Conservative constitutional lawyer weighs in on Trump’s aggressive use of executive power

Amna Nawaz:

We now turn to our series On Democracy, where we hear a range of perspectives on how government should function, what's led to this moment in American history, and where the country goes next.

Tonight, we will focus on President Trump's expansive view of presidential authority and efforts to claim sweeping powers over the executive branch, including independent federal agencies.

I recently sat down with Joel Alicea, professor of law and director of the Center for the Constitution and the Catholic Intellectual Tradition at the Catholic University, for his take on this moment.

Professor Alicea, thank you so much for being here.

J. Joel Alicea, The Catholic University of America: Thank you for having me.

Amna Nawaz:

So, in the first 2.5 months of this Trump presidency, the president has signed more than 100 executive orders, right, more than any president in modern history, in American history at this point in their presidency. Those executive orders have abolished federal agencies, they have tried to freeze billions in aid, they have fired masses of federal workers.

As you know, some legal experts say they're alarmed, that this is testing the bounds of presidential powers. How do you look at this?

J. Joel Alicea:

I think that President Trump has aggressively used executive power, but I don't think that's actually unusual in our history. So, if you think about Franklin Roosevelt, for example, a very aggressive use of executive power and a federal power in general, and he's now considered one of our greatest presidents.

So, I think that we have to keep in historical context that the executive has enormous power under the Constitution. And to the extent that the present uses that power to try to achieve policy outcomes, that doesn't make him very different from a lot of his predecessors.

I do think that one thing that is notable about President Trump is his attempt to use executive power to reshape the federal government in a way that we really haven't seen in peacetime probably since FDR. I think that's probably fair to say.

Amna Nawaz:

You referenced Roosevelt, of course, and the New Deal. That was in response to the Great Depression here. So it's fair to say it is rare use of that kind of power.

Why do you think other presidents haven't used their executive power in that way before?

J. Joel Alicea:

Well, I think President Trump is responding to a number of domestic issues that have finally led to a president who wants to push back aggressively against the administrative state, the large bureaucracy.

And I agree with you that you're saying that hasn't been done in this way in a very long time. That's true, but that doesn't necessarily mean that it is beyond his power to do so.

Amna Nawaz:

Well, certainly, the legality of many of those executive orders and actions is being challenged, right?

J. Joel Alicea:

Yes.

Amna Nawaz:

There are cases you have seen as well in which they alleged that President Trump illegally fired some officials, specifically from independent agencies, right, like the FTC and the National Labor Relations Board.

The law, as my understanding of it is, is that people in those agencies, officials there, can only be fired for due cause, like neglect of duty or malfeasance. The argument here is they were not fired according to the law. So, in this case, did the president break the law?

J. Joel Alicea:

For much of our history, it was widely acknowledged that the president had plenary authority to remove anyone exercising executive power underneath him as a way of ensuring political accountability for those officials, since the president is the head of the executive branch who was elected by the American people.

That began to change in the 1930s. And so for the last several decades, there have been restrictions on the president's removal power that the Supreme Court has recognized. But in recent years, the Supreme Court has started moving back towards the historical baseline of plenary removal power by the president.

So, insofar as President Trump has exercised his constitutional power to remove these subordinate executive officials in a way that the statutes don't contemplate, well, I think his argument is that those statutes are just unconstitutional. They're restrictions on his constitutional plenary removal power.

And there's significant Supreme Court case law, especially recently, that would support that interpretation of his power.

Amna Nawaz:

There is — I think the cases you're referencing, the 1935 Supreme Court precedent, right…

J. Joel Alicea:

Right.

Amna Nawaz:

… which was unanimous decision then that said that the president couldn't remove officials from independent bodies that were created by Congress, basically saying that these officials could do the work that they were doing for the American public without fear of political reprisal.

You're saying that precedent should not stand.

J. Joel Alicea:

I certainly don't think it should stand. And I would just point out that, while Humphrey's Executor, which is the case you were mentioning, from 1935 may have been unanimous, it was also contrary to a precedent that had been decided only a few years earlier by the Supreme Court, in which it had to distinguish in a really unpersuasive way, frankly.

A lot of this comes down to how you characterize the president's removal power. I think that the way I would characterize the president's power of removal, or — and I assume the way the president, President Trump, would is political accountability.

Like, that's really what this is about.

Amna Nawaz:

Can I put it in layman's term? So the president has the power to fire anyone for any reason or without a reason?

J. Joel Alicea:

I believe that he has the power to fire anyone who wields executive power for any reason, or for no reason, as an exercise of the power that's vested in him by Article II of the Constitution. That's right.

Amna Nawaz:

We have also seen the president go personally after some of the judges who rule against him in some cases. He's called one judge in particular a radical left lunatic.

Do you have concerns about that kind of language? Do you feel like it undermines the judicial system in any way?

J. Joel Alicea:

I haven't seen that particular quote from the president. I will say that…

Amna Nawaz:

You have surely seen reports that this has happened.

J. Joel Alicea:

Well, I will say that I think that it is not at all unusual historically for presidents to disagree strongly with decisions from the judicial branch and to call those decisions into question, and even to call into question particular judges as part of that.

That's not, I think, at all unusual historically.

Amna Nawaz:

To call a federal judge a radical left lunatic, you think is consistent with what we have seen in the past?

J. Joel Alicea:

I think that it would be useful to go back and look at some of the presidential rhetoric throughout American history going after the courts. And I think you would see that a lot of times those attacks are pretty strong, and there were efforts, in fact, right after the 1800 election to go after federal judges in very aggressive ways.

I should make clear I'm not speaking to any particular statements that the president has made or hasn't made. I'm simply saying, historically, we should have some perspective on these interbranch conflicts, that they're quite common.

Amna Nawaz:

So a lot of these questions circle around this idea of just how much power the president has, right, what the interpretation of Article II here is. How do you define executive overreach? What would that mean to you?

J. Joel Alicea:

That there are limits on the president's powers, right? His duty is to take care that the law be faithfully executed. It is Congress that sets national policy and makes the laws as a general matter and the president's the one who's supposed to enforce those laws and execute them.

So there are certainly limits to the president's broad authority.

Amna Nawaz:

And for those who worry that this is executive power grab, that it brings him closer to a king than a president, you would say?

J. Joel Alicea:

The whole point of our system, by separating powers among the three branches, is to ensure that no one branch becomes too powerful or claims authority that it's not supposed to have.

A lot of the president's actions are being reviewed by the courts. And some members of Congress have pushed back against the president's spending clause decisions. And so Congress has authority to push back against the president to the extent that it disagrees with him.

That kind of friction, which often is messy and often contentious and controversial, that is actually how our system is designed to work, is to place these branches in competition with each other, in a sense, to ensure that no one branch becomes too powerful.

So I look at the kinds of friction that we're seeing among the branches and say, well, that's actually the way this should work.

Amna Nawaz:

Professor Joel Alicea, Catholic University, thank you so much for being here. Really enjoyed the conversation.

J. Joel Alicea:

Thank you.