I don’t listen to SCOTUS oral arguments very often. I made an exception for Trump v. Slaughter today. What I heard was somewhat interesting. The powerless liberal wing of the Court performed quite well (much better than I’m used to seeing) and the conservative wing did not come across as confident. Slowly, some of them are realizing that they can’t keep the unitary executive in a box. That’s not to say their priors have changed. Once you start down a path, turning back becomes harder and harder. Overall, it’s probably still a 6-3 overruling of Humphrey’s Executor v. United States (1935). What’s interesting is whether the Court pivots to Wiener v. United States (1958) and tries to vindicate the history and tradition of the quasi-judicial category. Somewhere, the ghosts of the Brownlow committee are waiting with anticipation for the Slaughter opinion.

The Liberal Bloc

The liberals were a well-organized machine at oral arguments. Someone clearly had the bright idea to assign history to Sotomayor, doctrine to Kagan, and the anti-juristocracy work to Jackson. Sotomayor was good about raising independent commissions at the Founding. She brought up the Sinking Fund Commission and alluded to others. Frankly, the government has nothing here. The move is just to fall back on the Roberts Courts recent cases. The conservative bloc is not being animated by history. This is a vindication of the conservatives’ constitutional politics, their craving for a tribune-like presidency.

Jackson has emerged as the anti-juristocracy justice. She pointed out that the distinctions between executive/judicial/legislative are underdetermined and subjective. These are political questions, so why shouldn’t they be assigned to Congress? This line of inquiry was not just a soapbox. Jackson tied it to the clear language of the Necessary and Proper Clause. Trump’s lawyer just said it’s not proper to insulate administrators from removal. But this occluded one simple fact . . . the unitarians have nothing once you realize the issues tied up with the unitary executive were never really about Article II. It was always about Article I. (see both my work and the work of Jed Shugerman and Gary Lawson)

The only thing that Jackson could have been better at was her rhetorical habits on expertise. She repeatedly brought up Congress’s pursuit of nonpartisan expertise. This is a bad move. The kind of pull that expertise-based authority commanded when Humphrey’s was decided is dead. (See, e.g., Robert Kennedy) It’s no more dead than at the Supreme Court. Appeals to expertise-based authority just aggravate the juristocratic mind. Better to stay on message without playing to a view of insulated expertise that was always problematic.

The Conservatives

The only conservative who sounded super confident was Alito. His role was basically to give Trump’s lawyer an opportunity to assuage his colleagues’ concerns. (It was kind of annoying.) Gorsuch is fine with a unitary executive, but he understands that you can’t go half originalist. If you make the *modern* state the manifestation of a single guy’s will, you’re concentrating all three powers (executive, judicial, and legislative) in one guy’s hands because of rampant delegations. But it seems like he’s fine with just campaigning on the side for crushing the capacity of the modern state! It’s a weird kind of cognitive dissonance in which he can just wash his hands of the fact that his colleagues are not going to enact a libertarian vision on the state.

I think Roberts represents where the Court is likely to go. He explicitly asked about overruling Humphrey’s but keeping Wiener v. United States (1958). There, the Court held that the President could not fire (without cause) a member of the War Claims Commission. What’s this about? Humphrey’s said the Court could insulate quasi-judicial and quasi-legislative functions from at-will presidential removal. Roberts is hinting that he’s wanting to save the quasi-judicial category and jettison the quasi-legislative rationale from Humphrey’s. The War Claims Commission was a much more densely articulated, court-like entity. It’s not quite as complicated as an agency like the Federal Trade Commission, which wields all three kinds of governmental power.

This is the least bad option as far as the likely possibilities on the table. As Jed Shugerman and I have written at length and on Notice & Comment, the quasi-judicial function from Humphrey’s and Wiener is both consistent with original public meaning and the label we attach to an instinct that is part of the history and tradition of the Anglo-American constitutional project. Americans expect judge-like officials to be insulated from hierarchical political control and removal. Judges love the quasi-judicial function because its logic is deeply complimentary to the role of jurists in our society. The instinct that Jed and I wrote about is tied to an American conception of judiciousness that predates the Constitution. It would be bad for Article III judges if you had judge-like administrators who were basically just political hacks. That would erode American’s intuitive connection between judges and independence.

Now is this a particularly compelling outcome? Not really. The earliest commissions at or near the Founding wielded powers that were legislative in nature. Congress built the modern state in reliance on the quasi-legislative function, all the same as its the quasi-judicial counterpart. Humphrey’s did not invent the quasi categories. It merely invoked the two dominant heuristics that had shaped the rise of an independent administrative law canon over the prior fifty years. Both categories find precedents at or near the Founding. If you put a gun to my head, the evidence is stronger for the quasi-judicial function. But both are fine. The imposition of a deeply un-originalist unitary executive will continue, even if the quasi-judicial category is saved.

This judicially imposed outcome would be a vindication of several historical actors. As I have detailed in my work, many people have tried unsuccessfully to impose the same idea through politics. (This is to say nothing of Chief Justice Taft, who appears to have had more regard for the quasi-judicial function.) President Roosevelt’s pursuit of presidentialism in the Brownlow Committee eventually settled on a pitch to reorganize government and place it all under presidential control, with an important caveat. Even though members of the Brownlow Committee hated independent commissions, they had to make concessions. And they knew, like people know today, that the quasi-judicial category has an important pedigree and symbolic role. History is, again, a flat circle. Even arch presidentialists will balk at the natural implications of the unitary executive theory. Saving the quasi-judicial category may be the Roberts Court’s first attempt at controlling the bleeding.

Slaughter’s Lawyer

I don’t want to belabor this point, but Slaughter’s lawyers just got slaughtered. He came unprepared. The conservative bloc was open to hearing a limiting principle to a more Congress-empowering standard. This guy whiffed. I don’t know who he was. I’m intentionally not looking that up so that my perception is just based on his performance and nothing else. I think it was a disastrous performance. Going forward, any litigation in this area needs to be done by committee. There are actual experts here who have developed historical arguments this lawyer could have drawn upon. It’s not that hard to realize you must give them a theory for why Congress can’t just consume the Department of Justice or give the Attorney General a 20-year term with removal protections. Like, wow guy, you did not come prepared. Prepared is a foreign country you have never visited. It’s something you’ve only read about in pamphlets.

Beau J. Baumann is a PhD candidate at Yale Law School.