John Roberts and the Cynical Cult of Federalist No. 70
“Decisiveness, activity, secrecy, and speed will generally characterize the actions of one man to a far more eminent degree than those of many more,” he writes, citing issue 70. “Centralization of authority in the hands of a single president is especially crucial in matters of national defense, war, and foreign policy choices, where a unitary executive can assess threats, consider policy choices, and mobilize national resources with speed and energy far greater than any other branch. »
It is worth emphasizing here that issue 70 is not really about the separation of powers, except to the extent that it addresses the powers of the executive branch in great detail. Yoo’s quote of “acts of the greater number” could be read as if it were referring to Congress, given the context of Yoo’s memo. In reality, Hamilton was not thinking about legislative power at all. Rather, he was responding to anti-Federalist concerns about the presidency and public suggestions that a pluralistic executive would work better.
This feat of textual sleight of hand is one thing when performed in a White House memo. It is quite different when the misunderstood text is then applied by the Supreme Court. In 2020, the Supreme Court struck down the for-cause revocation protections that Congress had established for the Director of the Consumer Financial Protection Bureau in 2020. Seila Law c. CFPB. Chief Justice John Roberts, writing for the majority, explained at length how the Constitution divides power.
