Season 1, Episode 9 | Who Needs Congress? POTUS as Chief Executive

Who Needs Congress? POTUS as Chief Executive 

Who holds the real power in Washington's sprawling federal bureaucracy? In this episode, Savannah Eccles Johnston and Matthew Brogdon explore the President's role as Chief Executive. How does a single individual manage thousands of appointments, oversee countless agencies, and navigate the fine line between legislative and executive power?

From historical controversies like Andrew Jackson's firing of the Treasury Secretary to modern debates over the administrative state's autonomy, this episode dives into the constitutional principles and political realities that shape executive power.

Curious about who truly controls the levers of power in Washington’s sprawling bureaucracy? Tune in to explore the President’s role as Chief Executive and challenge your understanding of executive authority in America.

In This Episode

• (00:27) Introduction to the President as Chief Executive
• (01:10) Understanding presidential appointments and Senate confirmations
• (02:10) Historical precedents: Andrew Jackson and Andrew Johnson
• (07:05) The growth of the federal bureaucracy and administrative state
• (13:28) Rulemaking and Congress’s oversight powers
• (16:54) The balance between political accountability and agency independence
• (21:25) Modern challenges with independent agencies like the Federal Reserve
• (28:14) The broader implications of executive orders and rulemaking
• (30:45) The evolving role of Congress and public accountability

Notable Quotes

• "[00:04:34] Any executive power wielded by others is on behalf of the President." — Matthew Brogdon

• "[00:11:40] The President’s power to fire members of the executive branch is settled—controversial politically, but constitutionally clear." — Savannah Eccles Johnston

• "[00:21:58] When you say an agency is 'independent,' what you're saying is it's independent of political accountability." — Matthew Brogdon

• "[00:28:43] Much of the growth of the presidency’s power is rooted in the Chief Executive’s role, not as Commander in Chief, but as a rule maker." — Savannah Eccles Johnston

Resources and Links

This Constitution  

• https://podcasts.apple.com/us/podcast/this-constitution/id1771900485

Savannah Eccles Johnston

• https://www.linkedin.com/in/savannah-eccles-johnston-515a72198/
• https://www.instagram.com/savypolitics/

Matthew Brogdon

• https://www.linkedin.com/in/matthew-brogdon/
• https://www.uvu.edu/ccs/people/matthew_brogdon.html

Transcript

Savannah Eccles Johnston:

[00:00:27 - 00:00:40]

Welcome to This Constitution. I'm Savannah Eccles Johnston. 

Matthew Brogdon:

[00:00:40 - 00:00:42]

And I'm Matthew Brogdon. 

Savannah Eccles Johnston:

[00:00:42 - 00:01:33]

Today we're going to talk about the President as Chief Executive. So we've spoken about the President as Commander in Chief, his war and foreign policy position, and now we have to talk about the President as Chief Executive. Basically, the President sits atop this massive federal bureaucracy and has the job of overseeing and directing it. And this is no small task. So the first step for the President here is he has to be able to appoint secretaries to oversee all of these different departments. And he does that with the advice and consent of the Senate. This is constitutional. How many roles is the President filling here? So when Trump comes into office again, on January 20, 2025, how many roles is he going to need to fill? It's not just the Cabinet, it's a bunch of other positions. 

Matthew Brogdon:

[00:01:33 - 00:02:09]

Just in terms of routine appointments at the beginning of a presidential administration, there are somewhere around 1,200 appointments that are President and Senate appointments, what we call PAs, that need to be made during the transition. There are many, many more that are either the President alone or a department head, or even the courts have some positions that they get to appoint without any kind of Senate involvement. But so we're talking about filling the numbers in the thousands. A transition team has to come in with a list of a couple of thousand people they want to put in office. 

Savannah Eccles Johnston:

[00:02:09 - 00:02:52]

And this takes up a big chunk of time in the Senate. It can take two to three years to get all these people confirmed. And they're not even doing them individually in all cases. In many cases, they're bulk appointments through the Senate. Most are fairly non-controversial. The cabinet ones will be the most controversial. Okay, so the President needs the advice and consent of the Senate to appoint, but what if he's appointed a Cabinet secretary and they suck at their job? What's the President to do here? Can he fire them? Does he need the advice and consent of the Senate to fire them? And history tells us no. The best episode on this is Andrew Jackson and his Treasury Secretary. So give us the historical story here. 

Matthew Brogdon:

[00:02:52 - 00:03:12]

Oh, Jackson removed the Treasury Secretary and replaced him with Roger Taney, who had been his Attorney General, he moved his Attorney General into the Treasury Secretary position. And eventually, when there's a vacancy on the Supreme Court, he's going to make Taney Chief Justice. And Taney's going to go on to be a very important Chief Justice, succeeding John Marshall. 

Savannah Eccles Johnston:

[00:03:12 - 00:03:15]

But he removed him because he wouldn't obey presidential orders. 

Matthew Brogdon:

[00:03:15 - 00:03:48]

That's right. He wants him to remove the deposits from the national bank, which will cripple it. Which does cripple it. Well, it was already crippled because Jackson had vetoed a recharter of the National Bank. So the national bank was going to expire in 1836. Jackson said ahead of the expiration, we need to remove the government's deposits from the national bank so that they're not in peril. They said these were investments. And the Treasury Secretary was given the power to do that by Congress. The Treasury Secretary said, I think this is a bad idea. It's going to hurt the economy. 

Savannah Eccles Johnston:

[00:03:48 - 00:03:49]

Which in fact. It does. 

Matthew Brogdon:

[00:03:49 - 00:03:50]

It does. 

Savannah Eccles Johnston:

[00:03:50 - 00:03:50]

Yeah. 

Matthew Brogdon:

[00:03:50 - 00:04:34]

Jackson says to do it anyway. I think Jackson was trying to force Congress to create a new institution that would meet his requirements instead of what Congress wanted. But he fires the Treasury Secretary whenever he refuses to exercise his own lawful discretion in the way that Jackson commanded. And Jackson's basic argument is simple. You're the Treasury Secretary, you're wielding the executive power of the United States. The Constitution places the executive power in the President. Article 2, Section 1. The executive power shall be vested in a President of the United States. So Jackson makes a very simple argument. Any executive power vested in anyone in the government is the President's executive power being wielded by someone on the President's behalf. 

Savannah Eccles Johnston:

[00:04:34 - 00:05:18]

Right. And these individuals do not report to Congress. That's key. They report directly and exclusively to the President. He just needed the Senate's approval to nominate them. That's it. That's all the involvement Congress gets in the executive branch. Okay. So he refuses the Treasury Secretary. So Jackson fires him. And there's an uproar over this. Jackson states his case. He appoints Roger Taney, who then removes the funds. And Tawny Tani. Tawny removes him. He became Treasury Secretary, who removed the funds, the economy crashed, and then appointed him to the Supreme Court, where he would later author Dred Scott. So a hero in American politics. He is not. 

Matthew Brogdon:

[00:05:18 - 00:05:24]

But the Senate's not happy about this. The Senate passes a censure resolution, which is periodically done. 

Savannah Eccles Johnston:

[00:05:24 - 00:05:28]

Right. It wasn't the first time it had ever happened. I think it's the first time it has ever happened. 

Matthew Brogdon:

[00:05:29 - 00:05:33]

I don't know if this is the first censure resolution that the Senate has ever passed. 

Savannah Eccles Johnston:

[00:05:33 - 00:05:34]

I think it is the President. 

Matthew Brogdon:

[00:05:34 - 00:07:05]

But anyway, it might be, and they've not done it commonly. This is fairly rare. But the censure. Jackson Censure, not censor for his removal of the Treasury Secretary, argued that this had violated federal law. The Senate claims that Congress had vested the discretion in the Treasury Secretary as to whether the deposit should be removed from the bank and that no other person, including the President, could tell the Treasury Secretary how to make that decision. And Congress claimed they made a straightforward constitutional argument, too. They pointed to Article 1, Section 8 of the Constitution and said, it's true the executive power is vested in the President. But at the end of Article 1, Section 8 is this necessary and proper clause that says in addition to all the stuff that's listed, Congress is allowed to do. It says, Congress shall have power to make all laws, but shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States or any department or officer thereof. So Congress says we've got the power to make laws directing how these laws are going to be carried out and to control even that language. That Congress can direct the exercise of powers vested in any department or officer of the government means we can even specify how the President is supposed to carry out his job. 

Savannah Eccles Johnston:

[00:07:05 - 00:07:18]

Right. The key here is it's the President who's carrying out the job and not directions specifically for secretaries who are simply under the purview of the President, I think is Jackson's response. 

Matthew Brogdon:

[00:07:18 - 00:07:41]

That's a largely true statement, though it's a little bit of an oversimplification, because actually the Supreme Court and Congress have assumed that they can place what they call ministerial duties in the hands of certain people. So a good example of this would be, for example, the archivist of the United States supposed to receive the electoral votes. 

Savannah Eccles Johnston:

[00:07:41 - 00:07:42]

Right. 

Matthew Brogdon:

[00:07:42 - 00:07:48]

And then send them after they've checked all the envelopes are sealed or whatever, send them over to Congress. 

Savannah Eccles Johnston:

[00:07:48 - 00:07:49]

Right. 

Matthew Brogdon:

[00:07:49 - 00:08:11]

That's a ministerial duty. The archivist doesn't exercise any discretion here. The archivist doesn't get to decide whether they ought to send them on or what to do. So there's always been this sort of underlying assumption that there are certain just basic, simple responsibilities once somebody's been appointed to office and the President signed their warrant and all, that somebody's responsible for putting their commission in the mail. 

Savannah Eccles Johnston:

[00:08:12 - 00:08:14]

Right. But these are lesser ministerial duties. 

Matthew Brogdon:

[00:08:14 - 00:08:14]

That's right. 

Savannah Eccles Johnston:

[00:08:15 - 00:08:19]

These aren't big kinds of executive-level stuff. 

Matthew Brogdon:

[00:08:19 - 00:08:28]

They're not discretionary. So anywhere there's executive discretion, Presidents have consistently argued, that's my discretion you're exercising. 

Savannah Eccles Johnston:

[00:08:28 - 00:08:28]

Right. 

Matthew Brogdon:

[00:08:28 - 00:08:33]

I just can't do it all by myself. I mean, George Washington, Andrew Jackson, you're an aide, basically. 

Savannah Eccles Johnston:

[00:08:33 - 00:08:59]

That's what you are. So to simplify this, presidents can fire at will. They don't need the advice and consent of the Senate. And you see this become controversial throughout American history. For example, during the Trump years, he fired the head of the FBI. Can he do this? Yeah, he can totally do this. Now, this is politically controversial, but there's no constitutional question here. This is really settled by Jackson. You can fire members of the executive branch. 

Matthew Brogdon:

[00:09:00 - 00:09:11]

It's largely settled. That is true. Jackson does assert this power and successfully exercises it. Adams had fired a cabinet secretary, but without a lot of controversy. 

Savannah Eccles Johnston:

[00:09:11 - 00:09:12]

Right. 

Matthew Brogdon:

[00:09:13 - 00:10:32]

Washington and his allies in Congress at the very beginning had argued the President does have this power because there was actually a debate to begin with whether Congress should put in legislation creating offices, or how people were to be removed. And they actually decided to say nothing about it on the argument that, well, the Constitution puts this power in the president. But it comes up after the Civil War, too. Andrew Johnson was almost impeached, almost convicted, and removed from office. Came as close as anyone has to being removed, and impeached as president because he had fired the Secretary of War, even though Congress had actually passed an act saying that the President couldn't remove them. Now, this was a situation where you had. Lincoln had been assassinated. Johnson took over as his not-so-popular vice president. Happens to be a Southern Democrat, but a unionist Southern Democrat. And Johnson wanted to undo some of the things that the Lincoln administration had been doing with Reconstruction. And when he fires the Secretary of War the same way Jackson had fired the Secretary of the Treasury, Congress impeaches him and says, no, you can't do that. He escapes impeachment because a fair number of Republican senators buy the argument that actually we can't stop the President from firing his own subordinates. 

Savannah Eccles Johnston:

[00:10:32 - 00:11:40]

Right. So the principle is upheld here. As much as we dislike Andrew Johnson, he's constitutionally correct. He can fire. So again, the principle is established. Since Jackson, it's never really worked for a president to be able to fire. Congress has not been able to stop them. And that holds true all the way into the 21st century. All right, so that's step one for directing this massive federal bureaucracy. But there are complications so let's say Congress passes a law creating the APA, the EPA, which has the job of reducing pollution. That is a very vague statement. Now it's the job of the President directing the EPA, the APA, under the direction of the President to go and actually do it. And they have to establish rules for factories, for companies, for polluters, these kinds of things to reduce pollution. Not every single one of these rules was created by Congress. They're created in the executive branch. And the question becomes, can Congress step in and say, we created you, we hate that rule, get rid of that rule? 

Matthew Brogdon:

[00:11:40 - 00:13:28]

Usually yes. I mean, Congress can. Congress can override the decision of an executive agency, at least when it comes to the announcement of rules or general rules through the passage of a law. Of course, those are always going to be subject to executive veto because anything Congress passes through both houses has to be presented to the President. The President has to sign it or return it with his objections. So if Congress can get the President to go along with it or can summon a 2/3 majority to override a presidential veto, then Congress can undo whatever the executive branch does, mostly unless we're dealing with a sort of purely executive action. But anytime an executive agency is sort of making rules, I think Congress has got the ability to repeal it. But that's a very difficult process to navigate. Although Congress does do this, they sometimes come along and add specificity to a law to make it clear the way they want it enforced. Might help to point out why this happens anyway. Legislatures can't foresee all the stuff that's gonna be necessary to enforce a law. They can't foresee all the circumstances they're gonna apply to. Usually, it's the role of executives and judges to take general rules that are framed to cover lots of similar cases in the future and then figure out how to apply them to those cases. The question is, why do executive agencies need to write rules to do that? Why don't they just do it? Why don't they just say, we're going to take the laws written, we're going to apply it to businesses, we're going to take these health regulations Congress passed and we're just going to apply them? We're going to come to each business and as we go say, oh, no, you can't do that, but you must do this. Why do they have to write rules? Is the question right? 

Savannah Eccles Johnston:

[00:13:28 - 00:13:31]

Are you asking me this? Is this like a question you're posing to me? Why? 

Matthew Brogdon:

[00:13:31 - 00:13:38]

Well, why rules? Why rule writing? Why are we producing a whole other set of legislation, effectively Right? 

Savannah Eccles Johnston:

[00:13:38 - 00:14:19]

Well, essentially it's because we're a nation of laws. There has to be some kind of accountability. It can't be arbitrary. We're applying a law that's quite vague and broad. In one case this person, in a different case this other person. So you've got to specify it. You've got to create kind of a second-tier level of laws. And the way we create those laws, by the way, these rules, is really important. It is governed by a procedure set down by Congress in 1946. So basically, the EPA or the Department of Education or the Department of State, if they want to pass a new rule, they have to get it on the Federal Register, which used to be printed and now you can find it online. And it's thousands of rules every single year. 

Matthew Brogdon:

[00:14:19 - 00:14:21]

Because if we printed it now, we would run out of paper. 

Savannah Eccles Johnston:

[00:14:21 - 00:15:07]

We'd run out of paper. Right. So it's thousands and thousands of pages every single year. They have to explain what the rule is and their general reasoning for the rule. Then you have 60 days before it takes effect. And in those 60 days, you need kind of a question and answer, public comment time. Okay. This is largely done by government affairs officials who work for big corporations or for farmers or whatever, government liaison, whatever you call them. Their job is basically to monitor the Federal Register and say, what rule is coming down that will affect us and if it's bad, how do we stop it? But you don't actually have the power to stop it. The only person who really could stop it is either the agency itself or Congress. So that's how the rule is written. How can what? 

Matthew Brogdon:

[00:15:07 - 00:15:08]

Or courts. 

Savannah Eccles Johnston:

[00:15:08 - 00:15:10]

Or courts. Yes, or courts. 

Matthew Brogdon:

[00:15:10 - 00:15:11]

Or courts. Or say. No, not so much. 

Savannah Eccles Johnston:

[00:15:11 - 00:15:21]

Yeah, yeah. Or courts. So then the question is, how does Congress step in and say, look, we've heard from all of our farmer constituents that this new rule from the Department of Agriculture is really stupid. 

Matthew Brogdon:

[00:15:21 - 00:15:22]

Yeah. 

Savannah Eccles Johnston:

[00:15:22 - 00:15:58]

And you've refused to hear their comments. The courts aren't going to touch it. Well, this is set down by the Congressional Review Act, which was passed in 1996, which is just that Congress must receive the rule. At the same time you put it on the Federal Register, you have. Congress has to receive the rule as well, as well as a little notation. Is this like a big rule or a little rule explaining what it does, et cetera? And then they have a set amount of time to pass a joint resolution overturning that rule. It's going to be vetoed by the president. If it is, it goes to be overridden. This is not something that happens very often. It's only happened 20 times since 1996. 

Matthew Brogdon:

[00:15:58 - 00:16:04]

Yeah. And the presumption in that process is the rule will go into effect if Congress doesn't do something. 

Savannah Eccles Johnston:

[00:16:04 - 00:16:06]

Yes, yes. Yeah, great point. 

Matthew Brogdon:

[00:16:06 - 00:16:54]

Some people have proposed putting it the other way, that anytime an agency passes a major rule that involves figuring out what a major rule is is its own problem. But anytime an agency passes a major rule, some people have proposed, you would have to get in effect ratification of it. That is, it would then have to go to Congress. If Congress didn't pass it through both houses and then present it to the President for signature within a certain amount of time, the rule would die. So it depends on whether you pick as the default that the rule will, absent congressional action, go forward, or is it by default the rule will die if you don't get congressional action? And for people who really want to scale back, the administrative state would like to have option B. So the rule dies unless Congress ratifies it. 

Savannah Eccles Johnston:

[00:16:54 - 00:17:24]

It is because most rules would in fact die. Why? Simply because Congress doesn't have the manpower to deal with this. The reason why there have only been 20 joint resolutions to overturn a rule is because there are thousands and thousands of rules that come in every single year, and Congress lacks both the expertise, the manpower, and the joint political will to do anything about it. And in some ways, this is inevitable because the government is just so large, how could you oversee it so effectively? 

Matthew Brogdon:

[00:17:24 - 00:17:59]

And I thought your comment earlier that this problem's inescapable because people do need predictability. We do have laws that govern huge swaths of American life. Right? You pass a new financial regulation, it's going to apply to people engaged in financial activity in all sorts of industries, all sorts of settings, and all kinds of activity. People do need some predictability. If you expect people to know what the law is and to follow it, then they quite often need elaboration. They need to know how the executive branch is going to enforce this. 

Savannah Eccles Johnston:

[00:17:59 - 00:17:59]

Right. 

Matthew Brogdon:

[00:17:59 - 00:18:29]

If you say a good example of this, like Obamacare, right? Whenever it passed, it said you had to have minimum coverage, right? In order to meet the requirements of the law, people had to obtain minimum health coverage. Minimally adequate. Well, what's minimally adequate? Like down at the sort of nuts and bolts level, what counts? What is the Department of Health and Human Services going to say is minimal? Most famously, of course, what in the way of birth control would be included in that? 

Savannah Eccles Johnston:

[00:18:29 - 00:18:29]

Right. 

Matthew Brogdon:

[00:18:30 - 00:19:54]

Health and Human Services had to go through a rulemaking process to figure out what ought to be on the list of minimum coverage that either employers have to offer to their employees or people have to obtain for themselves. And in going through that process, it evoked all kinds of controversy, and we had to make the list. Also almost got Congress in trouble because this was one of those places where people said, well, what's minimum coverage? He said, well, you have to wait until we pass it to find out, and then we'll find out. And this got Nancy Pelosi in all kinds of trouble as speaker of the House, because it sounded like you'll have to pass the bill to find out what's in it. But really, when you pass general laws to govern into the future perpetually, you can't foresee all the circumstances that will apply to. And the legislature's got limited knowledge, they are setting down general principles that someone's going to have to decide how this applies to the facts in lots of diverse circumstances. So that's where executive and judicial power comes from, the need to do that. Now, as soon as you start treating it through this process you're describing, we're going to write a rule, we're going to propose it, we're going to make comments on it. We might have to change it. That starts to sound like more legislation so that the executive and legislative tasks start to look a lot alike. And that's where we get a lot of the sort of heartburn and complaint, because we go, wow, that rulemaking process the executives engaged in looks a lot like a legislative process. 

Savannah Eccles Johnston:

[00:19:54 - 00:19:55]

Right. 

Matthew Brogdon:

[00:19:55 - 00:20:45]

And doesn't that violate the separation of powers? But the basic principle that the Congressional Review Act and these things have tried to lay out is, yeah, there's some gray area here. Like, what's the line between making a general rule for the future and then deciding how that general rule applies and then giving people predictability by writing down, here's how we plan to enforce this. Yeah, that's a gray area. There really is a large sort of space of transition between execution and legislation, and it is largely up to Congress to decide how far into that gray area they want to legislate, and how specific they want to get. And it actually moves back and forth. The Congressional Review Act recognizes that Congress may leave a lot of discretion and then decide that it is too much and come back and make more specific rules. 

Savannah Eccles Johnston:

[00:20:45 - 00:21:58]

A lot of the safety of this gray area comes from the fact that either under the control of Congress or the executive branch, it is an elected official. So it's a person who is responsible to the American people, who is largely at a big level directing this. But let's get more confusing here because there are different levels of agencies. Well, first there are so many Alphabet soup agencies that the President has to oversee. It's too large for any president to have any kind of serious direct control over every single one of them. So you have cabinet-level agencies. You have, and these are like the big cabinet level heads, treasury, agriculture, education, et cetera. Then you have independent agencies like the EPA, which they're not cool enough to be in the cabinet, but basically function the same way. But then things get gray, really gray, over who they are reporting to. When you get to independent regulatory agencies and on and on, government-sponsored enterprises, et cetera, et cetera, where it's not clear who these agencies report to and who can fire the head of these agencies because it's not always the president. Sometimes they're set terms. So then it's not really legislative and it's not really executive. It seems to be something else. 

Matthew Brogdon:

[00:21:58 - 00:22:34]

Well, we call them independent. And the question is independent of what? Isn't political responsibility supposed to be about dependence? If you do your job well, we keep you. If you do your job poorly, whoever you're responsible for can kick you out at the next election or fire you like the President firing a cabinet secretary. As soon as we start talking about independence. That's the language we usually apply traditionally to judges, right? At the federal level. So the judicial process is independent, but it doesn't wield any legislative or executive power. It doesn't have a purse or a sword. 

Savannah Eccles Johnston:

[00:22:34 - 00:22:34]

Right. 

Matthew Brogdon:

[00:22:34 - 00:22:38]

It can't really hurt you. It can just pronounce decisions about facts and law. 

Savannah Eccles Johnston:

[00:22:38 - 00:22:39]

Right. 

Matthew Brogdon:

[00:22:39 - 00:23:02]

And so it's safe to have independent judges. So now we've taken language that we apply to the judicial process, right. We've dropped it into executive agencies and said now we want these people with the power to execute law, to confiscate your money, to enforce the laws against you, to make rules for your conduct. We're gonna make them independent. And that raises a tremendous controversy. 

Savannah Eccles Johnston:

[00:23:02 - 00:23:03]

Right? 

Matthew Brogdon:

[00:23:03 - 00:23:20]

Independent of whom? Independent of. Usually that term has meant political control. And is it appropriate to have a person exercising executive and would amount to rulemaking power? We'll call them rulemaking powers. A lot of people would say legislative powers and have them independent of political control. 

Savannah Eccles Johnston:

[00:23:20 - 00:23:50]

Well, this is a big controversy as it applies to things like the FCC and the Federal Reserve. Tremendously powerful and independent of even the President's control. The President appoints the Federal Reserve, but they serve, set terms, and are removed from the American people. And some would say, no, this is absolutely necessary. You actually can't trust the political process to something as important as monetary policy. People are too dumb. Let's leave it to the experts who are separated from the American people. 

Matthew Brogdon:

[00:23:50 - 00:24:17]

Most of these are created in the first half of the 20th century, especially in the New Deal. We see an explosion of them. And help me understand, if they're independent of political control, then is there any kind of internal control? I mean, what keeps them from just becoming little monarchies, technocracies that do their own thing without any kind of political accountability? 

Savannah Eccles Johnston:

[00:24:17 - 00:24:50]

Well, that's actually the big concern. And I'm no expert on the Federal Reserve, but if you serve set terms and you can't be fired, then you largely determine monetary policy in this country. Completely independent. It is kind of the little fiefdom of the chairman. And I don't mean that in some kind of nefarious language. Maybe that's the argument at the beginning, is that that was a good thing. You need to make things independent of politics. But it also means that there is a significant and growing portion of the American government that is not responsive to any of the political branches. 

Matthew Brogdon:

[00:24:50 - 00:25:25]

Now, a few years ago, Congress declared to pull the two pieces together, the removal power we talked about early on and this issue of rulemaking and agencies. A few years ago, Congress declared it unconstitutional that the director of the Consumer Financial Protection Bureau would not be subject to removal by the President. He said the President's got to be able to fire that person. And the court at that time made the case. The reason why the CFPB couldn't be independent of political control through presidential removal was because it was run by one person. It was a little monarchy. 

Savannah Eccles Johnston:

[00:25:25 - 00:25:25]

It's not a board. 

Matthew Brogdon:

[00:25:25 - 00:26:41]

The director of the CFPB had extraordinary power and there was just one. And most of these independent commissions, most of them are called boards or commissions. You have the independent, you have the Federal Communications Commission, the Federal Trade Commission, and the National Labor Relations Board are all independent agencies, but they typically are multi-member. And the thing that Congress did when they created them, and this was at the height of sort of party politics in America, right? Parties were immensely powerful and through the core of our political system still are. When they set these boards up, they said, well, the way to make them internally accountable is to have bipartisanship on them. So there's a minimum number of people on each board. I think the Federal Trade Commission, there has to be a, you know, there's a minimum number of Democrats and Republicans so that you can have a bare majority of partisan control. But a certain quantity of the people on the board has to be associated with the opposition political party at any given time. And then they serve staggered terms. So they tend not to come all up at the same time. So any given president is constantly replacing a couple of members of each of these major boards or commissions. 

Savannah Eccles Johnston:

[00:26:41 - 00:26:42]

Right. 

Matthew Brogdon:

[00:26:42 - 00:27:11]

And that creates this kind of loose connection to the electoral process without them being immediately accountable. You can't remove them for some decision they made this year. But you can eventually, if you win elections, exercise some influence over them. And that's the line that the court has currently drawn. We're okay with that as long as it's a multi-member commission and power sort of fragmented and it's not a little monarchy. 

Savannah Eccles Johnston:

[00:27:11 - 00:27:11]

Right. 

Matthew Brogdon:

[00:27:12 - 00:27:21]

Cfpb. No way you want it run by one person like the Department of Defense, run by a Secretary of Defense or Department of Treasury, then it's got to be politically accountable to the President. 

Savannah Eccles Johnston:

[00:27:21 - 00:27:41]

To be able to fire him. Right. So the key here is can the President appoint and then once there is an appointment, is there a kind of scattered governance among a board or a commission? Right. Okay. So this is a safety mechanism to prevent these kinds of fiefdom things that we shouldn't be so worried about is what you're saying. 

Matthew Brogdon:

[00:27:41 - 00:28:43]

Maybe. I mean, I still. Wait. The concern is still that we're handing over a lot of legislative power. The determination of most of what's in the law, if you just count it up, legal requirements I'm subject to obey, that come from the federal government. The vast majority of them come from executive rulemaking, not from congressional statutes. So if you want to know what the law actually is that you're required to follow, reading laws passed by Congress won't tell you you're going to have to read all these thousands of pages that regulatory agencies pass. So I'm not sure if the fact of the matter is subjecting this to real political accountability, especially if you want Congress to do something about it, which means reducing the quantity of it tremendously. To place it within the reach of a legislative body. If you want to continue to regulate this expansively, I'm not sure you can do that according to real political responsibility, except at a very high level of generality, which is basically what we do. We kind of hold the President generally responsible for this. 

Savannah Eccles Johnston:

[00:28:43 - 00:28:44]

Right. 

Matthew Brogdon:

[00:28:44 - 00:28:54]

We should also distinguish this from executive orders. Presidents issue executive orders to executive agencies to do certain things. Those don't typically have the force of law like a rule. 

Savannah Eccles Johnston:

[00:28:54 - 00:28:55]

Right. 

Matthew Brogdon:

[00:28:55 - 00:28:59]

That is an executive agency issue. So we do have to disentangle those things a little bit. 

Savannah Eccles Johnston:

[00:28:59 - 00:29:41]

Right. Okay. So the President as Chief Executive is a massive job. It is a complicated job, and in many cases, it's kind of an indirect control type of position, but nevertheless broadly accountable for agencies. In some cases that he can't fire, though, has some role in appointing. And these rules often look like legislation. So much of the growth of the power of the presidency is found in this, in his Chief Executive role, which Americans are much less familiar with, I think his role as Chief Executive and rule maker than Commander in Chief. 

Matthew Brogdon:

[00:29:41 - 00:30:13]

And I think the lesson here is that the President and the executive branch can do a lot without any congressional action. I mean, in the face of congressional gridlock, the executive branch can do a lot to adjust federal policy, to adapt to circumstances, and even make new rules. I mean, most of our rules, most of our controversial rules in the education sphere, most of those rules have come from Department of Education decisions regarding gender, transgender policy, and things of that kind. That has not been addressed by Congress. 

Savannah Eccles Johnston:

[00:30:13 - 00:30:14]

Right. 

Matthew Brogdon:

[00:30:14 - 00:30:44]

Instead, you have an executive agency using a long-standing piece of legislation that's going on 50 years old now to make rules and elaborate on what those mean. So that means the executive branch does have substantial ability to govern in the absence of congressional action, but it's also not unlimited. Congress gets fed up and the executive branch runs counter to public sensibilities. 

Savannah Eccles Johnston:

[00:30:44 - 00:30:45]

Right. 

Matthew Brogdon:

[00:30:45 - 00:30:56]

The electorate can react and put in place a Congress that can make significant changes and really scale those things back. They don't do it often, but can. 

Savannah Eccles Johnston:

[00:30:56 - 00:31:12]

One last important thing to note here, though, is that the weaker and more dysfunctional Congress is, the more powerful and the more broad the President's rulemaking powers must become. To the point where you could say, who needs Congress at all? 

Matthew Brogdon:

[00:31:12 - 00:31:13]

I do. I want to keep coming. 

Savannah Eccles Johnston:

[00:31:13 - 00:31:14]

Me too.