Consider This from NPR - How an obscure legal theory shaped the immunity decision and Trump's second term

Episode Date: March 23, 2025

In Trump v. United States, the Supreme Court held that the president has "absolute immunity from criminal prosecution" for official acts.To reach that conclusion, the High Court grappled with this question: how much power a president should have?And some legal scholars say the ruling draws on the unitary executive theory — which, in its most extreme interpretation, gives the president sole authority over the executive branch.But did it pave the way for Trump's second term and the constitutional questions it's raised: From the dismantling of federal agencies established by Congress to the deportation migrants to third party countries without due process?For sponsor-free episodes of Consider This, sign up for Consider This+ via Apple Podcasts or at plus.npr.org.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

It's Consider This from NPR. I'm Scott Detro. And today we have something a little different for you. It's the first episode of a new series we are calling Supreme Consequences, where we explore how recent rulings by the U.S. Supreme Court shape people's everyday lives. As soon as he returned to office, President Trump began to remake the federal government swiftly, aggressively, in his image. The president has been talking about his day one actions, and it's believed 200 orders will be executed. A requirement that federal workers return to full-time in-person work immediately.

The administration plans to issue a new memo in the coming days directing agencies to prepare for large-scale firings. Trump has made it clear that one of the key goals of his second term is to shrink the size and scope of the federal workforce and eliminate programs he doesn't like. We're removing all of the unnecessary incompetent and corrupt bureaucrats from the federal workforce. Tens of thousands of federal government employees have already been fired. Thursdays, when things started coming to a halt, we started pausing meetings. There was a palpable tension in the air and we started receiving emails from our new acting administrator. That is a federal employee

who was fired in the early days of Trump's second term. She's with the United States Department of Agriculture, USDA, and spoke to us on the condition of anonymity because she fears retribution in the workplace. For the past couple of months, she was doing a fellowship program that had her working at the United States Agency for International Development, or USAID. I logged on and I got an email, which was just a copy and paste template that they sent to probationary employees, telling me that because of my quote, poor performance, I was determined unfit for the civil service. And that's why I was being terminated.

My supervisors did not know I had to be the one to notify them that I was no longer under their employment. And to her, that felt strange. She says she had received glowing performance reviews. She felt her work was important. She was doing things like helping new mothers and infants with nutrition and food security in developing countries.

The priorities that this office works on is the first 1,000 days of life. So when a woman finds out she's pregnant all the way up until a child is two years old, the U.S. government funds programs that do breastfeeding promotion and support for moms, maternal care, newborn care. Soon, nearly the entire staff had either been put on paid administrative leave or fired. And the majority of the department's programs ended.

This is soft diplomacy, but it's also life-saving critical care, and it is democracy and peace relationships. The loss, she says, is hard to calculate. It's devastating. We worked on child wasting, for example, is when a child has a low weight for their height, there are kids who will no longer receive treatment, who will slide back into wasting. There are families who really, really relied on this care. The choice to unilaterally dissolve a federal agency,

one established by Congress, was a shock to Washington. But the concept at the heart of it, that the president has broad authority to act unilaterally without consequence, that the executive branch should reflect his priorities, stems from one idea, the unitary executive theory. It is an idea at the heart of a recent landmark Supreme Court ruling, Trump versus the United States, the immunity decision. And it is an idea that we are going

to explore on this episode of Supreme Consequences, a series about the real world impacts the Supreme Court's rulings. One consequence for many federal workers? Career stability. Do I need to just make money where I can and hope for the best? But it would be sad to give up my version of what my career path was. But at this point it seems like we just need the money. I mean, who cares about a dream at this point? And her family's well-being.

I have an 18-month-old little boy. He's enrolled in a great daycare. And I don't think we're going to be able to afford to keep him there anymore. And my son has to get her procedure, and I'm already really stressed about the copay. We have to pay for that. I have no idea how we're going to pay that. I'm already looking at the bills copay. We have to pay for that. I have no idea how we're going to pay that. I'm already looking at the bills and it makes me sweat.

I don't know. In the past month, two federal judges have ordered federal agencies to reinstate thousands of federal employees, including those at USDA, decisions the Trump administration strongly disagrees with and is appealing. And that has led to a stressful state of limbo. For the time being, they have jobs, but only until the appeals process plays out. It's not clear to the employee we talk to or others whether this is permanent or just another few weeks.

The legal back and forth center on questions about the limits of President Trump's power. Power that the Trump administration is testing on a number of fronts. After the break, had the unitary executive theory made its way from an idea and the Reagan administration all the way up through the courts? We'll be right back. Oh, hey there. I'm Brittany Luce. And I don't know, maybe this is a little out of pocket to say, but I think you should

listen to my podcast. It's called It's Been A Minute and I love it. And I think you will too. Over the past couple months, over 100,000 new listeners started tuning in. Find out why. Listen to the It's Been A Minute podcast from NPR today. Over 70% of us say that we feel spiritual, but that doesn't mean we're going to church. Nope.

The girls are doing reiki, the bros are doing psychedelics, and a whole lot of us are turning inward to manifest our best selves. On It's Been A Minute from NPR, I'm looking at why maybe you and your closest friends are buying into wellness for spirituality. That's on the It's Been A Minute podcast from NPR. Aaron Ross Powell President Trump's drastic moves to reshape the U.S. government stem from a core idea that the executive branch should enjoy broad sweeping power.

It is a power that was expanded by the Supreme Court last summer through its ruling in Trump versus the United States, the immunity case. In a 6-3 opinion, the Supreme Court ruled the former presidents have absolute immunity from prosecution for official acts related to their court constitutional powers. Orders the Navy SEAL Team 6 to assassinate

a political rival? Immune. This decision was written as if America has never had a corrupt president. Organizes a military coup to hold on to power? Immune. This is one of the worst opinions in American history from the Supreme Court. Immune, immune, immune, immune. The decision came down to a key question that has big implications on topics far beyond the criminal case at the heart of it. When a president does something that is potentially illegal while executing his duties, who or

what can regulate his actions? Who can hold him accountable? These questions have come up a lot in the first weeks of Trump's second term in different contexts, from dismantling agencies established by Congress to deporting migrants without due process. President Trump is asserting his power. And one idea that seems to be motivating his actions is the unitary executive theory. But where does this idea come from? And how does it relate to the Supreme Court?

Danielle Pletka Many of the judges currently on the Roberts Court who embrace the unitary executive theory, which is a muscular understanding of a president's Article II powers, part of it, is how we understand the president's powers when it comes to war, emergency, foreign policy. That's Amanda Hollis-Bruski. She's a politics professor at Pomona College, where she teaches classes about the Supreme Court. The theory started to gain traction and developed in the Reagan administration among a group of young attorneys in the Justice Department who thought the presidency had recently been weakened. The Reagan Justice Department had a deep sense that since Watergate and the post-Watergate reforms that sought to really reign in and control an imperial president, to prevent

another Watergate, to prevent another president from abusing the trappings of their office, to prevent corruption in government, that the Congress that was elected after Nixon resigned went too far. The Reagan administration were quite animated about efforts to restore presidential authority to its true scope under Article 2. Charles Cooper was deputy assistant attorney general in the Reagan administration. And that's where the concept of the unitary executive kind of was born. There is only one president, one chief executive. And that chief executive, under the clear command of Article 2, possesses all of the executive power of the federal government. So, how did this idea that was discussed among young government lawyers make its way to the

federal courts and eventually to the Supreme Court? Hollis-Bruski points to one major factor, the Federalist Society. She wrote the book Ideas with Consequences, the Federalist Society and the Conservative Counter-Revolution. It documents the group's founding by a group of conservative law students in the 1980s. As the founders of the Federalist Society were going through their coursework, they were looking for the ideas that had excited them that were becoming ascendant on a national level. So ideas like limited government, free market capitalism, anti-regulation, and those were largely absent in their conversations in law school. And so they got together and said, how do we bring these perspectives into our law schools?

Hollis-Bruski spoke with many of the Federal Society's founders and explains how they were thinking about growing their influence. It's the network. It was important that the founders recognized within the law specifically, if you want to build and strengthen conservatism in the law, you needed the law schools, yes, but you also then needed folks who were active in public interest law. You need folks who were active in positions of power within the executive branch. And finally, of course, as we know, you need the judges. Judges, a key part of shaping American law. Cooper, who worked in Reagan's Justice Department, has been active in the Federalist Society for years. The Reagan administration was quite devoted to trying to identify potential nominees to the bench who adhered to the kind of conservative legal philosophy that the federal society was founded to develop, to debate, to advance,

and it has become extremely successful. And that success has continued over many Republican administrations, creating what some call a pipeline to the federal bench, especially to the Supreme Court. Chief Justice Roberts, he was my colleague. He was just down the hall from me. And tonight I'm honored to announce that I am nominating him to serve as Associate Justice of the Supreme Court. Justice Alito was in the Reagan administration. I'm pleased to announce my nomination of Judge Samuel A. Alito Jr.

Justice Thomas, a couple of important posts in the Reagan administration. Judge Clarence Thomas to serve as Associate Justice of the United States Supreme Court. Other justices in different later administrations, but still executive branch officials, Kavanaugh. Judge Brett Kavanaugh. Gorsuch. Judge Neil Gorsuch. Judge Neil Gorsuch. There's no question that it has become a very effective organization for the promoting of the tenets of a conservative legal philosophy that conservative administrations understandably are interested in seeing ascend into prominence on the federal bench.

But Cooper says the Trump presidency took it to another level. I believe it was unprecedented that a president actually published a list of names that the president would likely consider for appointment to the Supreme Court. With President Trump in the White House and Republicans in control of the Senate, the conditions in 2017 were ripe for the unitary executive theory to go mainstream. This is so much bigger than Donald Trump. This is so much bigger than one president. This is about the presidency. That's Mike Davis, a conservative legal activist who once worked as chief counsel for nominations for Senator Chuck Grassley, who chaired the powerful Senate Judiciary Committee.

Davis oversaw the floor votes for hundreds of judicial nominees, nominees that reshaped the federal bench. That includes now Supreme Court Justice Neil Gorsuch. Justice Neil Gorsuch is a very close friend and a mentor. Gorsuch, who was Trump's first Supreme Court pick, wasn't even on that initial list from the campaign of potential nominations, which is something Davis quickly worked to fix. And I got him on the second list. And I did it by basically beat down every door I could to make sure he was put on that

list and then make sure he was picked and make sure he was confirmed and set up. Davis now runs the Article 3 project, a conservative legal group that is trying to install what he calls constitutionalist judges on the federal bench. One issue he cares a lot about? A powerful chief executive. We can't have a president of the United States worried that what he does as the president of the United States in his official capacity is going to end up having him indicted and thrown in prison

by his successor. That would destroy the presidency and therefore destroy our country. That argument was a key part of the court's ruling. But what about the other branches of government? Where did they fit in when a president could do whatever he or she wants to as a leader and not face consequences? In that opinion, it said it doesn't matter if Congress passes laws that constitute crimes. It doesn't matter if a prosecutor would find probable cause to indict a former president. It doesn't matter if the law would be adjudicated in a way and if a jury were to find beyond

a reasonable doubt that a former president committed crimes. None of that matters because the Constitution, impliedly, impliedly elevates the president above all of that. That is essentially the unitary executive theory in a Supreme Court decision. Coming up, a constitutional law professor walks us through why the immunity decision changed the structure of our government and why it matters. Man, I mean, that might have been the only time I've really faced myself. I'm Jesse Thorne on Bullseye. George Lopez on the time that he swung a bat at a pinata of George Lopez. You know, like I wasn't supposed to hit it that many times that hard.

Getting very real with George Lopez on Bullseye from MaximumFun.org and NPR. Okay. So to catch up, we have an influential group, the Federalist Society, whose members developed and advocated the idea of a powerful chief executive. And a big part of that judicial worldview is something called the unitary executive theory, the idea the president has way more power, way more influence over the executive branch than has previously been utilized. The group helped nominate judges onto the federal bench

who over decades of rulings have made this theory more and more of a central accepted legal argument. The idea came into focus after President Trump's 2024 immunity case. That was an astonishing decision. I think it is a turning point, not only in Supreme Court law on the separation of powers, but also really in the trajectory of the country

and democracy. I don't think it can be overstated how transformative it was, because the court essentially put the president above the constitution, above the rule of law, above Congress, above the judiciary, above juries, above the rule of law, above Congress, above the judiciary, above juries, above everything. That's Kim Whaley. She is a constitutional law professor. And earlier in her career,

she worked for Independent Council Kenneth Starr as he investigated Bill Clinton's presidency. I asked Whaley if she sees a connection between the immunity decision and President Trump's actions, actions like closing USAID and firing thousands of federal employees. Yes, that's a direct line to the unitary executive theory. I mean, bear in mind, Article 2 says the president can appoint executive branch officials, hire them. It does not say he can remove them for any reason. The Constitution is silent on that. Right now, there are a number of lawsuits challenging the legality of Trump's ability to fire federal employees, cases that may ultimately be decided by the Supreme Court. And Whaley has a prediction.

I think that the unitary executive theory is probably going to, I'm predicting here, give rise to a majority opinion that strikes down restraints on the president's ability to fire executive branch officials. Adam Chapnick But early on, some of the administration's moves have been successfully challenged, at least initially. Already five justices ruled that the Trump administration must pay $2 billion to USAID contractors for work they've already completed. So that was not a good decision for the expansion of executive power for Donald Trump, but there were four dissenting justices and Justice Alito wrote a very fiery dissent.

So I think these are going to be close nail biter decisions. Whether the Supreme Court will decide that Congress's design of federal agencies is beside the point that not only can the president just demolish them as he sees fit, but can anoint a private party to do that with no ostensible legal or constitutional authority. And I say that because the courts can't really even figure out what Elon Musk's role is. It's an open question on how the court will approach these matters. But in the meantime, Whaley says the immunity decision has emboldened Trump to push the envelope on what the executive

branch can do. And in doing so, it's taken power from other branches of government. Since Donald Trump took office a second time in January 20th, this is just a massive dismantling of a Delicately created system of checks and balances where Congress does its job Passes laws that should be enforced and respected by the executive branch Congress creates agencies gives them their power and respected by the executive branch. Congress creates agencies, gives them their power, and that power is restrained by the law. And if you want more power in the president, then you have to go back to Congress. That's what's breaking down. And it's not entirely the Supreme

Court's fault. It's also the fault of the United States Congress, which is not insisting on its own constitutional prerogative. Whaley says the immunity ruling gives the president carte blanche to do what he wants well in office. That ushers in a new type of American presidency. Laws are only so good as they're enforced because it's the threat of enforcement that makes people comply. If we're not worried about getting a ticket, most of us will go 10 miles over the speed

limit. Once there's a machine hiding in the bushes and we get the ticket in the mail, we'll slow down. And Congress isn't handing out any tickets for speeding for Donald Trump. And the Supreme Court is knee-capped to a large degree, at least the criminal justice system, from at any point handing out those tickets for speeding. Soterios Johnson, The Washington Post Welcome to Supreme Consequences, a series about how the Supreme Court's decisions affect people's lives. This episode was produced by Tyler Bartlem.

It was edited by Tinbeat Ermias with help from Courtney Dornig, Krishnadev Kalamore, and Eric McDaniel. Audio engineering by Neil Tevault, our executive producer, is Sammy Yenigan. It's Consider This from NPR. I'm Scott Detro. This is Tanya Mosley, co-host of Fresh Air. You'll see your favorite actors, directors, and comedians on late night TV shows or YouTube, but what you get with Fresh Air is a deep dive. Spend some quality time with people like Billie Eilish, Questlove, Ariana Grande, Stephen Colbert, and so many more. We ask

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