In preparing for a class on presidential powers I’ll be teaching this fall with Bob Bauer, I made this chart of the average number of executive orders per year each President has issued over the course of their presidency. The data comes from the American Presidency project. Having made it, I thought it would be interesting to share:
Troubling story out of Hawaii, hat tip to Charles Stewart for flagging this:
The next meeting of the Hawaiʻi Elections Commission on Wednesday is expected to be dominated by recent findings of discrepancies in the number of drop box and mail-in ballots cast on Kauaʻi during the 2024 general election.
That the state’s official count of those ballots exceeded the number that the county said it collected and submitted is not in dispute.
But accounts of just how great that discrepancy was vary — a lot.
The numbers range from 25 according to the state’s chief elections officer to 39 according to the Hawaiʻi Supreme Court to 661 according to an Elections Commission permitted interaction group and up to 3,772 based on the initial Kauaʻi County ballot envelope count.
Civil Beat has reviewed the tranche of public records, correspondence and court submissions and confirmed there were inconsistencies that raise questions about the management of mail-in ballots in Hawaiʻi.
However, gaps in the chain of custody records during the county’s ballot collection all the way through the state’s counting make it impossible to say with certainty who’s right about how big the difference really was.
Hawaii's difficulties reconciling mail ballots in the 2024 election will undermine confidence in mail-balloting nationwide and illustrate the reality that a skeptical world is watching. Jen Morrell has good quotes in this article. I hope this leads to serious reforms.…
To begin with, the surprise announcement and the sudden, if ambiguous, turnabout suggested once again that Mr. Trump is governing in his second term without advisers who can or even try to help him discipline his impulses. The episode exposes, as well, his renewed obsession with exerting control over election machinery. And it offers a vivid glimpse of his inclination to regard his powers as all but limitless.
No competent lawyer could have counseled Mr. Trump in good faith that “the States are merely an ‘agent’ for the Federal Government in counting and tabulating the votes,” as the president asserted in his post. Nor would such a lawyer have dreamed of advising him that state election officials “must do what the Federal Government, as represented by the President of the United States, tells them, FOR THE GOOD OF OUR COUNTRY, to do.”
Who, if anyone, told Mr. Trump that he could take command of state elections this way? Possibly he made up the authority himself. Some former Trump staff members believe he may not engage at all with questions about whether something he wants to do is lawful or something he wants to say is true. Those questions, they tell me, do not even occur to him.
Others who have worked for Mr. Trump say he seems to believe sincerely, if that is the word for it, that anything is permitted to him. Still others insist that he knows very well when he is crossing a line but presses on until obliged by an opposing force to stop.
Whatever the origins, Mr. Trump has now staked out a fundamentally illegitimate claim to authority over the conduct of American elections. He has yet to repudiate it. If he continues to press the claim, then the foundational mechanisms of our democracy may be in genuine danger. It is more than hypothetically possible that Mr. Trump, when frustrated, will try to compel the obedience of state election officials by throwing the weight of the executive branch against them.
Mr. Trump’s deployment of the National Guard in Washington and active duty Marines in Los Angeles, accompanied by threats that he might do the same in other Democratic urban strongholds, suggests another risk. Could he use some pretext to take control of voting machinery? If he dispatches troops or federal law enforcement agents to disrupt blue-city voting or ballot counting in swing states — Atlanta, say, or Milwaukee or Philadelphia — the midterm elections could be in real peril.
With or without the deployment of force, Mr. Trump’s fusillade of baseless claims about election fraud shakes public confidence in the integrity of the vote — and provides excuses for his dishonest efforts to delegitimize the outcomes. For all his political life, he has waged war against the proposition that he or his party could ever lose a legitimate election. He and his allies are preparing the ground for their next battle, in 2026….
Bart concludes with a note very consistent with my NYT oped on this topic earlier this week:
The ultimate safeguard of constitutional government is the great mass of citizen voters who decide by the tens of millions what kind of government they want. We hold the power, whatever our partisan preferences, to defend checks and balances and the rule of law. We cannot lose that power unless we surrender it.
A judge in Texas denied, on Wednesday, Elon Musk’s request to dismiss a class action lawsuit against him and his political action committee brought by a group of voters who participated in his $1-million-a-day “giveaway” leading up to the 2024 election.
Over the last few months, lawyers for Musk and America PAC have sought to get rid of the lawsuit brought by voters in battleground states who claim they were defrauded when the tech mogul and his PAC misled them to believe that if they signed a petition and gave away personal information, they could “randomly” win $1 million.
In reality, Musk and his PAC had pre-selected people to win the $1 million in exchange for a spokesperson contract – meaning those who signed the petition had no chance of winning.While lawyers for Musk and the PAC argued that there were “red flags” in their petition announcement that should have tipped people off that they were unlikely to win $1 million, the Texas judge disagreed.
“The Court finds it is plausible that [the plaintiff] would rely on Musk’s assertion that $1 million would be given out randomly notwithstanding his or America PAC’s later statements,” Judge Robert Pitman, appointed by former president Barack Obama, said in his order.
As most separation of powers/administrative law scholars know, the Roberts Court has consistently applied the unitary executive branch theory (UET) across Democratic and Republican administrations. That theory maintains, at a minimum, that the President must have the power to remove at will the heads of any federal agencies or commissions that wield substantial executive power. I think the Roberts Court is wrong about the UET. But if it’s wrong, it’s been consistently wrong, regardless of who the President is.
I bring this up only because a recent New York Times essay, to which I contributed, contains a flatly wrong claim about this issue from Stanford political scientist Adam Bonica. I will first briefly describe the history of this issue, then address Bonica’s disturbingly incorrect claim.
The Supreme Court started on the path toward endorsing the unitary executive branch theory long before the first Trump administration. President Obama was in office when the Roberts’ Court first endorsed this conception of strong presidential power in Free Enterprise Fund v. Public Company Oversight Board (2010) (full disclosure: I filed an amicus brief in that case defending the Sarbanes-Oxley Act on behalf of all former Chairmen of the SEC). That decision held the structure of the Public Company Accounting Oversight Board unconstitutional because Congress had left the President too little direct or indirect control over the Board’s members.
During the first Trump administration, the Court then invalidated the structure of the Consumer Financial Protection Bureau because Congress had sought to limit the President’s power to remove the head of the CFPB only on certain limited grounds. The next major decision in this line, United States v. Arthrex, further empowered the President during the Biden administration. Indeed, that decision expanded the UET into new terrain by holding that the President also had to have effective control over administrative adjudications.
President Biden then took a number of actions based on the UET. Shortly after taking office Biden fired the head of the Social Security Administration, despite statutory protections that insulated his removal from direct presidential control. He also fired a number of other officials who had long been thought to be independent because they served fixed terms of office. Indeed, a legal commentator in Slate characterized Biden as “the first unitary executive.” None of these firings reached the Supreme Court.
Entering the second Trump administration, what remained against the UET was the 1935 case, Humphrey’s Executor v. United States, which held that Congress could create independent, multi-member agencies, such as the Federal Trade Commission, whose heads the President could not fire at will, but only for “good cause.” But it was widely expected that the Trump administration would challenge that decision and that the Roberts Court would take the next step in its commitment to the UTE by agreeing with the President and overturning Humphrey’s Executor.
When President Trump put the issue squarely before the Court by firing the heads of various independent agencies, the lower courts held these firings illegal. Those courts are obligated to follow Humphrey’s Executor. In two cases on the emergency docket, the Court has stayed these lower court rulings on procedural grounds. Technically, the Court has not yet overruled Humphrey’s Executor, but it’s widely recognized that these actions make it virtually inevitable that the Court, unsurprisingly, is going to overrule Humphrey’s Executor. Indeed, Justice Kagan’s dissent for three Justices asserts that the Court has in effect already overruled Humphrey’s Executor, even before formally interring it. One can argue about procedural aspects of these stays, but on the substance of the UTE, these are probably the least unexpected decisions on executive power of the current Court.
Indeed, the most important brake the Court has suggested on the UET has come during Trump’s second term, in statements from individual Justices that the President does not have the power to fire at will the Chairman of the Federal Reserve. Critics have questioned whether there’s a principled distinction between the Federal Reserve and other agencies, but the conservative Justices have made these statements in direct response to President Trump’s threats to remove Chairman Powell.
Bonica, however, asserts that the Court has been partisanly manipulative and opportunistic in how it applies the UTE. He levels this charge in extremely strong terms: “If the unitary executive theory were a genuine constitutional principle, its adherents would apply it equally to all presidents, regardless of party. The evidence shows it is a principle of convenience, invoked to amass power and discarded when it might constrain allies.”
To back this up, he offers two pieces of evidence. First: “This situational approach is most visible in the actions of the theory’s own advocates. When President Biden took office and fired a handful of Trump-appointed holdovers, he was met with a flurry of lawsuits from the very conservatives who champion UET. Suddenly, these activists argued for the sanctity of the statutory tenure protections they otherwise seek to destroy.”
But the positions lawyers take in litigation obviously tells us nothing about whether the Court is applying the UET consistently. On top of that, Bonica doesn’t tell us (or link to) who the lawyers are he has in mind behind this alleged “flurry of lawsuits” from conservatives. In poking around a bit, the only suit I’ve come across that fits Bonica’s description is one that Russell Vought brought, in which Stephen Miller’s law firm represented him, when Biden fired Vought from the Naval Academy Board of Visitors. But it doesn’t take a lot of strategic sense to recognize that Vought brought that suit hoping to lose it as a way of more deeply entrenching the UET. Vought surely cares more about solidifying that doctrine than he cares about being on the Naval Board of Visitors. In any event, whatever the motivation for this one suit, it has nothing to do with whether the Roberts Court has applied UET consistently.
Bonica’s second and only other piece of evidence, which he calls “the most telling evidence,” is that Justice Thomas voted against the UET in the Arthrex case, during Biden’s presidency. But Bonica doesn’t tell readers that Thomas was in dissent, along with the three more liberal Justices. Nor does Bonica tell readers that the Court upheld the UET claim in that case, during Biden’s presidency, in a particularly expansive opinion endorsing the UET.
After that, Bonica leaves the UTE behind and shifts to brief discussion of other issues concerning executive power. He criticizes the Court for not overturning universal injunctions during the Biden administration and presents data on how often the Court has used the emergency docket to uphold or reverse lower courts during the Biden and Trump years. Jack Goldsmith recently took issue with Bonica’s use of data. I don’t want to prolong this piece with my own views about the extent to which the Court has or has not been consistent on other executive power issues. One big test will come with how the Court applies “the major questions doctrine” during the Trump administration. But the Roberts Court has had a clear commitment to the unitary executive branch theory for many years and it’s been consistent about that – for better or worse.
Bradley Smith and I talked about Callais and the future of Section 2 in the National Constitution Center’s “We the People” podcast with Jeffrey Rosen.
In this episode, Bradley Smith of Capital University Law School and Nicholas Stephanopoulos of Harvard Law School join to discuss the history and future of racial gerrymandering, including how the Court’s upcoming decision in Louisiana v. Callais could affect the Voting Rights Act.
“Gerrymandering is bad enough once a decade,” said Richard Pildes, a law professor at New York University. “But if we open the door to continual efforts throughout the decade to squeeze out every additional seat based on changing calculations to the parties, it’s very bad for voters who have enough trouble developing connections with their representatives and it’s very bad for democracy more generally because it promotes cynicism about the process.” . . .
“It presumably increases the potency for gerrymandering because you can do the gerrymandering based on very recent data and the map doesn’t have to endure for as long,” said Nicholas Stephanopoulos, an election law professor at Harvard. “The worst case isn’t just a one-off mid-decade re-redistricting it’s a continuous re-redistricting. Before every election, you check out which of your side’s incumbents had a closer call than you wanted last time and you make their district three or five or seven points more Democratic or Republican.” . . .
Stephanopoulos said the current congressional map was essentially balanced between Democrats and Republicans in the aggregate. “I’d rather have fair maps in every state aggregate into a fair US House. If we can’t get that because the Congress won’t require fair maps and neither will the supreme court, then the worst case, I think, is one side gerrymanders and the other side doesn’t, and we get a highly distorted US House.
“That then means that the majority of Americans aren’t represented by a majority of legislators, and Congress passes laws that don’t reflect what the majority of Americans want and so offsetting gerrymanders at least prevents that worst-case outcome.”
“The current House is unusual in the modern era in being very close to perfectly neutral according to various measures of partisan bias,” Nicholas Stephanopoulos, a professor at Harvard Law School and expert in redistricting, told me. Under the current lines, Stephanopoulos and his colleagues have argued, the party that wins the most votes in House elections nationwide is also very likely to win the majority — a big improvement from 2012 when severe gerrymandering allowed Republicans to amass a 33-seat House majority even as Democrats won the national popular vote. . . .
If Texas succeeds in launching a new redistricting war, it could disrupt the best (if inadvertent) feature of the current maps: their rough partisan balance. In an all-out mobilization, Republicans probably can squeeze out about half a dozen more House seats than Democrats before 2026. That would not shift the maps back all the way to their lopsided pro-GOP tilt after 2010, says Sam Wang, president of the Electoral Innovation Lab at Princeton University. But, he says, it would erase the roughly neutral playing field, and likely force Democrats to win the total House popular vote by 2 to 3 percentage points to claim the majority. . . .
The best solution would be legislation establishing comprehensive, national rules for redistricting. In 2021, the Democratic-controlled House passed the sweeping election reform bill known as HR 1 that would have required states to use independent commissions to draw Congressional district lines and applied national standards to that process. Those included avoiding partisan bias, ensuring geographic continuity in the districts, and barring mid-decade redistricting. . . .
There might be other ways to address the gerrymandering problem. Though the US Supreme Court ruled in the 2019 Rucho case that federal courts can’t overturn partisan gerrymanders, state legal action may still offer some opportunities to curb excesses: Stephanopoulos and his colleagues at the Harvard Election Law Clinic recently helped craft a novel lawsuit in Wisconsin that argues the extreme lack of competition in the state’s Congressional map “makes a mockery of” the state constitution’s promise of equal protection and the right to vote. In the long run, some election reformers believe that returning to the early 19th-century model of electing multiple members from a single district offers the best chance to ensure both greater fairness and competition.
