Not two years ago, I wrote of a “disconcerting trend” in this Court’s cases: “When it comes to the separation of pow-ers, this Court tells the American public and its coordinate branches that it knows best.” SEC v. Jarkesy, 603 U.S. 109, 201 (2024) (dissenting opinion). Matters that for centuries had been left to the political branches have been sub-ordinated, one after another, to this recent Court’s rigid theories of how Government should operate. See id., at 201-202 (collecting cases).
The majority’s decision continuing that trend today is egregiously wrong. In this case, the Court takes one of the oldest debates in American history and decides that the six Justices in the majority, alone, ought to be the ones to settle it for all time. That decision does not just overrule prece-dent; it all but ignores that precedent exists. It does not just hamstring the political branches’ ability to respond to new challenges; it rewinds the clock nearly 150 years, holding that a common agency structure is, and always has been, forbidden. It is true that today’s decision does not eliminate the FTC or the many other agencies whose structures are implicated by overruling Humphrey’s. It is undeniable, however, that those agencies will be transformed in ways that those who created them never could have expected and actively sought to avoid, fundamentally recalibrating the balance of power in this country in the process.
Will these transformations yield the benefits, sounding in responsiveness and accountability, that the majority touts? Or will they risk placing “in the hands of a bold and designing man, of high ambition, … an instrument of the worst oppression,” which will “sacrific[e] every principle of independence to the will of the [President]”? 3 Story §1533, at 390-392. Neither I, nor the majority, knows with certainty. That is exactly why the Constitution leaves decisions like this one, involving sensitive tradeoffs and difficult judgment calls, to those best positioned to make them, and then to be held accountable for doing so: the political branches.
Today, the Court discards that democratic regime in favor of one that distorts the structure of Government to fit the majority’s theory of unitary, total executive control. The result is a President who emerges with far greater power than ever before. It is a power, however, that neither the People, nor Congress, nor the Constitution bestowed upon him. In granting the President this unbridled author-ity, the Court upends its precedent, misconstrues our history, and sheds any pretense of judicial modesty. I respectfully dissent.
Justice Sotomayor is not without her own inconsistencies, as Gorsuch (himself a little two-faced in his concurrence here!) pointed out in Learning Resources, Inc. v. Trump. But, credit where credit is due, this is very well said.
Addendum — Bob Bauer summarizes things well: “Bipartisan, independent civil enforcement was already collapsing, but formal presidential control will end it—and a weaponized DOJ may fill the vacuum.”