Trump's Theory Of Presidential Power
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You can do more without spending more. Learn how to save at Cox.com slash internet. Cox internet is connected to the premises via coaxial cable. Cox mobile runs on the network with unbeatable 5G reliability as measured by UCLA LLC in the US to age 2023. Results may vary, not endorsement of the restrictions apply. Hello and welcome to the FiveThirtyEight Politics Podcast. I'm Galen Druk. In honor of President's Day, we are talking about presidential power and its limits. So

Take a step back in time with me. In 1879, Congress created a new federal holiday to honor George Washington's birthday, February 22nd. For decades, the 22nd would, like any birthday, fall unpredictably on different days of the week, including on weekends. So in 1968, Congress passed the Uniform Monday Holiday Act.

Under that law, Memorial Day, Columbus Day, and yes, Washington's birthday, would henceforth be celebrated on Mondays. I should say, even though it's more common to refer to Monday's holiday as President's Day, partly because Lincoln's birthday is also in February, the text of the law calls it Washington's birthday. And so, if you had a long weekend like we did here on the podcast, you have Congress to thank. Congress and its decision to honor the first man to hold the office of the President.

Today, the current occupant of that office is testing the limits of its power. And Congress has yet to do all that much to reassert its own. Last month, the Trump administration's Office of Management and Budget issued an order that appeared to freeze trillions in federal funding that had been passed by Congress. After considerable chaos and criticism, the office rescinded the memo.

In an effort spearheaded by Elon Musk, the administration has effectively dismantled USAID, an independent agency created and funded by Congress. They've floated doing the same with the Department of Education, also created by and funded by Congress. Just this weekend, President Trump posted on X and Truth Social that, quote, he who saves his country does not violate any law, an apparent reference to Napoleon Bonaparte that further exemplifies his ideas about executive authority.

This is just a sampling, but what these developments get at is a theory of executive power that goes beyond what other administrations have understood and pursued in the modern era, which

which raises some questions. First of all, what is the administration's theory of its power? And if the Republican-controlled Congress isn't going to check and balance the White House, what might the courts do? And what if the administration ignores them too? Here with me to answer all those questions and more is Peter Shane. He's an expert in constitutional law and a professor at NYU's School of Law. Welcome to the podcast, Peter.

Thank you for having me. So when scholars like yourself talk about Trump pushing the traditional bounds of executive power, what specific actions or plans are the focus? There is such a long list that it's, you know, it's like asking me to pick my favorite Joni Mitchell song. It's impossible. The focus of my research tends to be on separation of powers issues in particular.

So the things that I've been focused on mainly are his actions with regard to the civil service, with regard to funding, with regard to the de facto shutting down of government agencies. You know, there are other very problematic executive orders that have been issued, executive order on birthright citizenship.

which has no constitutional basis at all. You know, the going after all diversity, equity, and inclusion programs, which may have statutory problems with it, but also maybe First Amendment problems, but

My own focus tends to be on the direct separation of powers issues. So when it comes to that latter category of executive orders and DEI, for example, how different is that from what previous administrations have done? Because

Presidents have often tried to push the boundaries of what the office can get away with. For example, the Biden administration repeatedly took actions that they knew might not survive the courts, but did them anyway to tell the activist groups, for example, that he was doing what he said he would do. I mean, a common example is on school debt. Is this all that different, either birthright citizenship or the DEI moves? Yes, it's a great question. You posed it very well.

Among the genuine political science wonks in the audience, the work that I'm relying on is very much the work of a couple of political scientists named Terry Moe and William Howell.

who have talked about what they call the asymmetric logic with regard to the Constitution that applies when you're comparing what I'll call progressive presidents and conservative or reactionary presidents. And by progressive, I don't just mean democratic, because Eisenhower would be progressive in the sense that I'm going to use it, and so would Nixon. So to back up a second, an executive order is just a directive that tells people in the executive branch to do stuff.

It doesn't have to be called an executive order. Obama, it was said, you know, issued many fewer executive orders, but that's because he often liked to call what looks like an executive order a memorandum. There were memorandums that could have been called executive orders, but there's nothing magical about that name. It's just a directive to the rest of the executive branch. It has to be based in some sort of legal authority.

It could be based on a statute. If it's based on a statute, then it could sometimes affect the public very directly. If not, if it's just within the president's inherent constitutional powers, the permissible scope of an executive order is no wider than whatever his supervisory power is under Article 2 of the Constitution.

Every new administration starts with a lot of executive orders. And if there's been a change of party, a lot of the executive orders of the prior administration will be revoked by executive orders of the new administration. Anything that can be done by executive order can be revoked by executive order. So that's not unusual. Here's the difference, and this really gets to the meat of your question. Let's assume that every president

wants to make their mark by showing that they are effective in carrying out the promises that they made. They want history to record them as having been successful in that regard. They are going to push the authorities that they have. Since the New Deal, but certainly since the 60s and 70s, we've seen social movement after social movement producing statutory authority, laws enacted by Congress,

that allow the executive branch to do things with regard to addressing national problems. We could be talking about the consumer movement or the civil rights movement or the women's movement or the environmental movement. All of these movements have yielded statutes. So a president like Joe Biden or Dwight Eisenhower who wants to get things done, they want to attack some big problem.

All they have to do, or what they're inclined to do, is look at their statutory authority and see what the language permits. Sometimes the language permits exactly what they want to do, particularly if the statute was just enacted and now it's being implemented. But old statutes may have broad language, and the temptation will exist to interpret that language generously to allow the president to

to faithfully execute the statute by doing something pretty ambitious. That's the story of the Biden administration. Sometimes it'll be fine, and sometimes they'll be second-guessed by the courts. And when it is second-guessed by the courts, that's just checks and balances at work, right? That's ordinary administrative law. I mean, couldn't you say the same thing about the birthright citizenship action or the DEI actions? I mean, birthright citizenship is, I mean, interpreting the law

law in a pretty unconventional way, but saying ultimately that there are limits to birthright citizenship. I mean, the most conventionally accepted limit is the children of foreign diplomats in the United States. But, you know, interpreting the law in a new way to try to get the authority, like you mentioned, to...

end birthright citizenship, as is conventionally known. And the same with DEI. I mean, the Biden administration basically creates incentives within the executive branch to focus on DEI and Trump just ends them. I mean, how are either of those all that different from what you described the Biden administration doing? Well, two things. First of all, the president has no authority to redefine birthright citizenship in

the authority to enforce the 14th Amendment belongs to Congress. And perhaps more to the point, Congress used that authority to adopt a statute that defines citizenship according to place of birth, except again for children of foreign diplomats and foreign ministers. The president is defying not only what the 14th Amendment, I would say, plainly means,

But usurping the authority, if there be authority to enforce it, it's not his authority anyway. It's legislative authority. Now, with regard to DEI, you know, for someone like Biden, they want to do something, you know, again, proactively. They're going to look for a statute that says you can do something in this area and they're going to try to see if the language fits. If your agenda is,

is stopping federal government action. And Congress has said there should be foreign assistance. You don't want foreign assistance. Congress says there should be environmental protection. You don't want environmental protection. Now you've got a problem because there is no statute that says you, the president, get to shut down agencies. There's no statute that says you can cut off expenditures that you don't like. The president's sworn obligation

under Article two, he swears both to faithfully execute the office of president. And the main duty there is the duty to take care that the laws be faithfully executed. Yes, he can shift the focus of what agencies do. But this sort of blunderbuss attack on anything that uses words that sound like

diversity, equity, and inclusion. You've seen examples of this already where some scientific agency suddenly found that they were having directives scraped because they used the word diversity. Diversity was being used in the word biodiversity, right? This was just studying ecological diversity. It had nothing to do with DEI. Well, I want to be really clear, right? Because there will forever be sort of

policy disagreements between the right and the left. But I think that many scholars would make the argument that we're entering a territory where it's not about policy disagreements between the right and left. It's about what's legal or constitutional and what is not. Yes. And so, you know, oftentimes you will hear folks, you know, categorize immigration enforcement or hawkish policies as authoritarian like and it's like, well, you know, does it violate the

statutes or the Constitution, or is this just a policy that you don't like that seems overbearing? And so I want to be really clear here, because just saying, oh, you know, they're attacking DEI, well, that doesn't necessarily mean it's unconstitutional or illegal. Lots of people could have very sincere disagreements with the idea of being anti-diversity, but ultimately it might not lead to a constitutional crisis. So what are the areas that you see as sort of flashing red lights in this moment as you

defying the Constitution or plainly illegal that could be headed towards the courts. A lot of these things are already in court. There are, I think, somewhere between 60 and 70 cases that have been filed so far, and there are a couple of good litigation trackers that helped following this.

One thing that the president wants to see happen is he wants to see the Supreme Court go all the way in saying that presidents can fire any officer of the United States exercising any kind of executive authority at all. Right now, the Roberts Court has gone a pretty far way in this direction, but they have not overturned the idea of multi-member independent agencies like the Fed or the National Labor Relations Board.

Trump fired the chairwoman of the NLRB, Wynne Wilcox,

hoping that she would sue. They're hoping to get that in front of the Supreme Court. It's clearly a violation of the statute, but one has to say this was done with this explicit hope that this would get before the Supreme Court and it'll be resolved that way, one way or the other. And is this the unitary executive theory? This is part of the unitary executive theory, right. Which is essentially anybody who works within the executive branch reports to the president. Therefore, the president can...

fire or higher.

I think, anyone they like and that the duties assigned to the executive branch, yes, can be done by the agencies that fall underneath the president, but could also be done by literally the president himself. Does that encapsulate the unitary executive theory? You know, the unitary executive theory comes in different flavors. The vanilla flavor is just the first thing you said, that the president, because of the executive power vesting clause, can fire at will anyone in the executive branch.

The idea that you went on to say, which is that assignments to the executive branch were really assignments to the president. He decided, you know, I feel like writing environmental regulations myself. I'm just going to do that rather than have EPA do it. That is, I would say, not necessarily the mainstream unitary executive theory view, although, you know, it has some prominent scholarly advocates.

The core of the theory is the president can fire anyone. The Supreme Court under Roberts has come close to seeing something which kind of underlies that view. So this gets at whether it's legal for Trump to fire heads of agencies. It also gets at whether it's legal for Trump and the Department of Government Efficiency to just shut down agencies whose work it doesn't like.

Do you see five justices on the Supreme Court endorsing the idea that Trump can end USAID, fire heads of agencies and the like? So here we have a spectrum. At one end of the spectrum, I think the attempt to unilaterally change the definition of birthright citizenship is a dead loser. I don't think there are five votes for that. I'd be surprised if there are more than two or three.

Where he has the most reason to be hopeful is on the independent agency thing. Now, the president can fire at will the heads of agencies who are not protected by statutory tenure. You know, there's no statutory bar to his firing the attorney general, secretary of labor, and so on. It's these multi-member boards that we're really concerned about. My own read on this is if it weren't for the Fed...

the court probably would have gone this far already. I mean, the court, I don't think they want to say that the United States is the only post-industrial democracy that can't have an independent central bank. I think that's really the only thing that's holding them back. So it's not a sure winner for Trump, but it's clearly where the heart of hearts lies for maybe five or six members of the court. So that's his best chance of winning. In between, I think, is the impoundment stuff.

And I always say my crystal ball comes with the world's worst batteries. But I suspect that when a case gets to the Supreme Court on the question whether the president is required to facilitate the expenditure of the quantity of funds that Congress has appropriated,

And by funding here, I'm sort of conflating the funding question with the destroy an agency question. I mean, you know, whether the president can take down, disassemble USAID is very much wrapped up in the question, can he just stop it from doing any of the things that it's assigned to do in terms of providing financial assistance? I don't think that there'll be five votes to uphold presidential impoundment. But that case, it's going to be 5-4 or 6-3.

for or against them. In your intro, Galen, you mentioned another branch that ought to be weighing in here, because we're talking about courts and the president. There is Congress, right? So Congress has changed its mind at different times about where

foreign assistance programs should be located and they're perfectly respectable good faith arguments that it should be part of the department of state or no it should be independent it should be merged with some other kinds of programs outside the department of state all of these models congress has provided at different times if the president wants less money spent on foreign assistance

Or if he wants to bring foreign assistance programs back under the Secretary of State, he should go to Congress and propose that kind of legislation. Presumably, you know, despite the fact that the Republicans have majorities, they're not necessarily going to coalesce around this. And in the Senate, where you need to get 60 votes to get past the filibuster, maybe that's what, you know, he's afraid of.

A lot of these questions, where you point out, are not necessarily constitutional questions. There's a way to do them. You know, Ronald Reagan could persuade Congress to do certain things, cut back on certain things, rework certain things. And then, you know, we might agree or disagree with the policy, but Congress would be doing its job, and the president would then faithfully execute those laws.

But the president doesn't get to be the legislator just because Congress is polarized. Right. It seems as though a lot of this is designed to get a case in front of the Supreme Court, right? Because Donald Trump knew when he signed the executive order on birthright citizenship that it would go to the Supreme Court. He likely knows that all of this is headed towards the courts. And he's already experienced the fact that lower courts have stopped voting.

many of these policies from going into effect. But at the same time, there's been some suggestion or some questioning from his administration about following court orders. This seems to be a pretty clear red line beyond which we would be in a constitutional crisis. What happens if a court tells Trump to stop something and he doesn't comply?

First, I suppose it should be said that the defendant likely to be targeted by an injunction or an order in a lot of these cases is not going to be the president himself. It's going to be the secretary of X, you know, an administrator who's carrying out Trump's orders. And that's important for a number of reasons, one of which is, you know, holding the president in contempt, say, would be quite audacious for the judicial branch. And of course,

following the Supreme Court's immunity decision from last June, former presidents can't be tried for even criminal conduct. So we're typically not talking about what's going to happen to the president, but we're talking about what's going to happen to a subordinate administrator. And of course, the subordinate administrator does not have absolute immunity. The court can hold either the agency or the administrator in contempt.

If the administrator is held in civil contempt, by the way, the pardon power does not work against that because it only works against criminal offenses. So civil contempt is civil contempt.

Now, that'll be the levying of a fine. The person who has studied the process of defiant administrators more than, I think, any of my other colleagues in the profession assembled or, you know, under his supervision had assembled a database of like 10,000 examples of non-compliant cases. And he found that lower courts were pretty ready to order these penalties. They were not often actually upheld penalties.

once they got to a higher court. In part, again, because courts are reluctant to take money out of an agency's appropriation that's supposed to be spent for protecting the environment or something, not paying off court fines. That would be one thing that could happen would be contempt.

there could be charges of criminal contempt brought in certain cases. Now, I think it's naive to think Trump would allow the Justice Department to prosecute a member of the Trump administration for criminal contempt. But courts have inherent authority to appoint prosecutors to prosecute criminal contempt if the executive branch won't do it. You know, ultimately, at the end of a very, very, very long day or ritual dance,

If the president doesn't want to do something, it's not going to happen.

But there are these intermediate steps: civil contempt, criminal contempt, if it comes to that, fines. Ultimately, you know, courts could call for incarceration, but you could see there could be a back-and-forth dance before there would be compliance. I will say that in one of the cases that hit the Supreme Court very quickly, the case of Hampton Dellinger, who was fired as head of the Office of Special Counsel,

the Solicitor General's Office did happen to say in passing that, of course, the administration was standing ready to do exactly whatever the courts told them to do. So, you know, what shows up on X or Truth Social is one thing. One hopes that what shows up in signed briefs is yet a more reliable statement from the administration.

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And time just stands still. One complicating logistical factor here is that what's done is done. The courts could find that the executive branch does not have the unilateral power to dismantle USAID or the Department of Education. But in the intervening period, many of the people who once made up that organization may no longer work there. So...

What does that mean for our system of checks and balances that the executive branch can just work a lot more quickly than the judiciary? Well, again, I want to throw in this other problem, which is the problem of a supine Congress.

You know, when Jimmy Carter was president, Democrats held both houses of Congress. The head of the Congress committee was a congressperson from Michigan named John Dingell. He went on, I think, to become the longest serving member of Congress ever, if I'm correct about that.

He was no gentler with the Carter administration than he was in overseeing agencies under the Nixon or Ford administration. He took kind of the James Madison command very seriously that, you know, ambition was intended to counteract ambition and that it was up to Congress to protect its prerogatives against an overweening executive branch. And he was prepared to do that against Democrats or Republicans.

Now, you know, in the intervening decades, for a variety of reasons, you know, we could talk about Congress has stepped away from that position to show any kind of oversight toughness if the party in control of the House or the Senate is the same party in charge at the other end of Pennsylvania Avenue. It's Congress that is supposed to be able to, you know, shake administrators by the lapels and say, wait a second, stop doing that for, you know, let us talk about it.

This is the most important power the House of Representatives has been given to preserve its role in the system of checks and balances, is to be the originating power, the originating house when it comes to spending and taxation. And to abdicate that is really, as you say, putting the executive branch really only under the check of the courts, which will operate more slowly.

Constitutional checks and balances that are implemented robustly 30 days from now, 60 days from now. That's still better than nothing. But it really does damage governance because what you're losing is a lot of the capacity of these agencies to perform the functions that they've been assigned by Congress.

you're losing institutional memory you're losing expertise my guess is that the impact on morale of what doge has been up to has been so devastating that it itself is compromising the ability of agencies to get their jobs done they're talking about you know laying off tens of thousands of employees at the internal revenue service

Who's going to answer the phone when people call up for tax advice? From a point of view of good governance, it's just an insane policy. And what the Trump administration is hoping is that if they just label every expenditure that they don't like as waste, fraud, and abuse, that they can get away with incapacitating agencies and instead of faithfully executing the law,

executing the law in a different sense. Last week, Danielle Sassoon, the acting U.S. attorney for the Southern District of New York, resigned after receiving a command from the DOJ to dismiss corruption charges against New York City Mayor Eric Adams. And her resignation was followed by a series of other resignations from high-profile DOJ lawyers.

This is a slightly different use of executive power, which is twofold. Filling executive agencies with loyalists and using those agencies to either punish your enemies or reward your allies.

And it seems to be a feedback loop in the sense that, you know, you put your loyalists in place. They sort of command people below them who might not be loyalists to do something that they don't feel comfortable with. Those folks exit. They get replaced with loyalists. And so the whole system can eventually become filled with loyalists and can be used as either a carrot or a stick to get people

whether it's other politicians or corporations or whatever, people in public life, to do as you wish.

And this is one of the sort of aspects here of the expansion of executive power that folks sometimes point to when they talk about, oh, this, you know, American slide into autocracy or what have you, that increasingly the executive branch will be used in ways that decrease competitiveness in the economy, that decrease competitiveness and opposition in politics because people are scared of the repercussions from the executive branch.

How new is this in American politics and law? And what, if anything, is there to be done about it? I certainly don't want to say that, you know, there has never before been a president who has been helpful to supporters or hostile to opponents. But what's going on with the Justice Department is, I think, particularly significant.

The president does get to nominate, appoint, advise the Senate, whoever's attorney general. Attorney general serves at the pleasure of the president. I don't think anybody would complain that it upsets checks and balances for the White House to be in touch with the Justice Department.

on general matters of law enforcement policy. You know, for a president to come in and say, I want to see us be more rigorous on civil rights crimes, or I want to, you know, let's put a little more effort into white-collar crimes. But when it comes to individual cases, the abuses of the Nixon administration were so notorious that it became a bipartisan project to

again, as a matter of norms and semi-informal understandings between the White House and the Justice Department, that the White House would keep its hands off of individual prosecutorial decisions. A fellow who, of course, was Attorney General under George H.W. Bush and then again under Trump the first time was Bill Barr. And Barr wrote an extensive letter

which I thought of as a kind of audition for, when you get rid of Jeff Sessions, I want you to make me attorney general, kind of a letter, that he wrote to the deputy attorney general about why he thought Trump could not be prosecuted for obstruction of justice, why presidents could not be. And in the course of his argument,

He took what I would call the extreme unitary executive theory position on the president with relationship to prosecution. He said it's actually constitutionally impossible for presidents to recuse themselves from prosecutorial decision-making. It would be improper to take him or herself out of a decision with regard even to prosecuting their own family. What Trump and his allies are saying now

is that the White House, if it wants, can tell them who to prosecute. What happened with regard to Adams?

is astonishing some people have said they were going after him for you know not a big deal or maybe this is like an al capone thing you know you you think he's done really really bad stuff you get him for tax evasion there are lots of arguments about the merits of the prosecution but uh then acting u.s attorney sassoon was told to drop it not because of any weakness in the evidence or lack of seriousness to the charges

but because Adams was still running and they wanted his cooperation in enforcing federal immigration law. You can tell, by the way, that the administration was all about this quid pro quo because they weren't offering to partner. They wanted to keep him hanging on to make sure that he helped them with immigration by dangling the possibility that that prosecution could be reawakened. Ms. Essun,

who is a very conservative person, I mean herself, a Scalia clerk, kind of a star in the Federalist Society legal universe, just said, you know, this is not how we operate. This is not how the rule of law operates. And what are we losing? Well, what we're losing are two superb prosecutors who had really strong track records already,

putting away not just the mayor of the city of New York, but other wrongdoers. And if the Justice Department insists on throwing away their senior talent because they won't go along with the president's pet peeve list, this is an enormous loss to the republic. And it's so self-defeating for

The Trump administration. I mean, if you want, you know, there undoubtedly will be things that the Trump administration wants to do that I think Ms. Sassoon would be perfectly willing to defend in court. And you would want a lawyer of her caliber on your side if you were if you were President Trump.

Yeah, it's interesting. I think we've gotten to a place in public debate where we've sort of just concluded that Americans don't really care all that much about democratic norms because they don't seem to necessarily motivate the way people vote. And so I think about, you know, because I focus so much on public opinion, why do Americans care? Why should Americans care? Where do democratic norms and

and the rule of law intersect with the things that we know Americans to care about the most, things like the economy or immigration or crime, inflation, and the like. What we know from studying other forms of government and what you've just described is that corruption and a decline of these norms and institutions actually, well, it harms governance, how well the government works, but it also harms things like the economy, right? Like if

companies are making decisions based off of fear of repercussions from the executive branch and not what is best for shareholders and consumers and promoting economic growth and prosperity, then we're not going to have an efficient economy. If law enforcement officers are more concerned with currying favor with the executive than keeping people safe or ensuring that the laws are equally applied, then we're not going to live in as safe

or free or fair of a society. And so how do you connect the whole, this is the constitution and these are norms and these are institutions with like, okay, well, like what the do I care in how it impacts my daily life?

from looking at other countries where there are not independent feds and where there is not independent media and corporations get punished by executives, people are worse off measurably. And so I think when talking about executive power and why it should matter to people, why all of this matters, I think it's important to say that. I think from the research I've seen, I want to say it's not so much that Americans don't care about democratic norms.

But in terms of ranking their priorities, the weight that they attach to a candidate's allegiance to democratic norms varies with their belief that the candidate is otherwise going to push their priorities. So you're more tolerant of anti-democratic behavior or lack of democratic commitment from somebody you think is going to deliver for you on other things you care deeply about. It's 3%, Peter. So when asked, would you support...

Yeah, we read the same study. Yes, exactly.

All right, we're going to leave things there for today. Thank you so much for joining me, Peter. Yeah, it was a pleasure talking with you. My name is Galen Druk. Our producers are Shane McKeon and Cameron Shortavian. You can get in touch by emailing us at galen.druk at 538.com. You can also, of course, tweet us with any questions or comments. If you're a fan of the show, leave us a rating or a review in the Apple Podcast Store or tell someone about us. Thanks for listening, and we will see you soon.

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