Justice Thomas once again excels

A recent dissenting opinion by U.S. Supreme Court justice Clarence Thomas in a case involving congressional subpoenas for President Trump's financial records helps illustrate why Thomas should be considered as one of, if not the best minds and writers ever on the bench.

Three congressional committees issued subpoenas to third parties for President Trump's financial records, arguing that the subpoenas had a legislative purpose of potentially helping to shape laws.  The courts below had ruled in favor of Congress and its power to issue the subpoenas.

The majority opinion written by Chief Justice John Roberts in this case of first impression reviewed the history of subpoenas for presidents or their official papers going back to the presidencies of George Washington and Thomas Jefferson.

The Roberts opinion adroitly noted the important constitutional separation of powers issue involved in a congressional subpoena for a sitting president's papers, whether they are official government records or privately owned.

The Roberts opinion also noted judicial precedent that the Necessary and Proper Clause of Article I of the Constitution implies a congressional power to issue subpoenas.

Too frequently, government power morphs and grows beyond the original meaning of the Constitution when judges confuse concepts, often to inflate power of government or otherwise reach a constitutionally wrong outcome-based decision.

Roberts's majority opinion ultimately sent the case back for more argument (remanded) because the issue "implicate[s] special concerns regarding the separation of powers," which was somewhat of a win for Trump.

Roberts was sure, however, to refer to the maxim that "no one is above the law," which is a concept dating back to America's legal ancestry in the Magna Carta and the rule of law over our rulers.

Yet Roberts needlessly noted that "it 'unquestionably' remains 'the duty of all citizens to cooperate'" with congressional subpoenas.

The dissenting opinion by Justice Thomas shows his constitutional genius.  He agreed that the case involved important separation-of-powers issues, deftly reviewing the context of the precedent relied upon by Roberts and the maxim "no one is above the law."

But as he has done so well during his time on the bench, Thomas points out how it is that the law and legal precedent have morphed away from the original meaning of the Constitution, with its brilliant and timeless limits on government power itself.

Thomas "would hold [instead] that Congress has no power to issue a legislative subpoena for private, nonofficial documents — whether they belong to the President or not."

The genius of our Constitution is grasped so strongly and articulated so plainly by Thomas.  Among the branches of government, "even the legislature must be made subject to the law," wrote Thomas in this dissent.

In the manner I like to say this, the Constitution is law over and governing government itself.

Before the time of the American Founding, the English Parliament had the authority to issue subpoenas for private, nonofficial papers based on its history of having judicial powers in addition to legislative.

Justice Thomas, however, noted that the earliest American Supreme Court decision on this issue did not recognize that power of Congress.

No one seems to deny the authority of Congress to subpoena government papers, which have no Fourth Amendment protections.  As stated above, though, judges manage to morph the law in favor of more government power.  The Supreme Court eventually opined that Congress could subpoena private, nonofficial papers.

But as the scholarly Thomas writes, "it is highly probative that no founding-era Congress issued a subpoena for private, nonofficial documents," and "legislative subpoenas to private parties were a 19th-century innovation."

His dissenting opinion correctly raises the congressional subpoena power debate from that of a squabble between political branches to one about limited government power and liberty, writing:

Whereas a subpoena for Government documents does not implicate concerns about property rights or the Fourth Amendment "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," a subpoena for private, nonofficial documents raises those questions. Thus, the power to subpoena private documents, which the Committee did not exercise, is a far greater power and much less likely to be implied in Congress' legislative powers.

The separation of powers issue that affects more Americans than just the president, and "inquir[ies] into the private affairs of the citizen," is that subpoena power "is judicial and not legislative," as Thomas so rightly notes.

Far from ignoring the important separation of powers issues at stake in deciding whether Congress may bully and harass the president through its subpoena powers — and consistent with the maxim that no one is above the law — Thomas understands that the American rule of constitutional law is more than some inside-Washington power play between the branches or even the states.

A recent dissenting opinion by U.S. Supreme Court justice Clarence Thomas in a case involving congressional subpoenas for President Trump's financial records helps illustrate why Thomas should be considered as one of, if not the best minds and writers ever on the bench.

Three congressional committees issued subpoenas to third parties for President Trump's financial records, arguing that the subpoenas had a legislative purpose of potentially helping to shape laws.  The courts below had ruled in favor of Congress and its power to issue the subpoenas.

The majority opinion written by Chief Justice John Roberts in this case of first impression reviewed the history of subpoenas for presidents or their official papers going back to the presidencies of George Washington and Thomas Jefferson.

The Roberts opinion adroitly noted the important constitutional separation of powers issue involved in a congressional subpoena for a sitting president's papers, whether they are official government records or privately owned.

The Roberts opinion also noted judicial precedent that the Necessary and Proper Clause of Article I of the Constitution implies a congressional power to issue subpoenas.

Too frequently, government power morphs and grows beyond the original meaning of the Constitution when judges confuse concepts, often to inflate power of government or otherwise reach a constitutionally wrong outcome-based decision.

Roberts's majority opinion ultimately sent the case back for more argument (remanded) because the issue "implicate[s] special concerns regarding the separation of powers," which was somewhat of a win for Trump.

Roberts was sure, however, to refer to the maxim that "no one is above the law," which is a concept dating back to America's legal ancestry in the Magna Carta and the rule of law over our rulers.

Yet Roberts needlessly noted that "it 'unquestionably' remains 'the duty of all citizens to cooperate'" with congressional subpoenas.

The dissenting opinion by Justice Thomas shows his constitutional genius.  He agreed that the case involved important separation-of-powers issues, deftly reviewing the context of the precedent relied upon by Roberts and the maxim "no one is above the law."

But as he has done so well during his time on the bench, Thomas points out how it is that the law and legal precedent have morphed away from the original meaning of the Constitution, with its brilliant and timeless limits on government power itself.

Thomas "would hold [instead] that Congress has no power to issue a legislative subpoena for private, nonofficial documents — whether they belong to the President or not."

The genius of our Constitution is grasped so strongly and articulated so plainly by Thomas.  Among the branches of government, "even the legislature must be made subject to the law," wrote Thomas in this dissent.

In the manner I like to say this, the Constitution is law over and governing government itself.

Before the time of the American Founding, the English Parliament had the authority to issue subpoenas for private, nonofficial papers based on its history of having judicial powers in addition to legislative.

Justice Thomas, however, noted that the earliest American Supreme Court decision on this issue did not recognize that power of Congress.

No one seems to deny the authority of Congress to subpoena government papers, which have no Fourth Amendment protections.  As stated above, though, judges manage to morph the law in favor of more government power.  The Supreme Court eventually opined that Congress could subpoena private, nonofficial papers.

But as the scholarly Thomas writes, "it is highly probative that no founding-era Congress issued a subpoena for private, nonofficial documents," and "legislative subpoenas to private parties were a 19th-century innovation."

His dissenting opinion correctly raises the congressional subpoena power debate from that of a squabble between political branches to one about limited government power and liberty, writing:

Whereas a subpoena for Government documents does not implicate concerns about property rights or the Fourth Amendment "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," a subpoena for private, nonofficial documents raises those questions. Thus, the power to subpoena private documents, which the Committee did not exercise, is a far greater power and much less likely to be implied in Congress' legislative powers.

The separation of powers issue that affects more Americans than just the president, and "inquir[ies] into the private affairs of the citizen," is that subpoena power "is judicial and not legislative," as Thomas so rightly notes.

Far from ignoring the important separation of powers issues at stake in deciding whether Congress may bully and harass the president through its subpoena powers — and consistent with the maxim that no one is above the law — Thomas understands that the American rule of constitutional law is more than some inside-Washington power play between the branches or even the states.