For a long time, for both Justices and many observers, "legitimacy" was a focal point for assessing the Supreme Court's performance. Legitimacy may have mattered implicitly earlier, but this criterion surged into the open following the extraordinary discussion of the topic in Planned Parenthood of Southeastern Pennsylvania v. Casey.1 "The Court's power lies in its legitimacy," Justices Kennedy, O'Connor, and Souter explained in their joint opinion reaffirming abortion rights, "a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands."2 The reference was to what has been called descriptive or sociological legitimacy: the fact of popular acceptance of the institution's role.3
In the last eight months, this Court's appetite to circumvent the ordinary appellate process and weigh in on important issues has grown exponen-tially. Its interest in explaining itself, unfortunately, has not.(1) Our emergency docket should never be used, at it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation's separation of powers.(2) [T]his Court's complicity in the creation of culture of disdain for lower courts, their rulings, and the law (as they interpret it) will surely hasten the downfall of our governing institutions, enabling our collective demise.(3)
The anticommandeering rule is commonly framed around the facts of the canonical cases New York v. United States and Printz v. United States. But those factual templates illustrate just two of the many forms that commandeering can take. Commandeering, this Article elaborates, is properly understood as the federal government’s nonconsensual taking of state capacity. Commandeering can occur not just when the federal government asserts control over a state’s legislative process or its executive officials, as in the canonical cases, but also when it seeks to federalize a broader set of state powers, governmental functions, and material assets. Commandeering can be effectuated not just by overt command, as in the template cases, but through any mechanism of compulsion that renders a transfer of state capacity to a federal project involuntary. And commandeering can be committed not only by laws enacted by Congress, but also by the President in executive orders, federal agencies in rules and policies, and federal officials exercising discretion in individual cases. The stakes of framing the anticommandeering principle conceptually rather than factually are significant. Although direct reproductions of the fact patterns in New York and Printz are rare, this Article documents a range of inventive strategies the federal government has used to claim state capacity for federal policy objectives without state consent.
Concerned that large social media companies discriminated against conservative voices, Texas and Florida passed laws regulating how social media companies could moderate posts, sanction speakers, and promote or demote content. Conservative politicians in the two states were deeply suspicious of the large social media companies headquartered in the Bay Area of liberal California. They believed that these social media companies, Meta, YouTube, and Twitter, were unfairly removing conservative speech, demoting it in social media feeds, or de-platforming conservative speakers. Texas and Florida sought to restore online ideological balance and prevent what they considered censorship by the companies' progressive employees.1
This paper assesses the impact of Trump v. United States on the American presidency. It argues that the rulings on presidential immunity that have received so much attention and criticism are not the consequential element of the opinion. Rather, the consequential element concerns the Court’s novel and expansive account of the president’s exclusive removal power and the president’s exclusive power of investigation and prosecution. This paper shows why these rulings were novel and carefully considers their potentially very broad implications. These implications are beginning to be seen in some of the presidential power assertions of the early second Trump administration, but the possible implications go far beyond what we have seen thus far. The paper shows that none of the Court’s novel rulings on the president’s exclusive removal power and exclusive power of investigation and prosecution were briefed or addressed by the courts below or briefed or discussed at oral argument by either party in the Supreme Court. The Court addressed massively important issues of first impression about the nature and scope of presidential power in a short time frame and basically without any outside assistance.
