Ganesh Sitaraman

"Under a straightforward reading of the [Appointments] Clause, this proposal thus seems unconstitutional." I appreciate your efforts to get around this "straightforward reading," but do you really think five justices on the current Supreme Court would find them persuasive?

If they don’t, they’d need to explain why our current system—with judges sitting by designation on other courts and the Chief Justice staffing the FISA Court—is constitutional.

You don't think this court can draw a constitutional distinction between (1) the chief justice assigning judges to a lower court created by statute and (2) 10 justices appointing five more to serve on the Supreme Court in contravention of the procedure laid out in Article II?

I mean, there are certainly counterarguments, but I don't see the conservative justices buying them. After the logical backflips they performed in Janus, this would be a piece of cake.

Point is that, by highlighting the parallels at FISC and independent agencies, @danepps and @GaneshSitaraman forced you to resort to a "but THIS court wouldn't buy it" stance -- much weaker than your prior "this is obviously unconstitutional, what's buttigieg thinking" position

No, the point is that the plan is unconstitutional—but like many unconstitutional plans, its proponents can reverse-engineer a theory to justify it, requiring an assessment of that theory in light of the court’s current composition. My assessment: it’s a nonstarter.

That's fair. But by definition if SCOTUS decides this issue, the Chief would be facing the reality that if he struck this down, the same Congress/POTUS would just pass a true packing plan. Dan and Ganesh's article gives him constitutional cover.

Yes, we make that very point in the article! These decisions are made in a complex political environment. + “the conservative justices can just make up a reason” proves too much; I *promise* they could find a novel theory to strike down court-packing if they want!