In re Article 4 s5 of the Executive Act 2023 2025 SDSC 9
In re Article 4 s5 of the Executive Act 2023 [2025] SDSC 9
| Date of judgment | 27th May 2025 |
| Justices |
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| Held | Article 4, Section 5 of the Executive Act 2023 is unconstitutional |
| Ruling | 3-0 |
| Applicable precedent |
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MAJORITY OPINION by Justice Ivy Cactus
(with Chief Justice TheLittleSparty and Justice Syndicality agreeing)
Introduction
[1] The petitioner is seeking review into Article 4, Section 5 of the Executive Act, which requires the Senate to confirm, by simple-majority vote, the President’s dismissal of the Attorney-General.
[2] It should be noted that the argumentation in this case was handled simultaneously with the argumentation in In re Article 6 Section 6 of the Executive Act 2023 [2025] SDSC 10, due to the overlapping nature of some of the issues. The two judgements will be issued separately for ease of reading and clarity of the issues.
[3] The Supreme Court received multiple Amicus Briefs on this case, one from former Chief Justice halfcat__ and one from former State Attorney Aerie. The court, as always, thanks the authors for submitting them, and will be using their insights in this judgement.
Summary of the Petitioner’s Argumentation
[4] As the petitioner’s argumentation was intertwined with their argumentation in In re Article 6 Section 6 of the Executive Act 2023 [2025] SDSC 10, the court will do its best to pull out the core issues relevant to this review and summarize them adequately here.
[5] The petitioner opens by making a simple plea to separation of powers: they state that the Constitution grants “primary executive authority” to the President and argue that the ability to dismiss executive employees is core to the President exercising said authority.
- [5.1] As part of this, they demonstrate that “Nowhere does the Constitution condition this power on Senate approval in the case of the dismissal of executive officers. The appointment of such officers may require legislative consent, but dismissal is not similarly circumscribed.” In essence, the Constitution may explicitly state that the Senate confirms executive officers, but it does not explicitly give the Senate the power to require dismissals to get approval.
- [5.2] The petitioner then references In re War and Peace Act [2024] SDSC 1, a seminal case in separation of powers jurisprudence, and points towards the judgements comments on “cannibalization” of one branch’s powers by another. To cite the judgement explicitly, “the Senate may under no circumstance legislate executive authority to itself.” The petitioner argues that removing executive employees is “inherently [an] operational, internal [function] of the executive,” and as such the Senate legislating itself control over the dismissal process is unconstitutional cannibalization.
[6] The petitioner then preempts arguments about “symmetry”, that being “If the Senate confirms appointments, why shouldn't it share in dismissals?” In response they make a simple motion back to their points in [5.1] and argue the Constitution makes a purposeful asymmetry in granting the power to confirm appointments explicitly to the Senate and not the power to confirm dismissals.
[7] The petitioner concludes by referencing the Federalist Papers, documents foundational to the system of governance currently used within the United States. They argue for a “Unitary Executive”: an executive responsible, ultimately, to one person. If this is not the case, they posit, then the President’s authority becomes meaningless because they are unable to hold employees accountable for violating their orders. Thus, “[t]he constitutional chain of responsibility is severed,” the President’s “primary executive authority” is cannibalized, and the Constitution is violated.
[8] The petitioner, at this point, begins arguing against the Amicus brief filed by Aerie: this will be addressed later when that brief is handled in a comprehensive sense.
Summary of the Respondent’s Argumentation
[9] The respondent starts by arguing that the Constitution not mentioning dismissal does not make it an inherent power of the executive, but instead empowers the Senate to make procedural requirements, as it is able to do with other powers of the executive. They continue that the Senate’s approval of dismissal is not empowering the Senate to do the executive’s work but instead an institutional "safeguard [which] is directed towards a specific and constitutionally significant position, entrusted with legal independence, accountability, and constitutional integrity.”
- [9.1] They later expand upon this, clarifying that the Attorney-General “is obligated to exercise impartiality and, when required, to act in opposition to the prevailing executive inclination,” and as such the Section in question “serves to uphold institutional legitimacy while ensuring operational coherence,” “by ensuring that the removal of this officer cannot be executed in a unilateral or arbitrary manner.”
[10] The respondent then makes a look towards symmetry, as preempted by the petitioner in [6]. They reiterate their point in [9] that Constitutional silence is not prohibition, and the Senate is empowered to legislate on anything the Constitution is silent on, and the Constitution not granting a power explicitly should not be construed as intentionally forbidding some party from exercising said power.
[11] The respondent finishes by responding to [7], saying that the Senate’s approval is not usurping or fragmenting presidential authority but instead operating simply as a “circuit breaker designed to prevent abuse.” Checks and balances, they argue, are “not barriers to governance, they are the architecture of legitimacy.”
On the Aerie Brief
[12] As mentioned in [3], former State Attorney Aerie submitted an amicus brief. In it they argued that the petitioner was correct in their assessment that Article 4, Section 5 is unconstitutional, but for the wrong reasons. This argument is surely novel, and as such the court will address it in full.
[13] In their brief Aerie argues that the parties to the case make a key oversight, neither of them discuss the Constitutionally prescribed way to remove employees: impeachment by the Senate. They continue that because the power of impeachment, i.e. removal, is held exclusively by the Senate that all removals by the executive are unconstitutional encroachment on the Senate’s powers by the Executive.
- [13.1] They argue, then, that Article 4, Section 5 is cannibalization of the Senate’s power by the executive. Whereas the petitioner argues that it is cannibalization of the executive’s power by the Senate. The respondent, of course, argues that no cannibalization is occurring. This vast spread of different opinions should, if nothing else, demonstrate the complication inherent to separation of powers jurisprudence.
[14] The petitioner makes extensive arguments against this amicus brief, including authorial intent, the golden rule, and Alexander Hamilton’s thoughts on the topic. The court believes, though, that former Chief Justice halfcat__ put it best in his Amicus Brief: “[I]mpeachment is exclusive to the Senate, not because no one else can remove government officials, but because only the Senate can remove all officials. It is a natural extension of the President's executive authority that they can (at the very least) initiate the removal of executive officials.”
[15] Removing officials within the executive is, as such, a function of the executive granted to the President via their primary executive authority, and the Senate’s power of impeachment shall not be construed in any way to preclude said executive power nor shall it be construed as equivalent. The power of impeachment and the power of removal originate from different sources, and must be handled and thought about independently. The arguments raised in Aerie’s amicus brief are dismissed.
On Symmetry
[16] Both parties, along with halfcat__ in his Amicus Brief, reference “symmetry”, the equivalence between appointments and dismissals within the executive and its implications on the Senate’s power to require approval for dismissals, because they are able to require approval for executive employees.
[17] To further expand, the argument for symmetry goes thus: appointments follow a two part process, with an appointment and a confirmation. Proponents of this theory, like halfcat__, argue that dismissals are the reverse operation of appointments: two halves of the same whole, and therefore if appointments follow the two-step process there’s no reason that dismissals may not.
[18] Others, such as the petitioner, would say that appointment confirmations are a constitutionally defined process and dismissals are not. They therefore argue that the Constitution makes a “purposeful asymmetry”, and the Constitution’s failure to mention legislative confirmations of dismissals represents an intentional granting of discretion to the executive.
[19] The court would like to get straight to the heart of the issue: symmetry simply isn’t applicable here. The Constitution grants the Senate explicit powers “to confirm the judges and justices of the judiciary, confirm the executive officers of the departments of the executive, and confirm a Vice President in the absence of one,” whereas it is silent on removals altogether. The power of confirmation is, then, a constitutional power of the Senate, whereas any restrictions on removals by the legislature arise from the Senate’s role as the primary legislative body of SimDemocracy.
- [19.1] This leads naturally into a good rule of thumb: the Constitution’s silence on a topic should not be taken as purposeful. The Constitution is merely a framework by which the government is defined, decisions it does not make are simply left to the bodies it describes to make via the processes attributed to them.
[20] This conclusion affirms the respondents points in [10] and dismisses the petitioner’s points in [6], the existence of a Constitutional ability to approve all executive officers does not say anything one way or another about the Senate’s ability to legislate on removals. Symmetry is entirely immaterial to the constitutionality of the section in question.
- [20.1] For clarity, this general concept can be understood in the same way [15], when two things originate from different sources, such as one constitutional and one legislative, they must be considered and reasoned through differently.
Does Article 4, Section 5 Cannibalize the President’s Authority
[21] In re War and Peace Act [2024] SDSC 1 outlines “cannibalization”, that is the usurpation of one branch’s authority by another branch. In that case the question at hand was whether the Senate requiring approval of the declaration of war represented a cannibalization of the President’s primary authority over foreign affairs. The court ruled that this did not represent a cannibalization of the President’s authority as the Senate is well within its rights to add checks to executive authority, and affirming the President’s decision to declare war is not an executive action “like commanding a battalion of soldiers or running a department.” Indeed, SimDemocracy’s laws are full of restrictions on the executive’s ability to operate freely (see In re War and Peace Act [2024] SDSC 1 [28] if you want more details).
[22] This seems to answer our question, then, the Senate requiring a confirmation vote for an executive action has been, in the past, ruled to not be an unconstitutional cannibalization of the President’s executive authority.
[23] The issue, though, is slightly more complicated. As halfcat__ pointed out in his Amicus Brief, In re War and Peace Act [2024] SDSC 1 “[41] states that executive authority can be "cannibalized" indirectly.” In the words of halfcat__ “[indirect cannibalization] would be for the Senate to put up such burdensome legal hurdles that the only way for the President to make use of their executive authority would be to follow the precise path set out by the Senate.” The court concurs with this reading: it is certainly possible for the Senate to legislate away all decision-making capability from the President, and this represents an unconstitutional cannibalization of the executive’s authority.
[24] The boundaries of this are, though, extremely hard to define — the court has to be extremely careful to evaluate issues of indirect cannibalization on a situational basis though. Letting the Senate interfere too much with the executive could allow the President’s authority to be whittled to almost nothing, but ruling that too minor restrictions are cannibalization could inhibit the Senate’s ability to appropriately legislate and solve issues within the SimDemocracy government.
[25] There are two things that are crucial to evaluating whether implicit cannibalization has occurred: the extent of the restriction, and, the proportionality of the restriction to the action it restricts. The first is straightforward: if a restriction is minimal as to not inhibit executive action, then it can not be a cannibalization of executive authority. Proportionality looks towards the restrictions and weighs them against what they are restricting; there are times when one restriction on executive authority may be a cannibalization, but others where the Senate may be justified in a heavier restriction due to the importance of the question at hand.
- [25.1] To give an example, most would agree that the Senate legislating in confirmation for positions such as the SDBI Director, while not granted by the Constitution because it is not an executive officer, is appropriate because of the power the role wields. The Senate legislating that it must approve every single SDBI officer, though, very well may represent a cannibalization of executive authority as it unjustifiably limits the executive’s authority to operate its own department and enforce the laws of SimDemocracy.
[26] So, how does Article 4, Section 5 stack up against this standard?
- [26.1] First, the restriction is a simple-majority vote of the Senate. This is a relatively low barrier; it is by no means difficult, as a general rule, to get half of the Senate to support an action.
[26.2] Firing the Attorney-General is, in juxtaposition, a very important action. The Attorney-General has a very important role in SimDemocracy, that is enforcing criminal law. This means the Attorney-General has the role of holding the executive, along with members of the general public, accountable to the law. This means, occasionally, making decisions that are contrary to the President’s personal interests. Given the relatively minor restriction of a simple majority vote of the Senate, it can not be said that this restriction is inappropriately burdensome to the extent of implicit cannibalization.
[27] Article 4, Section 5 of the Executive Act 2023, therefore, does not represent a cannibalization, either direct or indirect, of the President’s primary executive authority by the Senate of SimDemocracy.
On Plural Executives and the Fragmentation of Executive Power
[28] halfcat__, in his Amicus Brief, raised an alternative path to unconstitutionality than the petitioner, that is the usurpation of the President’s primary executive authority not by the Senate, but by the Attorney-General. He did not go so far as to state whether this made the section unconstitutional or not, but did reframe some of the petitioner’s arguments in reference not to cannibalization, that is on the basis of separation of powers, but to the fragmentation of the President’s primary executive authority by other executive employees.
[29] The petitioner’s relevant arguments are outlined in [7], where they argue that “The term ‘primary executive body’ is also not ceremonial. It denotes control, command, and accountability for how the executive branch operates. Now, let us consider the consequences of this authority without the power to remove subordinates. The President may be tasked with enforcing laws and directing executive policy, yet is powerless to remove officials who defy or obstruct them. Therefore, the actual control of executive policy rests with the officers (in this case, the Attorney-General).”
[30] The President’s power over the executive, indeed, rests upon their ability to enforce their orders. If an executive employee is able to ignore the president’s orders, and instead answer directly to the Senate, they are wielding an alternative executive authority to the President. SimDemocracy is not a diarchy: the President must be able to enforce their authority to properly wield executive power. To cite the Federalist Papers, “one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility.”
- [30.1] Consider the situation where the President attempts to give an executive employee in the Department of Examples an order and their direct superior, known as the Secretary of Examples, gives an alternative order. Who should said employee, and other employees of the Department of Examples, listen to? When the President reserves authority to control the Department of Examples unilaterally the answer is easy to answer because there is an alignment of values between the President and the secretary. If the President can not successfully order the Secretary of Examples, though, there is conflict. The employee has to decide whether to listen to their direct employer or the President. The President, in this instance, loses their ability to steer the ship of state, the Secretary of Examples takes partial control. Who, then, is responsible for the employee’s actions? The President clearly is, as they represent the voters will by wielding executive authority, but at the same time the Secretary of Examples is responsible because they are the one actually directly ordering the employee. This is a clear conflict, and an untenable situation.
[31] To expand, the executive of SimDemocracy is necessarily hierarchical, Article 5, Section 1 of the Constitution outlines that the President “shall represent the interests of the people by wielding executive authority,” from this the obvious conclusion arises that the President need to have the ability to dictate policy in the executive as they see fit. The petitioner would refer to this doctrine as the “Unitary Executive.” Said theory posits that the President retains all power over their branch. Every executive employee is, therefore, obligated to follow the President’s orders — that is the Constitutional order of things. If the President can not force people to follow their orders, then the President does not carry true authority over the position in question.
[32] It should be noted that it is slightly inaccurate to say that SimDemocracy has a completely unitary executive. Look towards a position such as the Supervisor of Elections: this position has the ability to enforce the Constitution and legislation in relation to elections — an executive power. This, though, is created directly in the Constitution, and when the Constitution conflicts with itself, as a general rule, the more specific section should be taken as an exception to the broader one. Thus the Supervisor of Elections, and other similar positions, are explicit exceptions to the unitary executive, not a disapproval of the theory overall.
[33] Unlike the Constitution, legislation passed by the Senate may not overrule the primary executive authority granted to the President in Article 5, Section 1 of the Constitution. It is not within the Senate’s power to “fragment” executive authority: it may not create parallel authorities that enforce laws without the President’s oversight, and it especially can not create parallel authorities that answer to the Senate directly. The Attorney-General is an executive position created only by legislation: no matter how important the position is, or how good of an idea it may be, the Attorney-General may not wield power independently of the President and become another source of executive power.
Does Article 4, Section 5 Create a Plural Executive?
[34] So, the question becomes, does restricting the President from removing the Attorney-General without a majority vote of the Senate create a plural executive? To get a grasp on this we need only look towards the bill's intentions. In legislative discussions it’s clear to see the Senate hoped to avoid another situation like the dismissal of charges against members of the Civil Liberties Party by President Imade, contrary to the at-the-time Attorney-General’s wishes. The Senate, clearly, wished this section to be used to check the President’s authority if the Attorney-General disagreed with a policy.
[35] The Attorney-General then, via this section, is empowered to pursue their own policy preferences absent of or even against the wishes of the President. They need-not answer to the President at all if the Senate is on their side. This creates a plural executive by making a parallel executive body answerable to the Senate alone, which is a clear example of an unconstitutional fragmentation of executive power.
- [35.1] From this specific example rises the general principle that the unilateral power of removal must rest in the President’s hand to maintain their primary executive authority.
[36] It’s worth noting that such bodies enforcing law, that is acting with executive power but not accountable to the President, are not particularly uncommon in SimDemocracy law. The court will not go so far as to comment on which ones these may be, let alone summarily overturn them, but it does recommend the Senate take a hard look at current legislation and either adjust unconstitutional statutes or amend the Constitution appropriately.
- [36.1] The court would be remiss not to mention the judgement in Reference re Voting by Proxy [2025] SDSC 5 in which the court outlined that inspiration from real life sources must be examined in terms of the history of SimDemocracy. The theory of the unitary executive is indeed sourced from real life sources, it originates in United States constitutional law. Unlike the attempted application of Robert’s Rules of Order, though, the theory is not being applied here out of some strange sense of “SimOriginalism”, meaning that SimDemocracy took partial inspiration from something and must therefore apply other parts of it without examination. The legal principles applied here, instead, come directly from a textualist interpretation of the law — it’s not blindly following external doctrine.
Verdict
[37] Article 4, Section 5 of the Executive Act 2023 unconstitutionally creates an alternative source of executive authority.
[38] As this section also outlines other dismissals by the President of Executive Officers the court will give the Senate two (2) weeks to adjust the section appropriately, after which, if it is not amended, it will become null, void, and of no effect.
Citations
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