“My understanding was that independent agencies exist because Congress has decided that some issues, some matters, some areas should be handled in this way by non-partisan experts, that Congress is saying that expertise matters — with respect to aspects of the economy, and transportation, and the various independent agencies that we have. So, having a president come in and fire all the scientists, and the doctors, and the economists, and the PhDs, and replacing them with loyalists and people who don’t know anything, is actually not in the best interest of the citizens of the United States.”
—-Justice Ketanji Brown Jackson, making the case for a technocracy that directly contradicts the structure of government dictated by that U.S. Constitution thingy, in her questioning of U.S. Solicitor General D. John Sauer during this week’s oral argument in “United States v. Slaughter”.
As Professor Turley archly comments in his post on Jackson’s classically totalitarian belief that the proletariat can’t be trusted and must be guided by supposedly wise and beneficent “experts” (like her), “Jackson simply brushed aside the fact that the president is given authority to execute the laws and that the executive branch is established under the Constitution…The use of “real-world consequences” seems to overwhelm any true separation-of-powers protections for presidents against the administrative state. It also allows the Court to delve into effective policy or legislative impacts in support of the expert class over what are framed as ignorant or vengeful presidents.”
To state what should be obvious about the so-called “expert class,” they have proven themselves to be very partisan and therefore not sufficiently trustworthy for Congress to bestow on them “independence” from Presidential oversight within the Executive Branch. We have seen that experts like university professors and scholars are overwhelmingly biased and partisan, that scientists are biased and partisan, that doctors, lawyers, economists, psychologists, judges and, yes, ethicists are biased partisan. The concept of the non-partisan, independent expert is a convenient ideology-driven mythology, and anyone paying attention to what we have witnessed in our country, society, and culture over the past couple of decades has to admit that it is as believable as Santa Claus.
Let me add in closing that the arrogance and smug entitlement that radiates from Jackson’s “people who don’t know anything” is staggering, obnoxious, and ironic. She’s a Supreme Court Justice and apparently doesn’t know what the Constitution means…
Ethics Alarms 
…or what a woman is, for that matter.
We should probably be grateful for KBJ. At minimum, she will provide decades of reminders of the folly of selecting key appointees on the basis of group memberships, instead of their actual abilities.
There have been, including the current ones, 116 Supreme Court Justices.
She has to be, unequivocally, not just the stupidest justice of the 116…. but so stupid that whichever one was the stupidest one before her has to feel really good about being like four or five times less stupid than her.
I hope Justice Sotomayor at least sends her a gift basket or something.
Not to mention she’s assuming that Trump will pick dummies but other presidents (cough cough Dem presidents) will pick true experts.
Of course they will! Democrats are smart! They’re not stupid like people think! They’re smart.
And of course, the Clintons brought us the people who are always the smartest people in the room, just for a few examples, Bill Clinton and Barack Obama. At least they didn’t push that one too hard during the Biden presidency, Praise Allah.
You captured my first impression of the statement
At a college reunion in 2023 I overheard the spouse of a research biologist M.D. a class ahead of ours, gushing to an M.D. classmate of ours about what an absolutely brilliant man Anthony Fauci is. The smugness among the credentialed class knows no bounds. They shouldn’t be trusted to run anything more than a lemonade stand.
Fauci is, indeed, Exhibit A.
If there are exceptions to the general rule that any office or agency Congress establishes that wields executive power must be under presidential control, these exceptions must be deeply rooted in our Nation’s history and tradition. As such, an independent agency or office can not exercise any executive powers that were not exercised by independent agencies or offices in the time period between 1776 and roughly 1870 or so.
Otherwise, without strict restraints on exceptions, they would swallow the rule, even going so far as to allow Congress to create the Office of First Expert with lifetime tenure and authority over the entirety of the executive branch apart from the President.
I didn’t know “unethical” was synonymous with “retarded”.
And since it bears repeating, boldified and italianiated:
She has to be, unequivocally, not just the stupidest justice of the 116…. but so stupid that whichever one was the stupidest one before her has to feel really good about being like four or five times less stupid than her.
I think it is rather safe to assume that Ketanji Brown Jackson (KBJ) will not be writing the majority opinion in USA v. Slaughter.
However I would like to question the opinion that KBJ’s lack of brilliance is an ethics issue for which she bears responsibility. There are two principles at work here, namely the Peter Pan principle that states that people are often promoted to a level above their competence, and the Dunning Kruger effect where people overestimate their own competence.
Assuming that KBJ is doing the best she can do given her limited legal talents, what do we expect from ethical perspective? Do we expect that she voluntarily resigns, saying “I am too stupid to do this job”? Or should she be impeached? I know that Ethics Alarm takes a dim view of members of Congress who resign prematurely. So if there is no ethical remedy then there is ethical problem either.
The real villain is the former President Joe Biden who nominated her and the Senate who approved her nomination, for ideological reason and without consideration of her judicial skills and power of legal thinking.
Stipulated: The Constitution does not provide for the creation of “independent executive and quasiofficial agencies”, as I’ve seen them described, that are outside of the control of the president.
I can understand how the experts currently running many of these agencies have shown themselves to be untrustworthy, using their position of academic authority to advance political agendas rather than using intellectual honesty to clarify situations and present options.
That said, does it make sense why some people would think it’s a good idea to put (theoretically) neutral experts in charge of making regulations regarding things like health, the economy, or the environment? Do you see what people are concerned will happen if they don’t?
I looked up the Endangered Species Act, and it looks like the agencies that are in charge of determining whether a species is endangered are the US Fish and Wildlife Service (under the Department of the Interior) and the National Marine Fisheries Service (under the National Oceanic and Atmospheric Administration, under the Department of Commerce). These are cabinet departments, so my understanding is that there’s no ambiguity about whether president has the power to fire people and give orders.
The question here is, if the bald eagle were still an endangered species, could the president declare that it should be removed from the list? Could the president declare that all bald eagles should be hunted down? If nobody else wanted that, what options do they have to stop it? If the president creates the impression of being petty (and I think we can agree Trump is petty–just how petty is up for debate) and doesn’t make a serious effort to shed that impression, people may fear how much unilateral power the office of the president has, constitutional or not.
Ultimately, no matter what rules you make to restrict the government’s powers and processes, government all comes down to who you trust to make decisions and exercise power. That means that if nobody is taking steps to earn trust rather than command it or inspire it through fear of Trouble in River City, the government will be dysfunctional regardless of how well it follows the Constitution.
The founders wrote the Constitution knowing that men are fallible. They wrote in multiple checks and balances to mitigater this. Congress is accountable to the People at set intervals, the President can only serve two terms (took an Amendment), the Supreme Court has to be acceptable to the Senate. The President can issue the “Bald eagle extermination” executive order and Congress has the ability to pass a law protecting them from it. The People can petition the court’s to stay or overturn the E.O.
The point is that we don’t have a King, we have laws and men subject to them. The laws can change, men can change and over the last 250 years compared to every other nation on the planet, we have followed this path and protected the inalienable rights of the People, in general anyway.
But EC…lots of things that may be currently illegal or that violate the Constitution could be “good ideas.” That’s literally irrelevant to the issue at hand, which is whether the current practice is unconstitutional. In a constitutional republic, the government can’t just do things that seem like good ideas. It seemed like a good idea for women to have the right to vote, but the Constitution had to be changed first. It seemed like a good idea to lock up Japanese-American citizens to be on the safe side during WWII, but it was a terrible idea, and unconstitutional too, though SCOTUS didn’t say so. Governments just doing what strikes them as “good ideas” regardless of law are tyrannies. What’s shocking is to have a Supreme Couty judge using the good ideas argument when that is not her place to say.
I’m not recommending that governments ignore the law whenever they think something is worth doing. That would inherently undermine trust, which is what makes it unethical.
I’m saying that if we want people to stop trying to break the rules, we need to understand why they think breaking the rules is necessary, and we also need to understand whether we think those rules are a good idea, or whether we’re willing to change the rules through due legislative and constitutional processes.
When you want to convince people to stop breaking rules, the conversation will inevitably turn towards why the rules are the way they are, which means we need to have an idea of what we think the rules should be and why. Otherwise we have dogma: “This is the way we’ve always done it, so it must be the best way, the only way.”
Understanding what we think is a good idea will tell us whether we want to oppose an action or whether we want to change the rules to allow it. Tolerating an illegal or unconstitutional action is never a good option.
During the pandemic the experts in charge stifled any and all dissenting voices as often as possible. We all heard that we should follow the science but only their science was worthy of following because they were the ones employed by the government. One voice was of our current FDA chief Dr. Marty Makary. He is not a Trump loyalist who will do as he is told as evidenced by the pro life groups calling for his firing due to his stance on abortion pills and Trump not waiver in his belief in Makary’s expertise.
We also had EPA experts making rules that determined that any areas that collected water was a navigable waterway which cost millions in litigation costs for property owners.
Pettiness is in the eye of the beholder. Decisions are made at the margins and more often than not and experts test rule acceptance through escalation by restriction something relatively insignificant then use that as a precedent to enact broader restrictions. Holding firm to a principle early on may seem petty but maybe not in the long run. Is it petty to protect the right of someone uttering some offensive words at another? Or should we go the way of Britain who just convicted Joey Barton for bland statements some minority took offense at. He was given an 18 month sentence for each of several charge to run concurrently and to go through a reeducation program. The jail sentence was suspended provided he offended no one else during that time. Joey Barton sentenced for posting grossly offensive social media messages | The Independent. This is where our hate crime legislation is headed.
I have no problem with experts serving in an advisory capacity but I find the fact that they can draft rules for the people that carry the full effect of law unconstitutional because the actual rules were never voted on by Congress. In other words Congress cannot delegate its Constitutional authorizations to unelected parties. Like the example of exterminating bald eagles the idea that Congress can delegate its role to say the British Parliament would be equally foolish. The Constitution provides for Congress to establish methods to carry out their laws but it makes no mention of the agencies right to create to law and punishments for violations.
All persons charged with making rules should be subject to removal when they start making rules that are driven by personal ideology. If they cannot perform the service in keeping with the electorate’s choices then they should resign. Imagine, if the IRS started making income distribution rules so that they could equilibrate incomes by flexible tax and refund decisions.
Currently, Congressional staffers and lobbyists write actual legislation leaving the details of implementation up to the agencies. This effectively shields the legislator from putting their fingerprints on the costs of the rules while taking credit for any benefits that may accrue under the broader piece of legislation. All regulations before being made into law should be voted on by those elected by the people.
One check and balance would be judicial review; EPA determinations have been subject to judicial review.
I had an AI conversation on Poe.com about this.
https://poe.com/chat/1cz5dcuz81gbei14cw
Much of my career as an I.T. consultant has been in support of the Federal Government as a contractor, and in that context I pretty objectively AM one of those “non-partisan experts” that Justice Jackson speaks of.
Here’s the problem with her quote: It doesn’t matter how much more of an expert I am in my field than the people who hired me. My role in that job is to advise my client and to carry out the client’s instructions to the best of my abilities.
At no point am I the one “in charge” of anything unless explicitly delegated some form of authority by the client (which can and does happen, though rarely). If I think my clients are doing or about to do something wrong, I tell them. And then I explain why, and what follows 99% of the time is a professional discussion about how to proceed.
That’s how it works. That’s the actual relationship between government employees and the “experts” they hire.
I wonder if Justice Jackson would be willing to cede all her decision-making authority as a Supreme Court Justice to a staffer who works for her an dis an “expert” in some particular area of law?
–Dwayne
P.S. …and in her particular case, that could end up being ALL of her staff.