Jack Goldsmith

So the unitary executive theory has been kicking around since the founding, but That name got going really popularly during the Reagan administration. It's basically the idea that, as the Supreme Court said in Trump v. United States, the president is the executive branch. All executive power, all of it, is vested in the president.

So the unitary executive theory has been kicking around since the founding, but That name got going really popularly during the Reagan administration. It's basically the idea that, as the Supreme Court said in Trump v. United States, the president is the executive branch. All executive power, all of it, is vested in the president.

The president alone has the power to take care to faithfully execute law. And what flows from that under the pure theory is basically that the president gets to control and direct and fire all subordinate executive officials. That's the pure theory.

The president alone has the power to take care to faithfully execute law. And what flows from that under the pure theory is basically that the president gets to control and direct and fire all subordinate executive officials. That's the pure theory.

So, whether it's an administrative adjudicator or someone on a commission or someone in the Justice Department, the president can direct and control and fire if they don't obey. The Supreme Court has never gone that far. It's actually never gone close to that far. And what the Trump administration is doing is trying to push it as far as it can.

So, whether it's an administrative adjudicator or someone on a commission or someone in the Justice Department, the president can direct and control and fire if they don't obey. The Supreme Court has never gone that far. It's actually never gone close to that far. And what the Trump administration is doing is trying to push it as far as it can.

The cases they're most likely to win, in my judgment, are the ones where they've been firing. This is the NLRB and the Merit Systems Protection Board. These are independent agencies. That means they're agencies where the members have protections for cause for inefficiency and malfeasance and the like, i.e., the president needs to give a reason before they can fire them.

The cases they're most likely to win, in my judgment, are the ones where they've been firing. This is the NLRB and the Merit Systems Protection Board. These are independent agencies. That means they're agencies where the members have protections for cause for inefficiency and malfeasance and the like, i.e., the president needs to give a reason before they can fire them.

And the administration is making a frontal assault on those, and that's where they're most likely to win.

And the administration is making a frontal assault on those, and that's where they're most likely to win.

More or less, yes. So that's basically right. There are various ways that executive branches have to fire people, put them on administrative leave. Probationary employees can be fired. There are a whole bunch of statutory ways to fire, and that's how they've primarily been doing this.

More or less, yes. So that's basically right. There are various ways that executive branches have to fire people, put them on administrative leave. Probationary employees can be fired. There are a whole bunch of statutory ways to fire, and that's how they've primarily been doing this.

They have also, in a couple of the cases, I think in setting up a Supreme Court case, especially for firing the highest level career appointees... They've asserted the Article II argument, and that's where they're going to begin at the next level going down. I really want to emphasize how broad-based and multifaceted this strategy to incapacitate the executive and control the executive branch is.

They have also, in a couple of the cases, I think in setting up a Supreme Court case, especially for firing the highest level career appointees... They've asserted the Article II argument, and that's where they're going to begin at the next level going down. I really want to emphasize how broad-based and multifaceted this strategy to incapacitate the executive and control the executive branch is.

But mostly, yes, what you call the administrative law strategy is how they've been proceeding. Right.

But mostly, yes, what you call the administrative law strategy is how they've been proceeding. Right.

I'd like to weigh in on it though. So I'm very sympathetic to the claim and it's true. I think there's a general consensus now. The government's not working well. It's too slow. It's too burdensome. It's too much bureaucracy, too many rules. Getting at the employees and controlling them is only part of the problem.

I'd like to weigh in on it though. So I'm very sympathetic to the claim and it's true. I think there's a general consensus now. The government's not working well. It's too slow. It's too burdensome. It's too much bureaucracy, too many rules. Getting at the employees and controlling them is only part of the problem.

I mean, there's still procedure that has to be gone through before you change some of these burdensome regulations. It's not just a question of controlling employees. But let me say that there are costs to getting control of the government. The president, when he gets control of the Federal Reserve, that might not be a good thing.

I mean, there's still procedure that has to be gone through before you change some of these burdensome regulations. It's not just a question of controlling employees. But let me say that there are costs to getting control of the government. The president, when he gets control of the Federal Reserve, that might not be a good thing.