Donald Trump Plans to Make the Presidency More Like a Reign

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On Monday, the New York Times reported that Donald Trump and his advisers are planning to radically change the functioning of the executive branch, if he regains the Presidency next year. Trump has long referred to the federal bureaucracy as the deep state and, as President, has sought to exercise greater authority over it. According to the Times, for a potential second term, the Trump team is planning a massive expansion of presidential power, focusing on certain areas: establishing more control over semi-independent agencies such as the Federal Trade Commission (FTC) and Federal Reserve; firing government employees at will, even those with civil service protections; and impounding funds appropriated by Congress. Taken together, the result is the greatest transformation of the relationship between the executive branch and the federal government in recent American history.

To discuss what all this might mean, I spoke by phone with Noah Rosenblum, an assistant professor and legal historian at New York University School of Law. During our conversation, which has been edited for length and clarity, we discussed how Trump might implement these various proposals, the ways in which this effort serves the larger conservative project to dismantle the administrative state, and how the Supreme Court, under Chief Justice John Roberts, is likely to respond to Trumps plans.

Broadly speaking, how will the federal government restructure these plans if they are enacted?

So I think Donald Trump truly believes, as he said, that he has Article II and lets him do whatever he wants. And being the President of the United States is like a monarch who is the head of a kingdom. But that’s not how the United States government works, ever. And when I read that Times story, my first thought was that he seemed to be trying to put together legal plans that would make the Presidency more of a monarchy and bring it a little closer to understanding what he understood the office be.

Can you talk a little bit about Article II of the Constitution and what it means and how Trump’s ideas are similar to the ideas that have been circulating in the conservative movement and the Republican Party since the Reagan Administration, if not going back all the way to the Nixon Administration?

I think your periodization is exactly right. The roots of the Reagan Administration’s theories can be found in the Office of Legal Counsel in the Nixon Administration. A key figure bridging those times is, of course, Antonin Scalia, who, when he became a Supreme Court Justice, wrote this dissent that became a test for the champions of the so-called theory of the Unitary Executive.

But in terms of Article II, there’s what everyone agrees on, and then there’s room for argument. We all agree on the words that are in the Constitution, and the Constitution doesn’t say a ton. Article II of the Constitution explains most of what the President can do. And in Article II it says, The executive power shall be vested in a President of the United States, and the President of the United States shall take care that the laws are faithfully executed. There are many other things that Article II says about the President’s power, including that he is Commander-in-Chief and that he can request in writing the opinion of the heads of the various departments.

But the main language on which most of the fighting about the various theories of executive power hinges on these two clauses. Thus the executive power rests with the President of the United States, and the President must see to it that the laws are faithfully executed. The Reagan Administration theories you refer to read those two clauses to give the President tremendous power to control how the United States government does things.

The argument is this: there are three types of power that the government exercises: legislative power, judicial power, and executive power. Congress exercises legislative power. Judicial power is what the courts do. That is, everything that is not a legislative power or a judicial power must be an executive power. But executive power rests with the President of the United States. That means the President of the United States must have the power to execute all laws of the United States. And remember, executive power according to this reading means everything that is not what Congress does or what the judiciary does. So you get a theory according to which everything that the government does that is not either an act of Congress or an act of a judge must be more or less directly under the control of the President of the States united states

The theory goes on to say, well, that’s not the only power of the President. Its actually a duty that the President has because the President must take care that the laws be faithfully executed. And how can the President do that if the President has no control over everything in the government that is not part of Congress or part of the judiciary? I just made for you a simplified version of what I understand to be the unitary-executive argument of the Reagan Administrations. But that position has been rejected for all of American history until recently, including by some really conservative people like former Chief Justice William Rehnquist.

Right, but at the same time it’s combined with the conservative concern about what they like to call the administrative state, right?

Absolutely. And the kinds of concerns that people have with the so-called deep state have varied slightly based on the Republican President in charge. And it also varies quite a bit based on the agency. Nixon famously worried that he was being outgunned by the federal bureaucracy. Trump’s concern seems to be threefold. I think he is afraid that the bureaucrats are liberals who are against him. And so he wants to deconstruct the deep state to overcome the perceived resistance he gets from government workers.

That is connected to the second point, that many of the agencies through which the government exercises power are created to fulfill social-democratic goals or social welfare goals. So the Environmental Protection Agency or the Social Security Administration, or the Office of Medicare and Medicaid Services, these are agencies that exist to fulfill the goals of the New Deal and the Great Society, although, of course, the EPA was actually created by Nixon. So if you are ideologically opposed to the policy programs pursued by those agencies, you may want to limit those agencies’ ability to exercise power, either by staffing them with your own appointees. or by controlling what they do.

And then the third reason and this may be a more philosophical one, and this is where I think the interests of the Trumps are kind of dovetailed into the broader conservative project is the way in which many agencies have been- set up, with a certain amount of insulation from the direct control of the President. There are several different tools that Congress has used over the years to establish that. But some of those tools were conceived by conservative legal intellectuals who oppose strict separation of powers. And so they develop arguments to explain why those tools are unconstitutional. And the Roberts Court accepted some of those arguments. And those arguments don’t have to go hand in hand with the second bucket of arguments that try to undermine the power of supposedly liberal agencies. But they align with the interests of a powerful president who fears resistance from the federal bureaucracy.

So I want to talk about some of the details of Trump’s plan. There are a bunch of quasi-independent agencies that operate with different mandates and different rules, from the FTC to the Federal Reserve to the Consumer Financial Protection Bureau (CFPB). So how broadly do these agencies operate, and what do you see as the way a White House that wants to control them is going to try and change that?

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