A good read:
https://www.scotusblog.com/2025/12/morrison-v-olson-and-the-triumph-of-the-unitary-executive-theory/

wifeisafurd said:

---

A good read:
https://www.scotusblog.com/2025/12/morrison-v-olson-and-the-triumph-of-the-unitary-executive-theory/

---

Of particular importance to this forum:

Quote:

---

Several matters have since arisen on the emergency docket involving firings by Trump. In Trump v. Wilcox, the six conservative justices effectively allowed Trump to fire two officials despite statutes limiting their removal.

---

Were it not for you Biden voters, we could have gotten a new head football coach four years earlier.

Scalia
"A 20-month investigation by Democrats on the Senate Judiciary Committee, detailed in a recent report, revealed that Scalia accepted at least 258 subsidized trips during his time on the bench, more than any other justice. These included several dozen hunting and fishing trips with wealthy patrons and prominent Republican donors. The report states that he failed to properly disclose these gifts, in violation of federal law at the time.

One notable instance involved a hunting trip with Vice President Dick Cheney in 2004 while a case involving Cheney was pending before the Supreme Court. Scalia refused calls to recuse himself, arguing it would be "utterly disabling" to avoid cases involving friends who are also government officials. The Court ultimately ruled in Cheney's favor in that specific case.

Critics argue that the frequency and nature of these all-expenses-paid trips created a perception of a social layer hostile to democratic principles and above standard ethical constraints.

In cases like Skilling v. United States and McDonnell v. United States, the Court (with Scalia often leading the charge or siding with the majority in narrowing the scope) made it more difficult for federal prosecutors to pursue corruption charges against public officials, requiring a more explicit "quid pro quo" (this for that) to prove bribery. Critics argue this legal legacy has effectively "legalized" certain forms of political corruption by tying prosecutors' hands."
AI Overview

Alito
"Undisclosed Gifts and Travel:

Investigations by media outlets like ProPublica revealed that Alito accepted a luxury fishing trip to Alaska in 2008 from billionaire hedge fund manager and GOP megadonor Paul Singer, which included private jet travel. Critics argue this was a lavish gift that violated federal disclosure laws and ethics standards, especially since Singer had interests in cases that later came before the Supreme Court, from which Alito did not recuse himself.

Flags and Partisanship:

Reporting from The New York Times revealed that an upside-down American flag (a symbol used by "Stop the Steal" movement supporters) was flown outside his Virginia home in January 2021, and an "Appeal to Heaven" flag (also associated with conservative Christian nationalism and the movement) was displayed at his New Jersey beach home in the summer of 2023. Critics view these as overtly partisan symbols that compromise the appearance of judicial impartiality, especially given pending court cases related to the 2020 election and the January 6th Capitol attack.

Refusal to Recuse:

Despite these connections and the involvement of his wife in some of the flag incidents, Alito has refused calls from Congress and watchdog groups to recuse himself from election-related cases, maintaining that his impartiality cannot "reasonably be questioned".

Public Statements:

In a secretly recorded conversation released in June 2024, Alito agreed with an undercover activist's statement that America needs to return "to a place of godliness" and commented that "one side is going to win" in the current political climate. These comments were seen by many as a clear indication of political and ideological bias.

Lack of Enforcement Mechanism:

The Supreme Court adopted a formal Code of Conduct in November 2023, but it lacks an enforcement mechanism, meaning justices individually decide on their own compliance and recusal. Critics point to this as a fundamental flaw that allows alleged ethical lapses to go unpunished."
AI Overview

Thomas
" ProPublica investigations, which began in 2023, revealed that over nearly two decades, Thomas accepted and often failed to disclose luxury travel on private jets and yachts, real estate deals, and private school tuition payments for his grandnephew, all provided by GOP megadonor Harlan Crow and other wealthy benefactors.

Undisclosed Gifts:

According to ethics experts and a Senate report from Democrats on the Judiciary Committee, these failures to report violate the post-Watergate Ethics in Government Act, which requires high-level federal officials to disclose most gifts.

Conflicts of Interest:

Critics argue these relationships create an appearance of a conflict of interest, as some of the donors' industries or ideological interests align with cases that come before the Court."
AI Overview

*If someone alleged that Trump was letting Alito and Thomas get their beaks wet in some of the countless "deals" he has going on all over the world, would your response be that, "Neither of those justices would ever engage in conduct that corrupt?"

wifeisafurd said:

---

A good read:
https://www.scotusblog.com/2025/12/morrison-v-olson-and-the-triumph-of-the-unitary-executive-theory/

---

Excellent read, thanks for sharing. Chemerinsky's summary line "not that long ago…" when referring to a nearly [edit nearly 40] year old case made me chuckle. I got called out by a law professor for a similar characterization of a cited case. I still remember the red ink: "Recent?" with the year circled.

Yeah, the "new" court decisions by the Trump Court are so much more clear thinking and applicable to our current times:

"Expansive Presidential Power

Presidential Immunity:
In July 2024, the Court ruled in Trump v. United States that a former president has absolute immunity from criminal prosecution for actions within their core constitutional authority and at least presumptive immunity for other official acts.

Critics called the decision anti-democratic and suggested it effectively placed the president "above the law".

Authority Over Independent Agencies:
The Court has increasingly sided with Trump on his ability to fire leaders of independent federal agencies, suggesting a landmark 1935 precedent limiting presidential power over such agencies is an "empty husk". This has allowed the removal of members from the Federal Trade Commission and the Consumer Product Safety Commission.

Curtailing Judicial Review:
The Court limited the power of individual federal judges to issue nationwide injunctions that block presidential policies. This procedural change in Trump v. CASA allowed controversial policies, such as the effort to end birthright citizenship, to move forward while legal challenges continue in lower courts.

Immigration and Civil Rights

Birthright Citizenship:
While the Court has not yet ruled on the constitutionality of the policy itself, its procedural rulings have advanced Trump's executive order which seeks to deny citizenship to U.S.-born children of non-permanent residents.

Immigration Enforcement:
The Court has granted requests allowing federal agents to proceed with controversial immigration raids, including those involving racial profiling, and lifted orders that had blocked the administration from revoking the temporary legal status of hundreds of thousands of migrants.

Transgender Rights:
Rulings in November and May 2025 permitted the Trump administration to ban U.S. passport applicants from designating their gender identity and to implement a ban on transgender people in the military.

Deportations:
The Court cleared the way for the administration to resume deporting migrants to third countries without a full opportunity to claim asylum or protection from torture, a move criticized as a violation of due process.

Federal Workforce and Funding

Mass Layoffs and Agency Dismantling:
The Court lifted injunctions, allowing the administration to proceed with large-scale federal job cuts and plans to dismantle agencies such as the Department of Education.

Withholding Funds:
The justices allowed the Trump administration to withhold billions of dollars in foreign aid authorized by Congress and to proceed with cuts to medical research and teacher training grants, asserting the president's "America First" agenda over congressional spending authority.

These decisions, often made via the "shadow docket" with little transparency or explanation,have been widely criticized by lower court judges and legal experts for bypassing normal judicial review and accelerating the executive branch's power."
AI Overview

I am not really sure why you responded directly to me. I am not well versed in the Unitary Executive theory and didn't comment on it.

I do observe that some people seem to believe the state of affairs since the Warren court is the only correct way to interpret the Constitution. It isn't. There is nothing inherently incorrect or wrong about the current court's interpretation of the Constitution.

I think it is true that the shadow docket overwhelming - if not completely - addresses matters procedurally and not on the merits. The lower courts are still being activist with the national TRO's. It seems to me this is SCOTUS' way of enforcing their prior court decision within the court system.

Things went really bad for those looking for limiting Executive Power today. Looks like basically 6-3 the President has very broad power to fire anyone appointed in the Executive Branch. The days of many independent executive agencies are numbered.

wifeisafurd said:

---

Things went really bad for those looking for limiting Executive Power today. Looks like basically 6-3 the President has very broad power to fire anyone appointed in the Executive Branch. The days of many independent executive agencies are numbered.

---

bTW, for you Econ types, think about an entire FED Board of Governors appointed by the sitting President.

Looking forward to the same Court blocking a Democratic President from doing the same thing

dajo9 said:

---

Looking forward to the same Court blocking a Democratic President from doing the same thing

---

tequila4kapp said:

---

I am not really sure why you responded directly to me. I am not well versed in the Unitary Executive theory and didn't comment on it……..

There is nothing inherently incorrect or wrong about the current court's interpretation of the Constitution. ….

---

This is the statement the good law professor wrote:

"It was not that long ago that the unitary executive theory was emphatically rejected in Morrison v. Olson in an opinion by Rehnquist, himself a conservative. The court's current majority seems ready to undo Rehnquist's work on that front, and to embrace Scalia's dissent in Morrison calling for a more powerful presidency."

I inferred from your comment that you think a case 50 years old may not be as sound as the decisions of the Trump Court and that you are a supporter of Trump and his SCOTUS which I believe to be the most corrupt SCOTUS in history and has acted time and time again as a rubber stamp for Trump's policies.

If you are not a fan of Trump and/or his SCOTUS, then my bad.



"WASHINGTON, Feb 15 (Reuters) - Echoing France's Napoleon Bonaparte, U.S. President Donald Trump on Saturday took to social media to signal continued resistance to limits on his executive authority in the face of multiple legal challenges.
"He who saves his Country does not violate any Law," Trump, a Republican, proclaimed on his Truth Social network. The White House did not respond to a request for more details….
The phrase, attributed to the French military leader who created the Napoleonic Code of civil law in 1804 before declaring himself emperor…"

https://www.reuters.com/world/us/trump-if-it-saves-country-its-not-illegal-2025-02-16/




NO KINGS OR EMPERORS

I was literally was just having a flashback to a law school paper where I was called out for an improper characterization of a case, thanks to language with similar stuff from Chemerinski.

I agree with this admin on some things and disagree on others.

I really don't know about this Unitary Executive business. I have not read up on it and don't remember it being a topic in law school. Generally, I'm a fan of Scalia so maybe??? But I am not positioned to take an intentional position just yet.

After doing a little reading I think the question is how far does the court go.

Agency law is…see Gorsuch's comment to the effect we've created quasi-judicial and quasi-legislative branches where the C doesn't call for a 4th branch of government.

I don't see the court going all the way and overturning Humphrey's Executor, but Presidents are going to have more autonomy to manage the executive branch.

tequila4kapp said:

---

After doing a little reading I think the question is how far does the court goes.

Agency law is…see Gorsuch's comment to the effect we've created quasi-judicial and quasi-legislative branches where the C doesn't call for a 4th branch of government.

I don't see the court going all the way and overturning Humphrey's Executor, but Presidents are going to have more autonomy to manage the executive branch.

---

The solicitor general's position is exactly that, overturn Humphrey because there is no Constitutional authority for quasi legislative developed agencies, such as agencies where Democratic or Republican positions are appointed. I might add that my prior reference to the FED was bad, as apparently SCOTUS has determined that the FED is a quasi-private entity, and not an executive branch entity.

The most pleasing sound Neil Gorsuch has encountered in nature is his own voice speaking.

I recall responding in here this morning.
And a blue note showed someone responded to me.
But now that I go to read there is no concordtom in this thread.
Which commonly mean one thing - you or someone else deleted both.

I didn't say anything bad. Why were these removed?
Thank you.

concordtom said:

---

I recall responding in here this morning.
And a blue note showed someone responded to me.
But now that I go to read there is no concordtom in this thread.
Which commonly mean one thing - you or someone else deleted both.

I didn't say anything bad. Why were these removed?
Thank you.

---

You say bad things in this forum every day.

tequila4kapp said:

---

After doing a little reading I think the question is how far does the court go.

Agency law is…see Gorsuch's comment to the effect we've created quasi-judicial and quasi-legislative branches where the C doesn't call for a 4th branch of government.

I don't see the court going all the way and overturning Humphrey's Executor, but Presidents are going to have more autonomy to manage the executive branch.

---

Humphrey's Executor is very likely to be overturned. That's my bet.

At a minimum, they're going to say that the FTC of today bears no resemblance to the FTC when Humphries was decided (1935) and find in favor of trump.

"But Barrett told Sauer that "there's been an eroding of Humphrey's Executor" over the years, while Roberts suggested that the decision was merely a "dried husk." And Gorsuch called the opinion "poorly reasoned" one of the factors that the justices consider in determining whether to overrule a past precedent.

In what was likely a bad sign for Slaughter, the justices spent virtually no time on the second question presented in the case whether, even if the FTC removal statute is constitutional, a federal judge can order the reinstatement of an official who was fired without case, or whether that official is only entitled to back pay. Kavanaugh expressed "real doubts" about the Trump administration's theory that the official would only be entitled to back pay, telling Sauer that it would allow the government to circumvent the removal requirements. But, Kavanaugh observed, the court would not have to reach that question if it ruled for the Trump administration which it seemed likely to do."

https://www.scotusblog.com/2025/12/court-seems-likely-to-side-with-trump-on-presidents-power-to-fire-ftc-commissioner/

The article has a good discussion of the conservative judges questions which pretty clearly identified the constitutional problems created by Humphries. The liberals argument seems to be "but the president will have too much power", but that's what the constitution contemplated. Congress still has the power of the purse among other things.

Maybe. Nothing in the C says Congress cannot delegate. It is impractical for Congress to regulate everything (think specialized knowledge areas like EPA). So Agencies have to exist. Flip side…Executive powers in article 2. So we have two sets of valid competing interests…I think that is a space where more narrowly tailored decisions are likely.

Side note…my first clerking job was with a state agency that dealt with workplace harassment. I had not yet taken Admin Procedure and didn't really understand Agency law. I was struck by how weird it was that "we" had investigators, prosecutors and judges. The investigators and prosecutors sat next to and had lunch with the judges. Then maybe the next week they'd be prosecuting a case in front of that same admin judge. I remember thinking I would not want to be a an accused / defendant in this system. Anyway, that's an aside…my prediction is Agencies are going to take a hit but I don't think it will be as transformational as the commentators would have us believe.

Aunburdened said:

---

concordtom said:

---

I recall responding in here this morning.
And a blue note showed someone responded to me.
But now that I go to read there is no concordtom in this thread.
Which commonly mean one thing - you or someone else deleted both.

I didn't say anything bad. Why were these removed?
Thank you.

---

You say bad things in this forum every day.

---

Like "I love you, yogi".