John Roberts and Executive Authority

Ed. note: This post is from Chase Nordengren, a contributor on my weblog, Political Forecast. I think its a very prescient piece.

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After dwelling on this issue for ... well, however long its been, I've finally come to a conclusion. Everything the pundits say about this nominee is wrong. (I know, a real shocker.) It's not about abortion or age or steady jurisprudence or compromise or a pretty resume. It's about the administration's overall strategy to expand and change the role of the executive branch in American government, which they're accomplishing in three ways:

1. Restoring a sense of public pride / confidence in a President (the 2000 campaign pitch, the feel of a "man of the people" President. Arguably questionable based on recent scandals, but that was a mistake.)
2. Consolidating power in the executive branch (PATRIOT Act, enemy tribunal policies, massive govt spending in all areas, etc.)
3. Making the WH the center of political and social guidence (the FCC & Margaret Spelling's restrictions of all non-Leave it to Beaver ideas, the coordination with Republican Senators when it comes to ideological message, etc.)

John Roberts was chosen because, no matter what the issue in the next 25-30 years (okay, age does sort of matter), he seems ready and able to expand the executive branch's authority. Consider the following case examples, the first two courtesy of the SC Nom Blog:

• AFL-CIO v. Chao, 409 F.3d 377 (D.C. Cir. 2005) - Judge Roberts dissented from the majority's holding that the Secretary of Labor exceeded her statutory authority by promulgating certain reporting requirements for labor unions. Judge Roberts highlighted several aspects of the statutory delegation that indicated that Congress had intended to confer especially broad authority on the Secretary
• Indep. Equip. Dealers Ass'n v. EPA, 372 F.3d 420 (CADC 2004): In an opinion joined by Judges Garland and Rogers, Judge Roberts dismissed an action brought by a trade association of independent dealers of heavy construction and industrial equipment. The association was seeking review of the EPA's interpretation of emissions regulations for nonroad engines. Judge Roberts held that since the EPA advice letter at issue merely reiterated the longstanding prior interpretation of the regulations, the letter did not constitute an agency action subject to judicial review. (No judical review of executive action?)
• The Rumsfeld v. Padilla case, authorizing use of military tribunals for anyone the President deems an "enemy combatant", citizen or not.

Watch this issue as most important during the confirmation.

Tags: John Roberts, Executive Branch