John Roberts and the Cynical Cult of Federalist No. 70

“‘Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number,’” he wrote, quoting from No. 70. “The centralization of authority in the president alone is particularly crucial in matters of national defense, war, and foreign policy choices, where a unitary executive can evaluate threats, consider policy choices, and mobilize national resources with a speed and energy that is far superior to any other branch.”

It is worth emphasizing here that No. 70 is not really about the separation of powers, except insofar as it discusses the executive branch’s powers in great detail. Yoo’s quotation of “proceedings of any greater number” might read as if it were referring to Congress, given the context of Yoo’s memo. In reality, Hamilton didn’t have the legislative branch in mind at all. Rather, he was responding to Anti-Federalist concerns about the presidency and public suggestions that a plural executive would work better.

This feat of textual sleight of hand is one thing when done in a White House memo. It is something else entirely when the misapprehended text is subsequently applied by the Supreme Court. In 2020, the Supreme Court struck down the for-cause removal protections that Congress had established for the director of the Consumer Financial Protection Bureau in Seila Law v. CFPB. Chief Justice John Roberts, writing for the majority, expounded at length upon how the Constitution divided power.