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Despite the kerfuffle that President Trump is initiating a Constitutional crisis, the confusion and frustration surrounding his executive actions fit within a fairly common modern trend: Congress’s institutional inaction leaves a power vacuum which the president sets out to fill. In anticipation of the Supreme Court weighing in, Henry sits down with the inestimable John Yoo to discuss the larger constitutional questions that Trump’s test cases are likely to settle. Tune in for a refresher on the distinction between the separation of powers and checks and balances; an explanation of the unitary executive theory; and considerations on how justices may come down on the decisions that will be put before them.
Henry Olsen
Discussion (3)
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This graphic points to an important legal consideration with regards to sitting presidents:
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John was on fire talking about executive power in this discussion with Henry. Particularly interesting to me was their speculation about the extent to which the executive's power could reach down the ranks of civil service to fire public employees. But their tentative settlement on drawing the line at the divide between management and labor that, in a union setting, bars management personnel from joining a collective bargaining unit, seemed incomplete.
Putting aside whether the firing line should be drawn at a management/labor divide, there was a problem with the fundamental approach they were taking, which implicitly relied on an assumption that the positions from which the employees are being fired would be refilled.
What I was hoping they would address is the situation where--as in mass layoff situations--positions would not be refilled. In those cases, it shouldn't matter whether the employee was a manager or among the ranks of labor.
When it comes to executive power and the layoffs that Trump is planning by eliminating positions, the questions should have focused on:
1. Whether the executive branch did or could have created the position. I assume that the various departments and other bureaucracies have seen mushroomed payrolls over the decades. Congress may provide funding for those increased jobs in its budget allocations, but isn't it the executive branch that creates the new positions and hires? If the executive branch has the power to create new positions, shouldn't it also have the power to eliminate those positions?
2. If the executive branch does not have the power to eliminate positions in the executive branch bureaucracy, does that power belong instead to Congress? If so, growing the bureaucracy will necessarily be a ratchet affair, ever growing, because that body doesn't have the te$tic1e$ to cut anything.
CEO's in the private sector have to make tough layoff decisions in tough times. The president, as our country's CEO, should have the same latitude and power.
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I agree with your thinking.
As far as number two, Congress loves having positions that its talentless progeny can occupy.
In the old days, politicians were outed as being corrupt when they died. For instance after a Chicago alderman died, oodles of shoeboxes would be found in the garage, filled to the brim with pennies nickels and dimes from city parking meters.
Now a corrupt politician can just see to it that their friends, associates, and the relatives of big time donors get to hold an important spot in the EPA's division of "Counting Populations of Rare Fish Species" or whatever. If there isn't yet such a division inside the EPA, once that Congress critter has the clout, they'll see that it comes about.