Paul Rosenzweig in The Atlantic
Charter Member Paul Rosenzweig recently published an opinion piece in The Atlantic, warning that the Supreme Court is abandoning neutrality in favor of politically expedient rulings. He criticizes the recent embrace of the unitary executive theory as a justification for striking down long-standing protections for independent agencies, while carving out exceptions, such as for the Federal Reserve, without any principled basis.
“According to this doctrine, the Constitution says that all officials who exercise executive power in the U.S. government are answerable to the president. It derives its force from both constitutional text and a view that unelected, independent agency bureaucrats are able to obstruct a president’s power, and some recourse must be available. Consistent with that view, legal scholars and practitioners who adhere to this theory believe that a president should be able to remove any officer of the United States who exercises executive authority—with good reason or, in their view, without any reason at all (what we lawyers call ‘removal without cause’).”
Rosenzweig argues that if the Court truly believes in this theory, it must apply it uniformly—not carve out exceptions to avoid politically unpalatable consequences.
“Again, if the impartial application of a new rule of law seems to have unacceptable results, the proper answer is to jettison the new rule as untenable, not to adopt it and then artificially carve out an exception.
The promise of unbiased application of the law is why, even if you don’t believe he meant it, Chief Justice John Roberts’s famous characterization of judges as umpires calling “balls and strikes” was so powerful. Americans don’t expect perfection in judges’ application of that principle. But the rule of law is, at bottom, a promise to minimize variations when possible.”
He points out that this pattern extends beyond just a single case, warning that the Court risks losing its credibility as a neutral arbiter of justice.