If you read a judgment of a US federal court, especially an opinion of a Supreme Court justice, you will see respectful, almost lyrical references to the common law of England as at the point of American independence, 250 years ago. That historic law is presented as the basis of the current law of the United States, contextualising and explaining the provisions of the US constitution itself. The impression conveyed is that US jurisprudence is the heir of and successor to the common law of England.
One problem with this approach, however, is that the common law of England (and of Wales, though Scotland and Northern Ireland have their own legal systems) has developed in a different direction. From the same constitutional tree the branches have gone in different directions.
This divergence is perhaps most stark in respect of executive power. Recent judgments of the US Supreme Court, especially this week in the case of Trump v Slaughter, have upheld sheer executive power. This is the sort of legal brute force at which even George III would have blanched—perhaps even Henry III. The point here is not that the executive can act outside the law, but that the law is that the executive can do as it wishes
In Trump v Slaughter, the issue was whether to uphold a law of Congress providing that the president can only remove a commissioner from the Federal Trade Commission “for inefficiency, neglect of duty, or malfeasance in office”. The president submitted that even these statutory conditions were objectionable, and that the president can remove a commissioner at will, for any reason or no reason at all.
A majority of the Supreme Court sided with the president. The congressional legislation was unconstitutional as it fettered the absolute legal power of the president in the exercise of his executive power. The legislation stopped the president doing as he wanted, and so the legislation had to go
In England, the corresponding constitutional and legal power rests with the royal prerogative. But over the last century or so, the courts have held that the royal prerogative can be limited by parliamentary statute, and even where it has not been limited, the prerogative must generally be exercised for good reason and fairly.
Therefore, if in England parliament had legislated that the prime minister (using the royal prerogative on behalf of the Crown) could only remove an appointee to a public body “for inefficiency, neglect of duty, or malfeasance in office”, then the courts would uphold the statutory provision. There would be no question of the statute being disapplied because it conflicted with the royal prerogative. If primary legislation and royal power conflict, the latter always has to yield to the former.
The case of Trump v Slaughter, of course, follows the 2024 Supreme Court judgment that gave the president the widest possible immunity from criminal liability. And even Supreme Court cases which go against the president, such as the recent tariff judgment, contain significant elements about restricting the powers of Congress (as discussed here).
Judgment by judgment, the Supreme Court’s conservative majority is refashioning the US constitution so as to make the presidency more dominant than Congress. This is more than a basic pro-Trump bias (though that may be motivating at least a couple of the conservative justices). It is more profoundly ideological than personally partisan. It is a political move of the deepest order
And that it is a shift not being made in good faith is indicated by another judgment this week, handed down the same day as Trump v Slaughter. In Trump v Cook the issue was almost identical to the one in Trump v Slaughter, with the difference being that it concerned a Federal Reserve governor not a trade commissioner.
Here the Supreme Court somehow found that the president did not have absolute power to dismiss, but with reasoning which simply cannot be reconciled with the Slaughter case. For some reason the Federal Reserve bank was special, but the court could not explain why as a matter of legal principle. Generations of law students will now be asked to find consistencies between the two cases, and generations of law students will fail.
Some would doubt that the US Supreme Court has a fair and accurate understanding of the English common law basis of the US constitution. It sometimes seems that paragraphs of Blackstone’s commentaries are selected in the same way that some people select biblical verses to justify preconceived ideas. But taking this common heritage at its highest, the quashing of legislation because it inconveniences the executive is not what many would expect as the United States celebrates 250 years of being free of royal control.
The author is a writer and lawyer who regularly blogs on law and policy matters
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