5 ms·

If you actually read Amazon’s filing, they put in a few paragraphs towards the end basically dumping a bunch of constitutional arguments that are popular right

If you actually read Amazon’s filing, they put in a few paragraphs towards the end basically dumping a bunch of constitutional arguments that are popular right now. This is called preserving your argument for appeal. Amazon doesn’t think those arguments are going anywhere (certainly not in a proceeding before the board, is the board going to declare itself unconstitutional?), but they might get lucky and have one of these issues decided by the Supreme Court before their case is finalized on appeal. If you don’t raise the issue now, you forfeit it later even if the law develops unexpectedly in your favor. Best practice is to preserve these arguments.

toss1 3y ago
It's not merely 'best practice' for some hypothetical delay tactic. This is a coordinated effort to get cases in front of SCOTUS that can gut the ability of federal agencies to do anything, especially agencies that are inconvenient to large corporations by regulating labor, environment, standards, food quality, etc. See Project 2025 [0], which is a plan to reshape the executive branch of the U.S. federal government in the event of a Republican victory in the 2024 U.S. presidential election. The plan would perform a swift takeover of the entire executive branch under a maximalist version of the unitary executive theory — a theory proposing the president of the United States has absolute power over the executive branch. Project 2025 envisions widespread changes across the entire government, particularly with regard to economic and social policy and the role of the federal government and federal agencies. They are taking every possible approach towards their goals, and this is just one line of attack. [0] https://en.wikipedia.org/wiki/Project_2025 https://en.wikipedia.org/wiki/Project_2025
- nickff 3y ago
  I think that the post is actually a move in the opposite direction, away from the unitary executive. Gutting the executive agencies would also remove many powers from the president, and transfer them (back?) to the legislative branch.
  - bwestergard 3y ago
    "I think that the post is actually a move in the opposite direction, away from the unitary executive." That's incorrect. The argument in the brief is the unitary executive argument.
- strangattractor 3y ago
  Why bother Congress has pretty much gutted the ability of federal agencies to do anything.
- rayiner 3y ago
  This particular argument is unrelated to the unitary executive theory. Unitary executive theory is the straightforward idea that Article II means what it says. “The executive power shall be vested in a President of the United States of America.” So the President has authority to hire and fire executive branch officials and bureaucrats. The arguments here are based on separation of powers. The Constitution provides for three branches of government. The NLRB is an executive branch agency. But it (and other agencies) exercise what are essentially judicial branch powers.
  - dctoedt 3y ago
    But unitary-executive is an aggressive interpretation of the words "the executive Power shall be vested." It's certainly plausible to say that "executive Power" means "such powers as are given by Article II or otherwise granted by the Congress." That could plausibly mean that Congress can cabin the executive power or even subject it to compulsory delegation to agencies, as long as the president has ultimate supervisory power — which could itself be subject to limitations, e.g., no firing without cause or without approval from Congress. (EDIT: That was why President Andrew Johnson was impeached [but not convicted], for violating the Tenure of Office Act, enacted by a Reconstruction-era Congress to protect a Cabinet officer; a later Congress repealed that statute, and the Supreme Court subsequently held that a similar statute was invalid, but Congress could use its Article III power to deprive the courts of jurisdiction to overrule such a statute.) https://en.wikipedia.org/wiki/Tenure_of_Office_Act_(1867) https://en.wikipedia.org/wiki/Tenure_of_Office_Act_(1867)
    - rayiner 3y ago
      It’s not aggressive. It’s the most straightforward interpretation of the words actually on the page. The problem is that post-New Deal liberals are in love with the idea of a neutral bureaucracy. To them governance by expert technocrats is an indispensable aspect of what they view as modernity. If you weren’t expressly trying to reach that result, there would be no reason to read anything more into Article II than what it says.
      - 3y ago

toss1 3y ago

It's not merely 'best practice' for some hypothetical delay tactic. This is a coordinated effort to get cases in front of SCOTUS that can gut the ability of federal agencies to do anything, especially agencies that are inconvenient to large corporations by regulating labor, environment, standards, food quality, etc. See Project 2025 [0], which is a plan to reshape the executive branch of the U.S. federal government in the event of a Republican victory in the 2024 U.S. presidential election. The plan would perform a swift takeover of the entire executive branch under a maximalist version of the unitary executive theory — a theory proposing the president of the United States has absolute power over the executive branch. Project 2025 envisions widespread changes across the entire government, particularly with regard to economic and social policy and the role of the federal government and federal agencies. They are taking every possible approach towards their goals, and this is just one line of attack. [0] https://en.wikipedia.org/wiki/Project_2025 https://en.wikipedia.org/wiki/Project_2025

nickff 3y ago
I think that the post is actually a move in the opposite direction, away from the unitary executive. Gutting the executive agencies would also remove many powers from the president, and transfer them (back?) to the legislative branch.
- bwestergard 3y ago
  "I think that the post is actually a move in the opposite direction, away from the unitary executive." That's incorrect. The argument in the brief is the unitary executive argument.
strangattractor 3y ago
Why bother Congress has pretty much gutted the ability of federal agencies to do anything.
rayiner 3y ago
This particular argument is unrelated to the unitary executive theory. Unitary executive theory is the straightforward idea that Article II means what it says. “The executive power shall be vested in a President of the United States of America.” So the President has authority to hire and fire executive branch officials and bureaucrats. The arguments here are based on separation of powers. The Constitution provides for three branches of government. The NLRB is an executive branch agency. But it (and other agencies) exercise what are essentially judicial branch powers.
- dctoedt 3y ago
  But unitary-executive is an aggressive interpretation of the words "the executive Power shall be vested." It's certainly plausible to say that "executive Power" means "such powers as are given by Article II or otherwise granted by the Congress." That could plausibly mean that Congress can cabin the executive power or even subject it to compulsory delegation to agencies, as long as the president has ultimate supervisory power — which could itself be subject to limitations, e.g., no firing without cause or without approval from Congress. (EDIT: That was why President Andrew Johnson was impeached [but not convicted], for violating the Tenure of Office Act, enacted by a Reconstruction-era Congress to protect a Cabinet officer; a later Congress repealed that statute, and the Supreme Court subsequently held that a similar statute was invalid, but Congress could use its Article III power to deprive the courts of jurisdiction to overrule such a statute.) https://en.wikipedia.org/wiki/Tenure_of_Office_Act_(1867) https://en.wikipedia.org/wiki/Tenure_of_Office_Act_(1867)
  - rayiner 3y ago
    It’s not aggressive. It’s the most straightforward interpretation of the words actually on the page. The problem is that post-New Deal liberals are in love with the idea of a neutral bureaucracy. To them governance by expert technocrats is an indispensable aspect of what they view as modernity. If you weren’t expressly trying to reach that result, there would be no reason to read anything more into Article II than what it says.
    - 3y ago