LEILA FADEL, HOST:
Let's focus now on what the legal ramifications of the Slaughter case could be. We'll do that with Jeffrey Rosen. He's President and CEO of the National Constitution Center, a nonpartisan group that studies the U.S. Constitution. Good morning, and thank you for being on the program.
JEFFREY ROSEN: Good morning. Thank you for having me.
FADEL: So what legal arguments is the Trump administration making to advance its expansive view of presidential powers?
ROSEN: The Trump administration is embracing a version of the so-called unitary executive theory...
FADEL: OK.
ROSEN: ...That many conservatives have made since the Reagan administration in the 1980s, when Chief Justice Roberts and other justices embraced it. But it really goes back to a debate about the meaning of the time of the founding. And proponents of this theory say that the founders in 1789 decided to create the Treasury and the State Department and the entire administrative state and make it independent of the - Congress' ability to constrain the president's power to fire. Basically, the president has to be able to fire any official he appoints.
There's a competing view, and it goes back to the great Justice Louis Brandeis, who, in a case called Myers v. United States involving presidential power, said the doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid friction but by means of the inevitable friction incident to the distribution of government powers to save the people from autocracy. That was what Louis Brandeis said.
FADEL: I mean, what's at stake here in this case, if the Trump administration prevails? I mean, how important is this case when cut (ph) as a constitutional case?
ROSEN: It's extraordinarily important. It goes back to the foundations of the separation of powers. And if the Trump administration prevails, not only will the president be able to fire any official he appoints, which means that all independent agencies - the Federal Reserve, rather the Federal Communications Commission, the Federal Trade Commission, the National Labor Relations Board, all will be unconstitutional, and the president will be able to fire people for political reasons. But in addition, all federal civil service protections will be called into question.
Right now, the president is limited by law from firing civil servants. They're called inferior officers. But the logic of this decision would allow him to fire people just 'cause he doesn't like them. And then the question is what the remedy will be, and, in this case, may say that if the president just pays money, he's not required to reinstate them. So basically, the two huge stakes in this case are, first, the constitutionality of independent agencies, and second, the ability of Congress to insulate civil servants from being fired for purely political reasons.
FADEL: Would there be any constraints on the powers of the president?
ROSEN: Well, of course, there are political constraints at the ballot box, but if the Supreme Court embraces a very sweeping vision of the unitary executive theory, it would be impossible for Congress to impose any legal constraints on his powers. That's why the question of whether the Federal Reserve might be an exception, which you just discussed, is important. It's an interesting argument that the precedent for saying the Fed is different is the First Bank of the United States, which was independent of the president, but that was a private corporation. It wasn't a government agency. So therefore, invoking that as a precedent for the Federal Reserve is a sort of questionable, logical distinction.
Essentially, it's impossible logically to distinguish the Fed from other independent agencies, and that's why going back to the history is so important. And it'll be really interesting to see what the originalist justices do with briefs filed in this case suggesting that James Madison himself, in 1789, supported the creation of an independent controller of the Treasury who couldn't be fired for no reason. And that Hamilton, in Federalist 77, defended limitations on the president's removal authority. This is Alexander Hamilton, who Thomas Jefferson said wanted to resurrect Caesarism in America. At a famous dinner party, Hamilton blurted out, the greatest man that ever lived was Julius Caesar, and Jefferson accused him of monarchism. But even Alexander Hamilton, according to the briefs, thought the president's removal power could be limited. So it's a fascinating case. It's important, and it just poses two starkly different visions of executive power, the unitary executive versus the constrained executive.
FADEL: Jeffrey Rosen is the President and CEO of the National Constitution Center and author of the new book "The Pursuit of Liberty: How Hamilton Vs. Jefferson Ignited The Lasting Battle Over Power In America." Thank you for your time.
ROSEN: Thank you so much. Transcript provided by NPR, Copyright NPR.
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