Anne Kim and Garrett Epps discuss the foundational concepts of U.S. democracy, focusing on the separation of powers and the emerging threat of the “unitary executive” theory. They also discuss the implications of Trump’s power grab, including threats to public health, safety and the rule of law.
Below is a transcript lightly edited for clarity.
Anne: Hey, Garrett, it’s great to see you. It’s just the two of us today.
Garrett: Who could ask for better company?
Anne: So today you’re going to put on your hat as a law professor and I’m going to put on this very dusty old hat as a law student. And the purpose of this episode is to walk through some of the foundational concepts that undergird US democracy and explain exactly how they’re under attack. I think that none of us as citizens has the luxury anymore of ignoring the Constitution.
So, as we are taping this, it’s the day after Donald Trump posted, or the White House, rather, posted on its official social media account an illustration of Trump wearing a crown and proclaiming “Long live the King.” This was after Trump decided to nullify New York City’s congestion pricing scheme. And it really doesn’t seem to be a joke. This is a direct attack on the U.S. Constitution and its stated purpose of preventing tyrants from taking control.
So let’s go back to like seventh grade social studies class when we learned about the separation of powers, which is that fundamental frontline defense. Walk us through what exactly that means.
Garrett: Well, the people that wrote our Constitution analyzed government as having three parts. One part has to make the law. One part has to enforce and carry out the law. And then finally, one part has to make decisions about whether people have followed the law or not – maybe committed crimes and being punished, or maybe just doing something wrong and needing an order to make them do the correct thing.
Those three powers, they believed, had to be separate. Otherwise, you ended up with what they called Caesarism, a president who would announce a new law in the morning, enforce that new law in the afternoon, and put people in jail for disobeying it in the evening – government that could move quickly, secretly, and aggressively against individuals and against their rights.
So they set up three branches: the legislative, which is Congress with its two houses; the executive, which is the president and all the officials in offices created by Congress; and finally the judicial, which is the Supreme Court and the federal courts underneath it.
They’re all supposed to be separate. And you think about the protections against that. The president can’t make law. Congress cannot appoint officials. The court cannot rewrite the laws.
Each of them is supposed to stay in their own lane. The problem though is if the three powers are completely separate, you might end up with a government that just can’t do anything, that just spends all its time fighting among its three branches and never actually delivers for the people. And so for that reason, we have another phrase that Americans like to say, checks and balances.
Anne: Checks and balances.
Garrett: Each branch of the government has some way to act on the others. Consider the president, for example. If Congress does something he thinks is unwise, passes a law he objects to, he can veto it. Of course, Congress can re-pass it, but they have to consider the president’s objections. If someone breaks the law, including the executive branch defies the law, the judicial branch can issue an order saying, “Follow the law.”
On the other hand, they can’t enforce it with an army or a police force. They don’t have that. The executive branch has to enforce it for them. So you can see that a certain level of cooperation is built into the structure.
Now that leads to lot of struggle. A lot of people on one side or the other of the divides claiming “This is our power. No, it’s our power. No, it’s our power.” That’s not actually a bad thing in the view of the Framers. They had a slogan, “Ambition must counteract ambition,” meaning that people in one branch would want to have power and authority and would not want to allow the other branch to take it and vice versa. So they would fight it out. And usually battles among the branches are settled by negotiation. They’re settled in a very proper way by politics.
Now, when you have a president who believes he is the king, he believes he has all the powers. Trump clearly thinks he can rewrite the law. He clearly thinks he can punish people who do anything he doesn’t want. And it’s very concerning. We’re, what, a month into this administration and he’s already king? What next? Ming of Mongo, emperor of the galaxy? The pace of gross constitutional defiance kind of staggers the mind.
Anne: Yeah, I mean, it seems like what the founders had in mind, though, was this belief that everyone who became president would respect the fundamental structure that was set up. And Trump isn’t doing that. He doesn’t actually believe in the separation of powers or the checks and balances. And hence, we’re in the situation where the system seems to be failing.
And then the other problem is that there are conservative legal theorists who may be going along with this. And that takes us to this idea of the quote unquote unitary executive, which I guess is a theory that nobody had really heard of until a few decades ago and now has become really dominating the debate. If you could talk a little bit about that and the threat that it poses as well.
Garrett: Well, yeah, I will say the unitary executive, as a concept has been around for a while, but it didn’t have that much meaning. What it meant was there’s only one president and that a lot of American states, including the United States under the Articles of Confederation, which came before the Constitution, had chief executives that were actually committees or councils of state.
And so the government could not act in emergency situations unless they got the agreement of a majority of this council or the committee of the states that ran the national government. And that led to some paralysis and confusion. And eventually it contributed, for example, to the violence in Massachusetts with Shays’ Rebellion. And the Framers of the Constitution began to think, well, maybe a single chief executive is a better idea.
Now, I want to hasten to add that we’ve all actually seen plural executives, not unitary executives. We’ve all lived under them and they seem to work okay. I always ask my students, “How many of you have lived under a plural executive?” And the hands usually don’t go up at all. And then I write on the board “100%” because we’ve all lived in states.
You know, if you consider the state of Maryland where I currently am, we have a governor who’s elected, we have an attorney general who’s elected, lieutenant governor, and they all have powers, but the powers are delineated and they work together. On the other hand, the Framers thought we need one president, we don’t need a committee. So that’s where the idea of one president of the United States came from.
That’s all the words meant for a long time – like there’s one president, right? We know that there’s not two presidents. The vice president isn’t also president. But beginning in the 1980s, you had a political situation, which kind of seems quaint as we look back. The Republican Party thought that it had a lock on the White House, that it would be able to elect presidents as far as the eye could see in the wake of the Reagan administration.
But at the same time, Congress seemed to be pretty much under the thumb of the Democrats. This was the era of Tip O’Neill and the big House delegations and so forth. So the question was who had which power? And it became really important to conservatives that the executive have as many powers as possible, because that was the way that conservative social policies would be carried out.
And at this point, the unitary executive began to expand. It began to expand in an idea that said that the president is not only one president, but that he has to have all powers in the executive branch.
Anne: They make that argument based on a particular clause in the Constitution. If we could back up just a little bit.
Garrett: Right. Well, you know, the unitary executive idea comes from something called the vesting clause. It’s a very short clause and it’s a kind of a window into the bizarre world that constitutional law professors live in to see how much meaning is being tortured out of this sentence. But the sentence says, “Executive power shall be vested in a President of the United States.”
So that has two parts. And one part of it is the words, “the executive power.” But what does that mean?
Each branch of the government is given powers by the Constitution using slightly different languages. Congress has, in Article 1, it says “All legislative powers herein granted,” meaning by the Constitution, “shall be vested in Congress, a US Congress in the two houses.”
Article 3, which sets up the federal court, says, “The judicial power of the United States,” that’s obviously the limitations, not the judicial power of Iceland or of Pennsylvania, “shall be vested in one Supreme Court and such inferior courts as Congress may from time to time ordain and establish.”
The vesting clause in Article 2, the presidency, very oracular and a little strange because it just says “the executive power.” Well, what does that mean? And one side, which I’m inclined to, says, well, it’s written in the middle of the Constitution. It ought to be interpreted as meaning the executive power to carry out this Constitution.
The other view is to say, no, the executive power means any executive power anywhere, including power that the British King had. Unless the Constitution says the president can’t do it, if the British King could do it, then the president can do it. As you can see, that’s a pretty radical view. And that view has caught on more and more. The discussion of King George III has dropped out. That didn’t test well in the markets.
But the claims have become more and more extreme. And now the claim is that Congress cannot set up independent agencies. In fact, Trump refers to them in his recent executive order as “so-called independent agencies.” They can’t set up independent agencies and give them their own authority. The FDA cannot act on its own or the National Transportation Safety Board investigating air crashes is all subject to presidential control and monitoring. The president could withhold, could change reports.
And the members of these executive agencies who are appointed by the president and confirmed by the Senate for fixed terms – the president can fire them anytime he wants. That’s true even if the statutes that create these positions say they can only be fired for incompetence, corruption or one other thing. The president can fire them. That’s unconstitutional. You can’t limit the president’s authority. He can fire them for any reason that he wants.
We’re on the platform for the train to crazy town at this point. I think that this self-validating concept has begun to kind of spin out of control. And certainly by the time it reaches the mind of Donald Trump, we know his view of it because he said it in his first term: “I have an Article II and it says I can do whatever I want.” That’s not true. That’s absurd. But it’s a little scary how close it is to what some serious arguments are being made.
Anne: So I want to ask about the practical implications for us as ordinary Americans of this power grab. First of all, I want to back up to this really remarkable assertion that Donald Trump as president can claim powers that are not even inside the Constitution. Does that mean, is that you think is justification for wanting to dictate congestion pricing policy in New York or interfere in the internal politics of California? What are the practical implications of that?
Garrett: Well, I think we need to have another episode on what federalism really means because the concept doesn’t seem to have penetrated the White House. And it’s more the kind of national security area that this vague vesting clause language is concerned about. Arguments were made under George W. Bush that the president could arrest any American and hold them incommunicado under this unspecified unitary executive power. That kind of thing, because that was a power that governments have in the event of an emergency. And that the internal structure of the Constitution, which limits that authority, was not operative.
Again, for example, we have the president in an executive order proclaiming there’s been an invasion of the southern border. Well, there hasn’t. I mean, let’s start with that. There’s the old story about Lincoln, who was… somebody was proposing that we defuse a diplomatic controversy with England by calling something something else, and Lincoln said, “Let me ask you this, how many legs does a cow have if you call a tail a leg?”
And of course, the guy is a straight man. He works for the president. “Why? That’s five, Mr. President.” Lincoln says, “No, it’s four because calling a tail a leg, don’t make it a leg.” I mean, calling it an invasion, don’t make it an invasion. There are legal characteristics that are generally agreed about what an invasion is. It’s an entry and occupation by a hostile organized military force of another country.
But if the president has any power that’s not nailed to the deck, he could proclaim invasion and under the Constitution start throwing people in incommunicado because the guarantee clause says in the midst of invasion, the writ of habeas corpus may be suspended. So it’s very important to have a principle that’s not, you know, Peanuts is still popular. I grew up reading the Peanuts strip all the time. And Snoopy the dog had a principle, which was “Anything that falls on the floor is legally mine.” And the president has sort of got that, right? Anything that’s up for grabs belongs to me. That can’t be the way the system works.
Anne: Right. So continuing on with the practical implications, I mean, the prospect of any one of us being rounded up and sent to Guantanamo is frankly terrifying. But the power grab over the independent agencies is terrifying too. I mean, you seem to imply that this really could have an impact on air safety, food safety. How do you see that playing out if he seizes control of all these agencies? What happens to the decision-making that could affect our lives?
Garrett: Well, I think the first thing that’s going to happen, the first crisis that will come along, is when under the direction of the president, our new Secretary of Health and Human Services rewrites the regulations of mifepristone and misoprostol and basically makes medication abortion unavailable in the United States by just changing regulations. Now these regulations are written by committees set up by statute of experts who study tests and conduct trials. But if the president can just change it, you bet they’ll do it. That’s gonna be the first test.
We are going to see the repeal of a lot of safety and worker protection regulations. There are procedures under the Administrative Procedure Act if you want to change or repeal important regulations, but I don’t think they’re going to follow them. I think they’re going to say the president just has the power to change these unilaterally.
It’s a pretty extreme claim that has been made within the last few days that these agencies, which have enormous long histories of dealing with the statutes Congress has passed in this area – they have very elaborate systems of counsel. Every agency has its own counsel and legal staff that has worked hard at understanding the law that governs that agency. The president has now announced that all of that is now centralized in the White House. The agencies have no power to decide anything about the law.
That’s going to give rise to a lot of administrative procedure challenges, charging that a change is arbitrary and capricious. That’s how they lost, if you remember in the first Trump term, that’s how they lost the Census case. They lost it on the grounds that they were just doing this because they wanted to do it. They hadn’t followed the administrative procedures. They almost won, even so.
Anne: Can you give some background on the census case for those?
Garrett: The president in his first term decided that he wanted the Census questionnaire to have a question that said, “All members of this household citizens of the United States?” It was known, it’s been established by studies that that is going to reduce the number of immigrant families that respond to the questionnaire. Meaning the final count of people in those communities will be short. Whatever number of people it is, they’re just like, “I’m not signing this. I don’t want the government to know that there are people in this household who are not citizens. That’ll bring ICE to our door.”
And so the result was going to be a change in the way House seats and federal funds are doled out to communities because they’re done on the basis of population. And the president really wanted this to be done. And they had studies done and the studies said, no, it’s a bad idea.
And then finally, the Secretary of Commerce called the Attorney General and said, “We need you to request this and say it’s to enforce the Voting Rights Act.” So they did that. And then they put the questionnaire in. Well, it was challenged by the state of New York. New York said, “If this goes through, we are going to lose a bunch of funding. We’re going to lose House seats. And we don’t think it’s legal.” And that case went up to the Supreme Court.
And Chief Justice Roberts said, “There’s nothing unconstitutional about the question. There’s actually nothing that violates the statute about this question. But administrative law imposes certain procedures you have to follow. And you have to present a record that shows that you took the correct steps and considered the things you’re supposed to consider.”
Right. So an administrative record that says “Trump wanted this” is not OK. And he said, “Well, you’ve given us this record, but you basically admitted during the argument of the case that it’s a lie. You just lied. And so you don’t get to do it.”
So that’s how close we came to sort of single handedly rewriting regulations in the first term. Where we will end up this time only, nobody knows, but I do think it’s important that – I hate to say this – I always apologize when I tell people they need to learn about the electoral college, but I apologize even more that people are going to have to learn about administrative law. It’s complicated and most of the time, blessedly, it’s dull, but it’s not anymore. It’s like our heartbeats. It’s important.
Anne: It was my worst grade in law school. It was actually my worst grade in law school.
Is there any reason to believe at this point, taking us to the Supreme Court now, that John Roberts won’t agree with himself when the inevitable legal challenges start percolating up to them?
Garrett: I think this is Schrodinger’s court. I think that Chief Justice Roberts – I wish I could say that he was dominated by legalism or even formalism. I don’t think that’s right. I think that his calculations most of the time are institutionalist. Is this good for the court or not? And that’s going to depend on the political valence at the time.
What if they think inside the court, “We could order Trump to do this and he would just tear up the order. What do we do about that?” That’s a dilemma that goes back to Marbury versus Madison, that the judges don’t have the power to make presidents do what they say they need to do. Are they going to back off?
On the other hand, you can imagine saying, if you’re John Roberts, “Look, we gave you complete immunity from criminal prosecution. I mean, that’s pretty darn good, but it’s not enough. Now you want more. You want more. At some point we have to draw the line.” He might say that.
And it’ll depend, I think, on a couple of other justices, on Justice Kavanaugh and Justice Barrett, where they come down. Justice Kavanaugh is very involved with the power of the presidency. He basically spent as much of his career as a presidential aide and not particularly a legal one.
And Justice Barrett is the only one of the conservative group that didn’t get on the Court by being a servant of a president. She just was like, “I’m going to law school and then I’m going to be a professor and now look, I’m on the Court.” She’s like a regular judge. So who knows what she’ll do? It’s kind of a strange moment in history to think that Amy Barrett is our hope, but that sort of sums up where we are.
Anne: I’m not sure that’s entirely reassuring, Garrett.
Garrett: Yeah, you know, Bertolt Brecht once wrote in a poem, “The man who laughs has not yet heard the terrible news.” And I think we are in a situation where there’s going to be a lot of bad news before there starts to be good news.
Anne: I’m afraid you’re right. Well, this is a conversation to be continued and we’ll still be here and we encourage everyone who’s listening to please subscribe for more discussion about these and other important issues to come.
Garrett: Yes, we’ll still be here.
