Thomas has long carved out a reputation for frequent and idiosyncratic opinion writing. He pens more concurring and dissenting opinions than any of his colleagues on the high court. (Chief Justice John Roberts, by comparison, has not written separately in the last two terms.) This year alone, in a wide range of cases, Thomas sketched out a stunningly broad view of executive power—and, simultaneously, a sharply narrowed view of congressional power—that verges on the monarchical.
In his view, the law exceeded Congress’s powers under the commerce clause. “This power allows Congress to regulate ‘selling, buying, and bartering’ across state lines,” he wrote, quoting from a concurring opinion that he wrote in 1995. “It does not allow Congress to regulate ‘agriculture’ or ‘manufacturing,’ activities entirely ‘separate’ from ‘commerce.’”
In Learning Resources v. Trump, the Supreme Court struck down the “Liberation Day” tariffs imposed by Trump last April. The court concluded that the Cold War–era law invoked by Trump did not allow him to impose tariffs via its permission to “regulate importations.” Some of the court’s conservative members disagreed with this interpretation, including Justices Samuel Alito and Brett Kavanaugh.
“Because the Constitution assigns Congress many powers that do not implicate the nondelegation doctrine, Congress may delegate the exercise of many powers to the President,” Thomas wrote. “Congress has done so repeatedly since the founding, with this Court’s blessing. The power to impose duties on imports can be delegated.”
Thomas drew on medieval and early modern English sources to argue that the presidency could, in fact, wield broad powers like those of the British king. “In Great Britain, the King had no unilateral legislative power, but he had much unilateral power over foreign commerce,” the justice argued, quoting from the English jurist Lord Blackstone. “His power over foreign commerce included the power to ‘govern foreign trade,’ and to ‘prohibit any of his subjects from leaving the realm.’”
Thomas’s view of executive power went even further in the court’s presidential-removal cases this term. In two separate cases, Trump v. Cook and Trump v. Slaughter, the justices weighed when and how the president could fire Senate-confirmed executive branch officials despite Congress’s protections for for-cause removal.
“Today’s decision is an unprecedented incursion on the executive branch,” Thomas wrote. “Neither the parties nor the court can point to a single time in American history that this court has upheld an injunction against the president’s removal of an executive officer. In the 237-year history of our Constitution, this court has, by all accounts, never done so.”
“Regardless of whether unaccountable executive officers like Cook would better govern the economy, the Framers rejected such a ‘promised land of technocratic governance,’” Thomas wrote. “They instead chose government by the people. As a court, our duty is not to second-guess that decision, but to uphold it.”
The presidency, on the other hand, is not and has never been directly elected by the American people. The Framers inserted the Electoral College as a buffer between the popular will expressed by American voters and state legislatures and the nation’s executive power. While some states allowed voters to cast ballots for slates of presidential electors, this did not become the norm until after the founding generation had passed out of public life in the 1820s and 1830s.
Thomas’s monarchical tendencies are strongest when it comes to immigration and foreign policy. Mullen v. Al Otro Lado involved a challenge by immigrants rights groups to a federal immigration policy that prevented asylum-seekers from applying for asylum at U.S. ports of entry by physically preventing them from stepping foot on U.S. soil. The Supreme Court ruled in favor of the policy, interpreting the statute’s defining of “arriv[ing] in the United States” to mean literally setting foot on U.S. soil.
Under the high court’s precedents, Congress and the executive branch have absolute discretion to determine which foreign nationals—whether they be immigrants, asylum-seekers, temporary visa holders, or whatnot—can or can’t enter the country. Thomas took this reasoning an additional step to argue that this power actually rests with the executive branch, not with Congress.
First, he claimed, the president inherited such a power from the English monarchy. “For example, William Blackstone explained that the King could send alien friends ‘home whenever the king sees occasion,’” he wrote. “And, at the time of ratification, [the] Framers of the Constitution argued that the President would have the same power.”
To the extent that this is true, it is because the executive branch literally denied them the ability to request asylum at a U.S. port of entry. But to Thomas, this does not matter. “Any statute that forced the president to allow aliens to cross the border against his will would appear to exceed Congress’s enumerated powers, and a court could not enforce it against the President,” he claimed.
Thomas’s concurring and dissenting opinions, by nature, are not law. They can nevertheless prove to be highly influential in conservative legal circles. Lower court judges routinely cite them when challenging or disputing Supreme Court precedents. Some of those judges can be former Thomas clerks themselves: The Trump administration has drawn heavily from his acolytes to staff the federal bench. While Thomas’s opinions are rarely the law today, they can be a telling indicator of the world in which the conservative legal movement hopes to one day make us live.
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