STEVE INSKEEP, HOST:
We have the larger story behind a seemingly small news item. The Supreme Court this month let President Trump fire members of the Consumer Product Safety Commission - at least for now. The court majority signaled it may set aside a law to prevent the firings. Liberal justices dissented, saying conservatives used their power to destroy an agency's independence. This is part of a broader trend. A legal idea called the unitary executive theory holds the president's authority eroded too much in recent decades, and it's time to restore it. Its supporters include the legal scholar John Yoo, who worked in the administration of President George W. Bush.
JOHN YOO: All of the executive power of the federal government is concentrated in the president and the president alone. Everyone else in the executive branch, from cabinet secretary down to FBI agent, is a subordinate to the president because that is the person who we in the country elect to office.
INSKEEP: That is Yoo's reading of the Constitution. Now, the Constitution also contains an explicit phrase - the president shall take care that the laws be faithfully executed. Generations ago, Congress passed laws to establish independent agencies run by bipartisan boards, like the Securities and Exchange Commission. Presidents appoint the commissioners, although the laws generally say they can't be fired without cause. The Supreme Court upheld that arrangement 90 years ago. But the current court majority has chipped away at its precedent, and Yoo contends the president should be able to fire officials at any time.
YOO: I can see critics saying, look at what Trump has done. Isn't this why we need independent agencies? Because Congress knows it can't sit there and pass every regulation. It can't sit there and order every investigation. But Congress doesn't trust presidents. It doesn't trust presidents of either party, really. And so what Congress tried to do, starting around the New Deal, was try to create these independent bodies - a kind of fourth branch of government, the administrative state - and put it beyond the control of any partisan-elected president.
Also, people like Woodrow Wilson, who I think is in many ways the godfather of this idea, thought that there were scientific answers to public policy, that you could get things exactly right, and so that politics were a dirty, messy business. And the last thing you would want, then, if you created a Federal Trade Commission or the Federal Reserve, probably the most powerful of our independent agencies...
INSKEEP: Yeah.
YOO: ...Is to allow a president elected at the head of a party to govern what it does.
INSKEEP: Let's talk about some of the ways the president has challenged this idea. I'm thinking of a really simple one. In the first week in office, the president fired 17 inspectors general. Congress passed a law creating the inspectors general, also passed some rules and said the president may fire an inspector general. The president is in charge. But you have to give 30 days' notice, and you have to give a reason to Congress. President Trump didn't bother to do that. He just fired them all, effective immediately. What do you think of that?
YOO: Yeah. I don't think that Congress can put any conditions on the president's ability to fire. I think the president just has a constitutional right to remove because of - as the Supreme Court said, the power to remove is really the power to command. And the president must have the ability to command everyone in the executive branch.
INSKEEP: If we believe that the president has the right to fire anybody at any time, regardless of what the law says, does that apply to other laws that would limit the activity of an executive? To give an extreme example, could he just have anybody arrested for any reason because the laws in that area are an inconvenience to his power?
YOO: I don't think so. When individual rights are involved, then I think the courts have a role to play - that they can, under the Constitution, say anytime the government detains someone, there has to be a hearing. Right? This is the right of habeas corpus. So I still think there are checks on the president's substantive powers, even at their most, you know, robust readings or even the most, you know, outrageous hypotheticals.
INSKEEP: There's a belief among many in Congress, of course, that if they approve the spending of money or the creation of an agency like the Department of Education, the president's job is to run it. Most presidents, even if they didn't like that particular department, have accepted that responsibility. This president has not completely shut down the Department of Education, but has advanced the idea that if Congress tells him to do something, it is optional. How does that fit into the unitary theory?
YOO: Yeah. I think that's where the unitary theory doesn't go. I don't think that the president can say, I'm just going to shut down an agency. The president has to carry out the laws, as you say, in good faith - right? - faithfully execute the laws. But he's also allowed to struggle with Congress over the way those powers are put to use. If you go back and look at the Federalist Papers, they talk about how they wanted the president and Congress to constantly be fighting, to constantly be struggling over policy.
INSKEEP: I'm also thinking of one more layer of this, though. The idea is that we should hold the president accountable for his decisions. A president has thousands of powers and seems to have more and more powers as this theory takes hold. Doesn't that make it really difficult for the people to make a meaningful choice? Because we choose one president every four years in a divided country where people often feel that it's impossible to choose the other candidate. And therefore, they can't really say, I don't love how he ran the Federal Trade Commission, and therefore I'm going to vote for somebody else.
YOO: That is a fair critique of the unitary executive theory - that a singular vote for one person every four years doesn't give us enough granularity, if you want to use some fancy word, about individual issues when we're choosing as voters. That's really why Congress is the body, I think, in our government - the responsible representative of the people who we choose every two years - who really should get into the nitty-gritty. I think Congress gave too much of its power away to the executive branch agencies during the New Deal and then during the '70s, and tried to make up for it by trying to create independent executive agencies outside the president's control. The only answer, I think, to your problem is that Congress has to take its own powers back and that it's got to become more responsible.
INSKEEP: As you probably know, some voters look at what the president is doing, the way that he's asserting his power, and see him trampling on Congress and trying to make himself into an autocrat or a dictator. Do you see it that way?
YOO: I don't. There is still an ultimate check. If people really think that President Trump is trying to concentrate autocratic powers in his hands, we still have the power of impeachment. That, to the founders, was...
INSKEEP: Although I've got to...
YOO: ...The ultimate check.
INSKEEP: I've just got to interrupt and note that Congress is in the power of people who seem to be afraid of the president at the moment. Let's just say that straight out.
YOO: Yeah, no, I agree. I think that you see a Congress that's quite subservient to the president.
INSKEEP: John Yoo, it's a pleasure talking with you. Thank you so much.
YOO: Yeah. Thanks, Steve. My pleasure.
INSKEEP: He's a legal scholar now at the University of California, Berkeley and the University of Texas.
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