>Can Congress create a law that provides for judicial law clerks to exercise power “independent” of Article III judges? No. It’s an extremely easy question. Myers v. United States got the right answer almost 100 years ago.
Article I courts arguably exercise judicial power independently of the Article III judges.
But if you want to go down the separation of powers route, you'll need to break up many federal agencies to separate their legislative and judicial functions from their executive duties. That was the basis of Humphreys Excecutor, which btw was decided by largely the same court as in Myers. Humphreys (and later in Morrison v Olson) recognized that federal agencies can in practice perform "quasi-legislative" and "quasi-judicial" functions, not just law enforcement duties. There is for example a body of law governing rulemaking by agencies. Even CJ Roberts observed during the oral arguments of Trump v Slaughter that an agency's functions might span all three categories of government power -- executive, legislative, judicial -- to various degrees.
If separation of powers is to prevent Congress from wielding executive power, it should likewise preclude a president from laying claim to the other categories of power.
They exercise adjudicatory powers that Congress could otherwise provide to be handled directly by the executive or private bills. When a case involves an actual Article III issue, Article I courts need to kick it over to an Article III tribunal: https://supreme.justia.com/cases/federal/us/564/462/
The terms “quasi-judicial” and “quasi-legislative” do not mean “judicial” and “legislative,” they mean “executive.” For example, the legal fiction allowing executive agencies to make rules is that those rules are simply structuring what they could do with executive authority anyway.
So separation of powers actually cuts in the opposite direction with respect to quasi-legislative and quasi-judicial powers. So when the SEC prosecutes you in front of an ALJ for violating an SEC rule, it isn’t actually exercising judicial or legislative powers. It’s just laying out those structures for what it could do through some guy making an executive decision. That’s the only reason the SEC is constitutional. Given that, Congress shouldn’t be able to limit the President’s supervision over what’s notionally an exercise of executive power.
P.S. Regarding the SEC, SEC v Jarkesy (2024) curtailed the use of ALJs by the SEC, holding that the SEC proceedings in question were basically like any other lawsuit so as to trigger the Constitutional protections afforded to defendants. If the Sup Ct goes down the unitary executive route, SEC v Jarkesy should be the first of many cases to challenge the structure of federal agencies.
The administrative law proceeding is a judicial proceeding. Its purpose is to determine whether someone has violated the rules created by the SEC. It's fundamentally no different than a court proceeding to determine whether someone has violated the criminal code. Both are trying to decide "were the rules broken, and if so, what should be the penalty?"
A fundamental principle in any legal system is that no one can be the judge in his own case. But if the ALJs and the SEC rulemakers are under the direct control of the president, then the president is effectively performing legislation, prosecution, and adjudication all at once. The president could keep sacking ALJs until he finds one willing to issue his favored ruling. That is precisely the kind of scenario that separation of powers seeks to avert.
> The administrative law proceeding is a judicial proceeding
It is structured like a judicial proceeding, but it is not a judicial proceeding in the sense that it doesn't exercise the "judicial power." For example, everyone agrees that determining violations of criminal laws is an exercise of judicial power. So the SEC cannot prosecute you in front of an ALJ and impose criminal penalties. SEC v. Jarkesy also held that the SEC cannot impose civil penalties in front of an ALJ: https://www.congress.gov/crs-product/LSB11229.
On the other hand, Congress can create a procedure in an executive agency that looks like a judicial proceeding, so long as it only does what an executive agency could do anyway. In Oil States, the Supreme Court held that the Patent Trial and Appeal board was constitutional, because patents were a "public right" that could be determined by the executive branch: https://www.supremecourt.gov/opinions/17pdf/16-712_87ad.pdf. A Patent Examiner can grant you a patent and can revoke an already-granted patent. That's an executive function. Back in 1790, Thomas Jefferson was doing that himself as Secretary of State. So Congress can create a court-like proceeding in the Patent Office to challenge a patent's validity, and that's fine because the result is something the executive branch could do anyway. It's not an exercise of the judicial power.
> But if the ALJs and the SEC rulemakers are under the direct control of the president, then the president is effectively performing legislation, prosecution, and adjudication all at once... That is precisely the kind of scenario that separation of powers seeks to avert.
Under your interpretation, the SEC is exercising legislative, executive, and adjudicatory powers all at once--regardless of how much supervisory authority the President has. You're correct that separation of powers seeks to avoid that. But the way it does not is not by creating agencies that exercise all those powers independent of the president. It does so by creating three branches of government, and requiring the executive, legislative, and judicial powers to be exercise by the respective branches. The problem you have identified is a problem with administrative agencies exercising legislative and judicial powers, not a problem with Presidential control over the executive branch.
>How can you cite “precedent” when Myers v. United States decided this issue in favor of the unitary executive back in 1926? The administrative state that exists today was only facilitated by the FDR Supreme Court overruling a bunch of precedents.
And in doing so they reshaped the precedent. One can't claim Brown v Board is not precedent just because Plessy v Ferguson already spoke on the same matter.
I’m responding to the OP’s criticism that proponents of the unitary view of the executive “believe this is the government defined by the Constitution, regardless of precedent.”
It seems odd to complain about giving insufficient respect to precedent, when that precedent itself overruled a prior precedent.
I agree precedents should be overruled when they are contrary to the text of the constitution, such as when Brown overruled Plessy. There are a lot of 20th century precedents that are wrong and are based more on convenience and a desire to appease FDR than on the text of the constitution.
The Constitution was, after all, written by people who had just fought a war to throw off an overreaching executive. No goal was more important to them than to prevent another one.
Except they fumbled the ball by creating a unitary executive. I don't blame them too much because that's all they'd known, the US was a hundred times smaller, and they were making it up as they went.
Democracy would be more resilient to an executive coup if its powers were split among several independently elected officials, like we see in some state governments today.
They did not create a unitary executive. The concept of a unitary executive as rule of law did not exist until a 2020 decision by the John Robert's court
Unitary in the sense that they debated whether to have one guy in charge or several. They defaulted back to what they knew, the rule of one dude with limited but sole executive power.
Edit: This is what I'm referring to and it has direct bearing on the current controversy.
They might as well be political appointments after Trump v Slaughter is decided since the unitary executive maximalists would swallow all for-cause job termination protections that have defined the professional civil service.
If your software needs the world from stop moving for 2 years so that it can be prepared and released successfully, I am afraid your software will never be released :(
>I had to download a .pkg and basically sideload the app, which is not published on the Apple Store
You mean install the app? The fact that Apple and Google wish to suggest that software from outside their gardens is somehow subnormal doesn't mean other people need to adopt their verbiage.
Also important to remember that Google is years ahead of most other AI shops in that they're running on custom silicon. This makes their inference (and maybe training) cheaper then almost any other company. People don't realize this when compared to OpenAI/Anthropic where most folks are utilizing NVIDIA GPUs, Google is completely different in that aspect with their custom TPU platform.
> Also important to remember that Google is years ahead of most other AI shops in that they're running on custom silicon.
Not just the chips, Google's entire datacenter setup seems much more mature (e.g. liquid cooling, networking, etc.). I saw some video of new Amazon datacenter (https://www.youtube.com/watch?v=vnGC4YS36gU) and it looks like a bunch of server racks in a warehouse.
Google’s datacenters are excellent, from what I’ve seen in my career. They genuinely had so many amazingly talented SMEs pushing boundaries for decades without executive intervention or deterrence, and that’s paid dividends in the subsequent tenure under Pichai and external shareholders (in that they have “infinite” runway and cash reserves to squander on moonshots before risking the company’s core businesses). That said, nothing lasts forever, and if their foray into LLMs don’t pay off, their shareholders are going to be pissed.
And not just pushing the boundaries, working with the HW vendors to define them, asking for features and design elements that others don't really even see the point of.
Anthropic uses TPUs as well as nvidia. Compiler bugs in the tooling around the platform caused most of their quality issues and customer churn this year, but I think they've since announced a big expansion in use:
Depends what you mean by deep in the hole. Given how liberal Gemini is with free access it hardly seems like moneymaking is the end goal. Amongst AI labs, I've personally found Deepmind to be consistently the least sensationalist and least concerned with marketing. I think they're doing a great job of commoditising their complement.
ChatGPT has replaced Google Search for many people. If ChatGPT can also replace Gmail, Maps, and YouTube (by generating content for each of these), Google is done.
Why not? I already use LLMs to generate summaries of my emails, search emails, and perform a host of email related operations as do many people. No reason OpenAI couldn't release their own email service that tightly integrates their LLM with email directly.
What's interesting about your comment is that back in 2004 people were like "Google releasing an email service? Why on Earth would they do that, that makes no sense!"
Yes but ChatGPT has not replaced Google Search at a profit. ChatGPT loses revenue per user. Certainly the hope is that at some point they become profitable but the concern is that might not happen.
It cannot be stressed or even succinctly elaborated how far ahead Google is compared to every other organization doing anything remotely like this, anywhere on the planet. Practically speaking there is no "catching up" to Google; you can only hope to capitalize on any mistakes that they make.
Google has a massive ad revenue that’s funding its AI habit. The difference between Google and OpenAI is that of a rich guy buying an expensive car that he can easily afford and a working class guy having a mid life crisis.
reply