Gillian Metzger

So that could be a potential check. The other area where you might see the court pushing back is on some suggestions, for example, that the president just has the power to decide not to spend money when the president wants to.

So that could be a potential check. The other area where you might see the court pushing back is on some suggestions, for example, that the president just has the power to decide not to spend money when the president wants to.

That's at odds with a statute called the Empowerment Control Act, and it's also at odds with the longstanding understanding that Congress is the entity that controls the power of the purse. Right.

That's at odds with a statute called the Empowerment Control Act, and it's also at odds with the longstanding understanding that Congress is the entity that controls the power of the purse. Right.

Yes. And why? Because a department is part of government and this is not part of government.

Yes. And why? Because a department is part of government and this is not part of government.

Yes, we shouldn't call it a department. And also, if Congress were to create a department, then the individuals appointed to lead it would have to go through the methods for appointment that are laid out in the Appointments Clause, which is not just the president issuing a tweet.

Yes, we shouldn't call it a department. And also, if Congress were to create a department, then the individuals appointed to lead it would have to go through the methods for appointment that are laid out in the Appointments Clause, which is not just the president issuing a tweet.

Right. So, I mean, we have statutes that grant the civil service cause protection against being just fired. And that also gives them procedural rights to appeal adverse actions taken against them. President doesn't have the authority to just do away with a statute. In fact, the president's supposed to take care that the law be faithfully executed.

Right. So, I mean, we have statutes that grant the civil service cause protection against being just fired. And that also gives them procedural rights to appeal adverse actions taken against them. President doesn't have the authority to just do away with a statute. In fact, the president's supposed to take care that the law be faithfully executed.

So that statute is a constraint on what the president can do. The part that gets a little complicated is that the statutes do give the president some authority over the civil service. And in the first Trump administration, they issued what was called famously Schedule F, which was an effort to pull employees who perform a policymaking job.

So that statute is a constraint on what the president can do. The part that gets a little complicated is that the statutes do give the president some authority over the civil service. And in the first Trump administration, they issued what was called famously Schedule F, which was an effort to pull employees who perform a policymaking job.

or policy advocating or confidential function out from the protections of the civil service. And the president tried to do that by executive order, using authority that the president has under the statute. Because it happened so late in the term, agencies just didn't implement it, and President Biden revoked it immediately on coming into office.

or policy advocating or confidential function out from the protections of the civil service. And the president tried to do that by executive order, using authority that the president has under the statute. Because it happened so late in the term, agencies just didn't implement it, and President Biden revoked it immediately on coming into office.

I think we're going to see another executive order imposing Schedule F or something pretty similar to it very quickly in the second Trump term. And I think whether or not that ends up being something that's within the president's authority will be a question that the courts will have to grapple with.

I think we're going to see another executive order imposing Schedule F or something pretty similar to it very quickly in the second Trump term. And I think whether or not that ends up being something that's within the president's authority will be a question that the courts will have to grapple with.

Birthright citizenship is in the Constitution. It's in the 14th Amendment. So it's not something the president can end. What I would really hope is that if the president tries to get an agency to take action based on the idea that there is no birthright citizenship, that executive branch lawyers would say no because it's patently wrong as a legal matter.

Birthright citizenship is in the Constitution. It's in the 14th Amendment. So it's not something the president can end. What I would really hope is that if the president tries to get an agency to take action based on the idea that there is no birthright citizenship, that executive branch lawyers would say no because it's patently wrong as a legal matter.

So one of the silver linings, maybe the only silver lining of the court's attack on administrative governance, is that it has sparked a whole range of great administrative law historical scholarship, really investigating the origins of the United States administrative state. The first book that I'd recommend is one by Jerry Mishaw called Creating the Administrative Constitution.

So one of the silver linings, maybe the only silver lining of the court's attack on administrative governance, is that it has sparked a whole range of great administrative law historical scholarship, really investigating the origins of the United States administrative state. The first book that I'd recommend is one by Jerry Mishaw called Creating the Administrative Constitution.