Justice Ketanji Brown Jackson argues that Congress should play a stronger role in determining how federal agencies operate, shifting authority away from the Executive Branch. This video breaks down the legal debate, the implications for government power, and what this could mean for future agency decisions. Stay tuned for expert analysis and real-time developments.
00:00But I think Justice Kagan's point is that you're asking us to ask that question.
00:04And so we have to understand, you're asking us to ask the question with respect to each agency, what are they doing?
00:13That's the necessary result of the argument that you're making in this case.
00:17And I guess my point is, one way to avoid these difficult line drawing problems would be to let Congress decide.
00:25I mean, I sort of thought that we have Article I, which I think you agree gives Congress some authority to set up these agencies to determine their structure, to create the offices that we're talking about.
00:41So it seems to me that that greater power, we should at least think about whether it should include the power to determine the term of office, the extent to which people can be removed.
00:54And I appreciate that Article II has some language in it that you're pointing to.
01:00But as Justice Sotomayor pointed out, the Constitution does not speak specifically to removal.
01:05You're asking us to infer this based on the Constitution's structure.
01:09And I don't know why we'd make that inference when the power to create agencies and set everything up lies with Congress.
01:17I agree with very much of what you said, and so did James Madison.
01:20And so he made the point in the decision of 1789 that Congress has authority to create the office and set its emoluments and structure that office.
01:30But once Congress has done that, its power there stops.
01:33Is that because of your democratic accountability?
01:36I'm trying to understand why you think that Congress is somehow less democratically accountable for the way in which it constructs these agencies and determines the term of office of the officers.
01:50You seem to think that there's something about the president that requires him to control everything as a matter of democratic accountability,
02:00when on the other side we have Congress saying we'd like these particular agencies and officers to be independent of presidential control for the good of the people.
02:10We're exercising our Article I authority to protect the people by creating this independent structure.
02:20And I don't understand why it is that the thought that the president gets to control everything can outweigh Congress's clear authority and duty to protect the people in this way.
02:31Congress has a broad authority in structuring the federal government, but what it lacks authority to do is to create these headless agencies,
02:40agencies who have no boss and are not answerable to the voters.
02:43Why?
02:43To confer on them.
02:44Why?
02:44Why does it lack the authority?
02:45The Constitution does not say that Congress cannot create an independent agency.
02:51So what is it about your argument that requires us to reach that result?
02:55We disagree with that.
02:56We think the text of the Constitution confers the executive power, all of it, on the president.
03:01As Madison argued compellingly in the decision of 1789, the power to remove is an aspect of the executive power.
03:07Further, the text of the Constitution includes the take care clause.
03:10The take care clause, as the court has said virtually every time it's discussed this, reinforces that inclusion.
03:13The text of the Constitution includes the necessary and proper clause, which gives Congress the authority to determine, set up, etc.,
03:21these agencies to protect the interests of the people.
03:26So we have a conflict, I guess, and I'm just wondering why the president's interests in the way that you've described them win.
03:33You can answer the question.
03:34It is not proper, under the necessary and proper clause, for Congress to peel away executive power from the president
03:40and give it to someone who's not answerable to the voters.
Be the first to comment