Welcome to Politically speaking I'm Elizabeth Bennion chancellor's professor of political science and director of community engagement and the American Democracy Project at Indiana University, South Bend.

The first month of the Trump administration has been characterized by robust use of executive actions and orders from immigration policy to regulatory rollbacks.

President Trump has shown a willingness to govern through executive action.

Today, we're joined by Thomas Patterson, Bradley, professor of government and the press at Harvard University, for a conversation on the constitutional, legal and political limits on presidential power.

Thanks so much for being here.

Well, thank you, Elizabeth.

It's a pleasure.

I want to start by asking you how Donald Trump compares to past presidents in his approach to expanding or redefining presidential power.

Well, that's a great question.

I mean, one indicator, the easiest one, you know, on an average year, president issues about 40 executive orders.

Now, Donald Trump issued 73 in the first month.

So, it's a lot more active on that front than the average president.

I think you have to go back to the 1930s, to, to come up with a comparable president.

Now, Roosevelt was working in the other direction.

He was trying to upscale, the federal government.

Then during, his first two terms, the US added about 69 federal agencies to the federal government.

The workforce doubled.

The staff of the presidency, actually went up by about 200 times what it had had been.

So it was a very different presidency and a very different federal government.

After eight years of Roosevelt.

Of course, he served, during the war as well.

But, that's what he really built out, the federal government.

Now Donald Trump is working it in the other direction.

He's trying to downsize, the federal government.

And he's also doing something that Roosevelt did.

And that's to expand, the powers of the presidency relative to the courts and the Congress.

And what lessons do you think we can draw from what Roosevelt did that could help us understand what's happening today?

Well, it was quite a different situation, I think.

There's one thing that they both had in common.

So in the 1930s, Americans were looking to the federal government for help.

They wanted a bigger, more active federal government.

That really helped his, effort to expand the, federal programs.

Americans at right now are pretty distrustful of the federal government.

So, there's not a lot of headwind against downsizing as a principal.

There may be people who object to the way that Donald Trump was going about it, but both of them, in some ways had public opinion on their side, so they had that in common.

One big difference between the two is Roosevelt had overwhelming, majorities of his party in the Congress.

Whereas Donald Trump was dealing with a very slim, majority in the House and, and that much bigger majority, percentage wise in the Senate.

So we can't look very much to Congress and, we're doing anything.

And Roosevelt relied very heavily on Congress.

So Donald Trump is pretty much at the moment, at least dependent on what he can do through executive action.

And then, of course, you get the counter action.

We have an unusual flurry of, of court cases, contesting, what Donald Trump was trying to do.

There are about more than 60, what I would call serious cases.

There are some that are frivolous, but, more than 60 cases have been filed in federal court, to try to stop that ministration from what he's trying to do.

So I want to go back to the role of the court in just a minute.

But a lot of what Donald Trump is doing, as you just explained, is passing executive orders and an executive order.

Is that written directive signed by the president to order the government to do something?

What are the checks or limits on the president's use of this power?

Well, they have to be within the context of a law.

A president can't wake up one morning and say, oh, I'd like to do X and just go ahead and do it.

If they want to do X, they've got to find a law that would permit, the president to do that.

And secondly, it cannot, contradict.

It cannot violate the law.

So, those are the terms.

And, and then, if an executive order is perceived by another party is not falling in that category, then it's chargeable in the federal courts and, quite a few of the federal court cases that we're looking at, the present layer in that category, their argument is that, President Trump, has issued an executive order, that's not supported by law or violates a law.

Can you give us an example of one executive order that you suspect will be upheld by the courts, and one that you suspect will not be?

Well, I think I think that most of them, I think, will be upheld.

I think a pretty clear example of that.

One of the first executive orders he signed was for the strict enforcement, of immigration laws.

Now, immigration is a is a federal, authority under the Constitution.

The president is the chief executive responsible for executing, the immigration laws.

And to, order that they be strictly enforced.

I think that's clearly within the bounds, of executive authority.

And, that one hasn't been challenged.

Because I think everyone understands that's within the boundary of executive action.

There's an underlying constitutional provision, that, supports it.

And there's nothing there to be challenged.

Now, there are parts of what he's doing in this area that can be challenged, but, that executive order on the face of it is not challengeable So in terms of people who do not like the current law and don't want to see it more strictly enforced, they would need to talk with their members of Congress about that.

Well, that's one way.

Now, there's, part of this is about the implementation.

If you look at, the, Homeland Security, the Department of Homeland Security, it does not have the resources or enough staff, to deport the millions upon millions that, Donald Trump has promised to deport.

During his term.

To do that, they would have to rely very heavily on state and local law enforcement, agents.

Now, here's where the law comes into play.

And, so the president cannot command, state and local officials, to do federal functions.

The Supreme Court has been pretty clear on that.

So if he were to try to do an executive order of that type, it would be easily and quickly struck down by the, by the courts.

The second thing, he has threatened, sanctuary cities like San Francisco, that unless you cooperate, you're going to lose federal funding.

Well, he's going to lose that one, too, because, the courts have been pretty clear.

Congress controls the purse strings.

And unless Congress has said that, to be eligible for a particular federal grant, here's one of the conditions.

You have to help federal law enforcement in their law enforcement activity.

So and that is not in any of these federal grants to these cities.

So that, again, would be something that would be, struck down if they were to try to do an executive order, on that basis.

Now, the Department of Homeland Security, of course, is trying to do some things in this space.

And those are being challenged by the courts on the grants that I just mentioned.

Now, of course, Donald Trump also wanted to end birthright citizenship.

This seems like it is something that is not going to happen.

I think that is an executive order that is destined to be shot down, at every level.

The court system, the 14th amendment is quite clear.

On birthright citizenship.

It says that anyone naturalized, you know, or born, within the jurisdiction of the laws of the United States is a citizen of the United States.

That's that's what we call plain meaning in the law.

That's crystal clear, as to what the law is.

And it's a constitutional provision.

It's not, it's not a statute.

It's not something enacted by Congress.

So it has it has permanence.

And, our courts tend to respect, the Constitution and the letter of the Constitution.

So I think I think that one's that one's going to fail.

Now, the question, you might ask if, if you're following American politics as to whether he ever intended it, to be upheld.

You know, sometimes Donald Trump will take actions that are symbolic in nature, even though even though he knows the courts or Congress are not going to go along.

And, they'll oftentimes he's looking for some value other than the, instrumental value that seems apparent in the executive order.

And here I think he's speaking to a part of the American public, that has pretty definite views about, what a true American is and, what the rights of citizens should be and who should be a citizen.

So I think he's talking to a particular audience there with that executive order.

And, probably even he and the, people around him in the white House, didn't hold up much hope that that actually would be upheld by the courts.

So symbolic politics, you still can be empowering in the sense of, shoring up your base and driving that support, even if, you know, it may not become a new policy.

All right.

Yeah.

I mean, absolutely.

I mean, we saw some of that in the, in the first term.

There's this border wall, between the United States and Mexico.

His promise was that they would run the full length of the border.

Now, he can make that promise, but, it takes money.

That comes from Congress.

And, you know, there are enough Republicans in Congress, that decided we're not going to spend that much money.

We'll spend some money, we'll give him, part of the wall or symbolic victory.

But, well, I think he probably understood he wasn't going to get the billions and billions it would take to create a really high border wall all along the, Mexico U.S. border.

Now, I want to ask you about agency rulemaking.

How does the Administrative Procedures Act constrain a president's ability to quickly rollback or implement new regulations?

Yeah, this is a little understood law, at least by the average American.

This is the Administrative Procedures Act that was passed in 1946.

It does not apply to executive orders.

It applies to the rules put out by the agencies, and some of the most important things that they have done to this point, some of the freezes on funds, for example, have been done by agencies and not by executive order.

Now, when an agency, issues a ruling, a rule, it can have the same authority as the executive order, but there are certain procedures that must be followed, before an agency rule can be implemented, before it can become law.

For example, there there must be a kind of a hearing period.

Time to take comments.

On the, on the, on the law.

There's a look at the justification, the reasons for the proposed change in the rule.

And then it has to be published, and there's a, a waiting period before it can be, put into place, those procedures, govern agency rulemaking.

And, you know, many of the cases that are being pursued in, in federal court at the moment are, and because of perceived violations of the, of the Administrative Procedures Act, that they didn't, in fact, comply with these procedures in issuing some of these rulings.

And, the Trump administration had a very, poor record on this in the first, first quarter, on the first four years, most of, whose laws that were challenged under the affordable, you know, that, excuse me?

The Administrative Protection Act, 1920 were shot down by the courts.

Now, some of them were not challenged.

So they stood.

But, I think many of these are also going to be challenged and shot down because they're they're really in a rush.

They're moving too quickly.

And, and now it doesn't mean they can't come back and do it again and do it the right way.

But, that means it's going to happen maybe in the summer, rather than next month.

Now, how might the June 2024 court ruling and Loper, Bright Enterprises versus Raimondo overturning the Chevron doctrine and suggesting that federal courts will have to interpret ambiguous statutes independently rather than deferring to the agency's judgment.

Affect this entire process and what the Trump administration can do in terms of change at these agencies.

Oh, that's a great question.

And, a really important one.

So there were two great, really significant decisions in June of 2024.

One got a lot of attention, the presidential immunity decision.

The other was low power pride.

And as you mentioned, it overturned the Chevron, ruling, from the 1980s.

Now, the Chevron ruling said that, courts should defer to the judgment, agencies, when the, statutory, authorization for a rule was ambiguous, what Loper Bright said was that the courts should not defer the agency.

So agency rules are now subject to closer judicial scrutiny than they were before June.

And again, I think that's going to be an obstacle, for the, for the Trump administration, because there's going to be less deference on the part of the courts to those rules.

And of course, anytime a rule gets into the court, one of the things that I think Americans have come to understand that is that cases take a long time to work their way through the federal courts.

So this is, again, going to slow down, Donald Trump's efforts to, to downsize the federal government.

Now, you mentioned the immunity ruling that has gotten a lot of attention.

The Trump administration is interpreting this very broadly in terms of a grant of power to the president to act unilaterally in his role.

But what does this mean?

How do we understand this?

What are you thinking in terms of this court and its understanding of the limits of presidential power?

Well, I think this is going to be one of the really decisive legal issues, of this year if if in fact, this gets to the Supreme Court.

So in the presidential immunity, case of, Trump versus the United States in June of 2024, the court ruled when the president is acting within the four core functions of the presidency, therefore call for core constitutional functions of the presidency.

That president, cannot be criminally liable for actions.

Now, that's the, straightforward interpretation of, that opinion of the Supreme Court, the Trump administration's interpretation of the ruling.

Is that anything that the president does within the four core constitutional, powers of the presidency cannot be challenged by the courts and cannot be challenged by Congress.

In other words, that the president, by and large, were working within like the executive function.

And, of course, executive orders are carried out through the executive function, directives to the Department of Justice or an executive function.

What the Trump administration is saying here is that the way they interpret that ruling is basically anything that they do in this space, through that particular constitutional grant, cannot be reviewed by the courts and, cannot be overturned by the Congress.

That would up and, 250 years of the American tradition of checks, powers, checks and balances because basically it would leave us with an unchecked presidency.

Now, I have a little trouble, thinking that the Supreme Court even though it has six Republican nominees or nominees on it, three of which were nominated by Trump.

I have a little bit of trouble thinking that even this Supreme Court will accept that interpretation, but if it were to do so, it would greatly upset.

We would have a different kind of country and a different relationship between our three branches of government than we've had, since, the ratification of the Constitution in 1787.

And that would be a major, major change in the way our government operates.

Now.

One of the things that's gotten a lot of attention, of course, is the dismissal of civil servants within executive agencies.

So what are the constitutional and statutory limits on a president's ability to remove political appointees and career civil servants from their posts?

And and the rules there are different and, of course, there.

So most of the people who are political appointees, and the president actually has about 4000, political appointees, much more than the chief executive of any other country.

Most nearly all of those are at will appointments, meaning, the president, picks them.

Some have to go through a Senate confirmation, some do not.

But once they're in that position, they can remove be removed at will by the president.

Meaning if the president says you, I want you, I want you to sign a letter of resignation now or you're fired.

You're out of the job.

But then there are some what we call for clause positions.

These are created by Congress for the most part, to, administer the, independent agencies.

These are the agencies that oversee parts of the economy, like the Securities and Exchange Commission, the Federal Trade Commission, the FCC, and so on.

Those tend to be, multi-member, committees, some Republicans, some Democrats, and those are for courts, political appointees, meaning at least under current law, that the president cannot fire them unless, there's a justifiable reason, not because the president doesn't like what they're what they do, but when they're guilty of malfeasance.

They committed a criminal act.

The normal things, you would think that, you can remove someone for.

Cause, now, the Trump administration argues that, the president should have the ability to fire anyone who's a political appointee, and, so that's going to go before the courts.

And, we do have a precedent there.

Humphrey's executor from the 1930s, where the Supreme Court said, no, for these four cause, appointees, the president can't fire them, but, it's a different kind of court, than in the 1930s.

And at least, some of the members, have indicated they're at least willing to revisit that precedent and perhaps overturn it.

So there is a possibility that, President Trump sometime this year, if this goes forward, will have the ability to fire all political appointees.

Now, civil servants are in a different category.

They have greater protections.

And, now a president can terminate, an agency, but that requires an act of Congress.

And in terminating an agency, you may be terminating all of its employees.

But Congress has to be involved with that decision.

And then in terms of the other civil servants, if you're an agency and you're fired, it has to be for cause, and there is a due process that's available to you.

So I think the administration is, working on pretty unsteady ground here with these, kind of mass firings of civil servants.

There going to be legal challenges right and left on that.

Now, they don't go into the courts immediately.

They go through an administrative review process first.

So, only some of those cases, kind of the class action type are in the courts.

The rest are proceeding one by one.

But I think that's going to be a very difficult road for the Trump administration.

On the other hand, a judge, a district court judge, gave the Trump administration a green light on the buyouts.

And, of course, this was offered early in the, in Trump's second term, that, if you resign, your position will pay you until the end of September.

You'll also keep your benefits through that period of time.

But then as permanent file, you're out the door.

And, we had about 75,000 federal employees accept the buyout, and, it appears to be legal, so I think they're gone.

And then, there is a downsize procedure.

You know, you can make an argument, it takes congressional involvement, but you can downsize an agency.

You, you know, they're not there forever.

Federal employees don't have an ironclad hold on to their jobs.

But there is a procedure for getting rid of them.

And it's called a reduction in force.

And, it's a fairly elaborate procedure where you have to have a pretty strong justification for what you're doing, and then you have to do an employee by employee evaluation, because some of the employees have, for example, veterans preference or other kinds of preferences, and, they can't be let go right away.

Others have to be let go before they go.

And then if everybody's let go, if there's, an opening in another agency for which they're qualified, they have to be offered the position.

So there are procedures here.

A person could do a lot in terms of downsizing, but not with the speed that Elon Musk is determined to downsize the federal government.

It sounds like this need to show cause maybe the reason why all of these employees have gotten the same brief letter indicating that their particular skills and knowledge are not what the agency needs at this time, and that their work performance has not been satisfactory to continue their employment.

We hear a lot of these particular civil servants saying, I just received two commendations awards, etc.

and so is that their grounds of suing to say you've said that there's a cause for firing me, but my record would suggest otherwise.

Yeah.

I mean, there has to be a justification.

I think, again, I think I think they're just in too much of a hurry.

I think they can get this done.

There's no question we're going to see the federal government downsize.

We're going to see the federal budget, be lower than it has been.

And, you know, you have a new administration, a new Congress, and, you know, they have, the voters elected them.

And one of the things they promised to do were these two things.

So, there's no question about the legitimacy of that, but, there are rules and, you know, if you send several thousand people the same, exactly the same email, telling that you're getting fired for exactly the same reasons, and, that indiscriminate, form of action.

Well, that invites a lawsuit.

You obviously didn't look at this case by case.

You didn't go through this employee by employee.

This was clearly just massive emails to everyone that was in a particular agency or subunit of an agency.

They all got the same letter.

I don't think, that kind of procedure is going to stand up in court.

You can't then go in and say, we looked at each of these cases and, this is the judgment that we made.

And here's the reason for the judgment.

You know, professor, that's not going to stand up.

So, I think they're going to have to just do a lot of what we call redos, you know, there's a lot of flurry going on here and, you know, a lot of action and, a lot of consternation and, disruption.

But, I think they're going to have to go back to the drawing board and start all over with many of these actions and just, do it the right way.

And, of course, when you do things the right way, you can't quite do them.

In a wholesale way.

So the reduction in force overall will probably be less than they would like.

But there's no question, you know, they are in a position to do a reduction in force.

They were elected by the voters, between the two of them, Congress and the president, they have the authority, to, to reduce the federal workforce.

So, to be continued, this story is just unfolding.

Unfortunately, that's all the time we have for this week's Politically speaking.

So I want to thank our guest, Tom Patterson, professor of government and the press at Harvard University.

I'm Elizabeth Bennion, and reminding you that it takes all of us to make democracy work.

We'll see you next time.

Thank parts of the economy, like the Securities and Exchange Commission, the Federal Trade Commission, the FCC, and so on.

Those tend to be, multi-member, committees, some Republicans, some Democrats, and those are for courts, political appointees, meaning at least under current law, that the president cannot fire them unless, there's a justifiable reason, not because This Wnit, local production has been made possible in part by viewers like you.

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