The Reconstruction Agenda

Andy Craig: Welcome to the Reconstruction Agenda. I’m Andy Craig. From the Constitutional Convention onward, Americans have grappled with what to do about political parties. The men who wrote the Constitution distrusted parties, but also created and worked within them. And we’ve been swinging back and forth between those two poles ever since.

Over the years, some efforts have aimed to suppress parties or to shrink their role by weakening them. Others have tried to do the opposite, to harness parties or to improve how they function in a democracy. And that argument has never really been settled. And it’s very much alive today at a moment when American democracy feels like it’s teetering on the edge and the two major parties are locked in what feels like an unpopularity contest. Something that often feels like a race to the bottom.

So to help me make sense of all this, I’m joined by political scientist Lee Drutman, one of America’s top experts on this topic. Lee’s a senior fellow in the political reform program at New America, and the author of Breaking the Two-Party Doom Loop: The Case for Multi-Party Democracy in America.

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Welcome to The Reconstruction Agenda. I’m Andy Craig.

At the heart of our constitutional system is Congress, the first branch, Article I. We’ve spent a lot of time talking about the runaway presidency, the courts, executive overreach. But there’s a flip side to that story that gets much less attention: what has happened to Congress itself. Not in terms of who controls the majority or how our electoral system works, but the workaday functioning of Congress as an institution. Is it capable of doing the things we need it to do?

Congress is supposed to write the laws to govern a $7 trillion federal government and hundreds of agencies. It’s supposed to oversee the executive branch, scrutinize the budget, set policy on everything from welfare programs to nuclear weapons. To do all that, it relies on a workforce: committee staff, personal office staff, nonpartisan support agencies. And this has been shrinking for decades, even as the complexity and scale of the federal government has exploded. So the result is a legislature that increasingly can’t write its own bills, can’t evaluate the programs it funds, and can’t check the executive branch without relying on the very lobbyists and interest groups it’s supposed to be regulating.

To help us understand what’s gone wrong and what it would take to fix it, I’m happy to be joined today by Kevin R. Kosar. Kevin is a senior fellow at the American Enterprise Institute where he studies Congress and the administrative state. He’s the co-editor of Congress Overwhelmed: The Decline in Congressional Capacity and the Prospects for Reform. He co-founded the Legislative Branch Capacity Working Group and also hosts the Understanding Congress podcast. Before all that, he spent more than a decade working at the Congressional Research Service. So he’s seen the problem from the inside.

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Welcome to The Reconstruction Agenda, I’m Andy Craig.

Since the murders of Renee Good and Alex Pretti in Minneapolis, we have faced a largely unprecedented situation: lawless federal agencies, backed by the White House, coming into conflict with state laws. The same laws as apply to everyone else against murder, theft, assault, kidnapping. Under immense public pressure, state and local authorities are now having to grapple with the complicated constitutional issues with potentially prosecuting federal officers.

To break down this issue, we’re joined by Steve Vladeck, professor at the Georgetown University Law Center, where he is one of the nation’s leading scholars and commentators on the federal courts, constitutional law, and accountability for government misconduct. He also publishes the excellent blog One First, a wonderful source for analysis of the latest developments at the Supreme Court.

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At the heart of our constitutional system is Congress. In thinking about how to repair our broken government, and in particular the runaway imperial presidency, the role of Congress is essential. So to discuss this, I’m happy to have one of the leading scholars of congressional power and the history of congressional reform. Josh Chafetz is a professor of law and politics at Georgetown, and the author of Congress’s Constitution: Legislative Authority and the Separation of Powers.

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The Constitution’s text provides that the president “shall appoint by and with the advice and consent of the Senate” various officers, and allows Congress to exempt some inferior officers within the executive branch from that requirement. But the Constitution is silent on who can fire them—i.e., the removal power.

So now we have a president whose catchphrase is, “you’re fired”—and he’s putting that to the test. Emboldened by the Supreme Court, Trump has sought to fire, among others, a member of the Federal Trade Commission and a member of the Federal Reserve Board.

But this hasn’t always been how American government worked. There’s a long history of Congress trying to constrain who the president can fire and under what circumstances, most often by requiring “for cause” protections for certain quasi-independent agencies. Most recently, the Supreme Court has taken up the issue of Trump’s attempted firing of an FTC commissioner. Oral arguments are scheduled for later this year in which the court might do what it has long hinted at: overturning the New Deal-era case Humphrey’s Executor, which also involved a president, in that case FDR, trying to fire an FTC commissioner over policy disagreements.

But underlying Humphrey’s is another little-known case that helped give us the modern supercharged presidency. That’s Myers v. United States, a 1926 opinion written by Chief Justice William Howard Taft, whom you might remember from your bar trivia as the only ex-president to serve on the Supreme Court. As our guest today has argued persuasively, Myers has a lot of problems.

So, to help unpack this issue, host Andy Craig is joined today by Noah Rosenblum, Associate Professor of Law at New York University, specializing in constitutional law and legal history, including this exact question.

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