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 exclusivelyassociated 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.