There May Be Enough Supreme Court Votes to Save the Government

But on
examination, Vought’s interpretation plainly fails, even—especially—with a court
whose members all espouse fidelity to the text of statutes they are asked to
apply, for two reasons: First, Vought
mischaracterizes the statutory language on which he relies. Contrary to the executive order,
the statutory terms “policy-determining, policy-making, policy-advocating”
are not equivalent to “policy-influencing.” As noted above, all or virtually all federal employee positions can be
characterized as policy-influencing. But only a thin layer at the top—most of
them political appointees, not career officials—determine, make, or advocate
policy; the rest provide information, perform research, apply and carry out
their superiors’ decisions and directions.

Indeed,
an Office of Personnel Management regulation still in effect as of January 30 expressly provides that “Confidential, policy-determining,
policy-making, or policy-advocating means of a character exclusively
associated with a noncareer political appointment.” (Trump’s lawyers had evidently not proposed to
repeal this regulation, presumably to avoid the stringent procedures required
by the Administrative Procedure Act.)

Moreover,
apart from leaving this conflicting regulation in place and misreading the
very statutory words on which he and his team base their case, Supreme Court
precedent and common sense mandate that proper statutory interpretation can
never thus pluck out of context words or phrases and view them in isolation. The
relevant context means the statute as a whole, its language,
legislative, implementation, and judicial history, and its purposes, especially
as those purposes are specified in the statute itself.