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0 pointsrayiner1y ago0 comments

The politics is inextricable from this since we’re talking about separation of powers. There is always a tension between democracy and the government’s status as an employer or contracting party. But if the political issue is loyalty of the federal bureaucracy to the agenda of the elected president, can Congress constrain the president’s ability to act on that political issue? I think that’s a very different analysis.

And there’s no such thing as “unitary executive theory.” It’s a label created to make the meaning of Article II seem somehow esoteric. It’s like saying “first amendment theory” or “equal protection theory.”

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tptacek1y ago· 2 in thread

None of this is responsive to anything I just wrote.

rayinerOP1y ago

It’s responsive to this point:

> You may respond that the administration's pointy eggheads are going to craft persuasive arguments to that effect, but I'd be happy to put money on their likelihood of success.

I’m saying the arguments might be more persuasive than you think given the context in which they will arise. Separation of powers cases often arise against the background of novel political situations that require application of abstract separation of powers principles to novel situations.

We are facing such a situation today. Prior to 2017, we had never confronted before the issue of federal employees declaring they would use their employment to frustrate the legitimate political objectives of the duly elected president. That then became a major issue in which Trump campaigned, and won. (It’s point #9 on the GOP 2024 platform: https://www.presidency.ucsb.edu/documents/2024-republican-pa....)

All this is relevant not because politics, but because it starkly illustrates a constitutional issue. Voting for the president is the means by which democratic influence is exercised over the exercise of executive power. Invoking generic employment law to frustrate the ability of the president to effectuate the very executive reforms on which he campaigned raises a specific constitutional issue.

The opposing view here is that, if voters want to effectuate significant reforms in the structure and behavior of the executive, then Congress must be the one to do that. Maybe that’s true but it seems very odd to me.

tptacek1y ago

The clearly expressed will of Congress is that federal employees are not typically to be classed as at-will employees. This current Supreme Court majority explicitly said Congress has the authority to constrain executive branch HR policy. I'm not sure I've read an opinion before where Congress made a black-letter declaration of some policy, and the court overturned it because of the perceived will of the narrow majority of voters for the President, but hey, you do you.

I really don't much care about the underlying principles here. I'm a fan of at-will employment. I generally (though with nothing resembling the fervor of this administration) think that the federal employment rolls are bloated and inefficient. But I also believe what I learned in St. Barnabus Elementary about the separation of powers: Congress makes the laws, the President executes them.

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