Hacker News Reader

Comment by granzymes | Hacker News Reader

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.

View on HN

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

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.

"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.

Why bother Congress has pretty much gutted the ability of federal agencies to do anything.

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.

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)

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.

> It’s the most straightforward interpretation of the words actually on the page.

That sounds like, everything not expressly allowed is forbidden; Ninth and Tenth Amendments notwithstanding, that doesn't seem like an ideal way to apply rules written more than 200 years ago for a population that was two orders of magnitude smaller than today, with a concomitant increase in the number of commercial- and noncommercial interactions.

But those amendments are not notwithstanding; they are, in fact, still part of the Constitution, despite there being ample opportunity to amend the Constitution to say otherwise over those intervening centuries.

> ... ample opportunity to amend the Constitution to say otherwise over those intervening centuries.

That's true — but realistically it's well-nigh impossible to get the requisite 2/3 of the House and Senate and 3/4 of the states' legislatures to agree on just about anything.

Moreover, recent events have shown that soi-disant conservatives and MAGA adherents hold very different views than centrist- and center-left Democrats about how the country (and the world) should be governed; ditto their respective counterparts in other countries.

So pragmatically, if we want to keep a functioning United States going as a unified country in a technologically-globalized 21st century, it seems appropriate to not take a cramped view of federal governing authority.

Some in the U.S. have argued for splitting the country into Red- and Blue Nations. That seems like just kicking the can down the road: It's not implausible that in the future, a Putin- or Orbán-like strongman figure would climb to power in Red Nation, proclaiming that Red Nation should militarily conquer Blue Nation to restore the (re-)United States to its former glory so that it could resume pursuing the Manifest Destiny that God (supposedly) intended all along.

The Constitution has been amended 27 times, most recently in 1992. And there’s no need to divide the United States into two; the United States is already divided into fifty states, each of which can have its own laws. And in my view, it has consistently been the Democrats who are hellbent on imposing their preferred laws on the red states, just as they’re the ones who consistently advocate ignoring the constitution, packing the Supreme Court, and creating and strengthening an unelected, extra-constitutional fourth branch of government that saves them the need to actually win elections and convince the American people to go along with their ideology. The Republicans haven’t been great about this either but at least they’ve taken some steps towards restoring the constitutional republic.

Reply on news.ycombinator.com