On Monday, the New York Times reported that Donald Trump and his advisers are planning to radically change the functioning of the executive branch, if he recaptures the Presidency next year. Trump has long referred to the federal bureaucracy as the “deep state” and, as President, sought to exert greater authority over it. According to the Times, for a potential second term, the Trump team is planning a “sweeping expansion of presidential power,” focussing on several specific areas: establishing more control of semi-independent agencies such as the Federal Trade Commission (F.T.C.) and the Federal Reserve; firing government employees at will, even those with civil-service protections; and “impounding” funds allocated by Congress. Taken together, the result would be the greatest reshaping of the relationship between the executive branch and the federal government in recent American history.
To talk about what all this could mean, I spoke by phone with Noah Rosenblum, an assistant professor and legal historian at New York University School of Law. During our conversation, which has been edited for length and clarity, we discussed how Trump might put these various proposals into effect, the ways in which this effort serves the larger conservative project to dismantle the “administrative state,” and how the Supreme Court, under Chief Justice John Roberts, is likely to respond to Trump’s plans.
Broadly speaking, how would these plans reshape the federal government if they were enacted?
So I think Donald Trump genuinely believed, as he has said, that he had “an Article II” and that lets him do whatever he wants. And so that being President of the United States was something like being the monarchical ruler of a kingdom. But that’s not how the United States government has operated, ever. And when I read that Times story, my first thought was that it seems like he is now trying to put together legal plans that would make the Presidency into more of a kingship and bring it a little bit closer to realizing what he understands the office to be.
Can you talk a little bit about Article II of the Constitution and what it means and what Trump’s ideas have in common with ideas that have been circulating in the conservative movement and the Republican Party since at least the Reagan Administration, if not going back all the way to the Nixon Administration?
I think your periodization is exactly right. The roots of the Reagan Administration theories are found in the Office of Legal Counsel in the Nixon Administration. One key figure who bridges those periods is, of course, Antonin Scalia, who, when he becomes a Supreme Court Justice, writes this dissent that’s become a touchstone for champions of what’s called the Unitary Executive theory.
But in terms of Article II, there is what everybody agrees on, and then there’s the space of argument. We all agree on the words that are in the Constitution, and the Constitution doesn’t say a ton. Article II of the Constitution explains most of what the President can do. And in Article II it says, “The executive power shall be vested in a President of the United States,” and the President of the United States “shall take care that the laws be faithfully executed.” There’s a lot of other stuff that Article II says about the President’s power, including that he’s Commander-in-Chief and that he can request in writing the opinion of the heads of the various departments.
But the key language that most of the fighting about different theories of executive power rests on are these two clauses. So the executive power vests in the President of the United States, and the President shall take care that the laws be faithfully executed. The Reagan Administration theories that you are referencing read those two clauses to give the President tremendous power to control how the United States government goes about doing things.
The argument goes something like this: there are three kinds of powers that the government exercises—legislative power, judicial power, and executive power. Legislative power is what Congress does. Judicial power is what courts do. That means everything that isn’t legislative power or judicial power must be executive power. But the executive power vests in the President of the United States. That means the President of the United States must have the power to execute all the laws of the United States. And remember, executive power according to this reading means everything that’s not what Congress does or what the judiciary does. So you get a theory according to which everything that the government does that isn’t either an act of Congress or an act of a judge should be more or less directly under the control of the President of the United States.
The theory then goes on to say, well, that’s not just a power the President has. It’s actually a duty that the President has because the President must take care that the laws be faithfully executed. And how can the President do that if the President doesn’t have control over everybody in the government who’s not either part of Congress or part of the judiciary? I’ve just reconstructed for you a simplified version of what I understand to be the Reagan Administration’s unitary-executive argument. But that position has been rejected for all of American history up until very recently, including by some really conservative people like former Chief Justice William Rehnquist.
Right, but at the same time it melded with conservative concern about what they like to call the administrative state, correct?
Absolutely. And the kinds of concerns that people have had with the so-called deep state have varied a little bit based on the Republican President in charge. And it also varies a little bit based on agency. Nixon famously was very concerned that he was being resisted by the federal bureaucracy. Trump’s concern seems to have been threefold. I think he was afraid that the bureaucrats were liberals who were resisting him. And so he wanted to deconstruct the deep state in order to overcome the perceived resistance that he was getting from the government workforce.
That’s connected to the second point, which is that many of the agencies through which the government exercises power were created to fulfill social-democratic goals or social-welfare goals. So the Environmental Protection Agency or the Social Security Administration, or the Office of Medicare and Medicaid Services, these are agencies that exist in order to fulfill the goals of the New Deal and the Great Society, although, of course, the E.P.A. was actually created by Nixon. And so if you’re ideologically opposed to the policy programs those agencies are pursuing, then you might want to limit those agencies’ ability to exercise power, either by staffing them with your own appointees or by controlling what they’re doing.
And then the third reason—and this is maybe a more philosophical one, and this is where I think Trump’s interests have kind of dovetailed with the broader conservative project—is the way in which a lot of these agencies were set up, with a certain amount of insulation from direct Presidential control. There are several different tools that Congress has used over the years to establish that. But some of those tools were thought by conservative legal intellectuals to run afoul of the strict separation of powers. And so they developed arguments to explain why those tools were unconstitutional. And the Roberts Court has embraced some of those arguments. And those arguments don’t have to go hand in hand with the second bucket of arguments trying to destroy the power of perceived liberal agencies. But they do dovetail with the interests of a strong president who’s afraid of resistance from the federal bureaucracy.
So I want to talk about some of the specifics of the Trump plan. There are a bunch of quasi-independent agencies that operate with different mandates and different rules, from the F.T.C. to the Federal Reserve to the Consumer Financial Protection Bureau (C.F.P.B). So how do these agencies broadly function, and what do you see as the way a White House that wanted to bring them under control would try and change that?
Some have argued that we should think of independence less as a property that an agency has or doesn’t have and more as a question of degree. The reason this matters is that at one end of the spectrum, you might have something like the Federal Reserve, which is very independent. Donald Trump famously was very angry with the Federal Reserve’s monetary policy and did a lot of yelling at them, but the Federal Reserve was still able to basically do whatever it wanted. Then you have agencies at the other extreme that, even if they’re independent in name, can often function as extensions of Presidential policymaking. The F.T.C. is famously an independent agency, and yet the F.T.C. under our current Administration is pursuing a pretty aggressive policy that in a lot of ways seems to track things that the President wanted with regards to competition policy.
The most striking part of that Times article was the line where the Trump ally they’re interviewing says that it’s difficult to reconcile the structure of the Federal Reserve with the Constitution. And just in terms of tools the President has: one of the ways in which independent agencies have traditionally been kept further from direct Presidential control than the executive agencies is through this circular out of the Office of Management and Budget that requires that certain agency regulatory actions go through, essentially, White House review. It provides the architecture for direct White House review of formal agency regulatory activities. But, traditionally, the independent agencies have been exempt from having to participate in that process. So that would be one way that the President could just immediately try to exercise greater power over the independent agencies.
Another issue that’s come up is firing people who have civil-service protections. Can you explain a little bit about how the system works now and what it would mean to try and fire them?
The federal workforce is huge. There are about two million people who work for the federal government. Most people who work for the federal government are in what’s called the classified service or the civil service. And when you’re employed in that category, you can’t be fired except for particular reasons. If you’re not good at your job, you can be fired for that. You can be fired for incompetence, but you can’t just be removed from your position because the President has changed and wants to get rid of you.
However, there’s a whole other set of jobs in the government, a much smaller number, that the President can remove at will, and those include some positions at the very highest levels of government––Senate-confirmed positions like the Secretary of the Interior. And those positions include a number of high-up policymaking positions. And the thought is something like, the President should be able to appoint the people who are making those kinds of decisions. And there are two important data points that then set up what Trump might be trying to do. The first is that, while most of the Senate-confirmed positions are removable at will, the Supreme Court signed off on the creation by Congress of some Senate-confirmed positions that are not fireable at will, like, for example, the chair of the Federal Reserve.
There was this 1935 case, Humphrey’s Executor, that was about the Federal Trade Commission. The Federal Trade Commissioners were created by Congress as not fireable at will. President Franklin Roosevelt tried to fire one of them anyway, and, in this case, the Supreme Court said, no, the Federal Trade Commissioners, even though they exercise a ton of authority, it’s O.K. for Congress to make them non-removable. In a very recent case about the Consumer Financial Protection Bureau, the Supreme Court characterized the meaning of Humphrey’s Executor, and they said the reason why the commissioners in Humphrey’s Executor could be made unremovable is because it was a multiheaded agency.
So the current rule is that if Congress creates an agency that has multiple people at its head, those multiple commissioners can be made un-fireable by the President. So, O.K., that’s an important data point because one thing that Trump might try to do is he might just try to fire the head of one of these agencies and hope that the Supreme Court gets him a different answer. And that’s not a crazy hope.
Donald Trump fired the head of the C.F.P.B. when he came into office, and Congress had made that position un-fireable for a situation like this. That firing got challenged all the way up to the Supreme Court, and the Supreme Court said that the firing was O.K. So Trump could just try to do the same thing by firing the head of a multi-member agency and just gamble, and hope that the Court validates his firing. And given that the rationale the Court is currently relying on for why multi-member agencies can be made unremovable has no basis in the Constitution, there’s a gambler’s chance that the Supreme Court might decide that the new rule it made up doesn’t really hold water, either, and make them fireable at will.
This is about people higher up. What about firing people lower in the bureaucracy?
Back at the end of the nineteenth century when Congress was first doing civil-service reform, they knew that they didn’t have the votes to just make everybody in the government get civil-service tenure. Even though they wanted to bring in and attract qualified personnel, they knew they couldn’t do it because the parties relied on being able to fire everybody in the government and hire their own party hacks as a way of keeping party unity. So it’s only at the end of the nineteenth century, really, after the assassination of James Garfield, that Congress gets serious about civil-service reform. And the one cool trick that they come up with is they create a system that allows the President to reclassify offices from the general patronage system into protected civil service.
Presidents would do this on their way out of office in order to entrench the partisan hacks that they had appointed. So then you’d get one generation of partisan hacks, but eventually those partisan hacks would be done, and the office would’ve been reclassified as a civil-service office. And so the next person to fill it would be qualified by civil-service standards. And although it sounds kind of crazy, like you wouldn’t expect it to work, that system was unbelievably successful. And, as a result, the vast majority of those offices in the federal government got moved from the patronage system over to the civil-service classification.
But, technically, the President still has the power to reclassify offices either by saying that they were exempt for some really particular reason, or—and this is where Trump comes in—they discovered in the 1978 law a provision that said the President could exempt policymaking from the competitive civil service. And so, at the end of his time in office, Trump threatened to create a new schedule of offices that were not subject to civil service called Schedule F, and it was going to include everybody in the government at any level who had a policymaking responsibility.
Which I imagine could be defined broadly.
Exactly right. What Trump did at the end of his term is he actually sent a memo to agencies and said, hey, can you just tell me who in your agency has got a policymaking responsibility? And most of the agencies totally flipped out. They were like, well, we don’t want to do this, and also we have no idea. It’s going to be a huge effort to figure out who’s got a policymaking responsibility. And, if you think about it, depending on what you understand a policymaking responsibility to be, that could include people all the way down to line clerks who are making day-to-day decisions about what kinds of applications to process and whether certain applications meet processing standards all the way up, of course, to people just below the Presidential-appointed secretaries.
O.K., so if Trump were to get in power again and put all these things into action, I imagine pretty much all of them would be challenged legally. And Trump during his first term suffered a bunch of legal defeats because the way he went about things was haphazard, and often without a sound legal basis. My very amateur read would be that this type of approach to the federal bureaucracy would not be the type of attack on the administrative state that people like John Roberts or Brett Kavanaugh would be sympathetic to. But are you more concerned about it than that?
Yes, I am much more concerned. I think this is categorically different than what Trump was trying to do in his first term for exactly the reasons that you said. The Trump Administration’s loss rate on administrative-law matters in his first term was historically anomalous. It was nearly eighty per cent, which is truly unprecedented. And the reason they lost in court so much was because they failed to follow ordinary administrative legal procedures. They may have done that deliberately because they thought those procedures were unnecessary. They may have done it to make a point because they wanted to show that they were getting things done quickly and they were contemptuous of the administrative procedures. But, in any case, there was judiciary pushback, and the judiciary’s pushback was relatively uniform. I know that there’s been a lot of coverage of outlier Trump judges in the lower courts who’ve done things that are truly lawless. But the shocking thing in hindsight is that during the first Trump term, many cases that went before even very conservative judges were decided according to very traditional principles of then extant law that led to the Administration losing.
So the reason why the Supreme Court kept striking down stuff in the first term was because often it was incredibly lawless and with disregard for existing law. What’s currently being proposed is very different. It makes use of existing, well-established Presidential powers to do something that is utterly revolutionary. So no one disputes that the President has the authority to reclassify people within the government. I think it would be a terrible idea. And, to be clear, many very conservative people, both today and throughout history, agree. The reason civil-service reform has been so successful is because it advances broadly shared governance goals. Even Herbert Hoover, who was an anti-New Dealer, ends up endorsing a lot of the structure of the modern deep administrative state through the Hoover Commissions. So it would be a very, very bad idea, but that doesn’t make it illegal.
And, in fact, the Supreme Court under John Roberts has endorsed doctrines that validate the President’s power to do things like this. There is this case called Arthrex, which was a case from a couple terms ago about the structure of the Patent Trial and Appeal Board. The crucial thing about this case is that the Supreme Court did something that I think is completely unprecedented, which is that it decided that the structure of this agency was not responsive enough to Presidential control. And so it reached inside the agency and literally reorganized the reporting lines inside the agency in order to make it more directly controlled by the President. And it said that this was required by the Constitution. The Court’s actions were so unprecedented that Clarence Thomas dissented. So the key point here is that the Roberts Court, in other cases, has been endorsing a theory of Presidential power that is so extreme it apparently lost Clarence Thomas. But that does seem to dovetail with some of what the Trump Administration is threatening.
So if Trump were to come into power and he were to do the sorts of things that he’s threatening to do in the article—in particular, reclassify a whole bunch of federal-civil servants—I think you’re totally right that there would be a major legal challenge to it. I strongly suspect and hope that many of the traditional constituencies of the Republican Party, like big business, would raise a major hue and cry. So I would hope that it would prove to be politically unfeasible. Nevertheless, I think the legal challenge to it would be a much heavier lift than the legal challenges to some of the other extreme things the Trump Administration did in its first term.
What about some of the other things we have discussed, rather than just firing people lower down?
If I was ranking them in order of concern about the most legally problematic, I think the first would be violating the Anti-Impoundment Act. I think that authority is pretty well established. It’s a law that was passed after the Nixon years that made it a crime for the President to not spend money that had been duly obligated for congressional programs. So the President doesn’t have the authority not to spend money that Congress has appropriately appropriated. And that was one of the things that was mentioned in the article. So that one, I think, the Court would strike down. If Trump tried to do that, that’s super problematic. Congress controls the purse strings.
Firing the head of a multiheaded agency who enjoys for-cause removal protection—that’s in that intermediate category. I think that, under existing doctrine, the President clearly doesn’t have the authority to do that, but I would not want to have to bet a lot of money that the Court would uphold that. And it’s not difficult for me to imagine scenarios in which the Court might say, actually, this firing is O.K.
And then the category that I am least confident in the courts pushing back against the Trump Administration, that’s the reclassifying. I’m sure if we thought about it more, we could come up with an argument, but, at least at first blush, it strikes me as well within the President’s authority under the statute, and very different from the other kinds of extreme lawless things that the Trump Administration did. I just want to reiterate, I think it would be a terrible idea, and many, many conservative legal intellectuals, both now and through history, agree with that. But, as a legal matter, I don’t see where the obvious flaw is. ♦
