Overseer or “The Decider”? The American President in Administrative Law

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Peter Strauss argues that all will agree that the Constitution establishes a single chief executive officer, the President, to lead Congress's administration.

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Peter Strauss argues that all will agree that the Constitution establishes a single chief executive officer, the President, to lead Congress’s administration.

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The speaker, a former general counsel for the U.S. Nuclear Regulatory Commission, discusses the complexities of executive power in relation to independent regulatory commissions and the president. He reflects on his experiences in the 1970s when addressing issues of executive privilege and the independence of regulatory agencies, particularly in light of a legislative proposal he received that excluded independent commissions from the benefits of executive privilege.

He cites the historical context of executive authority from the time of the Civil War and explores how different Supreme Court decisions have shaped the relationship between the president and independent agencies, often highlighting a tension between the president's authority and the autonomy of agency officials. He argues that the Constitution provides significant discretion to Congress in establishing government agencies and specifies the parameters of agency authority.

The speaker also critiques recent conservative movements, such as Project 2025, which aim to increase presidential power over federal agencies, and raises concerns about the potential for autocratic governance in the U.S. as authority shifts toward presidential control at the expense of checks and balances. He uses historical examples, such as Andrew Jackson's presidency, to illustrate how executive overreach can lead to significant political repercussions.

Throughout his talk, he emphasizes the importance of robust judicial review and the necessity of maintaining the integrity of the regulatory process to ensure that agency decisions remain accountable and that the public interest is served. He concludes by cautioning against the erosion of democratic norms and the role of law in preventing presidential overreach.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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Let me, let me get there.

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In, in, in a way, just by describing how I came

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to this issue, I was the first general counsel

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of the United States Nuclear Regulatory Commission,

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which is an independent regulatory commission.

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And what that has meant in the past, a, is

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that the five commissioners, each

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of them serving a five year term, one a year,

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operate with a degree of independence from the presidency.

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And what that degree

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of independence from the presidency has been is,

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is somewhat, unclear.

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Uh, at one point, we were sent from the Office

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of Management and Budget a proposed legislation

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that would, have domesticated the use

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of executive privilege, when the president could claim

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that he was not re required to respond to some inquiry

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that he had received from the Congress.

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Uh, and it was limited, as we saw it, to

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ordinary departments of government for those

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that are in a direct relationship with the president, headed

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by, cabinet secretaries.

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Uh, and what we got back

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when we sent, we, we sent a, a, a note back saying, well,

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this seemed fine to us,

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except it omitted the independent regulatory commissions.

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And at the NRC we had in our records all kinds

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of atomic bomb secrets

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and other things that surely

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the White House would not wish us to,

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reveal if we were asked for them.

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We should have the benefit of the executive privilege.

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Uh, and we got back a letter from the Office

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of Legal Counsel saying, too bad, so sad.

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You can't have the executive privilege.

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You are an independent regulatory commission.

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Uh, and that was a very, very strange signal, I thought.

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Uh, and it animated, the whole

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of my scholarship over the years.

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That was back in 75.

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Uh, it animated the whole

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of my scholarship over the years about this question

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of the relationship between the president,

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and the agencies of government that do the work

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of government, like the Nuclear Regulatory Commission,

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or for that matter, the Environmental Protection

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Administration, the Federal Drug Administration,

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and other elements of our government that are

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unquestionably, within cabinet departments.

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And so in a much closer relationship with the President.

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Um, so what are the na what's the nature

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of those relationships?

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Uh, and, this has

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become particularly central, at the moment,

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in relation to the protection

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that my commissioners had, which was a statute saying

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that they could only be removed from office for cause,

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that the president couldn't just send them home

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for any reason that he wanted.

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Um, but it had to be calls.

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Um, this was an issue that came

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before our Supreme Court, in the 1930s, just

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after Franklin Roosevelt had become president

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of the United States, when, he sent a note

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to a commissioner of the Federal Trade Commission, one

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of the independent regulatory commissions at the time,

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saying, look, our politics are different than yours.

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My politics are different than yours. Please go home.

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I'm appointing someone to take your seat.

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Uh, and in fact, he did.

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And the Senate confirmed that appointment.

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Um, but, Humphrey's Widow Humphrey had had died

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by that time,

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and his widow sued saying, well,

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he was improperly removed from office,

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because there was no cause suggested.

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It was just different politics.

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Uh, and so I should have his back pay.

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And the Supreme Court agreed at the time it agreed,

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it seemed to be saying, well, this body is completely

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outside the Executive Branch,

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and it doesn't have any executive functions.

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It was, in fact, a footnote, recognizing

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that it did have some executive functions,

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but trivial ones in the view of the court at the time.

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Um, this reasoning struck me, continues to strike me

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as completely imperfect.

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Um, our Constitution says

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that the executive power shall be vested in the President

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of the United States.

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Uh, and that's it.

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And clear unquestionably, the Federal Trade Commission

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engages in things that could only be thought of as exercises

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of executive power.

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They, they prosecute people,

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for antitrust violations and other things.

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Of course, they have to be parts of the Executive branch.

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And our Supreme Court has subsequently said, yes,

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they are parts of the Executive branch,

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but then what about this protection that they have,

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against removal except for cause?

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Uh, after the court had made clear

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that organizations like the Federal Trade Commission

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were a part of the executive branch that is subject at least

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to the oversight of the President, it has begun

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to suggest that, well, maybe this kind of restriction

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is an inappropriate restriction,

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is an unconstitutional restriction.

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Maybe the President has to be in a position to be able

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to remove any person in federal office

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who exercises, discretion

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For any reason he chooses to,

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and, as a matter of constitutional law.

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Uh, and there is a conservative

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framework now that takes this position really very strongly.

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Um, and that's mostly what I mean

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to describe today.

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The impetus for this removal issue

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came from a Civil War statute in which

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our Congress,

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provided, worrying about Andrew Johnson,

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who had become the President,

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and what he would do to, the policies in place

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that no cabinet secretary could be removed from office

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without the consent of the Senate.

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Our Constitution provides quite explicitly

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that presidential appointments to positions like cabinet

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positions have to be made with the consent of the Senate.

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Now, this is one of the strange things about American public

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law that people living in parliamentary

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democracies may not understand.

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There is a separation between our executive

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and our legislature

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to a much greater degree than would be experienced in West

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Western parliamentary systems.

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And one of those elements is that

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the Senate must approve anyone that the President wishes

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to put in an important office.

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Um, it's not just the Prime Minister saying,

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here's my cabinet.

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Uh, and that, as you may know from the newspapers,

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often results in rather contentious extended hearings in

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which nominees are, are thoroughly investigated,

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and sometimes refused.

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And in the course of those investigations, people are asked,

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well, how are you going to administer your responsibilities?

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Uh, and then make promises?

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Uh, and those promises in effect create a,

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a tension between the White House and the Cabinet Secretary.

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'cause the Cabinet Secretary knows

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that he's not only looking to the White House,

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he is also looking to the Congress.

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There are many things for which he

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has to look to the Congress.

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And in this instance, he's made some promises to the Senate,

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and maybe those promises will be enforced

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by nasty consequences.

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He won't get the money that he needs to get

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to run his business.

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Uh, he may get called to the Senate for oversight hearings

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that would be quite unpleasant if he's gone back on the

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promises that he made.

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Um, so there is this divided loyalty, which in a way,

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I think is, would be quite strange in

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a parliamentary system,

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but which in effect creates a,

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a double oversight relationship,

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not only from the President, but also from the Congress.

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And for that matter, there's the oversight relationship

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that exists with the courts when they review the actions

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that the secretary may wish to take.

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So to get back to the Civil War statute,

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it providing that you couldn't be removed from office except

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with the Senate's consent, that stat, that

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approach was also taken, in relationship

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to quite minor federal officials, postmasters of

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city post offices, postmaster of Portland,

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Oregon, for example.

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And President Woodrow Wilson wanted to remove the postmaster

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of Portland, Oregon.

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He tried to do that. Uh, he didn't get the Senate's consent.

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Uh, and this came to the Supreme Court in one

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of the most extensively argued cases.

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It has heard year, it, it had to be argued twice

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for hours at a time.

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And the Supreme Court in an opinion written

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by William Howard Taft, who had been president

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of the United States, and so had his own attitudes,

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about presidential power,

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said in really quite broad language,

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and I would say in cautious language,

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because he didn't tie it to this question of senatorial

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approval for the removal, said, yes,

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the President can remove this person.

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It will, the president has to be able to remove,

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a person like this at Will who engages in,

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executive authority.

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Well, really what he was saying is the Senate can claim no

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participation in this kind of removal.

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Uh, and, that is the issue

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that was really present in Humphreys executor in the,

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the Roosevelt case that I've described.

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Um, because, there was no provision for congressional,

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participation in removal.

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It was just, you serve unless there's cause to remove you.

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And you may recognize, that that kind

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of provision is rather common in all legal

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systems for the civil service.

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If you're a civil servant, you can't be removed

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unless there's some disciplinary reason to remove you.

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Um, the American Civil Service is, is quite a bit thicker

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than you would find in any parliamentary system.

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There are thousands of political appointees,

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who sit above the American Civil Service,

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not just a handful as I think

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you would find in Great Britain.

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Uh, and they don't have this kind of removal protection

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unless Congress has specifically

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provided for it as it has done in the case

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of the nuclear regulatory emissions and,

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and most of the other independent regulatory commissions.

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Well, but now, is this appropriate,

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and is the Civil Service statute appropriate?

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Uh, the court early, confirm the appropriation,

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the appropriateness of a civil service statute.

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Um, but it did so outside of the context

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of this kind of dispute.

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Uh, and, that's in a way the subject

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that I'm talking to you about today.

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Um, because our Supreme Court has been giving broader

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and broader hints, that they are going

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to say if the issue is presented to them, that anyone

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who exercises significant

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dis decisional authority within the government must

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constitutionally be subject to removal by the President

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for any reason that the President chooses.

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Uh, and that's a proposition

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that underlies much contemporary

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conservative thinking about the relationship

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between the president and administrative agencies,

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and is embodied in a program,

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created by a, a, a non-governmental organization

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of some prominence in Washington, the Heritage Foundation

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called Project 2,500.

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And the idea of Project 2,500 is

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that when President Trump gets reelected,

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as it seems not impossible will happen,

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that he can send home everyone in the government

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who exercises significant decisional responsibility,

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and they have, I think the number was 10,000 conservative

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loyalists lined up who are ready to take their place.

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So, in effect, what we are looking at,

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at the PO is the possibility of substituting

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or substituting what used

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to be the system in the United States, a spoil system

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where the President gets to constitute the whole

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of responsible government, for the system that we

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think we have had.

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And when the civil service statute was enacted,

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some people in the civil service had really significant

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decisional responsibilities.

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Uh, for example, the person who was head

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of the National Forest Service, was a civil servant,

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could have been removed by the president only

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for cause within the framework of the civil service laws,

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which made that decision is IR removable for cause.

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Um, a matter not for the president to decide,

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but for an another independent body,

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the Civil Service Board,

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and now the Merit Systems Protection Board, to decide,

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well, is all of this up for grabs?

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And for that matter, is the president in a position to tell

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agencies how they must decide issues that are given to them?

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These are the questions that I mean

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to be exploring with you today.

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Um, we have seen in the United States a steadily expanding

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presidential claim of authority to control not only tenure,

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but also ordinary acts of government.

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And this has been happening at least since, the,

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presidency of Ronald Reagan.

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And it reached a piece, a, a peak,

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with President Trump in his first term.

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Uh, and, he is promised that he's gone back there.

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Um, one of the last things he did

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before leaving office was

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to promulgate something called Schedule F,

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which would in effect, have taken everyone

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in the federal government

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with significant decisional authority

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and made him a political appointee, whether

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or not he was at the time, protected

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by the civil servants whom the president

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could remove at will.

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Uh, and,

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or for that matter, this cabinet secretary

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could remove at will.

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Well, from a certain perspective, my perspective,

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this threatens a, a transition

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of American government from democracy towards autocracy.

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It puts an enormous amount

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of authority in the American President,

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would put an enormous amount of authority

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in the American President

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and the amount of authority not previously

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enjoyed by any of them.

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Um, not a few years ago, Stephen Levitsky

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and Daniel Zla, of Harvard University,

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wrote a book about the general world phenomenon

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of tendency from democracy towards autocracy,

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called How Democracies Die,

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all about Democratic backsliding,

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and, how elected elected leaders

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have been gradually subverting the democratic process

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to obtain autocracy.

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Um, that actually has happened

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before in the world in the 1930s in Germany.

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Uh, and it's, is this happening to us now?

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Um, it's a real fear for many Americans, including me,

17:15.785 --> 17:18.875
fearing the reelection of President Trump,

17:18.875 --> 17:21.675
and the reappearance of something like Schedule F

17:22.455 --> 17:26.925
and the assertion that, the President,

17:27.425 --> 17:29.525
is in charge of every decision,

17:29.975 --> 17:31.365
every significant decision

17:32.075 --> 17:35.445
that the federal government is authorized,

17:35.745 --> 17:37.045
is authorized to make.

17:37.745 --> 17:39.525
So where do we go from here?

17:39.525 --> 17:42.845
What does our constitution actually say about this?

17:45.015 --> 17:48.755
The conservative voices that are behind Project

17:49.265 --> 17:51.605
to 2025,

17:51.625 --> 17:55.165
and other matters have for a while been arguing that yes,

17:55.185 --> 17:58.005
the President's power is this extensive.

17:59.115 --> 18:04.055
And in making that argument, they rely on two elements

18:04.055 --> 18:05.135
of our constitution.

18:05.195 --> 18:06.815
Now, I'm going to get into our

18:07.335 --> 18:09.135
constitution's text, if you like.

18:09.875 --> 18:14.335
Um, one is the first line of Article two of,

18:14.515 --> 18:15.655
of the Constitution.

18:16.235 --> 18:19.975
Um, the executive power shall be vested in a President

18:19.975 --> 18:21.415
of the United States of America.

18:22.545 --> 18:27.485
That's it, just him. Um, with, then in

18:28.385 --> 18:32.925
the third section, of, of the consti of

18:32.925 --> 18:37.005
that sec of that article of the Constitution, it,

18:37.185 --> 18:39.485
it says that he shall take care

18:39.485 --> 18:41.565
that the laws be faithfully executed.

18:43.305 --> 18:45.725
And from those two bits of text,

18:46.685 --> 18:49.345
the conservatives make their argument.

18:50.045 --> 18:51.265
Uh, and it's an argument

18:51.265 --> 18:54.145
that has had not inconsiderable scholarly support,

18:54.845 --> 18:55.945
from some others.

18:56.525 --> 18:58.225
Uh, but you'll have figured out already,

18:58.325 --> 19:00.065
it has not had support from me.

19:01.015 --> 19:02.195
Uh, and,

19:04.225 --> 19:08.455
these structural provisions of our constitution, the whole

19:08.455 --> 19:11.535
of it, come from 1787

19:12.455 --> 19:13.985
when we had 13 states

19:14.045 --> 19:15.145
and a few million people

19:15.245 --> 19:18.225
who lived in circumstances in which communication

19:18.245 --> 19:20.425
and transportation were really very difficult.

19:21.045 --> 19:23.305
It took weeks to get from the nation's capital

19:23.405 --> 19:27.265
to some par some parts of the United States at a time,

19:27.265 --> 19:29.025
by horseback or stage coach.

19:30.475 --> 19:32.375
And the males were very, very slow.

19:32.375 --> 19:33.975
Nothing like email today.

19:34.835 --> 19:39.095
Um, and, and of course today we have a nation of 300 million

19:39.155 --> 19:43.375
or more, and a lot more knowledge about how safety

19:43.435 --> 19:44.655
and environmental issues

19:44.655 --> 19:46.895
that government must, must take care of.

19:47.595 --> 19:51.545
Uh, and yet it's this same language that

19:52.295 --> 19:56.385
sits at the heart of the structure of American government.

19:57.205 --> 20:00.275
Um, one of the things

20:00.495 --> 20:03.155
to notice about the Constitution is

20:03.465 --> 20:06.555
that it doesn't define the government,

20:08.075 --> 20:12.415
and that in itself is a product

20:12.715 --> 20:15.095
of the process of producing the Constitution.

20:16.445 --> 20:20.955
When it was first drafted, it was drafted with provisions

20:20.955 --> 20:23.115
that did name governmental departments

20:25.465 --> 20:26.745
forming a kind of cabinet

20:26.895 --> 20:29.225
that would be familiar in the parliamentary system.

20:30.575 --> 20:34.795
Um, and there was a sentence in one of the drafts saying,

20:35.195 --> 20:37.755
whatever the cabinet secretaries think, the President can

20:38.565 --> 20:39.695
make up his own mind,

20:39.755 --> 20:41.575
and it's his right to decide the issues.

20:43.425 --> 20:48.115
Um, in the debates, people made clear

20:48.145 --> 20:50.515
that they were pretty uncomfortable with this idea

20:50.515 --> 20:53.995
of a cabinet with quasi decisional authority

20:54.185 --> 20:55.555
independent of the President.

20:56.635 --> 20:59.455
And so when that came back from

21:00.935 --> 21:04.595
the final stages of drafting, rather than make

21:04.595 --> 21:08.475
that provision, there was no provision

21:09.045 --> 21:12.315
about the Constitution of government, except for

21:13.065 --> 21:14.555
what is called the necessary

21:14.575 --> 21:17.475
and proper clause, of,

21:17.475 --> 21:20.275
the Congressional Powers Article one of the Constitution,

21:20.815 --> 21:24.395
which says that Congress has the power

21:24.455 --> 21:27.315
to make all laws which shall be necessary

21:27.415 --> 21:29.955
and proper for carrying into execution,

21:29.955 --> 21:31.155
the foregoing powers.

21:31.425 --> 21:33.675
That is, those powers that Congress was given

21:34.495 --> 21:36.355
and all other powers vested

21:36.355 --> 21:39.355
by this constitution in the government of the United States,

21:40.175 --> 21:42.675
or in any department or officer thereof.

21:43.395 --> 21:47.765
Well, that last bit of language, is maybe due

21:47.765 --> 21:51.565
to the heat of the summer of 1787,

21:51.865 --> 21:55.965
is an inaccurate reflection of the design that was created

21:55.965 --> 21:58.965
because there aren't any other powers vested

21:58.965 --> 22:01.445
by the Constitution in the government of the United States.

22:01.905 --> 22:05.845
The government of the United States is not formed, by

22:06.585 --> 22:10.945
the Constitution that's left to Congress to do, it's left

22:10.965 --> 22:13.025
to Congress to create the departments

22:13.535 --> 22:15.065
that this language refers to.

22:15.725 --> 22:18.345
And it's left to Congress to create the officers

22:18.575 --> 22:22.785
that exercise responsibility, under the Constitution.

22:23.365 --> 22:24.865
And from the very beginning,

22:26.335 --> 22:28.375
Congress has created some officers,

22:29.145 --> 22:32.795
notably in the Department of Treasury who served for terms

22:33.465 --> 22:38.455
that it said were fixed, that were not subject

22:38.595 --> 22:43.165
to the president's plenary authority from the beginning.

22:43.395 --> 22:47.345
This has been there. And now, how do, how do we reconcile

22:47.345 --> 22:49.905
that with the President?

22:50.285 --> 22:54.025
The executive power shall be vested in a President

22:54.025 --> 22:55.385
of the United States of America.

22:56.235 --> 22:58.975
Uh, from my perspective,

23:00.035 --> 23:02.695
the important provisions are provisions

23:02.695 --> 23:05.855
that the conservatives simply do not mention,

23:07.255 --> 23:10.445
which are the provisions of Section two of the Constitution,

23:11.875 --> 23:14.435
creating the powers of the presidency.

23:15.555 --> 23:18.365
It's the only section that talks about presidential power.

23:19.585 --> 23:24.165
Uh, one aspect of it I've already mentioned is, is power

23:24.225 --> 23:26.965
to nominate officers of the government subject,

23:26.965 --> 23:31.365
however, to senatorial consent for the major ones,

23:33.075 --> 23:37.035
but it also says the President shall be commander in chief

23:37.035 --> 23:39.035
of the Army and Navy of the United States,

23:39.135 --> 23:41.195
and of the milish of the several states

23:43.475 --> 23:46.045
when called into the actual service of the United States.

23:46.465 --> 23:49.325
That's pretty clear. Uh, if you're a military officer

23:49.345 --> 23:52.845
and the president issues a command, that's a command,

23:52.985 --> 23:57.045
and you are obliged to honor it, well, maybe if it's not

23:57.575 --> 24:00.485
consistent with international law, you might take the risk

24:00.485 --> 24:01.565
of dishonoring it.

24:02.425 --> 24:05.775
But he's commander, he's your commander,

24:06.155 --> 24:09.135
and on ordinary circumstances you have to obey.

24:10.065 --> 24:11.885
The next clause is

24:13.125 --> 24:15.265
he may require the opinion in writing

24:15.725 --> 24:17.945
of the principal officer in each

24:18.005 --> 24:22.265
of the executive departments upon any subject relating

24:22.265 --> 24:24.585
to the duties of their respective offices.

24:25.775 --> 24:26.915
Notice what that does.

24:27.575 --> 24:29.835
It assumes that there will be departments,

24:30.615 --> 24:32.555
and more than that, it says

24:32.555 --> 24:34.475
that those departments will be given duties,

24:35.645 --> 24:38.145
and that those duties will be the duties

24:38.525 --> 24:42.685
of the executive officers that Congress has created.

24:44.535 --> 24:49.005
So can Congress create those duties

24:49.865 --> 24:53.685
in a framework which permits them to say,

24:53.685 --> 24:55.325
and you can't remove this person from

24:55.325 --> 24:56.525
office except for cause?

24:58.845 --> 25:03.085
Why not Congress gets to set up the government?

25:04.685 --> 25:08.105
And does that mean that the President can get to decide any

25:08.105 --> 25:12.585
of the issues that are put in the hands of those officers

25:12.645 --> 25:14.185
of the executive department?

25:15.445 --> 25:18.505
No. What it says he can do is ask them

25:18.525 --> 25:21.825
for their opinion in writing about how they are going

25:21.825 --> 25:23.465
to exercise their duties.

25:25.055 --> 25:27.625
This pretty clearly sets up an oversight relationship,

25:28.505 --> 25:32.775
a relationship for bargaining between the head

25:32.775 --> 25:35.815
of the department, and the president.

25:36.785 --> 25:38.765
And political loyalties among other things,

25:38.815 --> 25:42.565
might lead the executive officer to decide to do

25:42.565 --> 25:43.565
what the President wants.

25:44.185 --> 25:46.805
And there's no question that the president can communicate

25:46.805 --> 25:48.605
what he wants to the executive officer,

25:49.805 --> 25:53.545
but is he illegally obliged to do what the President wants?

25:54.995 --> 25:58.245
That doesn't seem quite consistent with one,

25:58.245 --> 26:01.085
the disappearance from the draft of the sentence that said,

26:01.105 --> 26:02.605
the President can decide.

26:03.645 --> 26:08.415
And two, from what's said here about, well,

26:09.245 --> 26:11.705
he can get an opinion about wr, in writing about

26:11.765 --> 26:14.465
how they are going to exercise their duties.

26:17.695 --> 26:21.315
The other thing to see in this, I suppose, the other

26:22.205 --> 26:25.435
pitch in the conservative argument is

26:25.945 --> 26:28.915
this faithful execution clause on which they rely,

26:29.775 --> 26:31.545
doesn't say that the President shall

26:31.545 --> 26:33.025
faithfully execute the laws.

26:35.075 --> 26:38.775
It says that the President shall take care

26:38.845 --> 26:41.855
that the laws be faithfully executed.

26:43.405 --> 26:45.875
There it is again. Somebody else is going

26:45.875 --> 26:46.995
to be executing the laws.

26:48.085 --> 26:51.905
And the president's obligation is to see to it that

26:51.935 --> 26:53.465
that is faithfully done.

26:55.755 --> 27:00.095
Um, and Early Attorney General looking at this language,

27:00.975 --> 27:05.955
opined in a way that I find, quite persuasive,

27:06.735 --> 27:09.075
that it could never have been the intention

27:09.255 --> 27:10.475
of the Constitution

27:11.105 --> 27:14.115
that he should in person execute the laws himself.

27:15.055 --> 27:16.675
Uh, well, were the President

27:16.695 --> 27:19.275
to perform a statutory duty assigned to another.

27:19.335 --> 27:22.475
He would not only be take, he would not only

27:23.695 --> 27:24.875
be not taking care

27:24.875 --> 27:27.435
that the law is worth faithfully executed,

27:27.895 --> 27:29.955
but he would be violating them himself.

27:32.885 --> 27:36.745
For me, this proposition is pretty clear.

27:38.395 --> 27:42.005
Um, faithful execution is a

27:42.075 --> 27:43.725
duty, not a power.

27:47.175 --> 27:50.965
Again, in, in creating our government, congresses created

27:51.925 --> 27:55.335
a multitude of forms providing from the beginning

27:56.455 --> 27:58.235
for fixed terms for some officials,

27:59.335 --> 28:03.485
and providing for a civil service, which is protected

28:04.075 --> 28:06.005
from removal except for cause.

28:07.555 --> 28:09.695
We have a very thick political layer,

28:09.765 --> 28:11.935
much thicker than yours in England

28:12.035 --> 28:14.215
or other parliamentary democracies.

28:14.595 --> 28:18.075
But below that layer are these civil servants,

28:18.135 --> 28:20.555
and Project 2025.

28:21.455 --> 28:26.135
Uh, and for that matter, president Trump's, express

28:27.805 --> 28:31.485
position, which he tried to put into effect just

28:31.485 --> 28:35.405
before he left office, in, 2020,

28:35.585 --> 28:38.725
but in a executive order that wasn't gonna take effect

28:38.855 --> 28:40.485
until in fact, he left office.

28:40.625 --> 28:45.405
And President Biden promptly, revoked it,

28:46.665 --> 28:50.835
that, he had that authority over all civil servants.

28:52.945 --> 28:57.125
There are surely limits on

28:58.045 --> 29:01.445
Congress' capacity to tie the President's hands,

29:03.215 --> 29:07.995
but the way in which those limits exist,

29:08.335 --> 29:12.955
has not been as well, attended to,

29:13.215 --> 29:14.395
as it ought to have been.

29:15.155 --> 29:19.415
Uh, and, and here I wanna go to another,

29:20.065 --> 29:22.175
early matter in,

29:24.415 --> 29:28.595
in presidential, in in constitutional decision,

29:28.595 --> 29:32.795
history, as it were, the famous decision

29:33.415 --> 29:36.555
of, the United States Supreme Court,

29:36.855 --> 29:41.025
in Marbury versus Madison, which most people know

29:41.425 --> 29:43.085
as establishing the proposition

29:43.085 --> 29:46.525
that the Supreme Court can find statutes enacted

29:46.525 --> 29:48.525
by the Congress to be unconstitutional.

29:50.425 --> 29:54.775
But it also discussed this question

29:55.355 --> 29:57.455
of presidential authority.

29:59.305 --> 30:03.855
Uh, and in a striking paragraph,

30:03.855 --> 30:05.935
chief Justice Marshall denied

30:05.935 --> 30:10.775
that the courts would have any role in a context in which

30:11.915 --> 30:14.365
executive discretion was being exercised

30:16.165 --> 30:17.695
that could never be made in court.

30:18.945 --> 30:22.275
It's impossible for this kind of political question

30:22.335 --> 30:24.075
to be decided by the courts

30:25.555 --> 30:27.465
where there's executive discretion.

30:29.175 --> 30:31.385
Well, wait a minute. Anyone

30:31.445 --> 30:34.545
who looks at American case law sees case

30:34.545 --> 30:38.025
after case in which domestic agencies are given

30:38.535 --> 30:42.395
what can only be described as discretion to,

30:42.985 --> 30:44.075
make certain decisions.

30:44.075 --> 30:46.555
The Environmental Protection Agency gets

30:46.575 --> 30:50.035
to make decisions about how much carbon dioxide can be, or,

30:50.095 --> 30:53.395
or, sulfur dioxide can be put into air by, by

30:53.925 --> 30:55.195
coal-fired utilities.

30:55.815 --> 30:57.555
Um, the National Highway Traffic

30:57.575 --> 31:01.915
and Safety Administration makes decisions about what kinds

31:01.915 --> 31:03.955
of safety appliances have to be in cars.

31:04.655 --> 31:07.915
Uh, my commission, the Nuclear Regulatory Commission, made

31:08.475 --> 31:11.675
decision after decision about what was required for

31:12.615 --> 31:13.915
the safety of those plants.

31:14.995 --> 31:18.495
And those exercises are exercises of discretion,

31:19.555 --> 31:24.085
but they are also exercises of discretion that are subject

31:24.185 --> 31:28.875
to review by the courts, by over oversight by the courts.

31:29.005 --> 31:32.265
Again and again, well wait a minute.

31:34.255 --> 31:36.785
Nothing could be clearer than the exercise

31:36.785 --> 31:40.425
of executive discretion can never be made The subject,

31:41.025 --> 31:43.435
subject of judicial review of, of the courts.

31:43.435 --> 31:45.035
The courts can have nothing to do with it,

31:46.425 --> 31:48.925
but the courts do have to do with it every day.

31:51.765 --> 31:56.735
When I taught this subject administrative law,

31:56.875 --> 32:00.855
the, one of the famous things I think, I,

32:00.925 --> 32:04.875
what things I impressed on my students was

32:05.545 --> 32:09.715
that one needed to see that the word discretion,

32:10.175 --> 32:12.035
had some thoughts around it.

32:12.995 --> 32:15.535
Uh, there was on the one hand discretion

32:16.955 --> 32:21.025
and on the other hand, discretion when

32:22.635 --> 32:24.805
matters of foreign policy are involved

32:24.905 --> 32:26.445
or matters of military policy

32:26.585 --> 32:28.125
or some other things we might imagine.

32:29.165 --> 32:33.565
Um, then the Cabinet Secretary, the Secretary of State,

32:33.585 --> 32:37.955
the Secretary of Defense, whomever, is in effect acting

32:38.175 --> 32:40.045
as the president's mouthpiece.

32:41.255 --> 32:42.595
And that was the situation

32:42.595 --> 32:44.915
that Chief Justice Marshall said he was addressing.

32:46.435 --> 32:50.415
And those issues are issues of discretion,

32:51.245 --> 32:53.185
and they can never be made in courts.

32:54.045 --> 32:56.275
Those political questions are not reviewable,

32:57.875 --> 33:00.535
but the kind of authority that's exercised

33:00.715 --> 33:04.115
by the Environmental Protection Administration,

33:04.335 --> 33:08.435
or by the Nuclear Regulatory Commission, is discretion,

33:09.925 --> 33:13.385
and discretion is in fact, tolerable.

33:14.345 --> 33:18.805
The courts have in effect said that it's tolerable only if

33:19.535 --> 33:23.715
there is judicial review that the existence

33:23.735 --> 33:27.395
of judicial review is a constitutional necessity

33:28.095 --> 33:32.275
for Congress to place this kind of authority in the hands

33:32.495 --> 33:33.755
of the Executive branch.

33:36.035 --> 33:38.095
And that's the line

33:39.275 --> 33:41.125
that Project 2025

33:41.945 --> 33:45.325
and President Trump's attitude about his authority under

33:45.325 --> 33:48.805
Article 22 are, set to erase.

33:49.805 --> 33:54.275
And if it gets erased, that would be a really I

33:55.735 --> 33:57.765
disturbing, proposition.

33:58.995 --> 34:00.415
Um, I can go back

34:00.415 --> 34:04.615
and tell another historical story, if you like, which,

34:05.035 --> 34:07.055
may illustrate this in a way.

34:07.795 --> 34:11.615
Uh, Andrew Jackson, was in some ways a predecessor of,

34:11.715 --> 34:12.735
president Trump.

34:12.795 --> 34:17.495
He was a distinctly populist president, enacted,

34:17.875 --> 34:21.175
elected, in an uprising against

34:22.075 --> 34:23.305
ideas about the elite.

34:23.805 --> 34:25.705
One of the things that he didn't like at all

34:26.325 --> 34:28.945
was the United States, national Bank.

34:30.075 --> 34:33.575
And when he ran for president election for his second term,

34:34.155 --> 34:37.175
he promised that if he was reelected, he was gonna take care

34:37.195 --> 34:40.095
of the National Bank and put it out of existence.

34:42.195 --> 34:43.725
That was in 1832.

34:44.305 --> 34:48.125
The statutory charter of the National Bank ran to 1836,

34:49.225 --> 34:53.065
but as soon as he got to office, he asked his Secretary

34:53.325 --> 34:56.865
of the Treasury to take all of the government's money out

34:56.865 --> 34:59.545
of the National Bank and put it in state banks.

35:01.655 --> 35:04.155
And the Secretary of Treasury said, well, I can't do that.

35:04.335 --> 35:06.555
I'm sorry. I, I'd have to have reasons to do that,

35:06.575 --> 35:08.035
and I don't have an adequate reason.

35:09.885 --> 35:13.025
And so the president said to the Secretary of Treasury,

35:13.165 --> 35:15.665
as today's president could say to a Secretary of Treasury,

35:15.905 --> 35:17.385
'cause he is not protected

35:17.405 --> 35:19.985
for removal except from cause Go home.

35:22.335 --> 35:24.355
And another Secretary

35:24.355 --> 35:27.195
of Treasury was appointed William Duane.

35:28.625 --> 35:33.105
And so President Jackson gave William Duane

35:33.125 --> 35:34.145
the same order.

35:35.525 --> 35:38.605
And there was a vigorous correspondence between the two

35:38.605 --> 35:40.085
of them lasted for quite a while.

35:40.485 --> 35:42.405
Opinions in writing went back and forth.

35:43.365 --> 35:44.865
But Dwayne's position was

35:45.985 --> 35:48.035
that Congress had given him a discretion

35:48.035 --> 35:49.515
and he had to be able to give reasons

35:49.695 --> 35:51.435
for his exercise of that discretion.

35:51.435 --> 35:52.475
And he wasn't able to do that.

35:52.815 --> 35:55.315
So he didn't feel that he was permitted

35:55.335 --> 35:57.275
to move the money and he wasn't going to.

35:58.705 --> 36:02.445
And Jackson, once again said, go home. And he did.

36:03.675 --> 36:08.145
And at this point, there was an Acting Secretary

36:08.145 --> 36:12.805
of Treasury, Roger Tawney, you may recognize that name,

36:12.865 --> 36:15.605
that's the fellow, became Chief Justice the United States,

36:16.445 --> 36:18.845
and wrote the terrible decision in Dred Scott.

36:20.595 --> 36:23.205
Well, Tony was an acting Secretary of the Treasury,

36:23.305 --> 36:26.045
and he knew where his bread was buttered.

36:26.585 --> 36:28.925
Uh, he wanted to become the Secretary of Treasury.

36:29.025 --> 36:30.525
So he did what the President asked.

36:32.655 --> 36:36.635
The Senate rose up in fury, passed a motion

36:36.895 --> 36:38.355
of censure for the President.

36:39.235 --> 36:42.285
When the President had tried to make Roger Tawney Secretary

36:42.285 --> 36:44.245
of Treasury, it refused to confirm him

36:44.245 --> 36:45.285
as Secretary of Treasury.

36:46.385 --> 36:48.875
When the president had then tried to appoint Tawney

36:48.875 --> 36:50.955
to the Supreme Court as an associate justice,

36:51.375 --> 36:53.035
it refused that appointment.

36:53.935 --> 36:55.995
So here again, we see the back

36:56.075 --> 36:58.715
and forth between senatorial confirmation

36:59.175 --> 37:01.475
and presidential nomination power.

37:02.895 --> 37:06.235
Yes, Tawny did become the,

37:08.575 --> 37:10.285
chief Justice of the United States.

37:10.915 --> 37:14.045
Well, that's because in the, by-election of 1834,

37:14.955 --> 37:19.365
different senators were put in office who were friendlier

37:19.905 --> 37:22.525
to President Jackson than the senators

37:22.525 --> 37:26.855
who had been in place in from 1832 had been,

37:27.355 --> 37:30.575
and, they retracted the motion of censure,

37:30.575 --> 37:33.015
and they confirmed the, the appointment of Tawney

37:33.015 --> 37:35.015
to be Chief Justice, the United States.

37:36.115 --> 37:39.815
But I, the important thing to see here, I think from me is,

37:39.965 --> 37:42.895
from my perspective, is one,

37:44.015 --> 37:48.315
the understanding that one is not legally

37:48.665 --> 37:52.225
obliged to follow the directions of the President.

37:52.735 --> 37:55.705
When Congress has put power in your hands,

37:57.615 --> 37:59.815
ratification, if you like, of the understanding

37:59.815 --> 38:03.135
of the opinions and writing clause, that I've given you,

38:04.695 --> 38:05.835
and,

38:09.825 --> 38:14.015
the power of the Senate, over issues like appointments,

38:14.535 --> 38:17.205
creating a multiple

38:17.475 --> 38:20.005
oversight situation.

38:21.245 --> 38:26.045
One could say that the, government

38:26.465 --> 38:30.385
of the United States is the whole HOLE,

38:30.805 --> 38:33.225
the whole in the American Constitution.

38:33.385 --> 38:35.105
'cause it's just not there except

38:35.445 --> 38:37.005
for the passages that I've read to you.

38:38.005 --> 38:41.375
It's for Congress to create it, and Congress has created.

38:43.615 --> 38:47.875
And so now what do we do with those creations

38:48.425 --> 38:49.635
that Congress has made?

38:50.645 --> 38:54.895
Um, and how are officers

38:54.995 --> 38:56.455
to take requests?

38:57.535 --> 38:59.395
How are they to understand their authority

38:59.975 --> 39:03.645
and the President's authority to each other?

39:05.095 --> 39:09.645
For me, unlike the Incon Conservatives,

39:09.825 --> 39:11.405
the important issue here is

39:11.405 --> 39:14.245
what I've told called the psychology of governance,

39:15.895 --> 39:19.475
the understanding of the principal officers,

39:19.475 --> 39:22.155
cabinet secretaries, as well as commissioners

39:22.155 --> 39:24.835
of independent regulatory commissions that yes,

39:24.835 --> 39:26.275
they're in the executive branch,

39:26.775 --> 39:30.995
but that the duties Congress has given them are their duties

39:31.695 --> 39:33.355
and not the president's duties.

39:34.885 --> 39:39.495
Subject, if you like, to senatorial oversight as well

39:39.495 --> 39:40.935
as presidential oversight.

39:41.755 --> 39:43.725
Political loyalty counts for law,

39:44.425 --> 39:46.685
but it's different from legal obligation.

39:47.975 --> 39:50.955
Uh, and the legal obligation is not there

39:51.735 --> 39:53.035
in my judgment.

39:54.135 --> 39:56.275
Uh, and understanding that

39:57.615 --> 40:00.105
creates can create a bit of spine

40:01.495 --> 40:05.735
in the fellow who's head of the agency.

40:06.775 --> 40:08.955
And for that matter, a bit of give

40:08.955 --> 40:10.315
and take in the fellow

40:10.335 --> 40:12.155
who sits in the White House as President.

40:13.395 --> 40:17.545
Um, one way of illustrating this, I think might be

40:18.655 --> 40:22.945
from the presidency of Ronald Reagan, when he was

40:23.795 --> 40:27.025
first elected, he nominated

40:27.085 --> 40:29.065
and got confirmed as the head

40:29.065 --> 40:31.545
of his Environmental Protection Administration, a woman

40:31.565 --> 40:34.665
by the name of Ann Gorsuch, actually the mother

40:34.685 --> 40:37.745
of the current Supreme Court Justice Neil Gorsuch.

40:39.815 --> 40:42.035
Uh, and she put in place

40:42.375 --> 40:45.875
as President Trump's appointments in his first term,

40:46.265 --> 40:48.995
also put in place a series of policies

40:48.995 --> 40:51.275
that were really very different from anything

40:51.275 --> 40:55.875
that the environmental protection, laws, imagined.

40:56.575 --> 40:58.195
And this happens not only there,

40:58.255 --> 40:59.635
but also in the labor context

40:59.895 --> 41:01.155
and other frameworks

41:01.155 --> 41:04.795
where Republican ideas about good government may differ from

41:05.035 --> 41:06.715
Democrat ideas about good government.

41:09.505 --> 41:13.905
But she ran into trouble over an exec, an issue

41:13.905 --> 41:15.705
of executive privilege, as I recall,

41:17.125 --> 41:18.585
and had to leave office.

41:20.385 --> 41:24.045
And when she left office, president Reagan

41:24.825 --> 41:26.525
was confronted with a difficulty.

41:27.965 --> 41:30.505
He had to find a new head

41:30.505 --> 41:32.705
of the Environmental Protection Administration

41:34.295 --> 41:38.965
that the Senate would confirm that is

41:39.685 --> 41:42.765
a senate that was much more enthusiastic about environmental

41:42.765 --> 41:43.885
protection than he was.

41:45.895 --> 41:48.755
And so he did, he did find that person.

41:48.895 --> 41:50.515
He, he nominated

41:50.575 --> 41:53.475
and got confirmed to the man who had been head

41:53.475 --> 41:55.595
of the Environmental Protection Administration

41:55.815 --> 41:58.395
for President Nixon, William Ruckles house.

42:00.075 --> 42:02.775
But Ruckelshaus was well known as a man who was

42:03.605 --> 42:06.275
quite willing to take actions to protect the environment.

42:08.595 --> 42:10.775
So now think about that.

42:12.865 --> 42:14.165
Was William Ruckles house going

42:14.165 --> 42:15.605
to take orders from the president?

42:17.435 --> 42:21.045
Was the president going to think that

42:21.585 --> 42:25.125
he had complete authority over the issues that were

42:25.125 --> 42:26.245
before Ruckelshaus?

42:26.245 --> 42:28.605
And if Ruckelshaus didn't do what he wanted him to do,

42:28.755 --> 42:30.205
he'd send Ruckelshaus home.

42:32.095 --> 42:36.085
The political cost of that, like the political cost

42:36.085 --> 42:38.805
to President Jackson back in the 1830s

42:39.575 --> 42:41.045
would have been just enormous.

42:41.945 --> 42:45.755
And Ruckelshaus knew that, and Reagan knew that.

42:46.645 --> 42:49.625
And in consequence, there was a fair amount

42:49.625 --> 42:52.105
of spine in the Environmental Protection Administration,

42:52.485 --> 42:53.545
and it did a lot of things

42:53.545 --> 42:55.985
that Reagan himself might not have approved of,

42:56.235 --> 42:57.465
might not have wanted.

43:00.115 --> 43:03.735
So there we go, how agencies make regulations

43:03.795 --> 43:06.895
and the presidential, the presidential relationship to that.

43:08.755 --> 43:11.175
Um, here again, perhaps I have

43:11.175 --> 43:14.775
to describe something which is a little unfamiliar to,

43:16.295 --> 43:19.115
people outside the United States, which is the process

43:19.655 --> 43:23.575
for making regulations in the United States,

43:24.215 --> 43:27.335
tertiary or secondary legis legislation as,

43:27.515 --> 43:29.135
as it's often called.

43:30.005 --> 43:33.665
Um, it's a public process conducted by the agencies

43:34.695 --> 43:37.225
with the necessity of advance notice

43:38.545 --> 43:40.325
and an opportunity for the public

43:40.825 --> 43:43.605
to comment on the proposal that's being made.

43:44.885 --> 43:48.905
Uh, and then when the agency finally adopts a regulation,

43:49.765 --> 43:53.745
it has the obligation to accompany it with a statement of

43:54.335 --> 43:58.635
that purpose, that basis

43:58.855 --> 44:00.755
and purpose that explains what it's done.

44:02.325 --> 44:03.945
The statute says

44:04.055 --> 44:07.265
that it should be a concise general statement of basis

44:07.405 --> 44:10.945
and purpose, but those words have disappeared from the

44:10.945 --> 44:13.265
administration of the statute,

44:13.975 --> 44:17.145
because of the requirements of judicial review.

44:18.165 --> 44:21.185
Uh, in order to persuade the judicial reviewers

44:21.185 --> 44:23.305
that this regulation is within the authority

44:23.335 --> 44:27.225
that I've been granted, the secretary or administrator

44:27.325 --> 44:30.985
or commission frequently produces an explanation

44:31.715 --> 44:34.685
that is very much longer than the regulation itself.

44:35.425 --> 44:39.965
Uh, and that involves answers to the important

44:40.885 --> 44:44.655
comments that it has received in this public process, so

44:44.655 --> 44:46.415
that it is quite a public process,

44:47.825 --> 44:49.845
but it is also a public process

44:50.035 --> 44:54.385
that can have very significant economic consequences

44:55.005 --> 44:59.135
and political consequences, if you like, when the EPA

44:59.745 --> 45:03.855
tells all national coal fired utilities that they have

45:03.855 --> 45:07.055
to put scrubbers on their smoke stacks, that's hundreds

45:07.055 --> 45:08.855
of millions of dollars of expense

45:08.935 --> 45:10.215
that it's imposing on them.

45:11.125 --> 45:13.495
When the National Highway tra Tra Traffic

45:13.555 --> 45:17.015
and Safety Administration tells automobile manufacturers

45:17.015 --> 45:19.735
that their automobiles must include Andy lock brakes

45:19.795 --> 45:24.475
and airbags and other safety matters, again, major impacts,

45:25.545 --> 45:28.085
on the economy and on those industries.

45:29.905 --> 45:33.945
Uh, and recognizing this

45:35.415 --> 45:39.285
presidents since Reagan have adopted

45:40.195 --> 45:44.255
regimes for one could describe it as coordination

45:44.475 --> 45:46.735
or, analysis,

45:47.145 --> 45:52.115
that involve opinions in writing sent to the White House.

45:53.775 --> 45:56.805
Maybe I need to say here that,

45:58.125 --> 46:00.025
the White House is not just the

46:00.025 --> 46:01.385
President of the United States.

46:02.315 --> 46:06.395
Uh, there are by now several thousand,

46:06.725 --> 46:10.155
civil servants, although not within the Civil service laws,

46:11.015 --> 46:13.675
who sit within the White House

46:14.255 --> 46:16.075
and exercise the various

46:16.215 --> 46:19.195
or help the President in exercising the various authorities

46:19.195 --> 46:22.865
that he has, including the Office and Management

46:22.865 --> 46:25.185
and Budget, which is in, in charge of

46:26.635 --> 46:29.955
creating the presidential proposals for budget,

46:30.575 --> 46:33.995
and, reviews various proposal for proposals

46:33.995 --> 46:36.315
for legislation that come up, including the one

46:37.065 --> 46:39.315
that I mentioned at the beginning of this talk.

46:39.935 --> 46:43.515
Um, the, proposal to domesticate the executive privilege

46:43.515 --> 46:45.475
that somehow left the Nuclear Regulatory

46:45.475 --> 46:46.675
Commission out of it.

46:47.305 --> 46:50.085
And it coordinates these matters by seeking advice

46:50.145 --> 46:51.405
of the various agencies

46:51.405 --> 46:53.285
that might be affected as it did with us.

46:53.785 --> 46:55.245
And I think we were persuasive.

46:55.325 --> 46:57.325
I hope we were persuasive in our response.

46:58.955 --> 47:02.815
But, the President Reagan

47:03.195 --> 47:06.865
and subsequent presidents then have established

47:07.465 --> 47:09.745
a regime within the framework

47:09.805 --> 47:12.825
of a White House agency called the Office of Information

47:12.825 --> 47:16.425
and Regulatory Affair Analysis, which is,

47:17.525 --> 47:19.545
an element of the Office of Management

47:19.545 --> 47:23.275
and Budget in which agencies

47:23.275 --> 47:27.685
that have proposed really important rules are obliged

47:27.705 --> 47:32.035
to share with that office, analyses

47:33.055 --> 47:35.035
of their economic impact.

47:36.765 --> 47:40.675
Uh, and they have to start doing that.

47:40.865 --> 47:45.205
That is, the drafts of those analyses have to be provided

47:45.785 --> 47:49.085
before notice and comment Rulemaking begins

47:49.265 --> 47:53.905
before the notice of proposed rulemaking is issued,

47:54.245 --> 47:55.665
and then a final draft

47:55.755 --> 48:00.555
after comments from OIA have been received by the agency,

48:01.035 --> 48:04.075
a final draft has to be given to OIA.

48:04.825 --> 48:06.475
When the agency is in a position

48:06.495 --> 48:08.955
to finally issue its regulation,

48:11.815 --> 48:15.585
does that mean that the White House is asserting the right

48:15.765 --> 48:19.305
to tell the agency what its regulation must say?

48:21.905 --> 48:24.875
President Reagan in his executive order, was pretty clear

48:24.875 --> 48:27.195
that he was not claiming that power, that

48:27.745 --> 48:30.545
what he was doing was asking for opinions in writing,

48:31.285 --> 48:34.305
and that he recognized that it was for the agencies

48:35.225 --> 48:38.735
to make these decisions over the course

48:38.795 --> 48:41.845
of sub subsequent years as

48:43.025 --> 48:46.155
this obligation to create regulatory impact statements

48:46.375 --> 48:47.475
has, has matured.

48:47.535 --> 48:50.475
And, it has been in place ever since then

48:51.055 --> 48:52.435
in a variety of forms.

48:52.695 --> 48:56.075
Um, the current form is principally the product

48:56.535 --> 48:58.715
of the presidency of President Clinton,

48:59.595 --> 49:01.435
although it has been somewhat amended

49:01.455 --> 49:02.835
by every president since,

49:02.895 --> 49:04.515
and generally in the direction

49:04.735 --> 49:08.715
of creating more authority in OIA than OIA had before.

49:10.215 --> 49:14.435
Um, they have, it has been rather less clear

49:15.005 --> 49:16.995
about this issue than Reagan was.

49:18.175 --> 49:22.815
Um, one area where I would think unquestionably,

49:23.715 --> 49:27.495
the President is in a position to

49:28.565 --> 49:30.015
tell the agency yes

49:30.115 --> 49:34.375
or no, is in a preliminary element,

49:35.335 --> 49:37.115
of the analysis.

49:37.485 --> 49:40.875
Every year, agencies under these executive orders

49:41.615 --> 49:44.995
are required to submit what is are called regulatory plans.

49:45.615 --> 49:48.795
Here's what we plan to work on over the coming year.

49:48.795 --> 49:51.035
These are the regulations that we mean to develop.

49:53.665 --> 49:56.005
And O IRA is in a position

49:56.025 --> 49:58.005
to comment on those regulatory plans

49:58.105 --> 50:00.165
and say, well, according to the president, really,

50:00.165 --> 50:01.365
you ought to be working on this.

50:01.505 --> 50:04.165
And not that give priority here and not there.

50:05.405 --> 50:07.175
That kind of instruction.

50:08.835 --> 50:11.725
What priorities you ought to be giving in your work,

50:13.905 --> 50:18.685
is implicit in the idea of a single president.

50:20.355 --> 50:22.935
Um, this issue has not been much thought about,

50:23.205 --> 50:25.735
written about, maybe except by me.

50:26.395 --> 50:30.685
Um, but sure there's a consequence.

50:30.685 --> 50:34.565
There's a, there's a context in which the president can say

50:35.105 --> 50:36.925
to the agency, here's what I want you

50:36.925 --> 50:38.685
to be working on in the coming year.

50:41.095 --> 50:44.675
But then when the agency has worked on it, when they get

50:44.675 --> 50:48.555
to the details of how they're going to approach this issue,

50:51.195 --> 50:54.875
can the president say point 35,

50:55.995 --> 50:58.975
particles per cubic centimeter,

51:00.555 --> 51:02.495
not 0.1.

51:05.505 --> 51:08.065
I don't see where that authority exists.

51:09.785 --> 51:14.325
Um, it's, just

51:14.985 --> 51:19.175
not there and in a way that it isn't.

51:19.175 --> 51:24.085
There is reinforced by the intensity

51:24.385 --> 51:28.335
of the judicial review that judicial,

51:28.335 --> 51:32.775
that judges give to agency rules when they're adopted.

51:33.755 --> 51:37.095
Um, I've been talking about regulation of,

51:37.235 --> 51:39.775
of coal fired utilities for a reason

51:40.485 --> 51:42.175
that EPA regulation came

51:42.175 --> 51:47.135
before the dis the, circuit court in the District

51:47.135 --> 51:51.175
of Columbia, back in the, back in the eighties

51:52.325 --> 51:54.785
and a case called Sierra Club versus Cassel.

51:55.555 --> 51:59.705
And one of the elements of that case, one of the things

51:59.705 --> 52:04.265
that the people objecting to the rule, worried about

52:04.805 --> 52:06.225
was that there had been communications

52:06.225 --> 52:10.585
between the White House and the EPA,

52:11.775 --> 52:14.915
and maybe those communications had warped the regulation.

52:16.885 --> 52:20.875
Judge Wald writing her opinion, reviewing

52:21.835 --> 52:26.385
the EPAs rule, spent over a hundred pages

52:27.805 --> 52:30.885
examining the agency's reasoning in relationship

52:30.885 --> 52:33.005
to the record that the agency had.

52:35.275 --> 52:37.935
And at one point in the opinion, she had to address the fact

52:37.935 --> 52:39.855
that there was nothing in that record to show

52:39.855 --> 52:41.895
what the president's communications had been.

52:43.515 --> 52:46.525
Well, she said, sure, maybe the president communicated some

52:46.525 --> 52:50.965
things that influenced what the agency decided to do.

52:52.755 --> 52:56.015
Uh, and I can't worry about that if you like,

52:56.065 --> 52:58.335
presidents are entitled to opinions in writing

52:58.475 --> 53:01.855
and that in entails that there will be communications back

53:01.855 --> 53:04.935
and forth, and that they can be private communications,

53:05.135 --> 53:06.495
I think is more or less implicit.

53:08.045 --> 53:10.915
Um, but she

53:10.915 --> 53:15.225
nonetheless spent the bulk of her opinion,

53:15.245 --> 53:18.585
90% of her opinion, over a hundred pages

53:20.285 --> 53:23.155
going thoroughly through the agency's reasoning

53:23.615 --> 53:26.645
and treating the decision as the agency's decision

53:27.755 --> 53:30.815
and her position as the position in which

53:32.305 --> 53:35.645
she could say whether this regulation had been appropriately

53:35.835 --> 53:37.245
justified or not.

53:39.725 --> 53:43.965
And in a way, this kind of process,

53:46.855 --> 53:50.035
in respect to what I've described to you as the exercise

53:50.095 --> 53:53.975
of discretion is the constitutional

53:54.685 --> 53:56.955
requirement for giving

53:57.795 --> 54:00.475
a body like the Environmental Protection Administration

54:00.695 --> 54:02.355
as much authority as they have.

54:03.465 --> 54:07.095
If there isn't judicial review adequate

54:07.875 --> 54:11.015
to ascertain the legality of what the agency has done,

54:11.715 --> 54:15.415
one can be pretty confident that our courts would say, well,

54:15.415 --> 54:18.215
this is an unconstitutional delegation of authority.

54:18.675 --> 54:19.975
You can't give an agency

54:19.975 --> 54:22.335
that much authority without our control over it.

54:23.925 --> 54:27.905
But it's control in which we just look at the legal issues

54:28.605 --> 54:32.675
and recognize that the agency is in charge of the policy

54:32.935 --> 54:34.675
as long as they tell us how they got there

54:34.695 --> 54:35.995
and how they justified it.

54:37.495 --> 54:42.285
Um, and this again, is in respect of a public process

54:42.875 --> 54:45.405
that I've described to you, overseen

54:45.405 --> 54:46.685
as rational by the courts.

54:48.905 --> 54:51.845
As Oys participation grows

54:51.945 --> 54:56.215
and grows towards, if you like,

54:56.215 --> 54:57.895
the substitution of presidential

54:58.135 --> 54:59.335
judgment for agency judgment.

55:00.285 --> 55:04.755
What one is seeing is the substitution of for

55:04.755 --> 55:05.755
that public process

55:06.615 --> 55:09.255
of the opaque politics of the White House.

55:10.715 --> 55:14.775
And that is in itself a disturbing matter.

55:16.385 --> 55:20.565
Um, anyone who's been paying attention to recent

55:20.855 --> 55:24.325
newspapers has been aware of the Israeli demonstrations

55:24.385 --> 55:27.235
for the preservation of its democracy,

55:27.405 --> 55:29.675
where the issue is about judicial power.

55:31.135 --> 55:33.035
Um, in my judgment, a threat

55:33.035 --> 55:35.955
to American democracy is very much in the air

55:37.035 --> 55:40.715
and tied to candidate Trump

55:41.375 --> 55:43.715
and the election in 2024.

55:45.275 --> 55:49.635
Um, how will that work out? Is our population indifferent?

55:49.635 --> 55:51.475
Does it prefer to have a strong man?

55:52.235 --> 55:54.655
Um, but are we back to the situation

55:54.755 --> 55:57.255
as it was in Germany in the 1930s when

55:58.355 --> 56:01.095
theist strong man gained control within terrible

56:01.095 --> 56:03.135
consequences, for the world?

56:04.835 --> 56:07.325
President Trump, former President Trump,

56:07.345 --> 56:10.045
has been very clear about his view of the presidency.

56:10.905 --> 56:13.525
The only parts of the cons, article two that he reads

56:14.525 --> 56:15.745
are the sentence that says

56:15.895 --> 56:18.505
that the executive power is vested in the President,

56:20.225 --> 56:24.125
and he doesn't accept the passive voice

56:24.545 --> 56:27.285
of the take care clause that he is to take care

56:27.285 --> 56:30.845
that the laws be faithfully executed as if by someone else.

56:31.185 --> 56:33.445
No, I'm going to be the one executing those laws.

56:36.005 --> 56:39.205
Um, he is been very clear about that.

56:39.505 --> 56:44.085
Um, those of you with access to the New Yorker,

56:44.605 --> 56:47.565
magazine, you may see the cover of this week's magazine,

56:48.375 --> 56:51.755
which shows President Trump in

56:52.435 --> 56:56.245
military garb giving a Zig heel salute.

56:56.835 --> 56:58.885
Perhaps that's a bit extreme, I hope it is.

56:59.695 --> 57:03.395
Um, but that's what some see

57:03.455 --> 57:06.395
as the possible implications of this forthcoming election.

57:07.615 --> 57:09.485
Would law and the courts protect us

57:10.585 --> 57:12.005
as they didn't do in Germany.

57:13.095 --> 57:15.515
The rule of law did very little in Germany.

57:16.645 --> 57:17.985
One might hope it would do here,

57:18.005 --> 57:22.605
but it seems too likely given the conservative presence on

57:22.605 --> 57:26.365
the Supreme Court, that it will accept sweeping presidential

57:26.365 --> 57:30.525
power despite the Constitution's text, which

57:30.525 --> 57:33.085
to me is rather clear in its implications.

57:34.575 --> 57:36.645
So to conclude, for me,

57:36.645 --> 57:38.485
the President stands in the same kind

57:38.485 --> 57:40.045
of relationship to the government.

57:40.525 --> 57:43.205
Congress creates, as do Congress

57:43.265 --> 57:48.195
and the courts, at least absent the kind of discretion

57:48.745 --> 57:50.715
that Chief Justice Marshall described,

57:51.445 --> 57:54.035
where the officer acting is clearly acting

57:54.095 --> 57:55.635
as the president's alter ego

57:56.175 --> 57:59.245
and where the courts have no role to play.

58:03.685 --> 58:04.905
And that's within the frame.

58:05.015 --> 58:07.305
With the role of oversight within the framework

58:07.615 --> 58:10.975
that Congress has created, duties are

58:10.975 --> 58:13.695
where Congress has placed them not in the White House.

58:15.955 --> 58:19.005
When one talks about the three branches of government

58:19.855 --> 58:22.635
as we've been doing since Mon Montesquieu wrote about them,

58:23.945 --> 58:28.705
you might notice what's missing from,

58:29.085 --> 58:31.185
that description, at least.

58:31.185 --> 58:33.305
If you take the word branches in a metaphor,

58:33.625 --> 58:37.485
metaphorical sense, where do branches occur?

58:38.395 --> 58:42.045
Well, there parts of a tree and the tree has a trunk.

58:42.785 --> 58:45.745
The trunk of the tree

58:46.415 --> 58:48.825
here is the United States government,

58:50.275 --> 58:52.655
and it has three branches, each of which

58:53.805 --> 58:55.545
has significant roles to play

58:56.165 --> 58:59.145
in overseeing the actions of that government.

59:00.595 --> 59:04.455
But it's oversight, not decision. From my perspective.

Presidential Influence on Independent Regulatory Commissions

00:00:00 - Let me, let me get there. In, in, in a way, just by describing how I came to this issue, I was the first general counsel of the United States Nuclear Regulatory Commission, which is an independent regulatory commission. And what that has meant in the past, a, is that the five commissioners, each of them serving a five year term, one a year, operate with a degree of independence from the presidency.
00:00:32 - of independence from the presidency has been is, is somewhat, unclear. at one point, we were sent from the Office of Management and Budget a proposed legislation that would, have domesticated the use of executive privilege, when the president could claim that he was not re required to respond to some inquiry that he had received from the Congress. and it was limited, as we saw it, to
00:01:06 - that are in a direct relationship with the president, headed by, cabinet secretaries. and what we got back when we sent, we, we sent a, a, a note back saying, well, this seemed fine to us, except it omitted the independent regulatory commissions. And at the NRC we had in our records all kinds of atomic bomb secrets and other things that surely
00:01:40 - reveal if we were asked for them. We should have the benefit of the executive privilege. and we got back a letter from the Office of Legal Counsel saying, too bad, so sad. You can't have the executive privilege. You are an independent regulatory commission. and that was a very, very strange signal, I thought. and it animated, the whole of my scholarship over the years. That was back in 75. it animated the whole
00:02:11 - of the relationship between the president, and the agencies of government that do the work of government, like the Nuclear Regulatory Commission, or for that matter, the Environmental Protection Administration, the Federal Drug Administration, and other elements of our government that are unquestionably, within cabinet departments. And so in a much closer relationship with the President.
00:02:44 - of those relationships? and, this has become particularly central, at the moment, in relation to the protection that my commissioners had, which was a statute saying that they could only be removed from office for cause, that the president couldn't just send them home for any reason that he wanted.

Political Removals and Constitutional Authority Issues

00:03:13 - this was an issue that came before our Supreme Court, in the 1930s, just after Franklin Roosevelt had become president of the United States, when, he sent a note to a commissioner of the Federal Trade Commission, one of the independent regulatory commissions at the time, saying, look, our politics are different than yours. My politics are different than yours. Please go home. I'm appointing someone to take your seat.
00:03:43 - And the Senate confirmed that appointment. but, Humphrey's Widow Humphrey had had died by that time, and his widow sued saying, well, he was improperly removed from office, because there was no cause suggested. It was just different politics. and so I should have his back pay. And the Supreme Court agreed at the time it agreed,
00:04:17 - outside the Executive Branch, and it doesn't have any executive functions. It was, in fact, a footnote, recognizing that it did have some executive functions, but trivial ones in the view of the court at the time. this reasoning struck me, continues to strike me as completely imperfect. our Constitution says that the executive power shall be vested in the President
00:04:46 - and that's it. And clear unquestionably, the Federal Trade Commission engages in things that could only be thought of as exercises of executive power. They, they prosecute people, for antitrust violations and other things. Of course, they have to be parts of the Executive branch. And our Supreme Court has subsequently said, yes, they are parts of the Executive branch, but then what about this protection that they have,
00:05:21 - after the court had made clear that organizations like the Federal Trade Commission were a part of the executive branch that is subject at least to the oversight of the President, it has begun to suggest that, well, maybe this kind of restriction is an inappropriate restriction, is an unconstitutional restriction. Maybe the President has to be in a position to be able
00:05:54 - who exercises, discretion For any reason he chooses to, and, as a matter of constitutional law. and there is a conservative framework now that takes this position really very strongly. and that's mostly what I mean

Cabinet Members and Congressional Oversight

00:06:21 - The impetus for this removal issue came from a Civil War statute in which our Congress, provided, worrying about Andrew Johnson, who had become the President, and what he would do to, the policies in place that no cabinet secretary could be removed from office without the consent of the Senate. Our Constitution provides quite explicitly
00:06:54 - positions have to be made with the consent of the Senate. Now, this is one of the strange things about American public law that people living in parliamentary democracies may not understand. There is a separation between our executive and our legislature to a much greater degree than would be experienced in West Western parliamentary systems. And one of those elements is that
00:07:26 - to put in an important office. it's not just the Prime Minister saying, here's my cabinet. and that, as you may know from the newspapers, often results in rather contentious extended hearings in which nominees are, are thoroughly investigated, and sometimes refused. And in the course of those investigations, people are asked,
00:07:55 - and then make promises? and those promises in effect create a, a tension between the White House and the Cabinet Secretary. 'cause the Cabinet Secretary knows that he's not only looking to the White House, he is also looking to the Congress. There are many things for which he has to look to the Congress. And in this instance, he's made some promises to the Senate,
00:08:25 - by nasty consequences. He won't get the money that he needs to get to run his business. he may get called to the Senate for oversight hearings that would be quite unpleasant if he's gone back on the promises that he made. so there is this divided loyalty, which in a way, I think is, would be quite strange in a parliamentary system, but which in effect creates a,
00:08:58 - not only from the President, but also from the Congress. And for that matter, there's the oversight relationship that exists with the courts when they review the actions that the secretary may wish to take. So to get back to the Civil War statute, it providing that you couldn't be removed from office except with the Senate's consent, that stat, that approach was also taken, in relationship

Presidential Power and Senate Consent Issues

00:09:32 - city post offices, postmaster of Portland, Oregon, for example. And President Woodrow Wilson wanted to remove the postmaster of Portland, Oregon. He tried to do that. he didn't get the Senate's consent. and this came to the Supreme Court in one of the most extensively argued cases. It has heard year, it, it had to be argued twice for hours at a time.
00:10:00 - by William Howard Taft, who had been president of the United States, and so had his own attitudes, about presidential power, said in really quite broad language, and I would say in cautious language, because he didn't tie it to this question of senatorial approval for the removal, said, yes, the President can remove this person. It will, the president has to be able to remove,
00:10:32 - executive authority. Well, really what he was saying is the Senate can claim no participation in this kind of removal. and, that is the issue that was really present in Humphreys executor in the, the Roosevelt case that I've described. because, there was no provision for congressional, participation in removal.
00:11:07 - And you may recognize, that that kind of provision is rather common in all legal systems for the civil service. If you're a civil servant, you can't be removed unless there's some disciplinary reason to remove you. the American Civil Service is, is quite a bit thicker than you would find in any parliamentary system. There are thousands of political appointees,
00:11:37 - not just a handful as I think you would find in Great Britain. and they don't have this kind of removal protection unless Congress has specifically provided for it as it has done in the case of the nuclear regulatory emissions and, and most of the other independent regulatory commissions. Well, but now, is this appropriate,
00:12:08 - the court early, confirm the appropriation, the appropriateness of a civil service statute. but it did so outside of the context of this kind of dispute. and, that's in a way the subject that I'm talking to you about today. because our Supreme Court has been giving broader and broader hints, that they are going

Presidential Authority and Government Accountability

00:12:39 - who exercises significant dis decisional authority within the government must constitutionally be subject to removal by the President for any reason that the President chooses. and that's a proposition that underlies much contemporary conservative thinking about the relationship between the president and administrative agencies,
00:13:12 - created by a, a, a non-governmental organization of some prominence in Washington, the Heritage Foundation called Project 2,500. And the idea of Project 2,500 is that when President Trump gets reelected, as it seems not impossible will happen, that he can send home everyone in the government who exercises significant decisional responsibility,
00:13:44 - loyalists lined up who are ready to take their place. So, in effect, what we are looking at, at the PO is the possibility of substituting or substituting what used to be the system in the United States, a spoil system where the President gets to constitute the whole of responsible government, for the system that we think we have had. And when the civil service statute was enacted,
00:14:17 - decisional responsibilities. for example, the person who was head of the National Forest Service, was a civil servant, could have been removed by the president only for cause within the framework of the civil service laws, which made that decision is IR removable for cause. a matter not for the president to decide, but for an another independent body,
00:14:48 - and now the Merit Systems Protection Board, to decide, well, is all of this up for grabs? And for that matter, is the president in a position to tell agencies how they must decide issues that are given to them? These are the questions that I mean to be exploring with you today. we have seen in the United States a steadily expanding presidential claim of authority to control not only tenure,
00:15:21 - And this has been happening at least since, the, presidency of Ronald Reagan. And it reached a piece, a, a peak, with President Trump in his first term. and, he is promised that he's gone back there. one of the last things he did before leaving office was to promulgate something called Schedule F, which would in effect, have taken everyone in the federal government

Concerns Over Presidential Power and Democracy

00:15:51 - and made him a political appointee, whether or not he was at the time, protected by the civil servants whom the president could remove at will. and, or for that matter, this cabinet secretary could remove at will. Well, from a certain perspective, my perspective, this threatens a, a transition of American government from democracy towards autocracy.
00:16:21 - of authority in the American President, would put an enormous amount of authority in the American President and the amount of authority not previously enjoyed by any of them. not a few years ago, Stephen Levitsky and Daniel Zla, of Harvard University, wrote a book about the general world phenomenon of tendency from democracy towards autocracy, called How Democracies Die, all about Democratic backsliding,
00:16:56 - have been gradually subverting the democratic process to obtain autocracy. that actually has happened before in the world in the 1930s in Germany. and it's, is this happening to us now? it's a real fear for many Americans, including me, fearing the reelection of President Trump, and the reappearance of something like Schedule F and the assertion that, the President,
00:17:29 - every significant decision that the federal government is authorized, is authorized to make. So where do we go from here? What does our constitution actually say about this? The conservative voices that are behind Project to 2025, and other matters have for a while been arguing that yes, the President's power is this extensive.
00:18:04 - of our constitution. Now, I'm going to get into our constitution's text, if you like. one is the first line of Article two of, of the Constitution. the executive power shall be vested in a President of the United States of America. That's it, just him. with, then in the third section, of, of the consti of
00:18:37 - it says that he shall take care that the laws be faithfully executed. And from those two bits of text, the conservatives make their argument. and it's an argument that has had not inconsiderable scholarly support, from some others. but you'll have figured out already, it has not had support from me. and,

Historical Context of Constitutional Authority

00:19:08 - of it, come from 1787 when we had 13 states and a few million people who lived in circumstances in which communication and transportation were really very difficult. It took weeks to get from the nation's capital to some par some parts of the United States at a time, by horseback or stage coach. And the males were very, very slow. Nothing like email today.
00:19:39 - or more, and a lot more knowledge about how safety and environmental issues that government must, must take care of. and yet it's this same language that sits at the heart of the structure of American government. one of the things to notice about the Constitution is that it doesn't define the government,
00:20:12 - of the process of producing the Constitution. When it was first drafted, it was drafted with provisions that did name governmental departments forming a kind of cabinet that would be familiar in the parliamentary system. and there was a sentence in one of the drafts saying, whatever the cabinet secretaries think, the President can
00:20:39 - and it's his right to decide the issues. in the debates, people made clear that they were pretty uncomfortable with this idea of a cabinet with quasi decisional authority independent of the President. And so when that came back from the final stages of drafting, rather than make that provision, there was no provision
00:21:13 - what is called the necessary and proper clause, of, the Congressional Powers Article one of the Constitution, which says that Congress has the power to make all laws which shall be necessary and proper for carrying into execution, the foregoing powers. That is, those powers that Congress was given and all other powers vested by this constitution in the government of the United States,
00:21:43 - Well, that last bit of language, is maybe due to the heat of the summer of 1787, is an inaccurate reflection of the design that was created because there aren't any other powers vested by the Constitution in the government of the United States. The government of the United States is not formed, by the Constitution that's left to Congress to do, it's left

Congress's Role in Executive Authority Structure

00:22:13 - that this language refers to. And it's left to Congress to create the officers that exercise responsibility, under the Constitution. And from the very beginning, Congress has created some officers, notably in the Department of Treasury who served for terms that it said were fixed, that were not subject to the president's plenary authority from the beginning.
00:22:47 - that with the President? The executive power shall be vested in a President of the United States of America. from my perspective, the important provisions are provisions that the conservatives simply do not mention, which are the provisions of Section two of the Constitution, creating the powers of the presidency.
00:23:19 - one aspect of it I've already mentioned is, is power to nominate officers of the government subject, however, to senatorial consent for the major ones, but it also says the President shall be commander in chief of the Army and Navy of the United States, and of the milish of the several states when called into the actual service of the United States.
00:23:49 - and the president issues a command, that's a command, and you are obliged to honor it, well, maybe if it's not consistent with international law, you might take the risk of dishonoring it. But he's commander, he's your commander, and on ordinary circumstances you have to obey. The next clause is he may require the opinion in writing of the principal officer in each
00:24:22 - to the duties of their respective offices. Notice what that does. It assumes that there will be departments, and more than that, it says that those departments will be given duties, and that those duties will be the duties of the executive officers that Congress has created. So can Congress create those duties
00:24:53 - and you can't remove this person from office except for cause? Why not Congress gets to set up the government? And does that mean that the President can get to decide any of the issues that are put in the hands of those officers of the executive department? No. What it says he can do is ask them for their opinion in writing about how they are going

Presidential Authority and Oversight Dynamics

00:25:25 - This pretty clearly sets up an oversight relationship, a relationship for bargaining between the head of the department, and the president. And political loyalties among other things, might lead the executive officer to decide to do what the President wants. And there's no question that the president can communicate what he wants to the executive officer, but is he illegally obliged to do what the President wants?
00:25:58 - the disappearance from the draft of the sentence that said, the President can decide. And two, from what's said here about, well, he can get an opinion about wr, in writing about how they are going to exercise their duties. The other thing to see in this, I suppose, the other pitch in the conservative argument is
00:26:29 - doesn't say that the President shall faithfully execute the laws. It says that the President shall take care that the laws be faithfully executed. There it is again. Somebody else is going to be executing the laws. And the president's obligation is to see to it that that is faithfully done. and Early Attorney General looking at this language,
00:27:06 - that it could never have been the intention of the Constitution that he should in person execute the laws himself. well, were the President to perform a statutory duty assigned to another. He would not only be take, he would not only be not taking care that the law is worth faithfully executed, but he would be violating them himself.
00:27:38 - faithful execution is a duty, not a power. Again, in, in creating our government, congresses created a multitude of forms providing from the beginning for fixed terms for some officials, and providing for a civil service, which is protected
00:28:07 - We have a very thick political layer, much thicker than yours in England or other parliamentary democracies. But below that layer are these civil servants, and Project 2025. and for that matter, president Trump's, express position, which he tried to put into effect just before he left office, in, 2020,

Limitations on Presidential Authority and Judicial Review

00:28:38 - until in fact, he left office. And President Biden promptly, revoked it, that, he had that authority over all civil servants. There are surely limits on Congress' capacity to tie the President's hands, but the way in which those limits exist,
00:29:13 - as it ought to have been. and, and here I wanna go to another, early matter in, in presidential, in in constitutional decision, history, as it were, the famous decision of, the United States Supreme Court, in Marbury versus Madison, which most people know
00:29:43 - that the Supreme Court can find statutes enacted by the Congress to be unconstitutional. But it also discussed this question of presidential authority. and in a striking paragraph, chief Justice Marshall denied that the courts would have any role in a context in which
00:30:16 - that could never be made in court. It's impossible for this kind of political question to be decided by the courts where there's executive discretion. Well, wait a minute. Anyone who looks at American case law sees case after case in which domestic agencies are given what can only be described as discretion to,
00:30:44 - The Environmental Protection Agency gets to make decisions about how much carbon dioxide can be, or, or, sulfur dioxide can be put into air by, by coal-fired utilities. the National Highway Traffic and Safety Administration makes decisions about what kinds of safety appliances have to be in cars. my commission, the Nuclear Regulatory Commission, made decision after decision about what was required for the safety of those plants.
00:31:19 - but they are also exercises of discretion that are subject to review by the courts, by over oversight by the courts. Again and again, well wait a minute. Nothing could be clearer than the exercise of executive discretion can never be made The subject, subject of judicial review of, of the courts. The courts can have nothing to do with it,

Discretion in Administrative Law Explained

00:31:51 - When I taught this subject administrative law, the, one of the famous things I think, I, what things I impressed on my students was that one needed to see that the word discretion, had some thoughts around it. there was on the one hand discretion
00:32:22 - matters of foreign policy are involved or matters of military policy or some other things we might imagine. then the Cabinet Secretary, the Secretary of State, the Secretary of Defense, whomever, is in effect acting as the president's mouthpiece. And that was the situation that Chief Justice Marshall said he was addressing. And those issues are issues of discretion,
00:32:54 - Those political questions are not reviewable, but the kind of authority that's exercised by the Environmental Protection Administration, or by the Nuclear Regulatory Commission, is discretion, and discretion is in fact, tolerable. The courts have in effect said that it's tolerable only if there is judicial review that the existence
00:33:28 - for Congress to place this kind of authority in the hands of the Executive branch. And that's the line that Project 2025 and President Trump's attitude about his authority under Article 22 are, set to erase. And if it gets erased, that would be a really I
00:33:58 - I can go back and tell another historical story, if you like, which, may illustrate this in a way. Andrew Jackson, was in some ways a predecessor of, president Trump. He was a distinctly populist president, enacted, elected, in an uprising against ideas about the elite. One of the things that he didn't like at all
00:34:30 - And when he ran for president election for his second term, he promised that if he was reelected, he was gonna take care of the National Bank and put it out of existence. That was in 1832. The statutory charter of the National Bank ran to 1836, but as soon as he got to office, he asked his Secretary of the Treasury to take all of the government's money out

Secretary of Treasury's Discretion and Presidential Authority

00:35:01 - And the Secretary of Treasury said, well, I can't do that. I'm sorry. I, I'd have to have reasons to do that, and I don't have an adequate reason. And so the president said to the Secretary of Treasury, as today's president could say to a Secretary of Treasury, 'cause he is not protected for removal except from cause Go home. And another Secretary of Treasury was appointed William Duane.
00:35:33 - the same order. And there was a vigorous correspondence between the two of them lasted for quite a while. Opinions in writing went back and forth. But Dwayne's position was that Congress had given him a discretion and he had to be able to give reasons for his exercise of that discretion. And he wasn't able to do that. So he didn't feel that he was permitted to move the money and he wasn't going to.
00:36:03 - And at this point, there was an Acting Secretary of Treasury, Roger Tawney, you may recognize that name, that's the fellow, became Chief Justice the United States, and wrote the terrible decision in Dred Scott. Well, Tony was an acting Secretary of the Treasury, and he knew where his bread was buttered. he wanted to become the Secretary of Treasury.
00:36:32 - The Senate rose up in fury, passed a motion of censure for the President. When the President had tried to make Roger Tawney Secretary of Treasury, it refused to confirm him as Secretary of Treasury. When the president had then tried to appoint Tawney to the Supreme Court as an associate justice, it refused that appointment. So here again, we see the back and forth between senatorial confirmation
00:37:02 - Yes, Tawny did become the, chief Justice of the United States. Well, that's because in the, by-election of 1834, different senators were put in office who were friendlier to President Jackson than the senators who had been in place in from 1832 had been, and, they retracted the motion of censure,
00:37:33 - to be Chief Justice, the United States. But I, the important thing to see here, I think from me is, from my perspective, is one, the understanding that one is not legally obliged to follow the directions of the President. When Congress has put power in your hands, ratification, if you like, of the understanding of the opinions and writing clause, that I've given you,

Senatorial Oversight and Executive Authority Dynamics

00:38:09 - the power of the Senate, over issues like appointments, creating a multiple oversight situation. One could say that the, government of the United States is the whole HOLE, the whole in the American Constitution. 'cause it's just not there except
00:38:38 - It's for Congress to create it, and Congress has created. And so now what do we do with those creations that Congress has made? and how are officers to take requests? How are they to understand their authority and the President's authority to each other? For me, unlike the Incon Conservatives,
00:39:11 - what I've told called the psychology of governance, the understanding of the principal officers, cabinet secretaries, as well as commissioners of independent regulatory commissions that yes, they're in the executive branch, but that the duties Congress has given them are their duties and not the president's duties. Subject, if you like, to senatorial oversight as well as presidential oversight.
00:39:44 - but it's different from legal obligation. and the legal obligation is not there in my judgment. and understanding that creates can create a bit of spine in the fellow who's head of the agency. And for that matter, a bit of give and take in the fellow who sits in the White House as President.
00:40:18 - from the presidency of Ronald Reagan, when he was first elected, he nominated and got confirmed as the head of his Environmental Protection Administration, a woman by the name of Ann Gorsuch, actually the mother of the current Supreme Court Justice Neil Gorsuch. and she put in place as President Trump's appointments in his first term,
00:40:48 - that were really very different from anything that the environmental protection, laws, imagined. And this happens not only there, but also in the labor context and other frameworks where Republican ideas about good government may differ from Democrat ideas about good government. But she ran into trouble over an exec, an issue of executive privilege, as I recall,

Regulatory Challenges During Reagan's Presidency

00:41:20 - And when she left office, president Reagan was confronted with a difficulty. He had to find a new head of the Environmental Protection Administration that the Senate would confirm that is a senate that was much more enthusiastic about environmental protection than he was. And so he did, he did find that person.
00:41:50 - and got confirmed to the man who had been head of the Environmental Protection Administration for President Nixon, William Ruckles house. But Ruckelshaus was well known as a man who was quite willing to take actions to protect the environment. So now think about that. Was William Ruckles house going to take orders from the president? Was the president going to think that
00:42:25 - before Ruckelshaus? And if Ruckelshaus didn't do what he wanted him to do, he'd send Ruckelshaus home. The political cost of that, like the political cost to President Jackson back in the 1830s would have been just enormous. And Ruckelshaus knew that, and Reagan knew that. And in consequence, there was a fair amount of spine in the Environmental Protection Administration,
00:42:53 - that Reagan himself might not have approved of, might not have wanted. So there we go, how agencies make regulations and the presidential, the presidential relationship to that. here again, perhaps I have to describe something which is a little unfamiliar to, people outside the United States, which is the process for making regulations in the United States,
00:43:27 - as it's often called. it's a public process conducted by the agencies with the necessity of advance notice and an opportunity for the public to comment on the proposal that's being made. and then when the agency finally adopts a regulation, it has the obligation to accompany it with a statement of
00:43:58 - and purpose that explains what it's done. The statute says that it should be a concise general statement of basis and purpose, but those words have disappeared from the administration of the statute, because of the requirements of judicial review. in order to persuade the judicial reviewers that this regulation is within the authority that I've been granted, the secretary or administrator

Impact of Regulatory Processes on Economic Decisions

00:44:31 - that is very much longer than the regulation itself. and that involves answers to the important comments that it has received in this public process, so that it is quite a public process, but it is also a public process that can have very significant economic consequences and political consequences, if you like, when the EPA
00:45:03 - to put scrubbers on their smoke stacks, that's hundreds of millions of dollars of expense that it's imposing on them. When the National Highway tra Tra Traffic and Safety Administration tells automobile manufacturers that their automobiles must include Andy lock brakes and airbags and other safety matters, again, major impacts, on the economy and on those industries.
00:45:35 - presidents since Reagan have adopted regimes for one could describe it as coordination or, analysis, that involve opinions in writing sent to the White House. Maybe I need to say here that, the White House is not just the
00:46:02 - there are by now several thousand, civil servants, although not within the Civil service laws, who sit within the White House and exercise the various or help the President in exercising the various authorities that he has, including the Office and Management and Budget, which is in, in charge of creating the presidential proposals for budget,
00:46:33 - for legislation that come up, including the one that I mentioned at the beginning of this talk. the, proposal to domesticate the executive privilege that somehow left the Nuclear Regulatory Commission out of it. And it coordinates these matters by seeking advice of the various agencies that might be affected as it did with us. And I think we were persuasive. I hope we were persuasive in our response. But, the President Reagan
00:47:07 - a regime within the framework of a White House agency called the Office of Information and Regulatory Affair Analysis, which is, an element of the Office of Management and Budget in which agencies that have proposed really important rules are obliged to share with that office, analyses of their economic impact.

Regulatory Authority and Presidential Influence

00:47:40 - That is, the drafts of those analyses have to be provided before notice and comment Rulemaking begins before the notice of proposed rulemaking is issued, and then a final draft after comments from OIA have been received by the agency, a final draft has to be given to OIA. When the agency is in a position to finally issue its regulation,
00:48:15 - to tell the agency what its regulation must say? President Reagan in his executive order, was pretty clear that he was not claiming that power, that what he was doing was asking for opinions in writing, and that he recognized that it was for the agencies to make these decisions over the course of sub subsequent years as
00:48:46 - has, has matured. And, it has been in place ever since then in a variety of forms. the current form is principally the product of the presidency of President Clinton, although it has been somewhat amended by every president since, and generally in the direction of creating more authority in OIA than OIA had before. they have, it has been rather less clear
00:49:18 - one area where I would think unquestionably, the President is in a position to tell the agency yes or no, is in a preliminary element, of the analysis. Every year, agencies under these executive orders are required to submit what is are called regulatory plans.
00:49:48 - These are the regulations that we mean to develop. And O IRA is in a position to comment on those regulatory plans and say, well, according to the president, really, you ought to be working on this. And not that give priority here and not there. That kind of instruction. What priorities you ought to be giving in your work, is implicit in the idea of a single president.
00:50:23 - written about, maybe except by me. but sure there's a consequence. There's a, there's a context in which the president can say to the agency, here's what I want you to be working on in the coming year. But then when the agency has worked on it, when they get to the details of how they're going to approach this issue,

Authority and Judicial Oversight in EPA Regulations

00:50:55 - particles per cubic centimeter, not 0.1. I don't see where that authority exists. it's, just not there and in a way that it isn't. There is reinforced by the intensity
00:51:28 - that judges give to agency rules when they're adopted. I've been talking about regulation of, of coal fired utilities for a reason that EPA regulation came before the dis the, circuit court in the District of Columbia, back in the, back in the eighties and a case called Sierra Club versus Cassel.
00:51:59 - that the people objecting to the rule, worried about was that there had been communications between the White House and the EPA, and maybe those communications had warped the regulation. Judge Wald writing her opinion, reviewing the EPAs rule, spent over a hundred pages
00:52:30 - to the record that the agency had. And at one point in the opinion, she had to address the fact that there was nothing in that record to show what the president's communications had been. Well, she said, sure, maybe the president communicated some things that influenced what the agency decided to do. and I can't worry about that if you like, presidents are entitled to opinions in writing
00:53:01 - and forth, and that they can be private communications, I think is more or less implicit. but she nonetheless spent the bulk of her opinion, 90% of her opinion, over a hundred pages going thoroughly through the agency's reasoning and treating the decision as the agency's decision and her position as the position in which
00:53:35 - justified or not. And in a way, this kind of process, in respect to what I've described to you as the exercise of discretion is the constitutional requirement for giving a body like the Environmental Protection Administration as much authority as they have.

The Threat of Presidential Authority on Democracy

00:54:07 - to ascertain the legality of what the agency has done, one can be pretty confident that our courts would say, well, this is an unconstitutional delegation of authority. You can't give an agency that much authority without our control over it. But it's control in which we just look at the legal issues and recognize that the agency is in charge of the policy as long as they tell us how they got there
00:54:37 - and this again, is in respect of a public process that I've described to you, overseen as rational by the courts. As Oys participation grows and grows towards, if you like, the substitution of presidential judgment for agency judgment. What one is seeing is the substitution of for
00:55:06 - of the opaque politics of the White House. And that is in itself a disturbing matter. anyone who's been paying attention to recent newspapers has been aware of the Israeli demonstrations for the preservation of its democracy, where the issue is about judicial power. in my judgment, a threat to American democracy is very much in the air
00:55:41 - and the election in 2024. how will that work out? Is our population indifferent? Does it prefer to have a strong man? but are we back to the situation as it was in Germany in the 1930s when theist strong man gained control within terrible consequences, for the world? President Trump, former President Trump,
00:56:10 - The only parts of the cons, article two that he reads are the sentence that says that the executive power is vested in the President, and he doesn't accept the passive voice of the take care clause that he is to take care that the laws be faithfully executed as if by someone else. No, I'm going to be the one executing those laws. he is been very clear about that.
00:56:44 - magazine, you may see the cover of this week's magazine, which shows President Trump in military garb giving a Zig heel salute. Perhaps that's a bit extreme, I hope it is. but that's what some see as the possible implications of this forthcoming election. Would law and the courts protect us

Presidential Power and Constitutional Oversight

00:57:13 - The rule of law did very little in Germany. One might hope it would do here, but it seems too likely given the conservative presence on the Supreme Court, that it will accept sweeping presidential power despite the Constitution's text, which to me is rather clear in its implications. So to conclude, for me, the President stands in the same kind of relationship to the government. Congress creates, as do Congress
00:57:48 - that Chief Justice Marshall described, where the officer acting is clearly acting as the president's alter ego and where the courts have no role to play. And that's within the frame. With the role of oversight within the framework that Congress has created, duties are where Congress has placed them not in the White House.
00:58:19 - as we've been doing since Mon Montesquieu wrote about them, you might notice what's missing from, that description, at least. If you take the word branches in a metaphor, metaphorical sense, where do branches occur? Well, there parts of a tree and the tree has a trunk. The trunk of the tree
00:59:00 - and it has three branches, each of which has significant roles to play in overseeing the actions of that government. But it's oversight, not decision. From my perspective.

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Overseer or “The Decider”? The American President in Administrative Law

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