solicitor
General
Sauer’s
response
that
“There’s
two
adjectives
there
or
an
adjective
and
an
adverb,
unique
and
distinct,”
which
is
gibberish
but
sounds
better
after
a
few
beers.
Justice
Kagan
seemed
to
understand
the
majority’s
sensitivity
to
the
Federal
Reserve
issue
—
she
has
already
humiliated
the
majority
on
this
point
in
a
shadow
docket
opinion
about
substantively
similar
NLRB
firings
—
and
twisted
the
knife,
running
Sauer
through
a
number
of
hypotheticals
to
demonstrate
the
government’s
complete
lack
of
any
limiting
principle
in
their
argument.
When
Sauer
responded
that
the
administration
isn’t
currently
litigating
any
of
those
cases,
Kagan
responded
with
a
withering,
“I
know
what
you
don’t
challenge.
You’re
missing
the
point.”
The
Chief
Justice
seemed
concerned
about
limits
too…
but
not
enough
for
anyone
to
think
his
sense
of
shame
grew
three
sizes
this
day.
With
Kagan
handling
the
Fed
issue,
Justice
Sotomayor
focused
on
the
absurdity
of
the
effort
to
overturn
a
near
century
of
precedent.
She
actually
had
Sauer
cornered
on
a
question
of
precedent
at
one
point,
but
the
moment
slipped
away.
JUSTICE
SOTOMAYOR:
Ninety
years.
What
other
cases
have
we
overturned
that
have
had
a
pedigree
of
a
hundred
years?
GENERAL
SAUER:
Pennoyer
against
Neff
was
overruled
by
Shaffer
against
Heitner
on
its
hundredth
birthday
by
the
–
JUSTICE
SOTOMAYOR:
That
was
an
economic
case.
What
other
case?
GENERAL
SAUER:
For
example,
Erie
against
—
Erie
overruled
Swift
v.
Tyson
96
years
later.
JUSTICE
SOTOMAYOR:
That
—
that
—
that
—
so
too
again
—
GENERAL
SAUER:
Those
are
two
examples.
There’s
at
least
13
or
—
Considering
the
eye-rolling
“adjective
and
an
adverb”
conversation,
it’s
particularly
galling
that
we’re
still
engaging
in
the
charade
of
calling
the
Solicitor
General,
“General”
even
though
it’s
an
adjective
modifying
“Solicitor.”
You
went
to
law
school,
you’re
not
Patton.
At
this
point
Sotomayor
focuses
on
the
distinction
that
a
case
fundamentally
changing
the
organization
of
government
makes
this
unique.
Which
is
too
bad,
because
this
is
a
devastating
exchange
from
a
different
perspective.
How
often
do
we
overturn
cases
that
are
almost
a
hundred
years
old?
So
infrequently
that
they’re
super
famous
and
are
taught
as
examples
of
how
the
Court
only
disturbs
precedents
like
these
when
the
passage
of
time
renders
the
original
opinion
fundamentally
nonsensical.
Not
only
has
nothing
changed
about
the
relationship
between
the
president
and
the
concept
of
an
independent
agency
since
Humphrey’s
Executor,
this
case
is
about
THE
SAME
GODDAMNED
AGENCY.
In
her
defense,
she
has
inside
information
and
knows
the
stooges
she’s
sitting
with
have
no
coherent
intellectual
approach.
They
intend
to
overturn
Humphrey’s
Executor
because
it
appeases
their
patron
in
the
White
House
and
the
only
thing
giving
them
any
pause
is
coming
up
with
some
that
makes
it
easier
to
rule
the
exact
opposite
way
when
a
Democratic
president
starts
firing
everyone
Trump
put
on
these
commissions.
If
they
decide
to
allow
another
real
election,
of
course.
Sotomayor
went
into
these
questions
fully
aware
that
the
majority
had
no
interest
in
respecting
precedent.
She
likely
made
the
calculated
decision
to
ask
about
this
being
such
a
long-standing
precedent
to
set
up
this
“disrupting
the
government”
angle
in
the
hopes
that
it
could
frighten
the
majority
that
their
intended
course
of
action
would
deliver
havoc.
But
sometimes
you’ve
got
to
shift
gears
when
the
answer
is
this
bad.
Predictably,
right-wing
social
media
celebrated
this
as
though
Sauer
dunked
on
Sotomayor
for
coming
up
with
two
examples
and
vaguely
promising
“at
least
13”
total.
Over
the
course
of
235
years…
maybe
13
examples.
That’s
not
the
flex
the
government
thinks
it
is.
Especially
when
you
scratch
the
surface
of
the
two
he
could
actually
think
of,
both
of
which
turn
on
identifiable
and
defensible
historical
changes.
Interstate
commerce
and
corporate
capitalism
rendered
Pennoyer
anachronistic.
That’s
a
story
an
advocate
could
easily
stand
up
and
explain.
What’s
changed
about
the
FTC
in
2025?
Nothing.
Unless
the
Court
wants
to
count
the
president’s
stated
interest
in
using
antitrust
law
arbitrarily
and
capriciously
to
support
consolidation
for
his
cronies.
In
that
case,
the
Take
Care
clause
might
inspire
a
Supreme
Court
to
see
the
original
statutory
protections
on
the
FTC
as
—
to
pull
two
words
at
random
—
necessary
and
proper
to
prevent
the
executive
from
circumventing
the
constitutional
duty
to
execute
the
laws
passed
by
Congress.
But
no
one
wanted
to
deal
with
any
of
that
yesterday.
Hypocrisy
wasn’t
going
to
stay
the
majority’s
hand,
but
when
the
lawyer
hands
over
an
answer
like
“two…
I
dunno,
I’m
sure
there
might
be
11
more
over
the
last
couple
centuries,”
it’s
worth
changing
tack
and
asking
them
to
explain
how
a
case
like
this
resembles
Justice
Stone
acknowledging
that
airplanes
were
invented
since
Pennoyer.
Make
Sauer
explain
what’s
changed,
and
when
he
inevitably
refuses
—
retreating
to
a
vapid
“well,
we
think
it
was
wrong
for
the
whole
90
years
and
no
one
noticed”
—
ask
then
how
it
meshes
with
these
cases
he’s
citing
that
infamously
devote
hours
worth
of
law
school
lecture
time
to
understanding
in
proper
historical
context.
Sotomayor’s
strategy
makes
sense
if
she’s
still
hoping
to
influence
this
opinion,
but
that’s
just
not
the
job
description
anymore.
It’s
just
like
Kagan’s
nods
to
conservative
judicial
philosophies,
which
she
pulls
out
from
time
to
time
hoping
the
majority
will
return
the
favor
later
even
though
they
never
will.
They’re
still
trying
to
stanch
the
Constitutional
bleeding,
but
right
now
the
only
case
worth
making
is
the
case
for
Supreme
Court
reform.
At
the
hearing,
it
played
for
laughs
when
Justice
Kagan
asked
Sauer
to
agree
that
the
Framers
intended
to
create
a
government
of
separated
powers
and
he
responded
with
the
“caveat”
that
“the
one,
you
know,
sort
of
exception
to
all
this
division
was
the
presidency
itself,
where
the
Framers
consciously
adopted
a
unified
and
energetic
executive.”
Kagan
replied
by
noting
that’s
not
what
the
word
“caveat”
means
(or
“codicil,”
which
Sauer
tried
to
pivot
into)
and
is
in
fact
“the
not
X
to
my
X.”
Except
it’s
not
funny.
The
official
representative
of
the
Trump
administration
is
failing
sixth
grade
civics.
This
stuff
can’t
continue
to
be
milked
for
chuckles.
These
are
batshit
claims
and
there’s
no
need
to
be
polite
about
it.
Catching
the
majority
in
hypocrisy
matters
now.
So
does
laying
bare
the
incoherence
of
their
brand
of
“Originalism”
and
their
contempt
for
the
rule
of
law.
The
minority
has
taken
on
a
more
confrontational
role
when
it
comes
to
the
shadow
docket,
but
there’s
no
reason
to
stop
there.
The
justices
may
want
to
salvage
America’s
faith
in
the
institution
without
watching
the
majority
use
that
good
will
to
burn
the
country
down.
But
it
doesn’t
work
that
way.
Sometimes
restoring
faith
requires
an
honest
assessment
about
the
extent
of
the
rot.
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or
Bluesky
if
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Joe
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Managing
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