This week we’re looking at the power of the American presidency. With Donald Trump about to return to the White House, we ask what powers will he hold? What constraints will he face? And just what will he be able to do in office?
As Donald Trump prepares for his second presidential inauguration on 20 January, speculation is rife about the policies he will pursue. Yet, just as crucial as his agenda are the powers of the office itself. What resources will he command? What constraints will shape his decisions?
To explore these questions, we turn to one of the foremost experts on the US presidency, Andrew Rudalevige, the Thomas Brackett Reed Professor of Government at Bowdoin College and Honorary Professor at UCL’s Centre on US Politics.
Andy is the author and editor of eight books on the American presidency, including By Executive Order: Bureaucratic Management and the Limits of Presidential Power (Princeton University Press, 2021). Drawing on decades of research, Andy reveals how the dynamics of power within the executive branch are far more nuanced than the actions of the president alone might suggest.
Mentioned in this episode:
Alan Renwick: [00:00:00] Hello, this is UCL Uncovering Politics, and this week we're looking at the power of the American presidency. With Donald Trump about to return to the White House, we ask what powers will he hold? What constraints will he face? And just what will he be able to do in office?
Hello, my name is Alan Renwick and welcome to UCL Uncovering Politics, the podcast of the School of Public Policy and Department of Political Science at University College London. Donald Trump will be inaugurated for his second presidential term on the 20th of January. Speculation is rife as to what agenda he will pursue.
But equally important is the nature of the office he will occupy. What powers he will possess and what resources he will be able to utilize will shape the course his presidency will take.
So too will the constraints that may limit his freedom of movement. While there is no greater expert on the U. S. presidency [00:01:00] than Andrew Rudalevige, Thomas Brackett Reid Professor of Government at Bowdoin College in Maine and Honorary Professor here at UCL in the UCL Center on U. S. Politics. Andy is author or editor of eight books on the American presidency, most recently 'By Executive Order, Bureaucratic Management, and the Limits of Presidential Power', published by Princeton University Press in 2021.
Through detailed research across decades of history, he finds that patterns of power within the executive branch are often more complex than a single minded focus on the person of the president might suggest. Understanding the presidency properly, he argues, requires us to get to grips with these wider dynamics.
And I'm delighted to say that Andy joins me now to discuss the nature of the presidency and the implications for what we should expect for a second Trump term. Andy, welcome to UCL Uncovering Politics. It's great to have you on the podcast. And let's start, if we may, with quite a [00:02:00] broad question just to get ourselves going.
Um, how would you say we should understand the nature of the American presidency and the bases of presidential power?
Andrew Rudalevige: Yeah, well, thank you for having me. It's great to be even virtually back at UCL for the moment. I think if you're thinking about the presidency, there are sort of two things, almost contradictory things you have to keep in mind at once.
One is that in the constitution, the presidency is a relatively weak office. And secondly, that in practice, it's a very strong office. And part of that, is through the activity of presidents trying to expand their authority to sort of push the boundaries of the text of the Constitution and the other side is Congress and other political actors for reasons, both good and bad, allowing them to do that.
And in some cases, in fact, delegating authority that is theirs. For example, uh, delegated to Congress directly in the constitution, but then re delegated to the president over time, uh, again, either for [00:03:00] reasons of practical functioning of a government that's quite different, uh, than it was anticipated to be back in the 1780s, uh, or for bad reasons, i. e. blame avoidance, uh, trying to pass the buck along, uh, to a different actor. And so, you know, all of that is kind of wrapped up in the broad trajectory of the presidency. Uh, H. L. Mencken, the American journalist once said that no person would want to be president under the constitution and yet, lots of people want to be president.
And so I think that's the, uh, the sort of paradox that we start with. Uh, the presidency is a powerful office. Obviously, uh, it wasn't necessarily intended to be that way.
Alan Renwick: So do you want to just say a little bit more about the presidency in the constitution? What exactly is in there and why has it been felt necessary to expand the office subsequently?
Andrew Rudalevige: I think the, you know, interesting thing about article two of the constitution, first of all, is it is article two, article one is Congress. A lot of detail is given in the constitution to [00:04:00] congressional powers and limits. Uh, it was expected that Congress would be the main driver of American policymaking, and the president's job is, as the title suggests, to preside, uh, to execute the law, not necessarily to make it, uh, and certainly not to exercise a great deal of independent authority.
The, uh, Congress is given the power to get rid of the president, to impeach and remove, um, him, someday her, from office. Uh, in fact, the president has no such authority over Congress. So just that hierarchical relationship alone gives you a sense of the framers state of mind. Uh, a lot of article two is about the electoral college because they're trying to explain how exactly this weird device was going to select presidents.
Uh, and then, uh, you have, uh, a handful of enumerated authorities, uh, which I always make my students try to remember, uh, they range of course, from being commander in chief of the armed services down to the ability to, uh, require your department heads to give you [00:05:00] opinions in writing, uh, which doesn't seem like a very excessive authority, uh, for the head of the executive branch.
It does flow from a, uh, ambiguous grant of power in the very first sentence of article two, uh, the executive power is vested in a president, and so that lays open two things. One, a president, which was controversial at the time to have a single head of the executive branch, uh, was thought to perhaps be a recipe for the return to monarchy.
That, of course, the American Revolution had sought to escape and secondly, the executive power is not defined. And so, you know, an imaginative president, and we've had a few, uh, can sort of point to that clause as delegating a whole lot of power that perhaps the framers didn't intend. If you actually look to the debates over the ratification of the Constitution, executive power is generally sort of downplayed, but as soon as we get into actual presidenting, if that's a verb, it's something that [00:06:00] the, uh, presidents and their staff quickly seized on, uh, as a way of sort of expanding authority.
And so again, the text of the constitution lays out some pretty limited powers. Also lays out this broad notion of executive power that again can be expanded in needs in times of emergency, certainly, but also when presidents find it convenient to try to do so. And again, Congress doesn't push back.
Alan Renwick: So to what extent is presidential power today?
I mean, you're suggesting that presidential power today has greatly expanded. To what extent is that simply a matter of Convention, which of course would be very familiar to those of us who are familiar with the UK constitution and the way in which it works, and to what extent is it a matter of legal change that has taken place over, over time and powers being granted to the presidency through congress and through legislation.
Andrew Rudalevige: Some of both. Certainly, I think over time, you've seen developments, of course, in the growth of American [00:07:00] government, and, you know, you didn't have much of a government back in 1780. You have, by 1980, a huge, uh, administrative state, a deep state, if you insist, um, and a, uh, you know, a government that's expected to do many, many things, uh, for many, many people.
That again is sort of a result of the explosion of, uh, the national government in size, you know, really in the mid 20th century, starting, arguably with the great depression and world war two, uh, the cold war, um, you know, the big bang in social programs with the great society and the regulatory state of the 1970s.
Uh, all of this, you know, creates a much bigger executive branch that does many, many more things. And of course the president as chief executive then has a much more opportunity to shape policy unilaterally, uh, through his control of executive branch [00:08:00] personnel, and to some extent policy, we can talk more about, you know, whether that control is complete, uh, spoiler alert, it's not, but the general, uh, growth of government has been beneficial to presidents.
The, uh, growth of the United States as a world power over that same sort of historical sweep has been beneficial to presidents because foreign policy is one of the areas where presidents have tended to have more discretion over time. Uh, some of it again, gifted. Uh, with regards, especially, uh, the war powers, but nonetheless, uh, an area where presidents are naturally going to have more flexibility.
And as that becomes a bigger part of American policymaking, presidents make up a bigger share of that policymaking almost by definition. But you also have, you know, the growth of a White House staff who have, you know, going from basically no immediate support for presidential, uh, presidents and their actions, uh, to, you [00:09:00] know, now, depending how you count 500 to 1500 people within the immediate orbit of the president.
So sort of counter bureaucracy, uh, that can be used to the president's advantage and controlling policy. You've got, you know, the growth over time of unilateral action, uh, which again flows in part from the, uh, aggregation of law and of bureaucracy. And you've got a much more public presidency. Right. And part of that hasn't been empowered by technology, but the thought that the president would be the so called tribune of the people, uh, goes back to Andrew Jackson.
Right. So that's back in the 18 thirties. The idea that the president as the only person in American government who's elected. You know, by the nation, albeit indirectly, uh, should have some standing as a result. And this was a big argument in the 1830s. You know, does popular election give you powers that are not in the constitutions?
Our version of the Whig party said, absolutely not. But, I think over time, this notion of a [00:10:00] public presidency has won out. And so people turn to the president for rhetorical, even moral leadership in a way that again, wasn't necessarily anticipated. And that, too, gives them some authority, some ability to mobilize public opinion on behalf of their initiatives.
And that, too, is important to being able to be a leader in the contemporary world. Certainly, again, All of these are sort of natural developments in a certain way. You know, you can't imagine, uh, today's presidency without, uh, media, uh, modern media, uh, but certainly even, you know, if we go back to radio, right, this is when presidents are able suddenly to talk to the people directly.
Uh, in an unmediated way, and that's really
Alan Renwick: far, fire side chats in the 1930s.
Andrew Rudalevige: Yeah. So you've got the sequence of presidents Roosevelt's right as a master of radio, uh, in an age where there's not a lot of entertainment if you're out on the Prairie, right? So he's got a, Sort of captive audience. Of course, we have television developing in the 1950s and 60s.[00:11:00]
John F. Kennedy is sort of the exemplar of somebody who captures that medium. You have Ronald Reagan, who's really good at the TV set piece. A little bit later, as we get into, uh, you know, network broadcasting, uh, and, and, we would then sort of veer into cable news, cable television, of course, now social media and the internet.
Uh, and so to the extent now that a president or even an incoming president can make news simply by firing off a few hundred characters in all caps, uh, does suggest, you know, uh, this direct relationship that, uh, I don't know, president, Uh, Jefferson would have been very excited about perhaps, uh, something he didn't have.
Um, so all of this again is more developed, but we can talk also about delegation in certain areas where Congress has sort of, uh, shunted duties onto the presidency, again, for good reasons and bad.
Alan Renwick: And I was going to ask if this is a kind of linear process of development, or if we see kind of ebbs and flows in the degree of presidential power, and I guess a lot of the story that you've just [00:12:00] told sounds like one of linear development, and gradually things ratchet up and ratchet up, and once they're there it's difficult to get rid of them, but then more things add on.
But then on the other hand, just when I was listening to you on the nature of the media, I mean, there's been a lot of concern in recent years, at least here in the UK, that uh, that because as the media get kind of more diffuse and you no longer have Roosevelt able to speak to through the one mouthpiece to the whole nation, that actually the ability of people in power to convey a kind of core message, becomes diluted. So what's the overall picture there, particularly the media, but also across those other areas in terms of the pattern of change over time?
Andrew Rudalevige: It's a great question, and I think it's one that's argued about really in the study of the presidency as well. I think it's hard to deny a broad trend towards increased presidential power within the idea of the, the, you know, the separation of powers in the national government.
[00:13:00] Uh, the president, uh, you know, has often been said as imperial. Uh, we could think about imperial, both in terms of absolute authority, um, you know, an emperor like, but also empire in the sense of transcending boundaries, right? Going across previous boundaries and sort of expanding your, uh, zone of autonomy.
And I think presidents could be seen as imperial in that way, too. Um, yeah, there are definitely periods where Congress has pushed back, right, where there's been a sort of decision by the other parts of government that the presidency has pushed too far and needs to be reined in. We see that, for example, after the Civil War, Abraham Lincoln is extremely aggressive in using executive authority.
Indeed, you know, sort of acts first and ask permission later at the beginning of the war. Acts in ways that are pretty explicitly illegal and then calls Congress into session to say, yeah, I did all this. Is it okay? Uh, and he is forgiven. Um, but his successors during [00:14:00] reconstruction, even into the early 20th century, right? Have a lot less room to work with. They're not Lincoln and there's no civil war. And, uh, a lot of the country wants to sort of get back to, to normality, which unfortunately for, for black Americans means, uh, Jim Crow and, uh, uh, lot of developments that are not so wonderful in historical terms, but in terms of the balance of power, you have this sort of era where presidents are generally seen as relatively weak, uh, vis a vis Congress.
Uh, you then, I think really again, starting perhaps in the 1920s and thirties, uh, especially with Franklin Roosevelt, this again, sort of re ratcheting up of power. Uh, but then, uh, with the Vietnam war and with Watergate, you see a big, uh, push back from legislators. This is when you see the war powers resolution and the intelligence oversight act and the congressional budget act and the empowerment control act and the ethics in government act and a whole range of statutes that are [00:15:00] designed, uh, to kind of deal Congress back into these pretty important areas of decision making and you know, that lasts for a bit, uh, and then presidents keep pushing, uh, Congress kind of decides it doesn't want to actually take responsibility for some of these decisions, uh, including even the budget in some cases. And, you know, we see, I think, uh, kind of a degradation, uh, of that resurgence regime of laws and customs that had been sort of reimposed, uh, one of those, interestingly, right, the independence of the Justice Department after it had been perceived to be politicized, uh, by Richard Nixon, but even by his predecessors.
Um, now we're seeing that norm. Right. Very much under fire again. And so I think we are in a way, uh, cycling back, uh, to the questions that faced Congress during Watergate. Uh, we'll see how they respond this time around. Um, in terms of the media, [00:16:00] it's a great question because, you know, on the one hand, it's true.
Presidents have find it very hard to broadcast these days, right? If you were, you know, I don't know, even Gerald Ford, right? And you decided you were going to give a speech to the nation uh, there were effectively three stations that were broadcasting nationally and you knew you were going to be on all of them, and therefore if somebody was watching tv, they were watching you. These days, right? You could choose to, uh, watch 24 hours of bass fishing or 24 hours of, uh, I don't know, Bowdoin college football, um, which would be pretty boring by the way, but nonetheless, it might be more interesting to you than politics and, there is, you know, the ability to tune out in a way that is, uh, harder at the media landscape, as you say, much more fragmented.
Um, and you do have, you know, sort of networks that have been built up to cater to its fans. Actually, the sports analogy is not a bad one, right? And if you want to watch the Boston Red Sox all the [00:17:00] time, you know, you're a fan of them. That's possible. But if you're a fan of, you know, Donald Trump or a fan of hating Donald Trump, you can also watch television 24 hours a day that will cater to your desires.
Uh, and so, you know, presidents can reach an audience, but it's not quite the same audience as it was. It's a more fragmented, fragmented, more polarized audience, and so presidents are able to rally their base in important ways that perhaps was not as easy before they can target their messages in ways that will speak really only to their base.
But, you know, I think when it comes to trying to assert national leadership and find common ground that has become harder, uh, it helps when there's a president who's good at it, I'm not sure the last couple have been. But, you know, there are times, of course, I'm thinking maybe of the immediate aftermath of the September 11th attacks in 2001, where you see, you know, everybody again is suddenly on the same [00:18:00] page.
Uh, but even that, you know, it was temporary and became fragmented again, uh, different people, even assigning sort of different meanings to the attacks. And this is what you see, of course, you know, in the 2024 campaign, uh, almost alternate realities being played out depending on what, uh, media channel you're on, uh, and therefore the, the battle becomes not one of sort of unifying not one really of grabbing the median voter but one of trying to get out as many of your supporters as you can to the polls different kind of uh political motivation that perhaps is partly driven by this media landscape.
Alan Renwick: So we've talked there very interestingly about the role of the media and the crucial role of congress and the early part of that answer really highlighted the importance of congress in determining the extent of presidential power um, a lot of your work though has focused on relations within the executive branch itself.
Shall we focus in on that a bit more now? Um, maybe we should first just clarify what [00:19:00] actually is the executive branch. What do we mean by this thing? Who are we including? What are we describing here?
Andrew Rudalevige: Well, already we have to go back to Congress because Congress creates the executive branch. In fact, there's nothing in the constitution that specifies what is going to be part of the executive.
I mentioned in passing this reference to department heads. So clearly departments were contemplated on some kind of hierarchical relationship between the president and those departments was contemplated. But beyond that, really not much. And so over time, Congress has created a whole array of agencies that are structured in different ways.
The most famous, of course, are the cabinet departments, and those are led by a secretary and deputy secretary and a whole hierarchy there, and those departments are 15 now we're created again over time as there seemed to be a need for them, right? The Department of Energy comes much after Department of Agriculture, for example.
Alan Renwick: Uh, and are these just created [00:20:00] by the president or does, does none of them are created by?
Andrew Rudalevige: The president? No, these are created in statute. Uh, they're given duties in statute by Congress and they're funded in statute by Congress. So the president's authority here is to appoint people to those departments, uh, at the upper levels of the department, that appointment comes with Senate confirmation requirements, uh, but, you know, at the lower levels, you know, those people, especially in sort of middle management, as it were, you know, might be political appointments that don't require Senate confirmation.
And then, of course, you have a large civil service and that civil service is only 140 ish years old, right? It's created in the 1880s, basically, uh, before that president's, uh, de facto appointed everybody in the government, the so called patronage system, the spoils system, and that proved to be corrupt and ineffective and inefficient.
And so by the time we get to the [00:21:00] 1880s, as government is beginning to grow and be more important in people's lives, there's a desire to have, uh, people in government who actually know what they're doing, who have some expertise. And that sort of becomes the norm. Uh, you have people who are protected in their jobs, uh, because they are at least purportedly nonpartisan.
They are expert in, some subject matter and they are in the environmental protection administration or they're in the state department or they're in the commerce department, right, doing a job related to the function of that department, but they don't make decisions, you know, on a political basis about how policy should be.
They carry out in theory, at least the political and policy directions that are determined by their higher ups. Um, and so there are about. You know, well, we can break it down. There are about 2. 5 million people who work for the federal government. That number has not grown very much over time. In fact, it's come down, uh, somewhat over the last number of years.[00:22:00]
Uh, about a million of those people are in uniform, right? They're in the armed services. Uh, another, maybe 700, 000 are in the postal service, right? Working in the very local level, delivering the mail and so forth. And so really we're talking a million to a million point four, uh, people who are, you know, sort of in the government as we tend to think of it, um, and these are the folks that the president at least has some nominal hierarchical control over.
But again, one thing that Congress has done is to create independent agencies. Uh, over time, these are often regulatory commissions. They're multi member bodies like the, uh, federal trade commission or the securities and exchange commission. And they're created, you know, uh, in order to have, um, some kind of protection for expertise, right?
There, their personnel, unlike people in a cabinet department are, uh, often given a, uh, a term, a fixed term, uh, and protections [00:23:00] against being fired except for cause. Obviously, you could be fired if you did something particularly bad as chair of the SEC, but, uh, in principle you cannot be fired. Uh, the federal, uh, reserve board is probably the, you know, most prominent example there. You're appointing people to 14 year terms, right? So they're going over a series of administrations, uh, the chair has a four year term and that of course can turn over, but the chair is also not supposed to be removed from office except for good cause so there are protections built in to the ways in which congress wants to insulate agencies from presidential control.
And there's a lot of variation on this point. Uh, what we've seen in recent years is sort of, uh, an appeal to a theory of a unitary executive, uh, going back to that one sentence in the constitution that says the executive power is vested in a president and the idea being that if that's true, then everybody in the executive branch has to [00:24:00] effectively be an extension of the president and therefore it's illegitimate, even unconstitutional for Congress to create any kind of barrier between personnel in the executive branch and the president. That has not been how the court has seen it over time. Uh, but it is something I think we'll see tested again, uh, in the near future. If you look to some of the writings, the so called project 2025, uh, tome that was associated with the last campaign, uh, disavowed at the time by Mr. Trump. But now readopted pretty clearly by president elect Trump, uh, you know, we're going to see, I think, some testing of those boundaries, uh, where, you know, can the president fire people without cause, you know, from the executive, uh, independent agencies. And can you, you know, again, re take control of the, uh, FBI say, uh, the FBI was an agency, uh, where the administrator, the, the director of the FBI was giving it given a 10 year term.
And [00:25:00] this is sort of in the aftermath of Watergate, where you had, uh, you know, J Edgar Hoover as head of the FBI for decades and decades, uh, sort of dangerous independent force. If you wanted a deep state, he was sort of the personification, but had obviously his own agenda. And, you know, it's finally, there's sort of an idea being to depoliticize that office, make it a 10 year term, have it overlap different administrations, uh, not appointed as soon as a new president comes in, like a lot of people are, uh, but we've always already seen, right?
Uh, President elect Trump announced that he's going to fire the Current FBI director who has three years remaining on his term, uh, and replace him with someone who, you know, on the face of it is immensely unqualified for the position. Uh, but you know, that it's really the sort of the replacement that's the first problem, right?
Because we're already being, seeing a push against these efforts, uh, by Congress to, uh, create barriers, right? To the [00:26:00] president so that the executive branch more widely, uh, can work, um, to fulfill what it's been told to do statutorily again, without partisan interference. So it's a kind of a mixed bag. You have this huge array of agencies and people, uh, presidents want to control them.
Congress doesn't always think that's a great idea and Congress does get a big say in this. Um, so, you know, unitary executive is somewhat fanciful. Right. It sort of sounds good in a law review article. Uh, in practice, it's really not the way government has worked in the past. And I would argue not consistent with the framers vision of a separated system of government.
Alan Renwick: Yeah, let's maybe get into the detail of that further in a little moment. But before we get into that. Get there. It would be good just to hear a little bit more about your research. Um, that book that I mentioned earlier that focuses in on the nature of the executive branch and the passions of power within the executive branch.
Do you want to give us a [00:27:00] quick kind of headline as to what we need to know? And then we might go into some details on that as well.
Andrew Rudalevige: Always excited to tell the book. Uh, so my executive order actually came out of a larger research project about the Office of Management and Budget. Which is one of the president's, um, staff agencies, uh, within what's become known as the executive office of the president.
So it's not technically in the White House, but it's within the president's immediate circle. Uh, it is also the only part of the president's staff that is made up of civil servants. And it was created back in the 1920s as sort of a good government way of managing the budget renamed the office of management and budget in the 1970s, again, reflecting this desire of presidents at that time, Nixon to assert more control over the way in which the executive branch did its business.
Um, what I discovered, uh, as I was doing research on that agency, uh, was that they were responsible for coordinating the issuance of executive orders. Now, when we think about executive [00:28:00] orders, we sort of, uh, have a mental vision of a president sitting at the desk and signing, and if you're Donald Trump holding up, you know, your big Sharpie to signature for the cameras to see, uh, you know, again, almost the essence of unilateralism, here's the president alone creating policy somehow, uh, and what I discovered in these files was that in fact, the process of formulating executive order is very much a cooperative and coordinated enterprise across all of the interested agencies in the executive branch. And that indeed often what the president wants to do at the outset is amended or constrained in some ways. And in some cases, there's so much resistance to what the president wants to do that they wind up. Dropping it. They don't do it. Uh, and you'll find, you know, in the book, I have a, an example of a Carter, you know, memo saying, you know, issue an order, make it strict. That issue, uh, never occurs. There is no [00:29:00] order.
Um, um, there's, uh, another memo, I think also from the Carter administration. Uh, it's always good when people write things down. Uh, the so much pushback against something that Carter had even promised he would do in the 1976 campaign with regards to opening up, uh, the books of government, you know, transparency, good government kind of measure.
And there was so much pushback over how this could possibly be implemented in practice, uh, that the president again, sort of folds, gives up and the, uh, uh, the memo back to the White House after this is announced is simply one word hooray, right? Um, there is a, uh, real, you know, uh, sense, you know, in all of this, that a, you know, presidents are well served, right?
By the process of effectively peer review of their executive order ideas. Uh, often these order ideas come from someone other than the president, uh, almost always in fact, from somebody other than the president, sometimes in the White House, [00:30:00] but often, you know, about 60 percent of orders, as I discovered, are created out in the wider executive branch, you know, agency has an idea for something and they kind of, you know, sell it and get it reviewed by other agencies that might be interested. It gets improved. We hope ultimately issued, but again, sometimes not issued. And again, even some presidential priorities don't get issued because they prove to be unworkable. Um, there's just too much resistance. They can't really be implemented in the way the president wants. Sometimes they take another form.
Sometimes they turn into a legislative proposal. Sometimes they simply turn into a press release, um, and effectively are a bet. So there is a, a wide array of things, but what I found was again, even in things that are thought to be unilateral, there's a whole lot of multilateral work going on, uh, and a lot of that is attributable to effectively the independent standing of much of the executive branch.
Alan Renwick: Yeah, that's just what I was going to ask. So, is this a reflection of what you were saying earlier, that actually the executive is not [00:31:00] entirely controlled by the president? And in fact, um, many, I mean, if I understood correctly, pretty much all parts of it have been created by Congress and therefore are subject to a degree of control by Congress as well.
Andrew Rudalevige: Yeah, if Congress passes something into law saying, you know, the Department of Education shall do X, then the people in the Department of Education have to do X, uh, the president might say, do Y, uh, and that could lead to a sort of crisis within the department, right? Of the president has said, do this. This is contrary to the statute as we read it.
You know, we've got to work that out. Uh, and sometimes the department simply won't do it. Right. They'll say, this is something, you know, we can't, we can't do this legally. Uh, again, the president is then within his rights to say to the secretary of education, well, do this or I will fire you. Um, maybe they fire them, right?
Sometimes you'll see turnover on the basis of these, but most often this is below the surface. It's sort of pushback. Sorry, reminding you. Well, no, we actually have to do these things. We can't do what you want [00:32:00] to do. Uh, it's that kind of pushback and being sort of reminded that certain actions were were illegal or, uh, best ill advised, you know, that has led to some of the anger within the sort of Trump wing of the Republican Party about the so called deep state.
Um, on the other hand, you know, most of Trump's policy achievements in the first term were through the agencies. They were administrative. He had a very mixed record in Congress. Um, so, yeah, I think, you know, you've got, a lot of different, uh, if we think of principal agent theory, I don't know how much we want to delve into that in this podcast, but, you know, just simply the idea can, well, you know, the idea that you as a principal want your agent to do things for you and it might be me going to my car mechanic and saying, I need my car fixed.
Of course, I don't know how to fix it. He does. How do I set up a relationship where that, you know, agent doesn't try to, to milk me for as much money as possible, um, without even fixing my car? Uh, [00:33:00] that sort of relationship can be expanded to governmental actors, right? We've got the president who maybe doesn't know very much about policy, agencies that know a lot.
How can they structure that relationships? No more. The complication in the American government is that those There are multiple principles, right? For any bureaucratic agency, there's the president of course, but then there's Congress within Congress, there might be a congressional committee that has particular jurisdiction and therefore particular interest and often influence over that agency, uh, you have, you know, the courts, of course, who play a very important role in saying, you know, what the law is and what agencies have to do to comply with it, you've got interest groups, you know, the constituencies for whom often these departments were created in the first place and who need to be kept happy. Uh, and then you've got the people generally, right? And so. There is a lot of, uh, tension within bureaucratic agencies about, you know, which of these [00:34:00] principles to follow at any one time, it's always helpful when they all align, but that's frequently not going to be the case, especially where you have divided government and, you know, a Congress that's of a different party than the president.
And so, you know, there is, uh, you know, these sort of cross. Pressures brought to bear on agencies of whom the president is obviously an important figure, uh, but not the only one. And one reason you've seen, I think, an increase in sort of directives from the White House saying you will implement the law in this way, uh, is to, you know, make it very clear what they want done and to sort of, you know, set a, put a line in the sand about what they think the proper way for the agency to behave is so that, uh, you know, it might give that agency, uh, more willingness to act in that particular direction to read the law in the way that the current administration wants it to read it.
Alan Renwick: So this conversation has mainly been focusing on the nature of the presidency rather than on Trump. Um, [00:35:00] but as we come into our final few minutes and alas, as always, our time has gone faster than I would like, um, what happens when these two things suddenly come into collision, the realities of how the system works and all the intricate workings that you have just set out and Trump, who, as you've said, seems to be a president who wants to hold executive power and exercise it in his own will and not be constrained by all of these checks and balances that are so inherent to the American political system, what's going to happen?
Andrew Rudalevige: Well, that's an excellent question. And one we'll all be tuning into, uh, you from a safer distance than me, maybe come January, the, you know, what we've seen, I think, uh, in the difference between sort of Trump 1. 0 is a growth, at least in the people around him of expertise in how to get the executive branch to do what you want it to do.
Um, you know, Trump 1. 0 came in, you know, I think not having [00:36:00] expected to win necessarily. He jettisoned his transition team almost immediately upon his win, uh, had extremely, literally no experience in public service, uh, before becoming president and, you know, his experience with government agencies usually was as someone being regulated or investigated by them.
So he was suspicious about them, uh, but didn't really know how they worked. Um, and certainly, you know, beyond the, the world of New York real estate. Uh, this was new, new ground for him. So he hired people who often knew what they were doing, uh, weren't necessarily people who had been the loyalists of his campaign.
Um, and quickly fell out with most of them, right? Because they tended to then listen to the expertise in the agency and go back to him and say, no, actually, we can't do what you want to do. Uh, there are book length treatments of this with regards to uh, the department of Homeland security, for example, or the Pentagon.
Um, you know, and there are, of course, you know, efforts [00:37:00] to learn the loopholes in the law to be able to get around things, the emergencies act, for example, which allows him to begin to build some of his border wall, even if he can't get Congress to, uh, approve that funding. But, you know, these are a little bit sporadic.
Um, I think what he's learned, right, is that you need appointees who are going to be loyal to you. Uh, and, uh, he's a lot less interested in whether they're actually competent to lead their agencies, whether they have any uh, subject matter expertise and in, you know, almost none of the announced cabinet nominations, right?
These people aren't technically nominated yet, by the way, we were talking about them as if they were, but they haven't yet been sent to the Senate. He's not president yet. Uh, but, uh, you know, in most of these, right, even if they are people who have some kind of background, uh, in governance, uh, it's very rarely associated with the agency that they've now been assigned to.
And then there are a bunch, right, who have no expertise at all in pretty much anything [00:38:00] except in the Trump campaign and the Trump inner circle. Uh, but the expectation is, right, that they will act on to do what he wants to do and to override objections from inside the bureaucracy. Uh, and
Alan Renwick: He succeeded in doing that. And will he? Well, Get the system to bend to his will?
Andrew Rudalevige: That is the, you know what we used to call the 64,000 question before inflation, you know, it's a, obviously the first check is the Senate itself, right? Which will have to confirm number of these people. And, uh, Mr. Trump has already talked about ways of evading Senate confirmation, you know, through recess appointments or perhaps for the vacancies act, uh, ways in which he can get loyalists into place without having to worry about those pesky senators asking questions.
Let's assume he doesn't do that right? That in the end, most of these nominees will be confirmed. Um, you know, these are big departments and so, you know, putting one person at the top of a hundred thousand person department does not necessarily, you know, translate into immediate [00:39:00] effectiveness. Uh, but he has also talked about something called schedule F colloquially, um, and that just refers to, uh, you know, the schedule of appointments to the U S civil service, uh, at the very end of his term in 2020, he had issued an executive order, which was going to convert some number of federal civil servants into political appointees.
And, you know, it's expected that he will reissue that executive order, um, once he comes into office, uh, again, how many people that will affect, but plausible estimates have it in the 50, 000 person range. So suddenly you've got a whole range of folks who are in, you know, technically policymaking positions, though, again, they are normally following the lead of political appointees in that department or agency.
But if you're suddenly, you know, people who have felt safe in their jobs in saying, this is illegal, but now they can be [00:40:00] fired for saying that, you know, you wonder if you're going to get the same quality of advice, uh, and you wonder if you'll have the same pushback that you had before, uh, you know, the next step, of course, would be the courts, right?
The courts may say, well, actually, you've, you've invented a new law here. And of course, the courts have said this to Joe Biden, uh, multiple times about his efforts in whether it's, uh, vaccinations or, uh, you know, trying to forgive student loans, for example, uh, and they said this to Donald Trump now and again, too, in his first term, but again, we've had, uh, you know, over the last four years, Donald Trump has had extreme success in the courts, um, including, and, you know, this, you know, very generous, a historical, in my view, uh, decision reached last summer July of 2024, where the Supreme Court said, well, no, you cannot be held criminally liable for anything you do, uh, that's vaguely related to your official duties in office. Um, so you could see, right, I [00:41:00] think under this ruling, you know, secretary of Homeland security does something basically illegal. And, uh, you know, Mr. Trump says, well, don't worry about it. I'll pardon you. Um, you know, then that kind of thing could no longer be investigated, even, I mean, theoretically, it could still be an impeachable offense, but not a criminal offense. So there are, you know, I think, uh, some reasons to believe that he will be more successful in this term.
Uh, I think he'll be coming into office with a lot better thought out administrative agenda. Again, maybe not thought out by him per se, but by the folks that he's bringing back into office for us, for example, the office of management and budget, who was an author of a key chapter of the project 2025 book, uh, he, you know, is a, he's a smart guy. He sort of has a sense of how the bureaucracy works. He was in OMB for four years in the first term. Um, and I think, you know, you have a sort of a phone book full of appointees. [00:42:00] The Trump can now call on, you've got, you know, a stack of executive directives that can be issued quite quickly. Uh, and a lot, you know, we sort of come full circle, you know, a lot of discretion is vested in the American presidency, right?
What kind of drugs can be used in hospitals or by doctors or sent by mail, right? Uh, if you wanted to continue to curtail reproductive rights, for example right? You could have the FDA rollback approvals of, you know, the, the medications that are used to induce abortion. Uh, you could have, uh, strong enforcement of laws dating back in some cases to the 19th century of, you know, laws that make it illegal to distribute by mail, uh, things that will cause abortion.
Um, he's talking about using, uh, a 1790s act, uh, the alien enemies act, right? As a tool to help with deportation without any kind of criminal [00:43:00] due process. So, I mean, again, these sort of laws get written, they aggregate, they sit around for a while. Uh, it's hard to pass new laws. Um, but you know, presidents have an army of lawyers that can help them find, new meaning in old laws, and I think we're going to see quite a lot of that, right?
And, you know, really again, pushing a discretion, uh, to the utmost this again, often we'll go to court. Uh, they won't win all of these cases, but they'll win some, uh, and, you know, so I think, you know, ultimately, the real check in all of this is Congress. Again, Congress has delegated huge amounts of authority over time, uh, trade is a great example given the agenda of the incoming administration, you know, the power over international commerce is vested directly in Congress.
Over time, Congress has given the president powers to set tariffs. And to decide if emergencies exist that require, you know, economic interventions using tariffs or other devices, [00:44:00] sanctions and the like, you know, that power is congressional, but given to the president, will Congress take it back if Mr Trump abuses it in their view?
I honestly don't know. Um, it'll be tricky because, you know, to change a law, you need to pass another law and that will require probably overriding a presidential veto, and now we come back to questions of polarization and party loyalty and the difficulty in mustering a two thirds majority in Congress to do anything right might be hard to find two thirds of Congress to pass a resolution saying Mother's Day is a nice thing at the moment.
So, you know, again, a lot of this is going to be playing out in practice, but there are reasons to think he will be more effective in the second term than the first in this regard.
Alan Renwick: And presumably, finally, um, what Congress does depends hugely also on how popular the president remains. And if he continues to be the source of electoral [00:45:00] success for senators and congressmen, then they're going to stick with him.
Whereas if he becomes very unpopular for whatever reason, then potentially there is scope for them to move against him. But that, but until that happens, he is, it sounds like he's pretty all powerful.
Andrew Rudalevige: Well, not all powerful. Remember, I mean, he's hasn't been that successful in getting people elected on the whole.
Um, you know, Republicans did retake the Senate, of course, but they, uh, only in one case. Yeah. Managed to flip a so called swing state senator in Pennsylvania. They did manage to some 20, 000 votes statewide, managed to beat incumbent Senator Casey and replace him with a Republican but in Wisconsin and in other states Arizona Right they failed to do this. Uh, they lost seats in the house, you know, so they have a tiny minority, a majority in the house, uh, made smaller still by some of the people that Trump is appointing to his cabinet. Now you could have a 217 to 215 seat majority [00:46:00] for the Republicans in the house. Uh, that's not very workable when one member of your majority can, can screw up your, your agenda.
The Senate, of course, um, you know, Democrats have decried the filibuster, for the last four years, but I think they're going to grow to love it again. Uh, you know, the need to, uh, accrue 60 votes to sort of move forward on a lot of things. So all powerful, I think is too strong, but you know, it would require some affirmative pushback, a little bit of institutional pride regained, um, by Congress generally, and maybe by the Senate immediately in order to, uh, act affirmatively.
Because it is true, right? A lot of that sort of power to move first and to set the agenda has been delegated away. Um, again, it doesn't make the president all powerful, but it certainly gives him an advantage in sort of this game between the branches.
Alan Renwick: Well, thank you so much, Andy. I feel I now know. much better, much more than I did before [00:47:00] about what's coming down the line and what I should be looking out for and what the possibilities are.
So that has been an incredibly helpful discussion. We have been discussing the book, By Executive Order, Bureaucratic Management and the Limits of Presidential Power, written by Andrew Rudalevige and published in 2021 by Princeton University Press. As ever, we'll put full details of the book and Andy's other writings in the In the show notes for this episode, and I should also just note that Andy will be back with us in person at UCL next term for one of our policy and practice seminars, where we'll get the opportunity to say a little bit about what's been happening once President Trump is actually in office. So we'll be able to pursue these questions much further. Next week on UCL Uncovering Politics, we're looking at a topic that might not be entirely unrelated to today's, namely the limits on the power of authoritarian leaders to get what they want. And remember to make sure you don't miss out on that or [00:48:00] other future episodes of UCL Uncovering Politics, all you need to do is subscribe.
You can do so on Apple, Google Podcasts, or whatever platform you're using. Podcast provider you use, and while you're there, we'd love it if you could take a moment of time to rate or review us, too. I'm Alan Renwick. This episode was produced by Kaiser Kang and Eleanor Kingwell Benham. Our theme music is written and performed by John Mann.
This has been UCL Uncovering Politics. Thank you for listening.