Stephen Boyd’s Capitol Hill briefing for Alabama’s business, financial, defense and government affairs executives.
On Return to the Oval Office, Trump Sets the Tone for Expansive Executive Power
President Donald Trump – to the delight of his political base – is pushing the boundaries of presidential power in norm-busting ways. His dizzying array of executive actions, offers to buy out career civil servants and outright buy Greenland, and his blockade of congressionally approved federal spending have left more than a few people scratching their heads and asking, “Can he do that?”
The question is immensely important as state and local leaders, research institutions and universities, and business executives and federal contractors strategize on how to best navigate Trump’s second term.
For now, the technical answer seems something along the lines of “yes… nah… well, maybe.” That’s not very satisfying, so to shed light on the situation I turned to my friend and former colleague Sarah Isgur.
Sarah is the co-host of the wildly popular legal podcast “Advisory Opinions.” AO’s regular listeners range from law students to partners at major firms to Justices on the Supreme Court. She graduated from Harvard Law School, clerked for the Fifth Circuit, helped run a Republican presidential campaign, served in the U.S. Department of Justice, and now writes for the conservative outlet Dispatch while appearing on ABC News.
Sarah’s recent podcasts have focused on executive power—perfect for our conversation, which is edited for clarity and brevity.
STEPHEN BOYD: Sarah, thanks for chatting. People will use a lot of words to describe Trump’s first month in office, but “timid” will not likely be among them. From a legal perspective, how would you describe Trump’s approach as he returned to the Oval Office?
SARAH ISGUR: “Spaghetti against the wall,” or “fishing with dynamite,” depending on which metaphor is more vivid? This is an all-at-once strategy, and not a particularly legally precise strategy either.
BOYD: So, most readers will know that the president is the leader of the Executive Branch, but I think what we’re seeing is Trump saying, “I am the Executive Branch.” There’s actually more intellectual rigor to that view than some might think. Folks might start hearing the phrase “unified executive” bantered about. Can you talk about constitutional Unitary Theory and how that applies here?
ISGUR: Yeah, so the Unitary Executive Theory has been much maligned and perhaps misunderstood, even by Donald Trump and perhaps his staff. The theory goes something like this: the president is the only person who is also a branch of government. So, unlike Article I that obviously contemplates a multi-member body in both chambers of Congress, or the Supreme Court, which contemplates a multi-member body deciding things together, the Constitution says that the Executive Power shall be vested in the president — a single person. And, so anyone else who works in the Executive Branch derives their authority from the president. That’s all Unitary Executive Theory really is: basically, this idea that the president has hiring and firing power over everyone in the Executive Branch, including at agencies — even independent agencies.
BOYD: And that really hasn’t been the established practice.
ISGUR: No. Even Supreme Court precedent in some of these cases cast doubt on that. For instance, this case called Humphrey’s Executor v. United States upheld the Federal Trade Commission’s existence and its separateness from the president and his ability to remove people at will. So, Unitary Executive Theory is actually very narrow. It’s just about hiring and firing power. And while it’s an argument gaining traction, it’s not currently the policy of the United States.
BOYD: Let’s talk employees. I was a presidential appointee and served at the president’s pleasure for all of the last Trump administration. Clearly, he could have fired someone like me at any time but obviously did not. But most federal workers are so-called “career employees” that are thought to have certain civil service protections. Could unitary theory be invoked to fire anyone from the janitor at the Department of Interior all the way up to the Secretary?
ISGUR: Under the strongest interpretation of unitary executive theory, yes. And, I guess, another way to think about Unitary Executive Theory is that it basically says that Congress has no role in the inner workings of the Executive Branch. So, those civil service protections you mentioned come from an act of Congress. And those independent agencies—and how their commissioners are appointed or removed—comes from an act of Congress. And what strong unitary executive theory would say is, “those acts of Congress are unconstitutional because Congress has no role in telling the president how to run his branch.”
BOYD: Speaking of Congress, Congress has the power of the purse. The Trump Administration in a couple of different instances has tried to block money from going out the door. Does Unitary Theory extend to spending, suggesting that a president can decide what his Executive Branch spends—just ignoring Congress with something akin to a line-item veto. Or, does that go too far?
ISGUR: No, Unitary Executive Theory has nothing to do with impoundment, which is the concept of a president not spending money appropriated by Congress. Now, President Trump is separately arguing that he has the power to not spend money appropriated by Congress, but that’s a separate constitutional theory than unitary executive—and really a far weaker one, theoretically and practically.
BOYD: A step beyond firing employees and impounding funds is just shutting down agencies altogether. USAID is a bit of a special case because, if I’m correct, it was established by Executive Order during the Kennedy Administration. But maybe the next move by the Trump Administration is to shut down the Department of Education—which, for what it’s worth, will delight many conservatives. Would something like that work?
ISGUR: So, interesting. USAID was established by executive order, but then ratified into law by Congress—so it makes it a bit of a hybrid and maybe leans more on the congressional side than not.
BOYD: Ah, interesting.
ISGUR: But I think the Department of Education is a much cleaner example, as you said. It’s a bit of a hybrid, right? Because it is both involving personnel and the Executive Branch, which invokes that Unitary Executive Theory—which I do think has strong constitutional underpinnings. But it also raises something like impoundment, which has much weaker legal arguments for it. So, one way to marry those two would be to say, for instance, if the president tries to get rid of the Department of Education, well, he doesn’t have to have a person called the Secretary of Education, even if Congress says so, because it’s up to him who his advisors are. But if Congress says, “you must give grants to 10 universities that promote soybean growth,” the president does have to do that—whether it’s through someone called the Secretary of Education, or maybe his Chief of Staff, or even himself signing the check. He probably does have to spend the money. So, that would be a way to marry Unitary Executive Theory with a lack of impoundment power.
BOYD: The Courts, which are a big focus of your podcast, are going to have a lot to say about these Executive Orders. What do you think are the first cases to go to the Supreme Court? When would that be? And what should people be watching for?
ISGUR: Right. Let’s put this into three buckets. The birthright citizenship issue, not really the focus of this conversation, is its own bucket. I think that will go to the Supreme Court because the exact meaning of the text of the 14th Amendment has actually been debated for the last 150 years. Does it apply to children of legal citizens? Illegal aliens? Diplomats? Native Americans? All of that, put that into bucket one.
Bucket two is the Unitary Executive bucket, but it’s going to matter a lot which case goes up first. Is it going to be about an Inspectors General who got fired, which is where I think the president’s argument is probably the strongest. Or, is it going to be about a line FBI Agent that got fired, where I think the president’s argument is probably the weakest. And the way the administration has gone about this; they are not going to have a lot of say about which one goes up first. The Supreme Court will have quite a bit of say because there will be so many of these cases percolating at once, and they of course have discretion over which ones they see first.
Now, bucket three is the impoundment bucket. I actually think neither the Supreme Court nor the administration will have much control over which one of those cases makes it through the court system first. This is where we can just briefly mention the difference between the Court’s Emergency Docket, which is all those injunctions you hear about. Almost all of President Trump’s Executive Orders have been stayed or enjoined at this point.
BOYD: Right.
ISGUR: Those will get appealed to the Supreme Court, but only on their sort of temporary status. The actual merits, as we say, will take a lot longer to percolate through a trial court, a three-judge panel at the circuit level, and only then will a party apply for the Supreme Court to hear that case. So, on one hand, on the emergency docket, we could see cases before summer reaching the Supreme Court in any of those three buckets. The merits docket will certainly not be until next term, and maybe the end of next term, or even the beginning of the term after that.
BOYD: So, to quote a favorite saying of the president, “We’ll see.” Sarah, thanks for the insight.
Stephen E. Boyd is a Partner at Horizons Global Solutions. Previously, he served as a Senate-confirmed Assistant Attorney General at the U.S. Department of Justice, Chief of Staff for Alabama members in both the U.S. Senate and U.S. House of Representatives, and as a Communications Director of the Senate Committee on the Judiciary. He resides in the Washington, D.C. area. Opinions expressed herein are his own. Contact Stephen at [email protected].