STEVE INSKEEP, HOST:
The presidential election offers Americans a choice between two presidential candidates and two ideas of presidential power. Former President Trump has promised to use his power to go after enemies, and some of his supporters in Washington think tanks and elsewhere advocate what they call the unitary theory of presidential power. So what is that, and how is it different from Vice President Harris' approach? We've called Jeffrey Rosen, who is president of the National Constitution Center in Philadelphia. Welcome to the program.
JEFFREY ROSEN: Great to be here.
INSKEEP: OK. First, what is the unitary theory of presidential power?
ROSEN: The unitary theory of presidential power says that the president has complete control under Article 2 of the Constitution to supervise the executive branch. In practice, proponents want to curb or eliminate independent agencies like the Federal Communications Commission or the Federal Trade Commission and bring that under White House control. They want to strip civil service protections from tens of thousands of career civil servants and making it easier for the president to replace them with partisans. And it also means exerting control over prosecutions.
INSKEEP: Which a president could do so long as he installs a compliant attorney general. Congress has tried to limit the president's power, for example, saying the president must spend money when Congress appropriates it. But...
ROSEN: Proponents of the unitary executive theory hold that even attempts by Congress to constrain the president are themselves unconstitutional, resurrecting a theory of impoundment that President Nixon and President Jefferson actually tried but that Congress repudiated by law.
INSKEEP: I want to follow that up. We know that a president can't spend money unless Congress appropriates it. This is the reverse. The president's saying just because Congress appropriated money for a Department of Education, for example, I don't have to spend it. I can by myself eliminate the Department of Education, is that right?
ROSEN: Yes, that's a version of it, undermining the guarantee in the Constitution that Congress has total control over the purse. And that's why the unitary executive theory is so radical. It would really require the Supreme Court, as well as the president, to reverse its understanding of the relationship between the president and Congress.
INSKEEP: Do proponents of the unitary theory have a point? The president is elected by the people, and all the other people in the executive branch are not.
ROSEN: Yes, they do. And in fact, that's why some liberal scholars, including Justice Elena Kagan, supported versions of the unitary executive theory as a way of making the executive branch politically accountable. Presidents win elections, and they should be able to affect policy. However, some proponents of the theory are going much further than the liberal consensus would allow by essentially, according to critics, making the president a king, making him uncheckable by the judiciary or Congress, and that's a version of the theory that the U.S. Supreme Court has not yet accepted.
INSKEEP: Well, I guess that is my opposite question about this idea. Is there a point where saying the president won one election so he gets all the power is just fundamentally undemocratic? You're supposed to operate with other people, listening to other people by some kind of consensus.
ROSEN: Well, that's exactly right. And the core principle of constitutionalism is the separation of powers and the idea that the president is not a king and no one branch can speak for we, the people, but we parcel out our authority to the Congress and the president as checked by the judiciary in order to ensure popular sovereignty.
INSKEEP: So how is Vice President Harris' idea of presidential power any different?
ROSEN: Well, she hasn't articulated anything like the unitary executive theory. She appears to embrace the consensus view that the president is checked by independent agencies and by judges. On the other hand, Democrats have hardly been shrinking violence when it comes to the broad exercise of executive power, and President Biden and the Harris-Biden administration have tried to enact all sorts of policies by executive order that critics claim are unconstitutional, including, for example, the student loan changes that the U.S. Supreme Court struck down.
INSKEEP: It sounds like there is a difference between the two candidates, though, in that there are some actions that Trump could take without the courts. Am I right about that? He could reclassify civil servants and start firing people he finds inconvenient, to give one example.
ROSEN: Absolutely. He could try to do everything without the courts, and the question is, would the court stop him? And when it comes to civil service reclassification, he's arguing he can do this under existing statutory authority, and nothing in law or the Constitution would stop him. And on that point, the courts may well agree.
INSKEEP: Jeffrey Rosen, president of the National Constitution Center in Philadelphia. Thanks so much.
ROSEN: Thank you. Transcript provided by NPR, Copyright NPR.
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