Gillian Metzger
Appearances
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
There is one question about what the statute gives the Fed chair as a matter of protections, and then there's a question about the constitutionality of a removal restriction. As for the statute, it's actually a hard call. The statute going—this was the 1913 Federal Reserve Act—provides for a 14-year term for the board of governors, members of the board of governors.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
The Fed chair is one of the governors. And then it also provides for a four-year term for the Fed chair. The provision for the 14-year term of the board of governors expressly says that they have cause removal protection. It doesn't say—the statute does not say that for the Fed chair in the role as chair. There's a longstanding practice and convention that the Fed chair has not removed.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And that's sort of been politically constructed over time. But it's not expressly in the statute. So as a matter of statutory interpretation, I think it's a pretty close call.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So the constitutional question is different if you're talking about a member of the Board of Governors or the chair. If you're talking about a member of the Board of Governors, I think actually there's a very good likelihood the court would sustain it.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I think part of the reason why the court has not overruled some of its earlier precedent, particularly that 1935 case about the FTC, is because it doesn't want to call the structure of the Federal Reserve into constitutional question. That goes for the 14-year term at the Board of Governors. When you're talking about the chair, I think it's a closer call.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
One of the points that the court has emphasized in, for example, that case involving the Consumer Financial Protection Bureau is the importance of the president being able to pick a chair. And a chair is somebody who can really control how the agency operates and has additional powers. So I think that the court would look more askance.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
had a removal protection for a position as powerful as the Federal Reserve's chair. But that said, the Federal Reserve is a kind of unique thing.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And the court might very well just think of it as not necessarily being traditional executive power or just being historically ratified in a way that puts it outside of the other kinds of agencies that it's willing to call removal protections for into question.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Yeah, I think that's really true. And, you know, the interesting thing is also going to be in the case of the Federal Reserve, you're not just talking about the legal questions. You're talking about how does the market respond? And that's a whole nother set of forms that the court hasn't had to deal with in its other removal cases.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Well, I think one thing to bear in mind is we don't fully know yet, right? This is a decision that is changing a watershed precedent in terms of deference to agency views. How it plays out, what the courts will do, are questions that it's going to take years to work out.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And that, I think, is actually one of the biggest condemnations of the decision, that it will lead to tremendous uncertainty and transition costs as we move from the prior regime we've been under to this new approach to agency interpretation. That said, I think one clear winner is the courts.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Under the prior Chevron regime, if an agency offered a reasonable interpretation of an ambiguous statute, a court was supposed to defer. Now, what Loperbright says, basically, is that a court is required to exercise independent judgment in determining the meaning of a statute.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
The court can give weight to a longstanding and contemporaneous interpretation by an agency or an interpretation by an agency that it thinks has persuasive power. It may also read the statute as actually delegating interpretive authority to the agency, but it's the court. that exercises independent judgment. And so the power moves from the agency to the court.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I think it's a really complicated question. Lying in the backdrop to this decision was a view that when agencies offer interpretation of statutes that courts have to defer to, that that allows agency to usurp the constitutional function of the courts to say what the meaning of the law is. That was partially why the court had pulled back so much on deferring under Chevron in recent years.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I agree. I agree. I think there are some factors that complicate the assessment a little bit in terms of some decisions that have pulled back on administrative power compared to presidential power.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
That idea of the sort of constitutional role of the court suggests that courts should always be exercising independent judgment. But it's perfectly possible for Congress to decide that it wants agencies to exercise more power and to determine what the meaning of terms would be.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
If the court weren't to recognize that, that would be the court usurping Congress's power to structure the executive branch and to structure legal regimes. So when the court in Loper Bright determined that it was necessary for courts to undertake independent judgment— It didn't actually rely on this constitutional idea.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Instead, it said that a statute that sort of governs how agencies operate called the Administrative Procedure Act that goes back to 1946, that that statute required courts to take independent judgment in reviewing agency interpretations. But it also wanted to leave Congress, as it should, room to give agencies power to interpret statutes when that's what Congress wanted.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And in order to do that, it had to say, sometimes the best reading of a statute means you delegate to an agency. And once you start recognizing the complexity of how a statute might actually give agencies the kind of authority that they were wielding, then you can't just go with a we will never defer, right?
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Then you need to be sensitive to context and to statutory interpretation and to the different roles agencies play in different aspects of statutory regimes. Right.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
My colleague Tom Merrill has a recent article assessing Loper Bright where he really emphasizes how much time it's going to take to move from the Chevron regime to this new regime and to figure out, for example, what kind of statutory language means the agency is being delegated a degree of discretion and what kind of language doesn't mean that and when it is agencies can give weight to longstanding agency interpretations and when they can't.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
But when you're focusing on presidential power specifically, the president's control of the executive branch or the most recent immunity decision, the president's immunity from prosecution, those are decisions in areas where the president's powers have really been expanded.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
as well as questions like what will happen with other doctrines the court has constructed precisely to rein in Chevron deference.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So I think you're right on both of those, court big winner, Congress big loser. When you focus on these cases, the underlying theme of the court's recent decisions in the space about deference, in all aspects of the administrative state, is a real skepticism of administrative power and of the actions by administrative agencies. It's a very anti-regulatory court.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And it's hard to think that a decision like Loper Bright isn't going to end up pulling back on agency power precisely because the motivation of it is so anti-administrative. In terms of the president, what we're kind of left with is this oddity where the president is given some powers that are expanded, the removal power we were talking about, the immunity.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
But when the president wants to do something, what the president is going to need often is administrative capacity and administrative authority. And that's exactly what the court is pulling back. And particularly if you think that their motivation in emphasizing the president's power to remove executive officials is some desire to preserve political accountability.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Well, political accountability means the president being able to actualize the things the president promises the president will do. And to do that, the president needs administrative capacity. So there's a real tension there about what the impact will ultimately be of the full arc of the court's decisions on presidential power.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So the Court of the 1930s, this is the court over the period of the New Deal. So it begins the 1930s with tremendous antipathy towards the new regulatory regimes that restricted business power, that gave labor new rights, and argue that those regimes are unconstitutional.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
They exceed Congress's power under the Commerce Clause, for example, or they represent untoward, in one case, untoward delegation of power to agencies. But by the end of the 1930s, starting in 1937, the court accepts these regulatory regimes and starts rejecting those constitutional attacks.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I think that actually is quite similar. I think that the court of the 1930s saw the idea of government regulating and intruding on business owners as a real invasion of individual liberty, particularly from the national government, from the federal government. Right. And the idea that some of the powers potentially could be exercised by the states, but not by the national government.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
We don't have as much of a focus on national versus state power with the Roberts Court, but we have very much this idea that you have bureaucrats out of control regulating in ways where they're intruding on individual liberty, looking in nooks and crannies for violations of laws and are essentially uncontrolled exercises of bureaucratic authority.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Sure. I mean, so there are a couple of different ways. One is just having internal to government officials and individuals who take seriously the legality of government action and will push back on excesses of authority by officials above them. That's critical towards ensuring a rule of law.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
The other aspect that's essential to individual liberty is to recognize that what agencies are often doing is implementing programs enacted by Congress that are intended to build out in a more positive way what we understand liberty to mean and what we understand individual rights to mean and to entail for people to exercise those rights fully.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Having competent, expert individuals in roles where they can implement those programs to make them more effective and to make them more powerful also contributes to individual liberty. The idea that administrative governance only infringes on individual liberty requires believing in a very negative conception of liberty where the government is just a threat and it's not also in power.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
It's not. And it's very much on, as you say, those kinds of agencies where you see the hostility coming out the most. I think this is partially why it's important to not be fooled by some of the constitutional cover that the Roberts court invokes, because this is really a supercharged conservative court. And this is a conservative legal agenda that is being advanced.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Even if it's invoking constitutional bases, it's fundamentally driven by the conservative agenda.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I do. I think it really is a war on the administrative state that the Roberts Court has been undertaking. And I think we're not at the end of it yet.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I understand the administrative state as being all of government. Other than Congress, maybe you want to pull out the president. It's everything else, and it's huge, but it's very familiar, right? So it's firefighters brought in to deal with a wildfire. It's people who are expert in water control who are brought in to make sure that water is drinkable, particularly after a leak.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
It's people who inspect food to make sure that food safety requirements are being adhered to. It's people who approve medicines. It's also teachers. It's your DMV. It's maybe some people you don't necessarily like, like your DMV.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
But it's every aspect of the ways that government touches our lives and a lot of aspects of government that are going on all the time that we may not be aware of, but that are essential for modern society to function.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Well, I think Justice Gorsuch would be a clear frontrunner. His recent book, I think, really embodies a lot of these kind of anti-administrative ideas. And he has been one of the more eloquent spokespersons for articulating this broader anti-administrative account. Justice Thomas has also certainly shown his anti-administrative stripes over the years. And a third would be Justice Alito.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Potentially. I think one area that it's going to be interesting to pay attention to is how administrative agency actions are reviewed under ordinary standards of review. We've talked about how agencies have an obligation of reasoned explanation. And at times, the Roberts Court has required a fair bit of explanation.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I think a couple are really significant. I mean, I think it's really an unprecedented expansion of immunity for the president. The court divided up the instances when the president would be immune into a couple of different camps.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
If it continues to require a fair degree of explanation, that would be one way in which it would constrain the Trump administration and really any administration, because the need to provide a reasoned explanation is something that requires an agency to put a lot of time and effort and resources into developing an expert account of why it's taking the action that it's doing, responding to different comments that it gets and so forth.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So that could be a potential check. The other area where you might see the court pushing back is on some suggestions, for example, that the president just has the power to decide not to spend money when the president wants to.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
That's at odds with a statute called the Empowerment Control Act, and it's also at odds with the longstanding understanding that Congress is the entity that controls the power of the purse. Right.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Yes. And why? Because a department is part of government and this is not part of government.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Yes, we shouldn't call it a department. And also, if Congress were to create a department, then the individuals appointed to lead it would have to go through the methods for appointment that are laid out in the Appointments Clause, which is not just the president issuing a tweet.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So one of them has to do with what we might call core or exclusive presidential powers, where the president has authority and it can't be intruded on, for example, by Congress. In that area, what was really striking was how broadly the court viewed what counted as core power, including things like
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Right. So, I mean, we have statutes that grant the civil service cause protection against being just fired. And that also gives them procedural rights to appeal adverse actions taken against them. President doesn't have the authority to just do away with a statute. In fact, the president's supposed to take care that the law be faithfully executed.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So that statute is a constraint on what the president can do. The part that gets a little complicated is that the statutes do give the president some authority over the civil service. And in the first Trump administration, they issued what was called famously Schedule F, which was an effort to pull employees who perform a policymaking job.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
or policy advocating or confidential function out from the protections of the civil service. And the president tried to do that by executive order, using authority that the president has under the statute. Because it happened so late in the term, agencies just didn't implement it, and President Biden revoked it immediately on coming into office.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I think we're going to see another executive order imposing Schedule F or something pretty similar to it very quickly in the second Trump term. And I think whether or not that ends up being something that's within the president's authority will be a question that the courts will have to grapple with.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Birthright citizenship is in the Constitution. It's in the 14th Amendment. So it's not something the president can end. What I would really hope is that if the president tries to get an agency to take action based on the idea that there is no birthright citizenship, that executive branch lawyers would say no because it's patently wrong as a legal matter.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
prosecution and investigation, suggesting that maybe Congress can't impose restrictions on how those are undertaken, which would be really quite novel. The other aspect was one that you mentioned about how broadly it viewed official acts and the tests that it established as to when immunity would apply.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
So one of the silver linings, maybe the only silver lining of the court's attack on administrative governance, is that it has sparked a whole range of great administrative law historical scholarship, really investigating the origins of the United States administrative state. The first book that I'd recommend is one by Jerry Mishaw called Creating the Administrative Constitution.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
It was one of the first in this line of cases looking historically and traces out all of the ways in which we had a robust and developing administrative state in the first 100 years after the Constitution was adopted. And it's a great read. It's a classic. Yep. The second is another book in the historical vein. It's by Dan Carpenter, and it's called The Forging of Bureaucratic Autonomy.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And it looks in the progressive era when a lot of the agencies that we now take for granted were developed and developed their independence and expertise. And particularly in this period where we have a war on the deep state and a war on administrative expertise, it's really worth reading that account again.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
the efforts that were undertaken to forge a sense of autonomy for administrative government and what the reasons were and why people thought that was so important and valuable. The third is actually not a book. It's 99 pages, so I think it kind of counts, but it's an article by Karantani, and it's the foreword to
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
the Harvard Law Review's Supreme Court issue, which comes out in November, and it's called Creation, Narration, and Erasure, Power and Possibility at the United States Supreme Court.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And it is just a wonderful account of the narratives that the Supreme Court is telling us, what counter-narratives we could find, and what the narratives the court is telling us tell us about the court and about ourselves.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And it said the immunity would be presumptive, but it's kind of hard to see how that presumption is going to be overturned because Immunity is going to be there unless the government can show there's no intrusion on the president's power. That's a really high bar.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And so for a vast area of actions, anything up to the outermost perimeter of the president's official authority, all of that are areas in which the president's going to be immune. And that's a pretty significant move.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
That's true. They may not be exactly the same. And the focus on immunity for the president, I think, allowed the court to think that it could use some broader phrasing than had it really been thinking about the respective authority of Congress and the president in this area, that it might be more willing to acknowledge Congress has more of a role to play here. But I think you're really right.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I mean, one of the interesting things, particularly post-Nixon, is how much attention has been paid to try and ensure the independence of prosecution and investigation to make sure that those tremendous powers of the government are not used to serve presidents' political goals. And this opinion seems oblivious or to intentionally get rid of that.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I think if you focus on the language of the opinion, they were bullseye on the president and really concerned about future administrations calling former presidents into court and the kind of abuse that our polarized politics might lead to.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I don't think they took a broader view and thought about all of the individuals and officials that the president would need to be interacting with in order to exercise his presidential power. And I think it really would be a significant move to say all of those people are now immune. That said, the way the president exercises power is through other officials.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
The president doesn't directly engage in prosecution or investigation. So it's somewhat naive to think that if you're talking about this as a core presidential power, that it's not going to have an overhang, at least for a lot of officials with whom the president has to engage in order for him to exercise that power.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Right. I think it also connects to the theoretical underpinnings that the decision reveals. And that's the connection here to this idea of what's called often unitary executive theory. And the idea is actually that indeed all executive power reposes in the president.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And if you take that view and then you have the language that says the president is a branch of government, again, it's unclear how you're going to pull out those other officials and say Congress can regulate and impose liability on them, but not on the president.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I think that's right. And I would think that the underlings would also be careful about that. That said, there's one aspect of the immunity decision that I don't think has gotten that much play. One of the things that knowing the president and others may be liable for criminal prosecution does is it affects what happens inside the government.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And it affects the ability of executive branch lawyers to push back at actions that violate the law and to make clear the kind of consequences that violating the law could mean. If you've got immunity outside, then you can't make arguments based on those kinds of legal consequences that are going to carry as much weight inside the government.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I think that's right. You know, then what you're relying on is going to be the officials pushing back, but the president may very well then fire them until we get somebody who's more complacent.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Sure. So there's actually a lengthy history of removal restrictions and also debate over them. And as you note in your question, the nature of the position makes a difference in terms of whether or not you might think that a cause removal restriction is appropriate. The court in the 1920s invalidated a removal restriction for a postmaster.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
But pretty much since then, it has upheld a whole slew of for-cause removal protections. One of the most important decisions came in 1935, and it involved the Federal Trade Commission. And there, the court upheld a for-cause removal restriction for the members of the commission at the very top of the agency.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And, you know, the court argued that they were exercising more quasi-legislative and quasi-adjudicative authority, but didn't seem to have any qualms about the fact that you could protect them from presidential removal.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
The court has also long upheld what we might call removal protections for inferior officers, which are basically officers who have somebody supervising them, even though they may also exercise some discretion. And one of the big decisions on inferior officers actually happened in 1988, and it involved the independent counsel, which was an official who was charged with investigating the
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
high-level members of the executive branch when they were concerned they might have acted unlawfully. And there again, the court upheld the removal restriction on the independent counsel.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
Yeah, right. So starting in 2010, the court has issued a series of decisions in which it has invalidated removal restrictions of a variety of sorts. First, it invalidated an arrangement where an agency that was headed by officials with removal protections was nestled inside another agency headed by officials with removal protections.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And then 10 years later, it invalidated the removal protection for the director of the Consumer Financial Protection Bureau. That was a single director who served a five-year term. And in both of these cases, the court's argument was that this arrangement represented just too much of an intrusion on the president's control over executive power and over the executive branch.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
The idea that they espoused was that the president gets to exercise the entire executive power and And it's the president who is politically accountable and therefore needs to be able to exercise close control over these executive branch officials to ensure that the law is faithfully executed.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I think the reasoning has a lot of flaws. So the reasoning in these cases emphasizes this clause that vests the executive power in the president. But it's unclear exactly what the Constitution means by executive power.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
And it's at odds with the other provisions of the text of the Constitution and the structure of the Constitution to think that the president just gets to embody all of the executive power without any checks, without Congress being able to regulate the structure of the executive branch. So I think it's hard as a constitutional basis to argue.
The Ezra Klein Show
‘A Sword and a Shield’: How the Supreme Court Supercharged Trump’s Power
I think it's also really hard to argue as a matter of history. Because there's actually a longstanding history of these removal restrictions and various kinds being put on executive branch officers.