Transcript

Are We Cooked? · Politix

0:00
SPEAKER_00: It's my wedding anniversary tomorrow.
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SPEAKER_00: So should I like make a big show about telling Kelly it's liberation day.
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SPEAKER_01: You should, you should get her as many foreign made goods as you can.
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SPEAKER_00: Hey everyone.
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SPEAKER_00: You're listening to a free preview of the politics podcast.
0:17
SPEAKER_00: This week,
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we're going to talk about the unitary executive theory of the
0:20
presidency and how
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SPEAKER_00: it's working out for us in practice.
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Should we lay responsibility for all the damage Trump is doing
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at the feet of the
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SPEAKER_00: right-wing legal elites who popularized the idea?
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Are the incentives and arguments they created for Trump going
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to make it impossible for the U.S.
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to claw its way back to great nation status even after four
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long years or more?
0:45
SPEAKER_00: We'll try to answer those and other questions this week.
0:47
SPEAKER_00: So if you want to hear the whole conversation,
0:48
SPEAKER_00: you can upgrade your subscription to paid at politics.fm.
0:56
SPEAKER_00: Hey everyone, welcome to the Politics Podcast.
0:58
SPEAKER_00: I'm Brian Boitler.
0:59
SPEAKER_00: I'm Matthew Glacius.
1:00
SPEAKER_00: So this week,
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we are once again thinking it was kind of stupid to launch a
1:05
weekly politics
1:06
SPEAKER_00: podcast that runs Wednesday mornings,
1:08
SPEAKER_00: because that means that like several times a year,
1:11
SPEAKER_00: we're recording on an election day of some special election or other.
1:15
And so the news is going to be super different by the time this
1:18
runs tomorrow.
1:19
SPEAKER_00: Vibes may have shifted.
1:22
And like,
1:22
if you're listening to us prattle on about the unitary
1:25
executive theory,
1:26
SPEAKER_00: You just like never know.
1:29
SPEAKER_00: Like maybe Elon Musk will be humiliated,
1:32
SPEAKER_00: slink away from the White House in shame,
1:33
SPEAKER_00: or maybe like it'll be all over for the libs.
1:37
SPEAKER_01: Yes, I don't know.
1:38
SPEAKER_01: But I mean,
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SPEAKER_01: this is also I'm looking forward to Liberation Day tomorrow,
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SPEAKER_01: April 2nd,
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SPEAKER_01: when we will find out what Trump's tariff policies actually are.
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SPEAKER_01: Many things are happening.
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SPEAKER_01: No,
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SPEAKER_01: you know,
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SPEAKER_01: I mean,
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my recollection from hosting a podcast during the first Trump
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term is that there's
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SPEAKER_01: never a day that you can pick where there isn't something,
2:00
SPEAKER_01: you know,
2:00
SPEAKER_01: untoward coming up soon.
2:03
SPEAKER_01: And you sort of got to...
2:06
SPEAKER_01: you know, you just got to talk about what you're talking about.
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SPEAKER_01: I mean,
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SPEAKER_01: so like even as we are speaking,
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SPEAKER_01: Cory Booker is,
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SPEAKER_01: I think,
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SPEAKER_01: rounding hour 14 of a talking filibuster in the United States Senate.
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SPEAKER_01: This is,
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SPEAKER_01: you know,
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obviously not going to single-handedly derail the Republican
2:25
legislative agenda.
2:27
SPEAKER_01: But, you know, I wanted to shout it out.
2:29
SPEAKER_01: I think it is a
2:30
SPEAKER_01: noteworthy occurrence.
2:31
SPEAKER_01: I have not managed to watch all 14 hours of the content,
2:36
SPEAKER_01: but last night before I went to bed,
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he was making some good points about Medicaid this morning when
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I woke up.
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He was making some good points about the rule of law and
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sketchy deportations
2:47
SPEAKER_01: without due process.
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I saw Chris Murphy and Andy Kim and a bunch of the other
2:53
younger senators staying
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SPEAKER_01: up with him last night to,
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SPEAKER_01: you know,
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SPEAKER_01: you can
2:59
SPEAKER_01: During a talking filibuster, you have to hold the floor continuously.
3:04
SPEAKER_01: But other people can ask,
3:05
SPEAKER_01: quote unquote,
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questions of you while you continue to hold the floor and give
3:10
your voice a little
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SPEAKER_01: bit of a break,
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SPEAKER_01: even though I believe you have to keep standing up.
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So a bunch of the younger Democrats were up all night coming up
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with occasional questions.
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And then in the morning,
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Dick Durbin got up early like a senior citizen and
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SPEAKER_01: Went down to the Capitol to help out.
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SPEAKER_01: And I just, I thought it was nice to see.
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I think there have been a lot of calls to see more
3:32
something-ish going on.
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SPEAKER_01: You know, they've gotten a lot of likes on YouTube out of this.
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SPEAKER_00: I mean, it's like, I don't know how.
3:43
SPEAKER_00: It's...
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I think revealing of the incentives of this kind of talking
3:47
filibuster method,
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SPEAKER_00: that this happens once every few years,
3:51
SPEAKER_00: because if it happened all the time,
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SPEAKER_00: people would be like,
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SPEAKER_00: oh,
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SPEAKER_00: another one of these.
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SPEAKER_00: But like the first,
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SPEAKER_00: so like for the youngsters listening,
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SPEAKER_00: once upon a time,
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SPEAKER_00: this was what the filibuster was,
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SPEAKER_00: right?
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SPEAKER_00: Like if you wanted to stop a bill from passing,
4:03
SPEAKER_00: yeah,
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you could hold the floor with some other senators or whatever
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and just talk and
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SPEAKER_00: talk and talk and talk.
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SPEAKER_00: But as accommodations are made in rule changes and precedent changes,
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SPEAKER_00: when we talk about the filibuster,
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what we usually mean is that one party tries to pass a bill and
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a member of the
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SPEAKER_00: other party says,
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SPEAKER_00: I object,
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SPEAKER_00: and that kicks off a 60-vote threshold,
4:30
SPEAKER_00: a 60-vote threshold.
4:32
SPEAKER_00: makes it so that the majority has to find 60 votes to, to end debate.
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SPEAKER_00: Um, so there's almost no talking.
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SPEAKER_00: It's just like a method of killing the bill.
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SPEAKER_00: And what Cory Booker's doing looks a lot more like what,
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SPEAKER_00: you know,
4:48
SPEAKER_00: uh,
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SPEAKER_00: in the culture we think of as a filibuster.
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Um,
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but he's really just occupying this kind of liminal time in the Senate.
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SPEAKER_00: Um, that, uh,
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SPEAKER_00: like to no effect.
5:00
SPEAKER_00: There's no thing under consideration that he's stopping.
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But like Bernie Sanders did one of these back in 2010 or 2011
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to raise the salience
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SPEAKER_00: of the minimum wage.
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SPEAKER_00: And I mean,
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SPEAKER_00: it was like actually- No,
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it was to protest the fiscal cliff tax deal and argue for more
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austerity in fiscal policy.
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SPEAKER_00: Wasn't it because you wanted to include a minimum wage in the, no?
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SPEAKER_00: Maybe.
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SPEAKER_00: I mean,
5:27
SPEAKER_01: you know,
5:28
SPEAKER_01: as happens,
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SPEAKER_01: I mean,
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SPEAKER_01: obviously,
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SPEAKER_01: if you talk on the Senate floor for hours at a stretch,
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SPEAKER_01: you have to say a lot of different stuff.
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SPEAKER_01: It's hard to maintain a tight, disciplined message in that context.
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SPEAKER_00: Perils of like of like recounting 15 year old history from memory.
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But but one thing I am confident of is that this raised his
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profile a lot from
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SPEAKER_00: where it had been before that.
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SPEAKER_00: It like they published it as a book that actually sold really well.
5:55
SPEAKER_00: And I think it's arguable that without that back story,
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he wouldn't have had the the basis for mounting the 2016
6:04
primary campaign that made
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SPEAKER_00: him like world famous.
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SPEAKER_00: Jeff Merkley did one a few years ago,
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and I think it's appropriate under these circumstances for
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someone to do one of
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SPEAKER_00: these now.
6:17
SPEAKER_00: Parker is also,
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SPEAKER_01: I think,
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SPEAKER_01: in above average physical shape for a United States senator,
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SPEAKER_01: and I think could plausibly challenge the Strom Thurmond record.
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SPEAKER_00: Yeah, I mean, we'll see.
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SPEAKER_00: He's also just like, he's energetic.
6:33
SPEAKER_00: When he talks, he's not at a whisper.
6:36
SPEAKER_00: He's got charisma.
6:38
SPEAKER_00: So there will be clippable things.
6:40
SPEAKER_00: It's good.
6:42
SPEAKER_00: And I think at the end of it,
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the idea is that there's going to be a vote in the Senate on
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rescinding the tariffs
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SPEAKER_00: Donald Trump has imposed on Canada.
6:53
SPEAKER_00: Yeah.
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which will,
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I believe,
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draw some Republican support,
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but almost certainly not pass.
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SPEAKER_00: And even if it did pass, like the house wouldn't take it up.
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SPEAKER_00: And even if the house took it up, like Trump would, would veto it.
7:05
SPEAKER_01: Yeah.
7:06
SPEAKER_00: But like,
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SPEAKER_00: this is sort of how accountability can happen in our,
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in our mixed up system where minorities typically can block
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things and blah,
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SPEAKER_00: blah,
7:15
SPEAKER_00: blah.
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SPEAKER_00: Is it like you make Republicans vote to sustain the,
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And then when the pain from the tariffs lands,
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you get to say it's their fault.
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SPEAKER_00: And so good on Cory Booker for doing that.
7:30
SPEAKER_01: Yeah.
7:30
SPEAKER_01: I mean,
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SPEAKER_01: also,
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SPEAKER_01: you know,
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SPEAKER_01: you can just draw attention to,
7:34
SPEAKER_01: you know,
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SPEAKER_01: some of the stuff that you want to talk about.
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SPEAKER_01: So we were going to talk about executive power, discretion, authority.
7:44
SPEAKER_00: Like kind of as like a gut check for like,
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SPEAKER_00: you know,
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for how things are going and like what they're going to look
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like at the end of all this.
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SPEAKER_00: I mean,
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SPEAKER_01: there's many,
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SPEAKER_01: many,
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many different forms of executive authority and executive
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discretion that Trump is using,
8:00
SPEAKER_01: exploiting,
8:01
SPEAKER_01: whatever.
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SPEAKER_01: Some of it,
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SPEAKER_01: like all this tariff stuff is crazy,
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SPEAKER_01: if you ask me,
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SPEAKER_01: but has a clear statutory history to it.
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SPEAKER_01: You know,
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Congress really did grant the president this kind of vaguely
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worded ability to
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impose trade barriers for national security reasons as part of
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what was meant to be
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SPEAKER_01: a like –
8:33
SPEAKER_01: a free trade bill in 1962, right?
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So like Congress passed a bill whose purpose was to make it
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easier for the
8:40
SPEAKER_01: president to strike free trade deals.
8:43
SPEAKER_01: And then to like semi-walk that back,
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SPEAKER_01: it also gave the president authority to like walk back free trade deals.
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You flash forward 63 years into a different context and it's
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now like just a power
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SPEAKER_01: to impose tariffs.
8:59
SPEAKER_01: But you know, you can explain where it came from.
9:02
SPEAKER_01: Trump,
9:02
SPEAKER_01: though,
9:03
SPEAKER_01: on a constitutional level,
9:05
SPEAKER_01: is also making a very audacious claim that manifested itself in
9:12
SPEAKER_01: You know,
9:13
SPEAKER_01: when he took over,
9:15
SPEAKER_01: the Federal Trade Commission,
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SPEAKER_01: FTC,
9:18
SPEAKER_01: went from having – he sacked the chair of the FTC.
9:23
SPEAKER_01: He appointed a new Republican commissioner.
9:26
SPEAKER_01: So Republicans now have a 3-2 majority in the FTC.
9:29
SPEAKER_01: And he elevated one of the existing Republican commissioners to be chair.
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SPEAKER_01: That's completely normal.
9:35
SPEAKER_01: That's what happened when Biden took over.
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SPEAKER_01: That's what happens in a change of administrations.
9:41
SPEAKER_01: But then Trump,
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SPEAKER_01: several weeks after that,
9:44
SPEAKER_01: fired the two Democratic Party minority commissioners.
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SPEAKER_01: By law, you can't do that.
9:53
SPEAKER_01: You have to fire them for cause.
9:56
SPEAKER_01: It's not just an ordinary political appointment.
9:59
Trump in his first term fired the FBI director,
10:03
which by statute you have to do for cause.
10:06
SPEAKER_01: And he was clearly doing it for sort of corrupt reasons.
10:10
But he did put the assistant attorney general out there with a
10:14
pretextual like cause,
10:17
which hilariously was that he fired James Comey for violating
10:21
DOJ guidelines by
10:23
SPEAKER_01: saying mean things about Hillary Clinton.
10:25
SPEAKER_01: But so he was following the letter of the law, if not the spirit.
10:30
SPEAKER_01: With these FTC firings, that is not what he has done.
10:34
Like the Justice Department acknowledged that he is firing them
10:38
without cause and
10:39
SPEAKER_01: is simply saying that the Supreme Court ruling in a case called...
10:45
SPEAKER_01: Humphrey's executor is bad law and should be overturned,
10:50
which is striking because Republicans already kind of like
10:54
narrowed that precedent
10:56
SPEAKER_01: in a number of different dimensions with different litigation.
10:59
SPEAKER_01: But Humphrey's executor was literally about the FTC, right?
11:03
SPEAKER_01: So this is like a very deliberate fight picking.
11:07
SPEAKER_01: When they sued around the CFPB,
11:09
SPEAKER_01: when they sued around certain other things,
11:11
SPEAKER_01: their lawyers did what lawyers normally do in a case.
11:14
SPEAKER_01: And they said,
11:15
you might think that the Humphreys executor precedent says we
11:18
can't do this,
11:20
SPEAKER_01: but here's why it's different.
11:22
SPEAKER_01: And the Supreme Court has distinguished a lot.
11:25
The conservatives in the Supreme Court have narrowed the scope
11:28
of Humphreys executor.
11:30
But Trump is now aiming for the heart of it and is just saying
11:34
there cannot be any
11:36
statutory limitation on the president's authority to fire major
11:41
government officials.
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SPEAKER_01: So the FTC is a test case for this.
11:47
SPEAKER_01: It's a good test case,
11:49
SPEAKER_01: both because a lot of businessmen are really,
11:53
SPEAKER_01: really mad at the Biden FTC commissioners.
11:57
It's also a good test case because since Humphrey's executor
12:00
was literally about
12:01
SPEAKER_01: the FTC,
12:02
SPEAKER_01: if you can win here,
12:03
SPEAKER_01: you win everywhere.
12:05
SPEAKER_01: But it has implications for the Nuclear Regulatory Commission,
12:10
SPEAKER_01: for the Federal Reserve,
12:12
SPEAKER_01: for the SEC,
12:13
SPEAKER_01: for every so-called like independent organization.
12:16
SPEAKER_01: regulatory agency that exists there.
12:20
And,
12:20
you know,
12:21
this has – it long predates Donald Trump as a conservative
12:25
legal theory concept.
12:27
SPEAKER_01: But I think in Trump's hands,
12:30
SPEAKER_01: you know,
12:30
SPEAKER_01: it looks different from how it's supposed to be because Trump so plainly,
12:36
SPEAKER_01: I think,
12:37
SPEAKER_01: aspires to this kind of dictatorial authority,
12:41
SPEAKER_01: right?
12:41
SPEAKER_01: I mean, it's not – it's not like a hypothetical.
12:44
SPEAKER_01: If –
12:45
You remove all presidential constraint over firing of executive
12:50
branch officials.
12:51
You could be empowering some kind of maniac like he is the
12:55
maniac and he is being
12:56
SPEAKER_01: empowered by this here and now.
12:58
SPEAKER_00: Yes.
12:59
SPEAKER_00: And I mean,
12:59
SPEAKER_00: I think,
13:01
SPEAKER_00: you know,
13:02
SPEAKER_00: I think that we should look,
13:05
SPEAKER_00: be a little jaundiced eyed about the the
13:08
SPEAKER_00: conservative legal elites who popularized the theory.
13:13
SPEAKER_01: I'm extremely jaundiced.
13:16
SPEAKER_01: I just want to be jaundiced.
13:17
SPEAKER_01: There's different ways you can be jaundiced.
13:19
SPEAKER_01: The Heritage Foundation today is saying that Trump's tariffs are amazing,
13:24
SPEAKER_01: and in doing so,
13:25
they are contradicting the past 30 years of conservative
13:28
economic policy thought.
13:30
The conservative legal movement backing Trump here is backing
13:34
the consistent line
13:35
SPEAKER_01: that they have had for decades.
13:37
SPEAKER_00: Yeah, but it's not that consistent, I don't think, right?
13:41
So if you want to just take them at their word that this is
13:49
what their vision for
13:50
SPEAKER_00: how the presidency should work would look like –
13:55
You have to imagine that they were thinking that every
13:59
president that would ever be
14:00
elected would be conservative-minded with a small C and would
14:06
use this unitary
14:09
SPEAKER_00: executive power to remake the state,
14:14
SPEAKER_00: but then also be respectful of electoral traditions,
14:22
SPEAKER_00: of electoral law,
14:24
not,
14:25
you know,
14:26
not be corrupted by the power that this vests them with in theory,
14:32
right?
14:34
SPEAKER_00: And I don't think you have to be as corrupt as Donald Trump to...
14:39
SPEAKER_00: see that that is a very long bet.
14:42
And also that they wouldn't view it as appropriate if it was
14:47
put to any ends other
14:48
SPEAKER_00: than deregulating commerce or whatever.
14:54
SPEAKER_00: If the same powers that they have wanted to vest George W.
15:01
SPEAKER_00: Bush with or Ronald Reagan with,
15:02
SPEAKER_00: if Joe Biden had used those to fire line prosecutors,
15:08
SPEAKER_00: or hire line prosecutors and tell them to go after Donald Trump,
15:12
SPEAKER_00: like Republicans would have deemed it an impeachable offense.
15:15
SPEAKER_00: And like they would have been right to do so,
15:17
but it's the same theory of power is that there's nobody in the
15:20
executive branch
15:21
SPEAKER_00: that isn't hireable or fireable by the president.
15:24
And I mean,
15:24
like,
15:24
I guess different conservative legal scholars like take
15:27
different lines about
15:29
SPEAKER_00: where the power has limits.
15:30
SPEAKER_00: And there are,
15:31
SPEAKER_00: there are,
15:31
SPEAKER_00: you know,
15:32
SPEAKER_00: some,
15:33
SPEAKER_00: some of them say it's basically unlimited,
15:35
SPEAKER_00: but like Trump is trying to use it in an,
15:38
SPEAKER_00: like a totally unlimited way.
15:40
SPEAKER_00: And they're fine with it because he's a Republican.
15:43
SPEAKER_01: Yes.
15:43
SPEAKER_01: But I mean, I do.
15:44
SPEAKER_01: I just like I do want to like explain the whole thing here.
15:47
SPEAKER_01: Right.
15:47
Because I have found this for years to be a kind of astounding
15:53
piece of legal theory,
15:55
SPEAKER_01: because like on its face.
15:57
SPEAKER_01: Right.
15:58
SPEAKER_01: Congress passes a law.
16:00
SPEAKER_01: Okay.
16:01
SPEAKER_01: The law says we're going to create a new agency.
16:03
SPEAKER_01: Okay.
16:05
So this happened most recently after the Bush administration
16:13
took Fannie Mae and
16:14
SPEAKER_01: Freddie Mac into conservatorship during the 2008 sort of banking crisis.
16:21
SPEAKER_01: And then when they were writing –
16:25
SPEAKER_01: The TARP law, right?
16:29
They created a new small regulatory agency that is supposed to
16:34
oversee Fannie and
16:35
SPEAKER_01: Freddie now that they are owned by the government.
16:38
SPEAKER_01: And this is called the Federal Housing Finance Agency.
16:42
SPEAKER_01: And so Congress,
16:43
SPEAKER_01: I mean,
16:43
SPEAKER_01: at the insistence of Republicans,
16:46
SPEAKER_01: because they knew that Bush was going to lose the election,
16:50
SPEAKER_01: made this an independent agency whose head is only removable for cause.
16:56
SPEAKER_01: What's that?
16:57
SPEAKER_01: Oh, they knew McCain was going to lose the election.
16:59
SPEAKER_01: Right.
17:00
SPEAKER_01: So they made it this person was only removable for cause.
17:05
SPEAKER_01: And so somebody or other was elevated.
17:06
SPEAKER_01: I forget his name.
17:09
SPEAKER_01: I was like Ed DeMarco, some kind of like longstanding bureaucrat.
17:14
And they also said that the agency had to have this like very
17:18
strict mission of
17:20
SPEAKER_01: preserving the balance sheet of Fannie and Freddie.
17:23
SPEAKER_01: And so then there was a lot of drama during Obama's presidency.
17:28
SPEAKER_01: And people were saying,
17:29
SPEAKER_01: progressives were saying,
17:30
SPEAKER_01: you know,
17:31
SPEAKER_01: Obama should fire Ed DeMarco,
17:33
should put a political appointee in there and should use FHFA's
17:38
authority over
17:39
Fannie and Freddie to inject more kind of stimulus into the
17:43
economy because there
17:43
SPEAKER_01: were various ways you could do that.
17:45
SPEAKER_01: DeMarco kept saying, you know, that's –
17:49
An economic policy judgment that's not in line with our strict
17:52
conservatorship mission.
17:54
SPEAKER_01: So there were years and years and years of arguments about this.
17:58
Obama kind of very belatedly did it eventually and did it sort
18:04
of like Bush – sorry,
18:06
SPEAKER_01: like Trump with Comey.
18:08
SPEAKER_01: They like came up with some reason.
18:10
SPEAKER_01: And it was going to be litigated.
18:13
SPEAKER_01: But then Trump became president.
18:15
SPEAKER_01: So then Trump filled the vacancy with Mark Calabria.
18:17
SPEAKER_01: And then when Biden came in,
18:20
he right away got rid of Calabria and elevated somebody whose
18:24
name I forget.
18:25
SPEAKER_01: So when that happened,
18:26
SPEAKER_01: you know,
18:27
SPEAKER_01: Pat Toomey,
18:27
SPEAKER_01: who was the Republican rancor on the Banking Committee,
18:31
SPEAKER_01: put out a statement condemning the decision to fire Director Calabria,
18:37
SPEAKER_01: but said,
18:37
I agree with the Supreme Court that the statutory restrictions
18:41
on the president's
18:41
SPEAKER_01: power to remove the FHFA director were unconstitutional.
18:45
So the question is,
18:46
like,
18:47
why would you think that that's unconstitutional?
18:50
SPEAKER_01: Right?
18:50
SPEAKER_01: Like, if Congress thinks—
18:53
SPEAKER_01: an agency,
18:54
SPEAKER_01: I mean,
18:54
SPEAKER_01: Congress creates new agencies sometimes,
18:57
SPEAKER_01: and they create rules governing that agency.
19:00
And one of the rules can be that the director of the agency is
19:04
only fireable for cause.
19:06
SPEAKER_01: So it seems to me that the argument from the right is that Article 2,
19:13
SPEAKER_01: Section 1 of the Constitution says,
19:16
the executive power shall be vested in a president of the
19:19
United States of America,
19:20
SPEAKER_01: period.
19:21
SPEAKER_01: No elaboration on that.
19:23
It just follows to he shall hold his term of office during the
19:26
term of four years,
19:28
SPEAKER_01: together with the vice president,
19:29
SPEAKER_01: explains how we should be elected.
19:31
SPEAKER_01: You know,
19:31
SPEAKER_01: it has all kinds of other stuff describing,
19:35
SPEAKER_01: you know,
19:35
SPEAKER_01: how the presidency is going to work.
19:38
SPEAKER_01: So the argument is that this...
19:41
SPEAKER_01: that to me, it just reads as like throat clearing.
19:45
SPEAKER_01: The executive power shall be vested in a president of the United States.
19:49
That has sweeping limits on the powers of Congress and that you
19:54
cannot divide
19:57
executive power by making any executive branch officials
20:02
anything other than
20:03
SPEAKER_01: serving at the pleasure of the president.
20:05
SPEAKER_01: This has incredibly far-reaching implications for public policy.
20:11
SPEAKER_01: That,
20:13
SPEAKER_01: you know,
20:15
the term unitary executive comes from a 1992 Law Review article
20:21
by Stephen Calabrese.
20:23
1992 happens to be the end of a span in which Republicans won
20:27
the presidency five
20:30
SPEAKER_01: times out of six.
20:32
SPEAKER_01: And they never held a majority in the House of Representatives.
20:35
SPEAKER_01: Yeah.
20:36
SPEAKER_01: during that span.
20:37
SPEAKER_01: So it's just easy to see.
20:41
SPEAKER_01: In that particular context,
20:43
you would think maximizing the discretionary authority of the
20:47
president is conservative,
20:49
SPEAKER_01: and Congress having checks on presidential authority is liberal.
20:54
SPEAKER_01: Since 1992, like nothing like that has been true.
20:58
SPEAKER_01: We happen to have Donald Trump in office right now.
21:00
And so Donald Trump running amok kind of aligns with
21:04
conservative precedents.
21:06
SPEAKER_01: But like Joe Biden did not do what Trump is doing,
21:09
but like he did take advantage of this kind of growing
21:14
conservative view that you
21:15
SPEAKER_01: could just fire people willy nilly.
21:18
There's no basis for thinking that systematically this will
21:22
advance conservative policy aims.
21:26
unless Donald Trump uses willy-nilly executive authority to
21:31
become a dictator.
21:34
SPEAKER_01: Which is where we are now.
21:35
SPEAKER_00: Which is what's happening.
21:37
So there's another clause in the Constitution that says that
21:41
the president shall
21:42
SPEAKER_00: take care that the laws are faithfully executed.
21:45
And I think that this sheds some light on the extent of the
21:51
vesting clause,
21:52
right?
21:52
SPEAKER_00: Mm-hmm.
21:55
SPEAKER_00: You're the executive,
21:57
SPEAKER_00: but your role as the executive is to faithfully enforce the laws,
22:01
SPEAKER_00: and then Congress passes the laws.
22:03
SPEAKER_00: And so if Congress establishes an agency,
22:09
SPEAKER_00: with the charter that says it's going to do X,
22:10
SPEAKER_00: Y,
22:10
SPEAKER_00: Z,
22:10
SPEAKER_00: then your job within,
22:12
SPEAKER_00: you know,
22:12
SPEAKER_00: like you're going to have some wiggle room,
22:14
SPEAKER_00: but like you can't just diametrically oppose the mission.
22:17
SPEAKER_00: You can't take office and reverse that, right?
22:20
SPEAKER_00: And if they say,
22:21
SPEAKER_00: you know,
22:22
SPEAKER_00: and to limit your ability to like tinker around the edges,
22:26
we're going to say you can't change the staffing here except at
22:30
certain increments.
22:30
SPEAKER_00: Like,
22:32
SPEAKER_00: If you have to take care that the laws are faithfully executed,
22:34
SPEAKER_00: then you have to adhere to that,
22:36
SPEAKER_00: right?
22:37
SPEAKER_00: And look,
22:38
like I think that the republic could survive some rejiggering
22:43
of how much plenary
22:45
SPEAKER_00: authority the president had to fire various people,
22:48
but it's not – I don't think it could survive the like the
22:56
farthest reaching –
22:58
form of unitary executive theory that Trump is now trying to
23:00
live out,
23:01
right?
23:01
SPEAKER_00: Like,
23:02
SPEAKER_00: and you can see that in,
23:05
SPEAKER_00: like,
23:06
SPEAKER_00: if you just change the context from politics to business,
23:10
SPEAKER_00: you can see why it doesn't work,
23:13
SPEAKER_00: right?
23:13
SPEAKER_00: Like, if Apple...
23:17
SPEAKER_00: or whatever,
23:18
SPEAKER_00: Apple came to me and said,
23:20
SPEAKER_00: congratulations,
23:21
SPEAKER_00: we listened to your podcast and we really like your takes.
23:23
SPEAKER_00: And so now you're the CEO.
23:26
SPEAKER_00: And I said, oh, that's great.
23:28
SPEAKER_00: But with my new unitary executive authority,
23:31
SPEAKER_00: I'm going to transform Apple into a company that makes
23:36
SPEAKER_00: gambling devices.
23:36
So they'll look the same,
23:38
but they won't have any telephonic capabilities.
23:41
SPEAKER_00: You can't send text messages or whatever.
23:44
SPEAKER_00: And you can't download anything other than games where people bet money.
23:49
And we're going to take a cut,
23:50
and that's how we're going to increase our profits.
23:53
And so to do that,
23:54
I'm going to replace the creative team with a new team.
23:56
SPEAKER_00: I'm going to go to Las Vegas.
23:57
SPEAKER_00: I have some friends there.
23:59
I'm going to hire them,
24:00
and they're going to figure out how to make Apple great again.
24:04
SPEAKER_00: That would not be allowed to happen.
24:07
SPEAKER_00: The board would remove me.
24:08
SPEAKER_00: And if I fought that, then I'd be sued.
24:13
SPEAKER_00: Tim Cook would probably try to shoot me in the head.
24:16
And in the context of the separation of powers in the US government,
24:27
it's...
24:28
SPEAKER_00: Having a president who has lots of discretion to make policy,
24:34
SPEAKER_00: you can see why that might carry some appeal,
24:37
SPEAKER_00: left,
24:37
SPEAKER_00: right,
24:38
SPEAKER_00: whatever.
24:39
But it doesn't work if you have four-year terms and there's no
24:47
– the analogy to the
24:48
SPEAKER_00: board removing you would be impeachment and –
24:51
If the impeachment power is neutered,
24:53
then you just have a four-year king.
24:55
SPEAKER_00: And even more than that,
24:57
SPEAKER_00: like when it's a term-limited president,
25:02
SPEAKER_00: there's like nothing left,
25:03
SPEAKER_00: right?
25:04
SPEAKER_00: I don't see other than Trump's own sense of his own,
25:08
SPEAKER_00: how he'll be remembered after he dies,
25:10
SPEAKER_00: right?
25:12
SPEAKER_00: like,
25:12
SPEAKER_00: check on him under the theory that's in operation right now,
25:19
SPEAKER_00: which is bad because if he...
25:23
SPEAKER_00: If he has really convinced himself that he doesn't care about the U.S.
25:27
SPEAKER_00: economy because he likes feeling powerful,
25:30
the powerful feeling that washes over him when he imposes or
25:33
threatens tariffs,
25:35
or like if you want to be naive and assume he really has some
25:38
grand vision for the
25:39
SPEAKER_00: remaking of the American economy,
25:41
SPEAKER_00: then we can have a four-year depression and –
25:49
SPEAKER_00: you know,
25:49
all the other acts of corruption that are happening behind the
25:52
scenes and like nothing,
25:56
SPEAKER_00: no way to stop it other than to wait to,
25:58
SPEAKER_00: to elect somebody else who will inherit,
26:01
SPEAKER_00: you know,
26:02
SPEAKER_00: ashes,
26:02
SPEAKER_00: assuming Trump doesn't abuse the executive,
26:05
the unitary executive theory even further to like try to stay
26:08
in power illegally.
26:10
SPEAKER_01: Yeah.
26:10
SPEAKER_01: I mean, uh,
26:13
SPEAKER_01: Yes.
26:14
SPEAKER_01: I mean, I think it's just like a question, right?
26:16
SPEAKER_01: I mean, Ganesha Sitaraman, I'm not sure if I'm saying his name right.
26:21
He wrote a Law Review article called The Political Economy of
26:27
the Removal Power
26:28
SPEAKER_01: that was sort of looking through this.
26:32
SPEAKER_01: And he was sort of...
26:35
SPEAKER_01: puzzling over what exactly conservatives are on about here.
26:42
SPEAKER_01: And I think that it's
26:46
There's just like a—there's sort of like two paths,
26:50
right,
26:51
down this road.
26:52
SPEAKER_01: And like one is Donald Trump uses these removal powers very aggressively.
26:59
SPEAKER_01: I would say not so much over regulatory agencies, but over prosecutors.
27:04
SPEAKER_01: He's doing it.
27:05
SPEAKER_01: Yes, you know, but I mean, you know, things can always—
27:10
SPEAKER_01: continue to unspurple, right?
27:12
SPEAKER_01: You can completely destroy the rule of law,
27:16
SPEAKER_01: in theory,
27:17
SPEAKER_01: purely through the hiring and firing of prosecutors.
27:22
And you might think that that abets conservative policy aims
27:27
because Donald Trump's
27:29
SPEAKER_01: team has conservative policy sympathies.
27:34
SPEAKER_01: But if you don't go down that road,
27:36
SPEAKER_01: right,
27:36
SPEAKER_01: there's a question,
27:37
SPEAKER_01: like,
27:37
outside the specific context of Ronald Reagan fighting with
27:41
congressional Democrats.
27:42
SPEAKER_01: Like, is any of this a good idea on a policy level?
27:48
SPEAKER_01: Like, how are you going—I mean, I think the most obvious one, right?
27:53
Like,
27:54
there's some paragraph or something in the memo where—not the memo,
27:59
the brief on this—
28:01
SPEAKER_01: Where Trump's people are like,
28:03
we promise not to use this power to destroy the independent
28:08
setting of monetary policy.
28:10
Because conservatives generally think like that monetary policy
28:14
should be done independently.
28:15
SPEAKER_01: But the – Well,
28:18
I think that they put that line in there so that the existence
28:20
of the brief
28:21
SPEAKER_00: wouldn't cause a market down.
28:22
SPEAKER_00: Well, yes.
28:23
SPEAKER_01: I mean that's what I'm saying.
28:25
SPEAKER_01: But like –
28:26
SPEAKER_01: The brief can't do that.
28:27
SPEAKER_01: You know what I mean?
28:28
SPEAKER_01: Like, if this constitutional theory prevails, Fed independence is dead.
28:33
SPEAKER_01: That doesn't mean Jay Powell will be fired tomorrow.
28:36
SPEAKER_01: But it does mean that,
28:37
SPEAKER_01: like,
28:38
SPEAKER_01: you know,
28:39
as we go through the convulsions associated with tariffs and
28:42
taxes and whatever
28:43
SPEAKER_01: else is happening,
28:44
SPEAKER_01: inflation expectations have been going up.
28:47
And we could have a Supreme Court ruling very,
28:49
very quickly that says,
28:51
like,
28:52
SPEAKER_01: Fed independence is dead,
28:54
SPEAKER_01: which is going to have,
28:55
SPEAKER_01: you know,
28:56
SPEAKER_01: bad knock on economic policy consequences.
29:00
SPEAKER_01: And, you know, is that it's like the the good case here.
29:09
is that we make structural changes to our understanding of
29:11
constitutional law that
29:13
SPEAKER_01: have bad consequences for the economy.
29:15
SPEAKER_01: And then like the bad case is that Trump becomes a dictator.
29:19
SPEAKER_01: It seems it seems quite bad to me.
29:21
SPEAKER_01: It seems it seems like under baked.
29:23
And also that I think a lot of people maybe have been
29:27
introduced to unitary
29:28
SPEAKER_01: executive theory through the movie Vice,
29:31
SPEAKER_01: which discusses it at great length,
29:33
SPEAKER_01: but explains it very,
29:34
SPEAKER_01: very poorly.
29:35
And I think it's important to understand that while this idea
29:41
is pregnant with the
29:42
SPEAKER_01: possibility of various kinds of abuses,
29:45
SPEAKER_01: it's core correct functionality that
29:49
SPEAKER_01: I just think it's, like, really bad.
29:51
SPEAKER_01: You know what I mean?
29:52
SPEAKER_01: Like,
29:52
SPEAKER_01: the president being able to,
29:53
SPEAKER_01: like,
29:54
SPEAKER_01: hire and fire the leaders of every regulatory agency at his whim,
29:58
SPEAKER_01: like,
29:59
SPEAKER_01: doesn't mean that the president is a dictator now.
30:01
SPEAKER_01: But it's, like, actually a bad idea.
30:03
SPEAKER_01: You know, like...
30:05
Companies that build nuclear power plants are operating in a
30:10
heavily regulated context.
30:12
SPEAKER_01: Those regulations also change over time.
30:15
The idea that those regulations should change in a fairly slow
30:20
and reasonably
30:21
SPEAKER_01: predictable manner rather than kind of erratically swinging the way that,
30:26
SPEAKER_01: say,
30:28
SPEAKER_01: you know,
30:29
SPEAKER_01: you know,
30:29
it's like every new president comes in and they like change the
30:32
Mexico City policy.
30:34
SPEAKER_01: Right.
30:35
SPEAKER_01: That's silly in a way, but also like the world moves on.
30:39
SPEAKER_01: You can't build a nuclear power plant on that basis.
30:43
SPEAKER_01: Right.
30:44
SPEAKER_01: Like the rules require a certain kind of stability,
30:47
which is why first the Atomic Energy Commission and then the
30:52
Nuclear Regulatory
30:53
SPEAKER_01: Commission are.
30:54
were set up by two different Congresses in two very different
30:57
political contexts to
30:58
SPEAKER_01: be independent agencies with a career executive director,
31:02
SPEAKER_01: et cetera,
31:02
SPEAKER_01: et cetera.
31:03
SPEAKER_01: It doesn't make those agencies perfect.
31:06
SPEAKER_01: The NRC, I think, is like flawed in a lot of different ways.
31:09
SPEAKER_01: But the idea that structurally –
31:12
it should exist in a fairly freestanding manner is I think a
31:16
sound judgment of
31:18
SPEAKER_01: Congress that has been affirmed.
31:19
Like Congress has tweaked the NRC many,
31:22
many times,
31:23
most recently with the Advance Act.
31:25
The idea that like Congress should not have the power to set up
31:30
freestanding
31:31
SPEAKER_01: agencies based on a,
31:34
SPEAKER_01: like it reminds me of a 10-year-old
31:37
SPEAKER_01: You know,
31:37
just like grabbing on to some stray thing that like the teacher
31:41
said to try to get
31:43
SPEAKER_01: his way.
31:44
SPEAKER_01: Like it doesn't make any sense.
31:46
SPEAKER_01: There's no normative reason for it.
31:48
SPEAKER_01: There's no real legal basis for it.
31:51
SPEAKER_01: It's at odds with like literally hundreds of years of American tradition.
31:55
SPEAKER_01: I completely get that.
31:57
why the Reagan administration felt it was frustrating that
32:00
Republicans keep
32:01
SPEAKER_01: continually winning landslide presidential elections,
32:04
SPEAKER_01: didn't give them unchecked power.
32:06
SPEAKER_01: Like I would also be frustrated by that situation if I had been Ed Meese.
32:11
SPEAKER_01: But that's not like a real reason.
32:12
SPEAKER_01: It's just the politics of the 70s and 80s were weird.
32:16
So let's talk about like what kind of context some version of
32:22
this might make sense in or not.
32:23
SPEAKER_00: Because I know that this has you like –
32:26
pretty down on the fate of the Republic or the prospects for
32:33
American revival.
32:33
SPEAKER_00: But before we do that, is there... Have you read anything about...
32:39
SPEAKER_00: How the Supreme Court,
32:41
is there any way like clever lawyer argument for treating
32:47
monetary policy as like
32:48
some sort of unwritten fourth branch of government that is
32:51
exempt from this idea?
32:55
SPEAKER_00: Because it does seem like there is,
33:00
SPEAKER_00: they can throw the clause and say like,
33:02
SPEAKER_00: pinky swear,
33:03
SPEAKER_00: I'm not going to.
33:04
SPEAKER_00: We're not going to tinker with Fed independents,
33:07
SPEAKER_00: but if the Supreme Court just says,
33:09
SPEAKER_00: okay,
33:10
SPEAKER_00: we trust you,
33:11
SPEAKER_00: well,
33:11
SPEAKER_00: like,
33:12
SPEAKER_00: you know,
33:12
SPEAKER_00: Trump's not exactly trustworthy,
33:14
SPEAKER_00: but like,
33:16
SPEAKER_00: could you in theory be like,
33:18
SPEAKER_00: the rule is this,
33:20
and the way we've designed the rule protects independent
33:23
monetary theory alone?
33:25
SPEAKER_01: I mean, these lawyers can make up anything that they want.
33:31
SPEAKER_01: You know, it seems to me, right?
33:34
So like one of the Section 8 powers of Congress specifically is
33:38
to coin money,
33:39
regulate the value thereof and of foreign coin and fix the
33:43
standard of weights and measures.
33:45
So I don't know,
33:47
like you could say that somehow that's not an executive authority.
33:51
SPEAKER_01: But I mean, to me, it doesn't make any sense.
33:55
SPEAKER_01: Right.
33:55
SPEAKER_01: I mean, like all regulatory authority is essentially vested in Congress.
34:05
SPEAKER_01: Right.
34:06
SPEAKER_01: Right.
34:06
Which has always been understood as Congress passes laws that
34:10
then create agencies
34:13
SPEAKER_01: that then do things.
34:16
SPEAKER_01: And, you know, I mean...
34:20
SPEAKER_01: There's no check on the Supreme Court's ability to make stuff up.
34:24
I encourage Justice Roberts and Justice...
34:28
We're the most pragmatic ones up there.
34:30
SPEAKER_01: Kavanaugh.
34:31
It's Amy Coney Barrett and Roberts are supposedly our saviors
34:34
in this 6-3-4.
34:34
SPEAKER_01: Well, I mean, I'm not even saying saviors, but, you know, just like...
34:39
SPEAKER_00: Yeah, Kavanaugh likes his country club life.
34:41
SPEAKER_01: Yeah, just make something up here.
34:43
SPEAKER_01: Like even if you want – I don't really care.
34:47
FTC independence I actually think is like a little bit odd
34:50
because the DOJ
34:51
antitrust authority has a different statutory setup and so it
34:56
sort of doesn't matter.
34:57
But like wrecking Fed independence is straightforwardly bad for
35:01
economic policy.
35:02
SPEAKER_01: But I really think like the prosecutor stuff like –
35:09
SPEAKER_01: I mean,
35:10
SPEAKER_01: I want conservatives to think this over because if you're going to say,
35:15
SPEAKER_01: I mean,
35:17
SPEAKER_01: if you were just writing a memo for class,
35:22
SPEAKER_01: a paper,
35:22
SPEAKER_01: an essay,
35:23
SPEAKER_01: whatever the fuck you call it,
35:25
SPEAKER_01: you could just be like,
35:25
SPEAKER_01: well,
35:26
SPEAKER_01: you know,
35:26
the impeachment power is Congress's check on a completely
35:29
lawless president.
35:31
SPEAKER_01: And so it's fine.
35:32
SPEAKER_01: But like, we all know that that's not how things work.
35:36
SPEAKER_01: You know,
35:36
that like removing a president for by impeachment is an
35:41
incredibly high barrier
35:43
SPEAKER_01: that it requires,
35:45
SPEAKER_01: you know,
35:45
SPEAKER_01: the action not just of like swing senators facing electoral pressure,
35:50
but if like senators deep into the president's base and is
35:54
incredibly unlikely to happen.
35:55
SPEAKER_01: We also know that.
35:58
We've seen both in the Trump impeachments but also in the
36:02
Clinton impeachment that
36:04
increasingly members of Congress treat impeachment as a
36:08
quasi-judicial process.
36:10
SPEAKER_01: So they are trying to find that the president broke a law.
36:14
So if the Supreme Court says that it's legal for the president
36:18
to fire line
36:19
SPEAKER_01: prosecutors for any reason,
36:22
SPEAKER_01: then impeachment is not going to be a check on that.
36:26
Just like in the way that it works,
36:29
in the way that we've argued it,
36:30
right?
36:31
I think what John Roberts would say is that it should be legal
36:39
for the president to
36:40
hire and fire many people in the executive branch that we
36:43
traditionally didn't
36:44
SPEAKER_00: think get the power to fire,
36:46
SPEAKER_00: but that if there is a corrupt purpose behind it,
36:49
SPEAKER_00: that that isn't protected.
36:52
SPEAKER_01: I'm begging the Supreme Court.
36:56
SPEAKER_00: Believe me, I'm with you.
36:58
SPEAKER_01: I'm with you.
37:00
SPEAKER_01: Going way back to the Bob McDonald case in the Supreme Court, right?
37:06
SPEAKER_01: This was before Trump was on the scene, right?
37:09
SPEAKER_01: unanimous opinion.
37:10
SPEAKER_01: I think it was written by Justice Ginsburg.
37:13
SPEAKER_01: And it was just ruled that the honest services fraud,
37:19
which was the statute that prosecutors have traditionally
37:22
prosecuted political
37:22
SPEAKER_01: corruption under,
37:23
SPEAKER_01: had to be dramatically narrowed in its meaning.
37:28
SPEAKER_01: And the court was sort of relying on a...
37:32
SPEAKER_01: You know, like this is politics, right?
37:34
That if politicians do something that meets the ordinary
37:37
language meaning of corrupt,
37:40
SPEAKER_01: that like that's for the voters to judge,
37:42
SPEAKER_01: not for the courts.
37:44
SPEAKER_01: But we've seen, we saw in Bob Menendez's 2018 re-election.
37:49
And we saw in Trump's impeachments and so on and so forth that
37:52
like political actors,
37:55
SPEAKER_01: including the voters,
37:56
SPEAKER_01: including members of Congress,
37:57
SPEAKER_01: have a very judicialized understanding of the political process.
38:03
SPEAKER_01: Right.
38:03
SPEAKER_01: And so if the judiciary says it's not a crime anymore, like.
38:10
SPEAKER_01: Congress sits there.
38:11
SPEAKER_01: I mean,
38:11
the whole debate at Trump's first impeachment hinged on the
38:17
question of whether it
38:18
SPEAKER_01: violated some statute for Trump to do what it was he did.
38:23
SPEAKER_01: And it was a lot of like,
38:26
SPEAKER_01: it was weird to me because it's like,
38:28
SPEAKER_01: you know,
38:28
SPEAKER_01: like you're just Congress,
38:29
SPEAKER_01: like you can do what you want.
38:31
SPEAKER_01: But that was the argument that they were having.
38:34
SPEAKER_01: And so when you hand down that like the president doesn't need Trump,
38:39
SPEAKER_01: cause to eliminate the people charged with enforcing the laws.
38:49
SPEAKER_01: you are opening the door to,
38:52
SPEAKER_01: you know,
38:52
SPEAKER_01: real calamity,
38:54
SPEAKER_01: like over and above just like all of Trump's BS and,
38:58
SPEAKER_01: you know,
38:59
SPEAKER_01: like MAGA and how insane they are and so on and so forth.
39:02
Like they would be giving a like official,
39:05
you know,
39:05
like legal stamp of approval.
39:08
SPEAKER_01: And for policy reasons that I don't think make sense either.
39:12
SPEAKER_01: Anyway, that's what I'm saying.
39:13
SPEAKER_01: I think we should do a break.
39:15
SPEAKER_00: Yeah, let's do a break.
39:15
SPEAKER_00: And then like, I want to, I want to, uh,
39:19
I want to posit some ideas about how America could be made
39:25
better with a more
39:26
SPEAKER_00: responsive executive and Congress.
39:29
SPEAKER_00: And I want to hear why you feel like,
39:32
SPEAKER_00: I mean,
39:34
where you see this leading with Trump if he gets his way on
39:38
these questions.
39:39
SPEAKER_00: To listen to that part of the conversation,
39:41
SPEAKER_00: you can navigate to politics.fm and upgrade your subscription.