At the Start of the Biden Administration, the Court Expands President Biden’s Powers

At the start of the Biden administration, the Supreme Court in two divided decisions this week expanded the President’s power over the executive branch.  The decisions largely divided along lines that Court pundits label conservative and liberal.  On the side of expanding the President’s powers were largely the “conservative” Justices; the dissenters were mostly the “liberal” Justices.  These decisions come on the heels of the Court’s decisions, in the waning days of the Trump administration, to permit New York prosecutors to obtain President Trump’s business and personal tax records and to decline to intervene in the post-election efforts to challenge the election’s legality.

The effect of one of this week’s decisions was immediate and dramatic.  In Collins v. Yellen, the majority held that Congress had acted unconstitutionally in trying to make the head of the Federal Housing Finance Agency, which oversees Fannie Mae and Freddie Mac, independent of the President’s complete control.  The same day, President Biden fired the head of the Agency and appointed his own person.  The stocks of Fannie and Freddie immediately plunged around 40% as soon as the Court’s decision came down, a sign of how consequential Biden’s seizing control of the agency was perceived to be.  The Trump administration was seeking to privatize Fannie and Freddie and end the government’s conservatorship over them; under Biden, that no longer is thought likely.  This is a striking example of how much policy can turn when agency heads cannot be made independent of the President’s ability to fire them at will. 

The second decision, Arthrex, held that the President must have more direct control than Congress had provided over judges in the agencies who adjudicate cases. 

For those surprised that the current Court would hand President Biden greater powers, these decisions are driven more by purely doctrinal/constitutional positions.  Conservative Justices believe the Constitution requires a unitary executive branch; liberal Justices do not.  Those views do not change whether a Republic or Democrat is President (to those tempted to point out that the Electoral College is currently biased toward a Republican, the Electoral College had a Democratic bias from the 1960s until 2016, the years when the unitary executive branch doctrine began to become prominent).  It might be that these constitutional positions on how to interpret the scope of the President’s Art. II powers are informed by implicit long-term policy views as to whether government functions better with unitary presidential control or with Congress’ ability to create independent officials.  But as this week’s decisions confirm, it is these larger doctrinal/constitutional positions, not shorter-term political or policy considerations, that divide the Court.

Here’s another perspective on these decisions:  a question that might be thought to arise after the Trump presidency is whether the Court majority might modify, to any degree, its view that the Constitution requires a unitary executive branch.  The policy debates have gone back and forth over decades as to whether we get better governance with the President having full control over the executive branch or with Congress being able to create some offices that are independent of direct political control.  If these policy debates inform the Justice’s constitutional positions at all, would the balance between these positions be altered in the wake of the Trump presidency?  With President Trump’s efforts to use his control over the executive branch for his own electoral interests, in contexts that have been widely documented, would the Court permit Congress even a modestly greater ability to create independent offices than the most robust unitary executive branch position would accept?  The answer this week’s cases provide appears to be no.  For better or worse, the Court’s view is not, it seems, going to change in reflection of the experience of the Trump presidency. 

As a result of the internal development of doctrine, the Court is perfectly prepared to give President Biden — and future Presidents — broader control over the executive branch.     

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