Has Trump made the presidency too powerful?

[Music] Hello and welcome back to Independent Thinking, the weekly podcast from Chatham House. I'm Bronwyn Maddox. We're on the eve of one of the biggest displays of soft power, a country can muster. On Sunday, at the MetLife Stadium in New Jersey, the United States will host the World Cup final between Spain and Argentina. And all Trump will be very much front and center. The only way it could have made a better spectacle for him is if the US men's team had gone all the way, and he did what he could to make that happen. Trump will enjoy his moment, but at home the concerns that he is expanding his powers are growing. At the end of June, the Supreme Court ended its term by handing the President additional powers that changed the American political landscape significantly. Trump lost his bid to limit birthright citizenship, but he won the power to remove the head of any federal government agency apart from the Federal Reserve. And that removes a nine-year-old constraint. The decision bolster the concept of the unitary executive, the idea that the President should have absolute control over government's executive branch. And it follows many other power boosts that Trump has secured in his second term, from the Supreme Court's ruling that the President is legally immune from actions taken in an official capacity, a category yet to be tested legally, to his generous use of executive orders, again often legally questionable. So we have to ask, has Trump permanently expanded presidential power? Is America now under an imperial presidency to use the famous phrase of Arthur Sessinger, the political historian? What does it mean for future administrations? For example, recently told an interviewer, "There are no limits to his power." Is he right? Well, here to talk it over, I'm joined by two of my distinguished colleagues from the US and North America program. Heather Holbert is one of our associate fellows and a former chief of staff to US trade representative Catherine Tai under President Joe Biden. Welcome. Great to be here. And senior research fellow Max Uli served in the US Department of Commerce and our focuses for us on US politics, foreign policy and economic state craft. Thanks. You're good to be back. Let us start with this question of Trump and the Supreme Court, which is where the limits of presidential power under the Constitution are ultimately decided. Heather, perhaps you can take us round these recent cases. In June, Trump lost on birthright citizenship. He was denied the power to fire the head of the Federal Reserve, but he did get what I was mentioning before this capacity to fire any other head of any other federal agency. Perhaps you can say why that matters. So there are literally hundreds of government agencies that would fall in this category, everything from environmental oversight bodies to trade oversight bodies and specific trade courts are two examples that come immediately to mind health and medical advisory bodies have also been very much in the news. And as you said, the court made a very sweeping judgment that all of those were subject to the unitary control of the president. The one sort of interesting comment that I would note is that you did have in the previous administration some contracting of presidential authority where this very same Supreme Court held that there were some things the president could not do. So there's some question of how much the relationship between the Supreme Court and this White House has permanently changed the powers of the presidency. I think there's no question that it has, but there's also an extent to which this court has chosen to behave in a partisan partnership with the president in a way that's not unprecedented in US history, but is unusual in US history. So among the questions we have for the future is how many of these changes, how much of this, as you said, unprecedented power will a court be comfortable with when a court has a majority that's politically different from a sitting president. You've packed a lot of points into that and will unpack them very delicately in a moment. But Max, this case revolved around Trump sacking a federal trade commission member, a Rebecca slaughter of Democrat in March a year ago and Chief Justice John Roberts ruled that subordinates who exercise the president's power subject to removal by him. I'd love your thoughts on what this means as Heather's describing that people and federal agencies can be removed by the president. The notion that the president can remove without cause a member of a multi-member so-called independent agency is the last in a long line of erosions of protections for these types of political appointees that previously would serve across administrations. And what I think it points to is the extension of the White House's prerogative over these last areas of policy making where there was a bit more continuity between administrations. Now some will say that that can actually lead to greater cohesion and executive branch policy making that the agency will be responsive to the White House's policy prerogatives. And that is more consistent with what the American people elected that person to do perhaps it leads to more accountability if you don't like what the Securities and Exchange Commission is doing or the FTC then take it up with the president. The main concern that many of articulated especially in this presidency is that allowing the president to reshape these institutions on a dime makes a very politically responsive in such way that regulation enforcement actions investigations become tied to a political calendar. And political progatives rather than a kind of more objective set of criteria on in that we will see swings from what administration to the next that a future president could clean house at these regulators and regulated entities would then face that sort of whiplash and for businesses around the world that's that's a very difficult challenge to plan for. I like the idea of clean houses a verb you clean them out. Heather as you said the court is six three leaning in a conservative direction that being a legacy partly of Trump's appointments in his first term. But what should we make if the John Roberts court he's chief justice he's been on the court since 2005. As you said it's not completely a simple picture. So Roberts seemed to indicate that he does think a great deal about the court's legacy and the court's legitimacy and there's a long history of American Supreme Court chief justices thinking very hard about how to balance between whatever political objectives they may have. Views of the law that they may have and the sense of the court as you said Bronwyn in your introduction as the final arbiter the tipping point at the top of of US society and Roberts has seemed to be trying to tread a very particular path for himself of on the one hand definitely wanting to steer US society back in a more conservative direction. But also being quite sensitive to the level of respect to the court holds and having I think in his mind perhaps not always so clearly visible to the rest of us. Align over which he doesn't want to go one could also say when I think it's relevant to this set of decisions that the Roberts court has been very sensitive to markets and financial pressures as some of the places where the court has been most willing to push back on president Trump's unfettered use of executive. Power have been not just around the federal trade commission but also around the tariff cases and I should say that market sensitivity is apparent in the court's decision and the Lisa Cook case the federal reserve governor who president Trump sought to remove for cause but without adequate process and there the court. You know took pains to distinguish the federal reserve and its monetary policy role from the more regulatory functions of some of the other independent agencies but in majority's opinion. You can see them really stretching to protect the federal reserve in some ways because of that unique market facing role as a pillar really of the US economic role in the world and there may not be that coherent of a doctrinal distinction between the federal reserve and some of the other independent agencies but you can tell that few of the justices. Realize the market implications and that is permeating their decision making took us through one of the crucial rulings of the court on the tariffs themselves which Heather just mentioned where Trump has not got his own way at all. Yeah so that one is very interesting because the court or I should say a majority although not all there was a split among the conservative justices that enabled this the court did hold that the constitution is pretty close to the court. And then the court is pretty clear about arrogant and tariff making powers to Congress and that the specific statute which is abbreviated a IEPA that Trump had sought to use has explicit limitations that don't extend to broad permanent tariff making powers and the court in the majority decision was quite explicit not only that Trump couldn't do that but that he needed to go back and unwind what had been done which is quite unusual in the range of decisions the court has taken in this term and I should say however that the process of unwinding has been noticeably slow in providing refunds and the president has been very aggressive in using other legal authorities to try to replicate the structure and over the next few years. overall level of tariffs, and we expect those cases will end up back at the Supreme Court as well. The way in which the president is seeking to rebuild his tariff policy through other authorities that Heather brought up really shows to me the asymmetry of this courts approach in the past few years in areas where it is allowing an expansion of presidential power or granting more authority, including the immunity ruling in 2024 whereby the court granted a broad reading of immunity to the president for actions undertaken during office, even after he had left that office, as well as the curtailment of nationwide injunctions where somebody brings a complaint against the administration for a policy, it can no longer be read to apply quite as broadly. In these cases, the effect is structural, but in the cases where the court has pushed back most on the Thaipa tariff litigation, and then also on birthright citizenship, it's unique to that statute or that constitutional read, but there are always alternate tools for the administration to pursue the same ends. I can see that point, and that is exactly what President Trump has done as Heather was describing. The same time I was very struck when that ruling on tariffs came out, but at least one of the conservative justices I'm thinking of Neil Gorsuch said, "Look, if we allow this power that in our view should sit with Congress to go to the executive, it will never come back again," and it was very much as he phrased it, "a constraint on the ruling was intended to be a constraint on presidential power." So, Ron, when that is the unspoken part of this debate about presidential power, is that you have not just the court handing more power to the executive, but in many cases Congress either failing to use powers that the Constitution had clearly arrogated to it or the court begging Congress to step in and legislate and Congress declining to do so. So it's hard to talk about this story as just a Supreme Court and the executive and not frankly just during the Trump administration, but progressively in US politics over the last couple decades, you've had Congress less and less willing to legislate on complex or politically fraught issues, thus leaving more power for the executive branch to fill. This is a really important point to, again, trace this back beyond the Trump administration, both on the executive branch side where every president since FDR has really embraced the authorities that his predecessors accrued and then expanded on them. And that is a one-way ratchet, that is a continuous feature in American politics, and on the flip side, if Congress is not jealously guarding its authorities and acquiescing to executive incursion, nothing will ever bring that back into alignment. So I think this is an area where President Trump has pushed maybe more aggressively or in a different manner than some of his predecessors, but it is a consistent trend. Of course there are other areas where the president has taken a novel approach that might fall outside the realm of traditional presidential powers that read as power or as a more expansive presidency. And we can talk about some of those. In terms of the kind of constitutionally delegated authorities, this is the latest in a long-running trend. Obviously, and as Justice is here observing the picture, say it is very hard for any judicial system to keep up with the sheer pace of executive orders that he's doing, even if it gets around to challenging some of the main ones in due course. Max, how resonant in the country was what we've referred to as birthright citizenship, but the court standing up for this principle that is known around the world, if you're born in America, you are American. I haven't seen polling on it lately, but I would say decisions like this tend to be most resonant with those who hold the most passionate views about them. And the biggest reaction I've seen beyond relief, I think, among abroad, set of the population to the extent they were aware of it, is from part of the president's mega-base who, despite the gains that he has made on the Supreme Court appointing three of the justices, turned on one of them, Amy Coney Barrett as really a traitor to the cause because of her vote in that case. And I think that demonstrates no matter how far this court is willing to push in favor of the powers of the presidency or perhaps in acquiescing to this particular president's policy agenda, there will never be enough to satisfy his base other than complete submission. It's a very interesting irony that just as that decision came down, we had a new American breakout sports star in Filar and Balagan, the Nigerian, British American who scored several goals for the US in early rounds before infamously drawing a red card who was an American citizen with the right to play for the US team because his mother got stuck in New York City and couldn't board a plane because she was deemed to be too pregnant and so stayed in New York and gave birth to a young man who eventually played for the US. And as Max said, that fact was remarked upon by advocates of birthright citizenship, but I truly don't know that the court ruling changed anyone's opinion who already had a strong view on the topic. I'll ask you about this thing called unitary executive theory, which is the account that the president really does have all executive authority and it derives from an interpretation of Article 2 of the Constitution. And there are arguments about these. Those four, it's say, look, it's democratic in a sense to have oversight by the democratically elected president of all these unelected agencies that we've just been talking about. And those against say, no, it is dangerous. It is giving the president such power precisely the kind that the founding fathers went to such lengths to try to constrain. And I noticed that there was a battle, intellectual battle if you like, but it comes down to quite real consequences as we're talking about, about how to interpret this. So this was really a somewhat fringe theory 10 years ago. It's astonishing that we're talking about it as a real intellectual battle if we think about where we were 10 years ago. But what you see now, which is very interesting, is quite a number of democratic policy thinkers and even maybe more quietly some democratic future presidential contenders saying, you know, I'd quite like to use some of those powers myself. So although it was completely fringe 10 years ago and I wouldn't have thought I'd been talking seriously about it on a podcast with serious people. A very serious podcast with very serious people. But I think it's here to stay because, as I said, at least some Democrats now find the array of powers available, very tempting. I would add two things. One is that in a polarized political system where it is very difficult to find bipartisan agreement to move anything forward. You see policy actors reaching for ways to grease the wheels to enact their policy preferences with fewer vetoes with less trading of favors. And whether that's, you know, changing the rules within Congress or going to kind of an anachronistic tool to pass with bare majorities, you know, some sort of revenue measure or how one acts within the executive branch, people are looking for way to strip back the impediments to policy. I'd also say that the unitary executive theory is reshaping how the president sees and uses the executive branch. What it does not do and should not do is be a stand in for any notion of presidential power or action. So for the president to push the boundaries on laws in other way to, you know, impinge on Congress's progatives to act a certain way in the world. One can't just use it as a Trump card, if you will, to say, you know, you just have executive power there for Greenland should be ours. You know, it's become, I think, so capacious as to lose meaning in the way that it has been bandied about in some corners. Well, as I'm imagining, the coffee shops of Washington immersed in this conversation. Let's go to our second point, which is about the midterm elections. Max, where are we on this? Trump's polling has been dropping. But the Democrats are all over the place. We enter the midterm elections with quite slim margins in both chambers. And the president, quite unpopular with approval ratings in the high 30s, low 40s. If there were a similar shift to that that took place during his first term, the Democrats would easily retake the House. And I think the base case is still that they will recapture at least that chamber. The math in the Senate is quite hard. But I do think the base case is that the Democrats take at least one chamber. But there is an open question of the rules of the game. The president has a prime time address that is reportedly predominantly about voting in election security. And that is the latest in a set of actions and explorations that seek to recast the way that elections happen in the US, whether that is aggressive redistricting that has been answered by redistricting in Democratic states as well, in effort to nationalize elections to kind of review who votes and how. And that is something that could have a material effect on the outcome. Though I still think the base case is that you have the Democrats retake at least one chamber. And we can talk about the implications of what that may mean or not. And that chamber, most likely the House, we should say for listeners all across the world, the whole of the House of Representatives, every seat is up for election and then a third of the Senate. And people are going over and over these calculations. A couple points. One to add on to Max's last point. To see a very interesting and not very private back and forth among members of Trump's circle about how far to go in changing or acting outside the rules of the game around elections. You had his long time informal advisor, Steve Bannon come out this week and encourage him both to declare. certain sitting Democratic Senators illegitimate and to declare a state of emergency, which has been something Ben and has pushed for throughout his presidency and so far others within Trump's circle have pushed back. So you see that happening and this continued effort to frankly de-legitimize election officials and local election authorities because the U.S. We don't even administer our elections nationally so we don't have one election. We have 50 elections run by mistakes. I misstiffize all the countries and why can't they get this done more quickly but it is really fundamental that every state has the right to organize its own elections in its own way. Disorganize its own elections. Yes. And then at the same time, Bronwyn, as you alluded to, unsurprisingly, with so much angst and vigor and ranker in U.S. politics, you have now forces within the Democratic Party really fighting very viciously both on some issues but also on the question of what it looks like to fight back. And so you have this current preference for candidates that may or may not share ideological orientations and frankly some of them it's very unclear what their ideological orientations actually are but this desire to see people who fight back vigorously and loudly even if that looks very outside the mainstream or in some cases quite offensive to the sensibilities of some Democrats and that's making it further hard to calculate what happens because how extreme is too extreme we don't know. Max, what does it mean from the president if Republicans lose, say the House of Representatives? I think for the president, if the Democrats have the House of Representatives, it means that any legislation is dead because it has to run through at least one Democratic chamber. In this administration it's probably less problematic than most because the president has already relied so heavily on executive tools rather than legislation even with a friendly Congress as preferences for unilateral action. So too on some of the traditional oversight mechanisms that might have previously been challenging for a president to deal with, I think you'll see an administration that has rehearsed non-compliance for months for years will find it quite easy to brush back subpoenas oversight requests and really anything that Democrats would want to do from scratch whether it's a war power's resolution or bring somebody in for an oversight hearing and reviewing their documents. They'll quickly run into a veto from the White House. They'll run into a claim of executive authority or maybe a court fight in some extreme cases where they do have leverage, interaction are in areas where that House's vote that chambers acquiescence is needed and there that's really funding the government and kind of the plumbing of government. So I think we can anticipate the continuation of the shutdown drama and fights that we've seen previously. I think the debt limit which needs to be raised most likely in 2027 is another flashpoint and there is a fascinating stage for the question of how extreme our Democrats willing to be. Are they willing to repeat what some Republicans did during the Obama presidency which is kind of put the full faith and credit of the United States at risk to make a policy point, to make a political point or will they decide to be kind of more responsible in their approach? I think that's an open question but ultimately in the absence of true power with the exception of those few fiscal moments the chamber will mostly be an arena for political theater mudding the waters ahead of 2028 scoring political points. That puts it very clearly but as you put the financial and fiscal moments may get more frequent. We don't have discussed it in this podcast but we have in others how the Iran conflict plays out whether the U.S. can extract itself from that and the national debt is rising and rising with no obvious political answer to that at this point. And I should just say there is a cumulative toll to this type of vacillation, institutional erosion. None of these episodes happens in a vacuum, a debt downgrade, a debt limit crisis, an attack on the federal reserve, questions about the veracity of that coming out of the United States government. It's all part and parcel of what underpins the perceived safety of the United States. The rule of law that shapes this desirable market and it erodes bit by bit but by the time you realize that it's gone too far, it's too late. That is a subject of a whole other podcast but I refer everyone to the Worker-Row Economics team which looks repeatedly at exactly that risk. Let's go finally back to where we started. Trump and Sport. It is a huge sporting weekend for the whole world. America is at its center. Heather, what does Sport mean for Trumpism? The president has called himself a good athlete. The president has repeatedly sought to associate himself. I mean from his time in New York, he was keen to associate with athletes. He has a set of famous American athletes who are friends, who come to the White House. He's gone to let's see basketball playoffs, football playoffs, baseball games. He famously staged a fighting event on the lawn of the White House. So an interesting thing you have to say is I think he appreciates what we call soccer, what you call football. He actually appreciates it more than many American politicians have. In an odd way, he's more a citizen of the world in that regard. He's definitely forged a close relationship with FIFA and Johnny Infantino. No kidding. I just can't say how close we're looking. Max, how did this infamous moment when he called the president of FIFA and said how about overturning or delaying that suspension against our strikers? He can play against Belgium and got the result he wanted. How did that go down in the US? It strikes me as something very much out of the Trump playbook. I think what's unusual is that the person picking up the phone on the other side, I mean, it's not as much an operation for their organization. That was very delicately put. I mean, I'd brownen on that question. I do feel like Americans responded both split along partisan lines, but also the way that sports fans anywhere would, which is that even people who didn't like the president were tempted to want to side with our guy. So it perhaps went down less badly in the US than elsewhere. But also, I think a lot of Americans who do follow soccer looked at and said, yeah, this is a day that ends in why. As Max said, for the administration of global side, that's just saying summary when done pretty badly in the rest of the world. Yeah, I should just say, you know, looking ahead as both the US and the UK lick their wounds, I think we'd all like to look past the world cup to what's really a moment that could only be scripted by Hollywood. And that is the summer of 2028 in Los Angeles, a democratic run city and a democratic run state where some of the presidents, man and antagonists are residents. The global stage of the Olympics coming in the lame duck summer for the president ahead of the 2028 election. I think to the extent that the world cup has been, you know, a flashpoint that will be that much more so. And I think it's a date we can all circle on our calendars. I will say you cannot, however, jump past the incredible final that with many apologies and tears for our English hosts. But the fact that we have this final that pits old Europe Trump's most dogged antagonist in NATO, Spain against heavy and very bad people. And his Argentinian allies who he sees Malay as a mini version of himself. And the last minutes of that match and the trophy ceremony will be something incredible for politics nerds as well as football nerds. Max, I'm going back to your skill in dealing definitely with FIFA. They gave Trump the first inaugural peace prize. Do you think there's going to be a second one? With the 2030 world cup between Southern Europe and North Africa, I think it's Spain, Morocco, Portugal. It's all to play for for those leaders to see whether they're up to the challenge. Now I'm going to vote for that they give it to Trump again. On that note, we are going to have to wrap up. So a huge thanks to Heather Herbert. Thanks so much for having me. And thank you, Max, you Ellie. Thank you. Everyone, we hope you enjoyed the podcast independent thinking is out every Friday. 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