Do we have a Unitary Executive? What is the relationship between the President and the rest of the executive branch? What is the institutional relationship between executive branch bureaucracy and the White House? What is the legal relationship? How have the institutional and legal relationships changed, and how might they change in the next few years?
The federal government employs millions of people across a huge range of subjects. Who is in charge of them? Does the President, and the White House, ultimately have total control over the entire executive branch? Or are there aspects of the bureaucracy that are, or should be, outside of presidential control?
To try to find out the answers to those questions. I’m here with two of my colleagues at the University of Chicago – Jennifer Nou, the Ruth Wyatt Rosenson Professor of Law in the law school, and Jon Rogowski, a professor in the department of political science. Jennifer is an expert in administrative law and the separation of powers, as well as a former senior advisor at the Office of Information and Regulatory Affairs in the executive branch. Jon is an expert in American politics, the growth of the beauracy, and the presidency. He is the author of a book, No Blank Check: The Origins and Consequences of Public Antipathy towards Presidential Power (with Andrew Reeves).
I brought them here to discuss the legal and political relationships that matter in the executive branch. I will add that this is an area that has recently been before the Supreme Court, in a decision called Trump v. Wilcox that stopped a member of the National Labor Relations Board and a member of the Merit Systems Protection Board from reclaiming office after they will controversially removed by President Trump. And as we discuss, I think these issues will be back in front of the Court soon, so we conclude by talking about what may happen, and it what it will mean.
Have a listen.
WILLIAM BAUDE: The Federal government employs millions of people across a huge range of subjects. Who is in charge of them? Does the president and the White House ultimately have total control over the entire executive branch? Or are there aspects of the bureaucracy that are, or should be, outside of presidential control?
To try to find out the answers to those questions, I'm here with two of my colleagues at the University of Chicago, Jennifer Nou, the Ruth Wyatt Rosenson Professor of Law in The Law School, and Jon Rogowski, a professor in the Department of Political Science. Jennifer is an expert in administrative law and separation of powers, as well as a former senior advisor at the Office of Information and Regulatory Affairs in the executive branch.
Jon is an expert in American politics, the growth of the bureaucracy, and the presidency. He's the author of a book, No Blank Check-- The Origins and Consequences of Public Antipathy towards Presidential Power, co-authored with Andrew Reeves. I brought them here to discuss the legal and political relationships that matter in the executive branch.
I will add that this is an area that's recently been before the Supreme Court in a decision called Trump versus Wilcox, which stopped a member of the National Labor Relations Board and a member of the Merit Systems Protection Board from reclaiming their offices after they were controversially removed by President Trump. And as we discuss, I think these issues will be back in front of the Supreme Court soon. So we conclude by talking about what may happen there and what it will mean. Have a listen.
Jon, Jennifer, thank you for joining me. So we've been talking a lot in this series about executive power. And I guess one big ingredient in that is what is the executive branch exactly? How do we think about the relationships between the different parts of the executive branch legally, politically, institutionally.
So almost everybody knows about the president, who's elected every four years or so. But there are a ton of other people, institutions, offices throughout the executive branch that we think of as, in some way, being under the president. But how should we think about that? I mean, should we think of it as just it's a pyramid, and the president calls the shots the entire executive branch? Is it more complicated? How would you describe the lay of the land?
JON ROGOWSKI: That's a great question, Will. It's also a hard one to answer in a succinct way. So we call the president the chief executive. And so that might lead us to suspect that the president is at the very top of a very elaborate pyramid.
I think we can probably distinguish a couple of different elements of the executive branch. So there is the president, there's the Office of the President, the Executive Office of the President, where this is where we typically think of where presidents try to centralize bureaucratic operations within the White House because that's where presidents have a lot of control and capacity to oversee what's happening within those institutions.
There are the cabinet-level departments, whose offices are in Washington, DC, and usually employ thousands, if not tens of thousands, or in a few cases, millions of employees. And there are the independent agencies that are, at least on paper, maybe formally separate from much of the rest of the executive branch, but are still engaged in regulatory and policy making activity. And there are ongoing political debates, and have been for many decades, if not centuries, about the president's degree of control over the operations of those independent agencies.
WILLIAM BAUDE: And in broad strokes, what are the terms of that debate? I guess I hear a story that President Harry Truman had a sign on his desk, said, "the buck stops here." I take it means that the president is in charge of everything. I don't know, maybe that's not what he's talking about. Or maybe it's not even true. But I take it there's some reason to think parts should be independent. So what do the battle lines look like on that question?
JON ROGOWSKI: So my sense is that on the Truman story, the sign part is true. And I think that what Truman was intending to convey was that for every decision that's made by the federal government, that ultimately, he's the one that ought to be held accountable for whatever happens as a result of that decision.
So as I understand the terms of some of these political debates, the question is the degree to which presidents have control over the composition and the policy choices made by independent agencies in particular. And this has been going on for about 140 years, as far as I'm aware. And there are ongoing battles right now in the courts about the degree to which presidents can remove people that serve in these independent agencies, and the degree to which presents can directly control the policy choices that those agencies make.
JENNIFER NOU: I can jump in on that. I mean, I think there's both like a policy dimension to this debate about independence, as well as a legal dimension, which Jon sort of alluded to. So on the policy, I think there's a big question of to what extent do we want bureaucrats and agencies to be independent or shielded from politics and presidential control.
So the terms of this debate are often a question of what are the kinds of agencies that we think should exercise and implement expertise and independent judgment free from the president. So, of course, the big debate right now involves the Federal Reserve. Should the chair, Jerome Powell, be independent of the president, because we have a host of reasons for thinking that monetary central policy should not be subject to the whims of the president?
So that's the policy angle. And then on the legal side, just as Jon alluded to, I think there's a question of legally consistent with the Constitution, can Congress restrict the removal of the heads of agencies? And that's the big legal debate now.
WILLIAM BAUDE: And so concretely, we have the Federal Reserve's in the news a lot. And the other agencies or things in this category would be elections, the Federal Election Commission, the Federal Trade Commission.
JENNIFER NOU: There's a legal debate. So the Federal Election Commission, as you know, does not have a for cause removal in the statute. So there is some question about whether that's independent or not. It has just been raised because Trump recently fired the chair of the FEC. But I think the core of these kinds of agencies that recently sort of came to the Supreme Court's attention involved the National Labor Relations Board, the Merit Systems Protection Board. Generally speaking, they're multi-member and, again, for cause removal, and have other structural characteristics as well.
WILLIAM BAUDE: And so what features is it that make us think, or made people who created these agencies think, they should be independent. So the Federal Reserve, we think this is a topic that's not political, that's governed by expertise? What are the-- I don't know, what are the properties that make an agency a good candidate for independence?
JENNIFER NOU: The Supreme Court's going to have to figure that out if it wants to carve out the Federal Reserve. And I think a lot of commentators are not so sure that it can actually identify these properties. But as alluded to, I do think it's a question of expertise.
In the recent-- this is a case involving the NLRB chair, the Court tried to carve it out by referring to the history of banks, I believe, and trying to say that there's something about the historical tradition that allows the Federal Reserve to be a little bit more structurally independent. But generally speaking, yeah, I do think it comes down to a lot of expertise, maybe stability as well. Because if you allow these agencies to be controlled by the president, different parties coming into power can allow for flip flopping of policy. I think that's--
JON ROGOWSKI: And the design of the terms of members who often serve on those boards of commissions also reflects that idea. They serve relatively long terms. You don't replace the entire board or the entire commission all at one time. And so that also helps preserve some degree of continuity and stability in policy making. So you're not flip flopping from one extreme policy to another when you change presidential administrations.
WILLIAM BAUDE: So you have some area where you think, OK, experts should guide policy in this area. There should be experts, maybe sometimes from both political parties on this board, it will change direction some based on political control. But there will be continuity in a sense of experts in this area will have some continued role. Is that kind of the idea?
JON ROGOWSKI: I think so. I mean, the idea about expertise being important to regulatory activity or to bureaucratic policy-making, this idea permeates much of the design of the entire executive branch, not just these independent agencies.
So, for example, the whole idea about having a professional, meritocratic civil service in the late 19th century was, in part, premised on the idea that we ought to have professional bureaucrats in office who have expertise in whatever area that they are entrusted with making decisions. So that they can make wise policy choices that are going to contribute to building out the state's administrative capacity.
JENNIFER NOU: And I'll just add to that, that I think, it's related to expertise, but slightly different, it's just because of these long tenures, they just have a lot of experience administering the statute. And I say this because, of course, political appointees can have a lot of expertise. And a lot of appointments, folks have been in the industry or in this area for a long time. But I think it's the experience and the stability that I think a lot of the designers of the civil service laws were also keeping in mind as well.
WILLIAM BAUDE: I'm glad you bring this up because it sounds like the themes we're talking about here are not limited to the Federal Reserve or whatever these independent agencies are. It sounds like this is really, in some ways, the project of government. It's like throughout the government, you need people who have experience, who are expert in whatever area it is that they do, and who can provide some kind of consistent governance over time. Is that the idea?
JENNIFER NOU: I think that's right. I think that's right. A lot of these programs that are being administered by the government, think Medicare, Social Security, all of these values of stability and consistent application of the laws, and experience. And applying the laws also promotes efficiency, frankly.
Because you don't have to have new political appointees with steep learning curves starting for the first time, trying to apply a lot of these laws. So, yeah, I think it is absolutely core to the project of government.
JON ROGOWSKI: There is a tension here between expertise and experience and some kind of responsiveness to changing political tides or changing presidential administrations over time. So as you have individuals who serve longer terms of office in some of the independent commissions or agencies, then that also means that expertise is going to come at the cost of responsiveness to the individual selected by the country to serve as its president.
And so this is a long running theme in American politics and in bureaucracy around the world, which is how do you design a system that governs effectively, but is also responsive to the preferences of its citizenry, and especially when those preferences can change across time? And so designing a system that maximizes-- that comes to a reasonable compromise on both of those dimensions is a political project.
And it is an ongoing political project that every president, most members of Congress talk about as part of their core objective to serve the policy wishes of their constituents and to make wise policy choices that are going to benefit the people who elected them into office.
JENNIFER NOU: I think I completely agree with all of that. And I think it's worth noting that one big question in this area, obviously, as you know is-- both of you know-- is that the question of to what extent does the Constitution limit these political compromises that have been struck. And I think a lot of the hard issues that folks are thinking about involve what is the Supreme Court's role in interpreting the Constitution in a way that invalidates these political compromises between the president and Congress that have been struck in legislation.
WILLIAM BAUDE: So concretely, what are you thinking about?
JON ROGOWSKI: Well, so I mean, just for example, we mentioned earlier, of course, how Congress has often thought fit, through bills signed by the president, to protect through removal for cause restrictions on certain independent agencies. And the Court, of course, has started to interpret Article II in a way that is invalidating the Congress's ability to do that. So that would just be one of those.
WILLIAM BAUDE: So one view, I guess, would be Congress gets a lot of discretion in setting up the executive branch. And so if they think, and the president agrees when he signs the bill, that it's better policy to have an agency where we promise people that if you become a Federal Trade Commissioner, only be fired for cause, or on the Federal Reserve Board of Governors, or whatever it is, that's just a choice of how to design the agency, no different from deciding how much they're paid, and what their powers are, and all the things we decide.
And I guess the legal argument now that maybe the Supreme Court will accept is no, the Constitution takes that off the table. The Constitution says if Congress, you can make laws yourself, you can let federal judges decide cases. But your only other choice is to give things to the president, in some sense.
Now, of course, the president's not literally doing every act of the administrative state or delivering the mail. But everybody in the system, in this view, would flow up to the president. That's the other side?
JENNIFER NOU: Yeah, yeah.
WILLIAM BAUDE: Do you have a view about that, which side has a better view of the Constitution? How would you think about that debate?
JENNIFER NOU: Well, so all right, so when we're interpreting the Constitution as a matter of history, text, precedent, and so on, I mean, I think the historical record, obviously, we welcome your views, I think is unclear, I think.
In terms of the historical debate, I don't think it determines alone the scope of Article II power. And so I think over time, there has been various compromises and historical gloss, if you will, and practices set up determining some of these bounds. And I tend to think looking at various tools of constitutional interpretation, that the maximalist view, where the president's ability for just continuing to talk about removal, that it can't be restricted, I think is not inconsistent with that store of practice, and precedent, and decisions that have just been made by the political branches over time.
And I think the text of the Constitution itself also is just very vague. What does it mean to take care that the laws are executed? What does it mean to vest executive power in the president? These are very open-ended texts. And so the short answer is I tend to think that the maximalist view is not warranted.
JON ROGOWSKI: There's a political element to this too, in the sense that I think we typically think about the growth of the administrative state and the bureaucratic state really taking off around the turn of the 20th century and ever increasing since then. That is around the same time that presidents became more prominent within the American polity.
They became the focus of news media. They became the focus of citizens' attention. They are the single person who sort of represents the United States on the world stage in ways that they were not in earlier eras of American history. And so as more people look to the president and the presidency to be the main mover within government, presidents have had ever increasing incentives to use the administrative state to their advantage to achieve whatever objectives that they campaign for office on and were elected to fulfill.
And so every president, this is not just the current administration, every president has seen incentives to think about using centralization or politicization and other tools of directing activity within the administrative state to those exact ends. And so if we take a wider historical lens, the trend lines all point in the same direction with respect to how presidents have perceived those incentives.
And it is the pushing on those incentives that I think create the space and opportunities for some of these legal disputes to also come out too to help us understand exactly how we should be thinking about the scope of the power vested in the presidency relative to the power reserved for Congress and other entities.
JENNIFER NOU: Yeah, and I think continuing kind of that historical look, I think it is kind of striking when we think about the times when other institutions, such as Congress, which we haven't talked so much about yet, has restrained and sought to limit more of the president's power. And I think post-Watergate was a huge moment in history where there was both like the political energy, as well as just, I don't know, the polity's support of all of these restrictions that would cut back on some of the very aggressive moves that we're seeing today, whether it's disclosure, or just other statutes that have been passed to try and limit the president.
I think it's worth thinking about. Will we have that post-Watergate moment again in the future, question mark? And what would spark that?
WILLIAM BAUDE: And what would even a good version of that look like, I guess? I mean, is it just-- yeah, if you imagine some change in the institutional or legal structure of the executive branch, what are the changes that seem like they'd be good?
JENNIFER NOU: Well, I mean, for starters, I think Congress either clarifying, adding to its oversight ability and various areas of presidential control that have been tested now. So, for example, let me take the budget, we have the Impoundment Act. That's going to be tested, I think, in the courts.
But certainly, there's a lot that is, I think, unclear and vague that needs to be settled that Congress might consider, in theory, maybe under different political conditions, the extent to which the president and OMB should be reined back in terms of the budget. I mean, that's just one example.
JON ROGOWSKI: I'm very interested in thinking about these post-Watergate reforms. And I guess two aspects of them are interesting to me. One is the extent to which we think that those reforms were successful in achieving what they were intended to accomplish. And then the other is thinking about what an agenda today might look like for Congress to put forward a new set of reforms that would help to, I guess, reassert its institutional prerogatives.
On the former question, we've seen lots of presidents over the last 50 years since the Impoundment Act was passed be creative with how money is moved around for purposes that maybe were not explicitly authorized or approved by Congress. I think most experts agree that the War Powers Resolution was not a success in terms of reining in the president's supremacy over the direction of military force.
And so this raises, for me at least, interesting questions to which I don't have answers, but interesting questions about the capacity of Congress to rein in an executive whose goals or interests are maybe directly contrary to how Congress would like to see policy executed.
WILLIAM BAUDE: So I guess maybe this pushes back a little bit against-- or pushes a little bit in favor of the executive. So putting aside the text, and what James Madison said in 1789, you could imagine that supporters of the executive power view would say, well, look, this is, as Jon said, this is what people come to expect in elections.
They think we elect a president, they have a program. We want them to do things. And those are often the explicit stakes of the election. And so maybe it's good if it's possible for people to know, OK, I don't like the way the government is doing this or that, and I want to elect somebody who will change it, will change the direction of the government.
And I guess since similarly you might think, maybe it's good if Congress doesn't really have the option of empowering anybody who's not accountable to the president. Congress has to make a choice. When you want to create a new governmental agency or give a lot of power to the federal government, Congress knows, they won't personally be the ones in charge of running it.
So they have to think thoughtfully about what powers they want to give to the administrative state, knowing that the administrative state will sometimes be under the control of somebody from the other party who they don't like. So you could almost-- maybe that's a feature of the constitutional system is to say, we don't want to create some unaccountable fourth branch. We want Congress's choices to be more clearly laid out. You can give power here, but it comes with presidential control. Is that an irrational way to think about it?
JENNIFER NOU: No, I mean, I think you're helping us clarify that I don't think it's binary in terms of either it's a complete fourth branch-- I mean, it's a spectrum of the extent to which Congress allows the president control and not in terms of its statutory design. And I think we could, both those in favor, and want-- those in favor of more maximalist unitary executive and those that want more checks, I think they could potentially both agree that the president's agenda, which only encapsulates a very tiny fraction of what the administrative state pursues should be empowered.
And you should allow the president to change the policy at the tippy top. But I think at the same time, maybe the maximalists wouldn't completely accept this, but I think that there is room for more middle ground to think that there are other swaths of policy, whether it's monetary policy, or so on, where we do think Congress should have more leeway. So I'm just eager to find more middle ground between those views.
JON ROGOWSKI: Part of, I think, the vision that you laid out of something like presidential representation, where the idea is that the president is the only individual who's elected by the entire country, and therefore, that endows that person, that office with a certain degree of legitimacy to create policy, that is certainly a view that presidents themselves like to embrace and articulate.
It's a view also that members of Congress express, too, sometimes when they're designing particular institutions or particular procedures within the government. But I think for members of Congress, members of the House, in particular, they're elected every two years, more regularly than the president is.
And so when we think about Congress's ability to oversee and guide what is happening within the executive branch, it's not just through writing legislation, but it's also through appropriations, through oversight, and through other processes like these. And there is, I think, a constitutional and a political role for Congress to carve out for itself also a robust role in overseeing, and guiding, and structuring the choices made within the executive branch as well.
I think the political question is the degree to which members of Congress perceive that they have the incentive to do so, rather than to either delegate or defer to the president instead because of things like political parties and other sort of entities like these that structure incentives in particular ways that is quite different today than it was a century ago.
And this may also go to the accountability point you raised earlier, that there's a sense in which if the executive branch does something that people get really upset about, it'd be natural for them to blame the president for not stopping it. And maybe sometimes the president will say, oh, it's not my fault. I couldn't stop it. They're independent. Sometimes you see that, but naturally, that people would ask that question.
Whereas, it's harder to blame any particular member of Congress to say, oh, you failed to hold budget oversight hearings to stop this thing from happening. So there might be a more natural political target on the president. Is that--
JENNIFER NOU: I think that's right. I mean, partly you're asking an empirical question of how the public perceives these things. But your hypothesis rings very familiar and true. I mean, I think it is harder just to blame a group of people rather than an individual.
That said, I do think, again, it's an empirical question, there are signs that some aspects of the public do want Congress to step in a little bit more as parts of the bureaucracy are being dismantled. And they're starting to feel, the cutoffs in funding and things like that, where they do want Congress to step in. But I agree, I do think that is probably likely.
JON ROGOWSKI: This is really complicated, but also really interesting. I think if you ask the public about how they think power ought to be distributed within the federal government, they will say that they think Congress should be the one calling most of the shots. They are skeptical of executive power as an entity in and of itself.
But when it comes down to thinking about who members of the public hold accountable for things going wrong, the processes of Congress are very complicated. It's very hard for people to know to what extent their member of the House of Representatives is conducting oversight hearings, or what their role was in marking up the budget, or something like that. That's not information that's easily available to them.
And so the president becomes a more natural target for them to look to. And this is part of the argument that Hamilton and others were making for vesting the presidency in a single individual, rather than having a more plural executive, which is that person can be held accountable. It's more difficult to who is responsible for what when you have many more people involved in those kinds of decisions.
WILLIAM BAUDE: So you've both also alluded to this, the ways in which it's not so binary, and in fact, there are things a lot more complicated. Most government bureaucrats, or government employees, go their whole lives without getting a phone call from the president, telling them, you've got to do this. So can you, for people who may not know, put a little more color on that from your experience, from studying it? What are the real levers or mechanisms that matter?
JENNIFER NOU: You're going exactly where I was thinking, where my thoughts were also going on to this point about there's a lack of transparency in terms of how Congress works. But there's a huge lack of transparency, of course, into the intra-executive branch dynamics as well, which I think, considered on the whole, would reveal a picture of much less presidential control than the public might otherwise appreciate.
Because when you think about just the numbers, and back to the first question about the institutions, the president and the White House Office, the White House Office is generally around 500 or so. And then we can go out to the EOP, It's about 2,000. And then as you alluded to, there's 3 million-- that number is shrinking-- but ish, career staff.
So if you just think about it from a resource capacity perspective, the president and his direct advisors can only do so much in terms of controlling the bureaucracy, much to the chagrin of many. But there's only so many phone calls that you can take. So the president has all these mechanisms to try and prioritize the things that the president is going to take account of, so the rulemaking context, trying to figure out what our economically significant or significant rules, and then having all of these different mechanisms to facilitate his political appointees from reporting up.
So this is all just a way alluding to the fact that the president just cannot, because of resources and other dynamics, cannot control the entire bureaucracy. So to the point of, on the one hand, maybe this says that the public should be educated in terms of understanding where accountability lies. Maybe that should apply further down the bureaucracy. Or at the very least, turning more attention to the mechanisms of control within the hierarchy of the president.
JON ROGOWSKI: I was going to say, with respect to transparency around bureaucratic operations, bringing Congress into this a bit. And this, I think, Jen, gets to the point you made earlier about some constituents observing that benefits are not flowing the way that they usually do or something like that. And so they call up their member of Congress to complain about this.
There are lots of decisions that happen within the bureaucracy that members of Congress might be happy for bureaucrats to make, but themselves, don't want to be the ones who are making those decisions for political purposes. So they might be happy to expand, or shrink, or have restructured certain aspects of the bureaucracy, but they don't want to be the ones responsible for that, because that trouble is going to come their way from their constituents, and from organized interests, and other politically important groups like those if they were to make that decision themselves.
And I think the structure is the degree to which there is transparency among the public with respect to how well they understand about how bureaucratic decisions are made and how bureaucratic operations are conducted.
WILLIAM BAUDE: So I guess I'm struck by some of the cases, these powerful cases sometimes you see for independence, are these areas where there's expertise and certain kinds of apolitical norms. So the Federal Reserve might be one, where we have some expert economists who have some set of norms about what the economy is supposed to do and the kind of stability it's supposed to have.
Not formally independent, but once upon a time, there was a tradition that say, the Department of Justice was also quite independent because again, we'd have some sense that it was good if most of the time, criminal law wasn't being politically weaponized by one group or another. Maybe that's a especially a post-Watergate ideal.
And maybe that's one of the strong cases for this is where we worry, either normatively or legally, about too much direct involvement by the president. You'd say no, this is an institution. It has its own norms, its own experts. They know what they're doing. And it's in all of our interests to let it keep functioning.
And then I guess, is that part of the case for it? And then also what is the answer to people who then say, no, I agree with you. That's an institution, and it has its norms, but they're bad. The Department of Justice is full of-- I don't know, the deep state, or whatever epithet we call them. Or people who just think the Federal Reserve is doing things the wrong way, or maybe people who think ICE, the immigration enforcement agency has a bunch of norms, and it's bad.
And so sometimes, what people seem to want is for the president to intentionally come in and disrupt the normal course of business. Is that-- how do we think about when that's a good thing or a bad thing? Or is that just sort of inherently political, and then we're just going to inherently disagree about?
JENNIFER NOU: That's a really interesting question about what are the origins of norms? And what forces should try to change them? So I mean, one version of your question is that should we allow popular opinion to affect time-honored norms that may have developed for good reasons, you mentioned criminal prosecutions, and then maybe reasons that we could objectively, in some sense, think are not good.
So for example, let's say we always have stories of the lazy bureaucrat or whatever. And we might think, look, we do need to fire them more in some cases. And I could imagine the popular opinion getting behind that. I mean, I don't know. This is a hard question. I don't have answers.
I tend to think that something about these time-honored norms developing in a certain way and evolving in a certain way should be really highly examined and should have a lot of strength before they're just abruptly overturned. And maybe popular opinion can be a part of shaping that. But I think I'm going to-- I mean, I have more Burkean instincts than sometimes I think some of my other thoughts might suggest. But anyway, I tend to think that, yeah, they serve a purpose. And there's probably a lot of wisdom to many of those norms.
JON ROGOWSKI: I'm really interested in this relationship between norms, law, and then politics. So if you think about some of the presidents who are routinely lauded as being among the country's greatest, yes, they did path-breaking things. But many of the path-breaking things they did were because they violated time-honored traditions and time-honored norms.
And I think one thing that's been on my mind for a while, I mean, contemporary American politics, is that there are these norms that have arisen around DOJ and around the proper way to conduct politics, whatever we think politics is. And some of the origins of those norms, I think, are worth poking on.
For example, we've had lots of unpopular presidents in American history. But impeachment has been used very infrequently. Why is it that if a president has an approval rating that's in the 20s or 30s that they wouldn't be impeached? It's obvious that most of the country wants them out? And there's some kind of norm-- or at least doesn't like them.
And so I think the answer is that there's some kind of norm that's arisen around when and for what purposes you use impeachment. You have to meet some kind of standard in order for that to be used. And I think one thing that contemporary politicians have been thinking about is what norms are good? And what norms should we reconsider, because doing so would allow us to better achieve our political goals?
And so I think in recent American politics, there has been a trend toward more aggressively understanding what one can do, maybe not necessarily what one should do according to the norms, and to using the available options in ways that best allow you to achieve your goal while avoiding as much pushback as necessary when there's the possibility that norm breaking would be perceived by your constituents or by your colleagues as not the appropriate thing to do.
WILLIAM BAUDE: Yeah, so I guess this brings me to something that Jennifer mentioned at the top of the episode that I wanted to come back to, which is possible change. So the Supreme Court has had before it, seems likely to have before it, several cases about this. It's already sort of issued this a preliminary ruling in this case, Trump versus Wilcox, has, I think, over the course of the next year, seems likely to take more cases about the power of President Trump to remove people throughout the administrative state without statutory-- even when the statutes say otherwise.
So it seems likely to me, and you guys can correct me if I'm wrong, it seems likely to me the Supreme Court is going to rule in favor of the president, maybe finally say what the Unitarians have wanted the Court to say for a long time. The president is in charge of the executive branch. And he can fire anybody he wants to for any reason he sees fit.
I mean, again, if you think I'm wrong about that, I'd love to know that. But I'd also just love to know, if that happens, how big a deal is that? What will that mean? Is that a big deal? Will that change the way a lot of parts of the government work? Will that actually not be a big deal? And predictions are hard, especially about the future.
JENNIFER NOU: Well, I think it depends on a lot of factors. I think norms is going to be one of those. So in other words, even if the Court rules, I agree with you, that it likely will narrow Humphrey's Executor that allows Congress to do this. There are certain agencies where we might think nevertheless, norms will help still bolster the appointee pushing back on the president when they're asked to do something they might not otherwise. And what are the source of those norms?
I mean, I think are professional norms. Many of these agency heads come-- have professional reputations, whether it's from academia or business, that I think they'll keep in mind when they execute something that might hurt them professionally or reputationally going forward.
And then in addition to that, I think that there are so many other mechanisms institutionally that determine the relationship between the president and the agencies that go beyond simply the ability to fire at will. For example, I mean, there are a number of processes that have to-- as a matter of practice, they're sometimes captured in documents formally.
But anyway, there are a number of processes, often, that have to be undertaken before a bureaucratic or an agency decision is done. And those too can serve as a check, on the president despite at will removal. For example, I'm thinking of deliberative processes that exist throughout the executive branch that, as the name suggests, different components of the EOP and the agencies argue, really deliberatively, with the president and the White House advisors.
And sometimes, those arguments have merit. Sometimes as a matter of resources, The White House just says, OK and gives up. So I think this is all just to say, I think that it will not be earth-shattering, these Supreme Court decisions. But I do think a lot will depend on how they affect the culture and the norms of independence within agencies.
WILLIAM BAUDE: You could worry that they might affect the norms, that even if the decision itself might somehow signal, if we're already seeing this kind of aggressive moves of people trying to use all the powers they have, that then a Supreme Court decision, even if it's just about the question of when you can fire a Federal Trade Commissioner, will be seen as open season on constitutional norms. Is that plausible?
JON ROGOWSKI: Possibly. I think one implication from this set of decisions could be about, well, what is the next thing that becomes the subject of challenge that the president pushes on and in ways that maybe violates what we traditionally have seen as Congress's prerogative? And so I'm sort of interested in the implications, not just for what this set of decisions might mean for the president's supervision of the executive branch, but whatever the next item on the president's agenda might be for either this administration or future administrations, that might have implications for the separation of powers.
There's one other aspect that I would be really interested to think through, which is that the conversion of career civil service members into, essentially, political appointees who can be removed by a subsequent or the current president does make me wonder a bit about what implications that might have for longer term bureaucratic recruitment.
Because if individuals see, for example, that these are not career positions that they can imagine spending 20, or 30, or 40 years working in developing that experience and expertise, then you might get a lot of very talented and qualified people who might choose other careers instead of being a federal bureaucrat instead. And those kinds of decisions, writ large, could have really severe negative consequences for the quality and performance of the individual and the implementation of policy that's carried out by the executive branch.
WILLIAM BAUDE: Yeah, that's great. So I have one last question, which is sort of a forward-looking kind of academic question, which is sometimes that at Chicago, we think about the research frontier. What are the set of things we already know? And then part of our job as scholars is, of course, to push that frontier out, to learn new things that are at the edge of what we need to know, but don't yet know.
And so I guess I'm curious in your fields, respectively, but all these topics, what's your sense of what is the research frontier? What is the next big question that we need to know the answer to, but don't know the answer to, that we should be-- we should be trying to figure out? What's on the agenda?
JENNIFER NOU: I mean, I can think of a number of questions. It's hard to say, here's--
WILLIAM BAUDE: You don't have to pick one.
JENNIFER NOU: OK. Well, I mean, I think there are a number of empirical questions that will help us determine the stakes of some of discussion that we've been having. Just to reiterate, there's a great stream of literature right now about do these for cause removal restrictions even matter?
And a lot of the research is suggesting that, actually, they don't even matter in practice. So that'll help us calibrate Supreme Court rulings to figure out, well, does it indeed matter or not? And of course, this is in the great Chicago tradition of actually asking about the real world and empirical methods. So that's one I can think of off the top of my head.
And then I think that there are a number of questions, too, that we've alluded to about what will popular response be to many of these things? And these questions of if popular opinion is going to continue to be a source of constraint, what is the popular opinion? To what extent does it constrain going forward, in a search, for some of these other levers of influence beyond simply for cause removal?
JON ROGOWSKI: I have also just a whole series of questions that I think are at the frontier of research in political science and related disciplines about these topics. So I started graduate school about 20 years ago. And if someone back then said that they studied bureaucratic politics, most people's eyes would immediately glaze over because they didn't think that was an interesting, or provocative, or compelling topic.
That has changed dramatically in the last decade or two. And so I think lots of the most interesting questions in American politics for a political scientist concern, well, what exactly-- what's the policy-making influence or the regulatory influence of the bureaucratic apparatus? We typically think about the textbook policy-making process being Congress writes a law, through the committee process, the floor votes on it, sends it to the president. And that's the end of the story.
But no, we've learned that lots of the most important policy battles today are fought within the executive branch and are carried out by bureaucrats. And understanding who makes those decisions, how those regulatory processes are carried out, and what the policy consequences are in those implementation decisions, I think, continues to be one of the most important and one of the most interesting questions to understand exactly how policy-making happens within American politics, and who ultimately wields power in doing so.
JENNIFER NOU: Just to add to that, I think this might-- I don't if this is a medium term research project-- but I think this administration and trends in general have also suggested just how much more work needs to be done on the spending side of the administrative state. At least in the legal literature, I mean, there are some luminaries. But I think more work needs to be done, especially empirically. We've got some great grad students doing work on this.
But then also legally, and better understanding the law of appropriations. And I think that the kind of thing that we often-- social scientists, I think legal scholars often say that Congress has abdicated its duty of oversight, I think is not true in the spending context. I mean, it is truer now, probably a little bit because of some of the party dynamics. But as a historical matter, they are revisiting policy decisions all the time. And I think that is one really fruitful area of research in the future.
WILLIAM BAUDE: Thank you both for joining me.
JON ROGOWSKI: Thanks very much.
WILLIAM BAUDE: The Battle of the Branches series explores how traditional norms surrounding executive authority, legislative oversight, and judicial intervention are increasingly being tested and reshaping our democracy. Grounded in UChicago's values of free inquiry and expression, and driven by rigorous interdisciplinary research, the project brings together leading scholars to explore these questions with depth and nuance. We hope you'll join us this summer.