The most important part of any Supreme Court ruling today is the majority opinion, for that is what the law is. The second-most-important part is whatever Justice Clarence Thomas writes separately, for that is what the conservative legal movement would like the law to be.
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.
This can manifest in both historic cases and less closely watched ones. In Monsanto v. Durnell, for example, the court was asked to decide whether a federal law on insecticides could preempt state-level lawsuits against the makers of Roundup. The court’s answer was “yes,” with which Thomas agreed. But he then went further, in a concurring opinion, to “call attention to some of the underlying constitutional infirmities in the [Federal Insecticide, Fungicide, and Rodenticide] Act.”
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.’”
Huh? It is somewhat absurd to treat “agriculture” or “manufacturing” as distinct from “commerce,” as if farmers grow crops and factories make goods for recreation instead of economic reasons. Thomas’s own phrasing of the commerce clause is much narrower than its actual text, which gives the legislature the power to regulate “commerce … among the several states.” Thomas’s interpretation, if adopted by the high court, would demolish most federal statutes that regulate the economy.
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.
Thomas also disagreed with the majority’s holding but, as usual, opted to take it one step further. He argued that Congress could delegate, and had broadly delegated, its power to levy tariffs to the presidency. Thomas claimed that the nondelegation doctrine, which generally forbids one branch of government from ceding its power to another, did not apply here.
“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.”
This seemed to baffle some of Thomas’s usual allies, such as Justice Neil Gorsuch, who has frequently called for a stricter interpretation of the nondelegation doctrine. “It’s a sweeping theory,” he wrote, while disputing Thomas’s argument at length. “One that would require us to reimagine much of our case law addressing Article I’s Vesting Clause. And one that presents difficulties of its own.”
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.’”
Gorsuch could barely hide his astonishment at this line of argument. He noted that, to the extent it was relevant, the arc of English history was one of Parliament wrestling away revenue raising from the Crown. More relevantly, he noted, the Boston Tea Party ran counter to Thomas’s thesis. “Are we really to believe that the patriots that night in Boston Harbor considered the whole of the tariff power some kingly prerogative?” Gorsuch asked.
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.
In Slaughter, the court’s conservative majority held that the president could fire commissioners on the Federal Trade Commission at will, overturning a nearly century-old precedent to the contrary. But in Cook, the court held that Trump could not remove a member of the Federal Reserve’s board of governors, even with a pretextual for-cause rationale. Thomas enthusiastically supported the former ruling but dissented at length from the latter.
“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.”
Roberts, writing for the court in Cook, concluded that the Federal Reserve could maintain its independence because it fit within the historical tradition of the First and Second Banks of the United States, which operated at arms’ length from the federal government of that era. Thomas found the comparison to be ahistorical and argued for absolute presidential control over the nation’s central bank.
“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.”
Thomas’s invocation of “the people” here is revealing. The executive and legislative branches are often described as the “elected branches,” in comparison to the life-tenured appointees to the federal bench. But only one of those two branches was elected from the start. The Framers always intended for Americans to choose their own representatives in the House, even if they circumscribed in practice who actually got to cast a vote.
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.
Congress, on the other hand, was always meant to be the branch that channeled the popular will into law and policy. Part of that “government by the people” is Congress’s decision to create a central bank with a healthy degree of independence from the president’s day-to-day influence. If the American people wished to change course, they could elect representatives to Congress who would change it for them. They have not done so because, broadly speaking, it is good financial policy to not let the president personally set interest rates.
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.
Thomas joined the majority opinion but also wrote a concurring opinion where he went even further to criticize the lower court that had initially ruled in favor of the immigrants. “The relief that the district court provided may well have unconstitutionally infringed on the president’s inherent authority to exclude aliens from the country,” Thomas wrote.
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.
Thomas previously argued, in the Muslim travel-ban case during Trump’s first term, that the president “has inherent authority to exclude aliens from the country,” a remarkable theory given that Congress has the explicit Article 1 power to regulate immigration and naturalization. But Thomas disagreed with that approach on two levels.
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.”
Second, he argued that Congress’s power over immigration was much narrower than the legal consensus assumed over the past 150 years. “Congress, for its part, has no enumerated power to require the President to bring certain aliens into the country,” he wrote. “The Constitution grants Congress the power to ‘establish a uniform Rule of Naturalization.’ But, the class members in this case are not naturalized or even on the path to naturalization.”
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.
If the court were to adopt this position, it would gut much of federal immigration law. Holding a green card would be pointless if the president, on a whim, could deport you back to the country from which you originally came. Statutory protections for refugees, asylum-seekers, and temporary visa holders would be meaningless. A broad swath of people lawfully present in the United States would suddenly find themselves at the president’s personal mercy, even if Congress wished to protect them.
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.