Lawfare Daily: Zachary Price on Judging in a Divided Republic

[Intro]

Zachary Price: In a way, constitutional law is more important than ever at a time when, when the, kind of, political dynamics threaten to undermine it. And I think judges are aware of this problem and are, have seemed to be looking for tools to manage it, and the goal of the book is to try and make that effort more coherent and principled.

Jack Goldsmith: It's the Lawfare Podcast. I'm Jack Goldsmith of Harvard Law School with Zachary Price, a professor at the University of California, College of the Law, San Francisco.

Zachary Price: I think Congress's power of the purse is really kind of the central check on executive power, administrative policy these days. And so to, you know, blow that up in this way I think would, would really be a blow to checks and balances and, and a responsive government.

Jack Goldsmith: Today we're talking about Zach's book, “Constitutional Symmetry,” and we'll also discuss how many of President Trump's early initiatives might fare in the Supreme Court.

[Main podcast]

So why don't we start just by telling us about the new book. It's called “Constitutional Symmetry: Judging in a Divided Republic,” and it's kind of made for this moment. What's the book about?

Zachary Price: The book makes a general argument about constitutional interpretation and its basic thesis is that courts should favor, when possible, constitutional understandings that are symmetric—by which I mean understandings that protect interests on opposite sides of key current partisan ideological divides—instead of kind of concentrating constitutional law’s benefits on one side of those divisions.

So it's responding to the way in which Constitutional law, along with everything else, has gotten sort of politicized and polarized, and that's generated these kind of two competing constitutional visions that line up with partisan programs. And I think this is a very bad dynamic.

Jack Goldsmith: What, what visions are you talking about?

Zachary Price: Nobody perfectly embodies these competing outlooks, but at the same time, they're, they're kind of—the two parties have organized themselves to promote judges who, who, have certain competing outlooks.

And I'd say the conservative vision is centered on kind of restoring what they see as traditional separation of powers—returning kind of regulation of moral questions like abortion to the states, enforcing kind of colorblind understandings of equal protection—and the progressive version sort of takes the opposite position on all those, all those points. And those line up pretty well in practice with the policy agendas of the two parties.

Jack Goldsmith: I mean, I understood—this is a normative constitutional theory about what the federal courts and especially the Supreme Court should do. And I, and you alluded to this, but I want you to flesh it out.

This is a normative constitutional theory that you think is, will best serve the country and the Constitution in a period of severe polarization. Is that right? And so flesh that out and tell us why this constitutional symmetry, what it, what it achieves.

Zachary Price: A first thing to say is I'm not arguing that symmetry is the be all and end all of constitutional interpretation. To the contrary, what I try and argue is that it's a kind of second order value in interpretation. So the Constitution can't always be understood to create this kind of symmetry. And judges are gonna have to apply their own kind of primary interpretive commitments in the first place. But to the extent there's room left over to lean towards a symmetric understanding, that's what they should do.

So in that sense, it's similar to a value like judicial restraint; judicial restraint would say courts should only overturn democratic choices when the constitution is clear. To figure out when it's clear, you need a primary interpretive theory, but by the same token, people with different primary interpretive theories might share a value of restraint. So I'm arguing that symmetry is the same sort of thing. It's a value that people with different primary interpretive outlooks can equally incorporate, and for that reason, it could be a point of convergence.

Now, why is it valuable? I, I think this partisan dynamic I was describing is, is quite perilous because the, the very intensity of political conflict and some of what makes it more important than ever to have kind of the sort of stable ground rules that constitutional law is supposed to provide. But if courts are adopting rules that are perceived as stacking the deck one way or the other, then that undermines the legitimacy of that effort.

So in a way, constitutional law is more important than ever at a time when, when the kind of political dynamics threatened to undermine it. And I think judges are aware of this problem and are have seemed to be looking for tools to manage it, and the goal of the book is to try and make that effort more coherent and principled.

Jack Goldsmith: Okay. Can you give us an example, and don't use one yet please that involves one of the Trump cases.

And, you know, one way of getting at what you're talking about—but I don't think it's what you're talking about—is that the Supreme Court every June in its big cases should make sure that each side gets a big win and that even if the conservatives went a lot one year, the, the progressives should win some big cases also. And, and that's a way of kind of balancing out and having a kind of symmetry that may, some people think seems fair and enhances legitimacy across cases. I take it that's not what you're talking about.

Zachary Price: No, that's right. So I think, you know, spreading out salient case outcomes may help in the public mind. But as the scholar Tara Grove has pointed out, it might help what's sometimes called sociological legitimacy might help people perceive the Court as, as balanced.

But at the same time, it kind of hurts the Court's legal legitimacy because to, you know, sophisticated observers and makes the Court look kind of unprincipled. So symmetry is trying to give them a way out of that trap. And what I suggest is that you should be looking for principles with, with enough generality to extend benefits across different partisan contexts.

So in terms of examples, it's always my paradigm case for symmetry is the modern First Amendment free speech jurisprudence, which is organized around requiring any regulation to be content neutral or sometimes viewpoint neutral. And I think that formulation is perfectly symmetric because it ensures that no matter where a speaker falls on the political spectrum they're going to be equally protected by the principle against hostile government action.

And that means that you know, if you're frustrated by the result in one case because of its political valence, you can appreciate that the principle being applied will benefit you or viewpoints you care about in the future. So that's a good paradigmatic example. I'm arguing the Court should look for principles like that, that implement a constitutional guarantee in a way that has that, that character.

And I think that actually has a more concrete payoff for contemporary disputes when it comes to religious freedom because the Supreme Court has been building out kind of religion specific jurisprudence. And, you know, the constitution does single out religion for protection, but a lot of these cases are perceived as sort of one sided in that, in that partisan sense, because though this was not true at other points in American history, there's a bit of a political divide right now between kind of traditional religion and more secular outlooks.

And an easy way to manage that problem would be to rely more on free expression or freedom of expressive association rationales than specifically religious freedom ones. And that's something the Court could do, has done in some cases, but, but could do more often and then at least, you know, people might not like the result in one case, but they could see the principle benefiting their side in the future.

So take the praying coach case—the Kennedy case people might know about—I mean, he was making both free expression and free exercise of religion claims. And the Court actually embraced both rationales, but if it relied more squarely on the expressive freedom rationale, then that would more clearly protect, kind of put up a straight political statements and kind of, non-work settings wouldn't be understood to be just focused on, you know, praying on the football field, which has a kind of political charge in the current context.

Jack Goldsmith: Okay, good. So you apply this theory in an interesting chapter of your book to separation of powers. And now I want to turn to contemporary separation of powers and what the Trump administration has been doing, and we'll come back and talk about your theory after we've run through these cases and what your theory might entail for these cases.

But I want to spend, I want to go through several issues and just kind of review briefly what the Trump administration has been doing, and then I just wanted to try to assess as best we can, as best you can—and I'll put in my two cents—how current Supreme Court doctrine should be applied to the things Trump's been doing.

And the reason this is so important is because, A, it doesn't seem like that there are many, if any, internal legal constraints on what the Trump administration is doing. They seem to be engaged in a whole range of actions without much internal, legal pushback, if any, based on a very broad theory of the unitary executive, which maybe we can talk about.

It doesn't seem like Congress is going to, at least for two years, put up much of a check. So that leaves the third branch, the courts, to assess the legality and of these actions and to hold the executive branch accountable to the extent it needs to be held accountable.

And that puts a lot of pressure on the courts, and also, a lot of pressure on whether the Trump administration will comply with judicial decisions, which we, maybe we can talk about. So that's why the courts are so important. That's why the Supreme Court is so important.

So let's talk about removal, the removal power. This is an area of law, the president's authority under Article II to remove subordinate executive branch officials, typically in the face of some congressional restriction or some congressional for-cause protection for that official in some sense. And the Trump administration has been firing lots of people with various types of for-cause protections. So, let's just try to get a sense of which parts of this might or might not be legal and what the arguments are.

So could you just start off by giving us a thumbnail sketch of the court's removal jurisprudence and where it, where it sits at on Jan. 19, 2025.

Zachary Price: Yeah, so I see the Roberts court is pushing the jurisprudence incrementally towards the embodying the unit, that unitary executive branch theory you talked about. So that theory is essentially that because Article II—that's the executive power and the president—the president must be able to control in some meaningful fashion, how other people are executing or administering federal law.

And so, this has come up in cases where the law provides some sort of tenure protection for a particular official; in other words, it prevents them from being removed purely at will, and the question is, does that infringe upon that executive power of the president.

And so the Court has push the jurisprudence towards embodying the view that the president always needs to have removal power, but left in place some older decisions in a way that's somewhat incoherent and creates some, some puzzles.

So it first did that in the Free Enterprise vs. Public Company Accounting Oversight Board case. It said that if you had two layers of tenure protection, that was an undue infringement on executive powers.

In that case, you had the Securities and Exchange Commission whose members can only be removed for-cause. And then below them was this board that sets accounting standards —they could only be removed for cause by the SEC. The court said that was, that was too much. So we'd have to kind of read out one of one way or of tenure protection. So it did that.

Then I think a bigger deal was the Seila Law vs. Consumer Financial Protection Bureau case. There, the Court said it was unconstitutional to have the Consumer Financial Protection Bureau, which regulates consumer financial products, said it was unconstitutional that the head of that agency be tenure protected, have the office for a term of years, and only be removable for-cause during that time.

And it distinguished the Humphrey's Executor case in 1935, which upheld a multi-member body, the Federal Trade Commission with tenure protections and also distinguished the Morrison results in case that upheld the independent counsel statute that people may remember from the Ken Starr investigation of Bill Clinton—he was operating under that, under that statute.

So it distinguished those cases, said here we've got a single member head. So Humphrey's Executor doesn't apply. And it's got, it's a principal officer, not an inferior officer, and has much broader powers than the independent counsel did. So that case doesn't apply. And so it held that was unconstitutional, but then left those two precedents hanging out there as exceptions to the general rule.

Jack Goldsmith: Okay, so that was the law. And then there's Trump v. United States, which was about presidential immunity, but had very broad language about basically, reaffirms the removal precedence as I see it, acknowledged the limited exceptions had a very robust conception of the president's take-care power to have it faithfully execute the law.

So that's the background to what Trump started doing. So let's just run through a few of the cases and tell me what you think is gonna happen if and when the Supreme Court reaches the merits.

Let's start with the firing of the head of the Office of Special Counsel Dellinger, who had for-cause removal protection. Single person at the head of that entity. This is the case that went—in which the district court enjoined the administration, I think it's fair to say, from carrying out the firing—this went to the Supreme Court on an emergency basis last week. The Court basically said, we're going to wait before we decide anything. So they didn't reach the merits. They're waiting several days before they decide whether to issue emergency relief.

So tell us about this case. Tell us how you think this fares under those doctrines. Do you think the Trump administration has a good argument here?

Zachary Price: Yeah, I think it could be something of a close call. So it's obviously a single member head, so we can't apply Humphrey’s. So it'd be dealing with that Morrison v. Olson exception. And for that to work under Seila, you've got to have someone who's first of all, an inferior officer rather than a principal officer, and also have—the language is sort of limited duties and no policymaking or administrative authority, so that seems to be defining that category pretty narrowly.

So, so first of all, inferior versus principal. So this is an idea that comes out of the Appointments Clause, which says all officers in the United States have to be appointed, in general, by the president with the advice and consent of the Senate. But if you're an inferior officer, so an officer of the United States, who's inferior, then Congress can provide by law for appointment by the president alone or by a head of a department or a court.

So the first question would be, is this office an inferior office in that sense? And the Court has tended recently to understand what makes someone inferior in terms of whether they have a principal other than the president. And as I understand it, the OSC is, the special counsel is appointed by the president, only removable by the president, so that might suggest they're not an inferior officer. They don't have any principal officer in between, and maybe that just ends the issue.

Jack Goldsmith: Explain how that ends the issue so that people understand. Which direction?

Zachary Price: Yeah. So normally, you know, an inferior officer might be something like a—so I believe these people were actually Senate confirmed, but, but say you have an assistant attorney general, would be reporting to the attorney general and then reports to the president. So that, that's the, that kind of hierarchy is what the Court seems to be looking for.

Jack Goldsmith: But which way does it cut? I mean, if the person is an inferior officer as opposed to a principal officer, is it, it—just explain whether it's harder or easier for the president to remove under these cases.

Zachary Price: So in these cases, it seems that to fall within the Morrison exception—in other words, for tenure protection to be okay—the position has to be an inferior officer. So the Court might just say the special counsel is not inferior because there's no intervening head.

My understanding is what the special counsel is arguing is, well, that may be true, but the fact is the special counsel can't really do anything without going through other officers. The special counsel basically investigates, you know, prohibited personnel practices and then reports and recommends action either to agency heads or bring some sort of proceeding before the Merit Systems Protection Board. So I think they're trying to argue that, that they're, it's inferior in the sense that they can't actually do anything without going through some other office.

You know, given that the thrust of the Court's cases is to limit exceptions to tenure protection, I guess they're probably not going to buy that. But there are some of these cases like the Edmond case involved, I think it was the Coast Guard Court of Appeals, but involved a judicial and adjudicatory position. And they said it was inferior because there was a combination of discipline and management by the JAG, by the appellate review by a higher military court.

So, there are some cases where the, the kind of, the way in which they're subject to hierarchy wasn't a kind of clear chain of command, but instead this sort of structure that involves a kind of check on what the, what the official is doing.

Jack Goldsmith: But basically, this is my view—and I think I'm putting a gloss on what you just said—the administration has a, a plausible argument, not a clinching argument, but a plausible argument, especially given the trend in the cases, that this firing would be lawful and that the for-cause protections would be unconstitutional.

Zachary Price: I agree. Yeah. I mean, I'd probably bet that they'll say it's the tenure protections unconstitutional, but I do think it's a, they're solid arguments both ways potentially.

Jack Goldsmith: Yeah. I agree. Okay. Let's move on to the firing of a member of the NLRB, also tenure protected. Is the analysis here different?

Zachary Price: Yeah, so here we'd have to apply the, the Humphreys exception.

Jack Goldsmith: Just explain why, explain why.

Zachary Price: Yeah. So here NLRB is the National Labor Relations Board. So it's one of these so-called independent agencies. So it has—the board that heads the agency is composed of multiple members. Five, I believe. And there's a requirement of partisan balance. You have to have at least two from each major political party and they have staggered terms so that they, with it, you know, something like five year terms and they, they come up across time. So there's a common structure for independent agencies and then they're, they're removable only for cause during that. during that term.

So we can't apply the Morrison exception because they're clearly not inferior officers. They had the agency, their principal officers, and they also probably the duties of the agency are too broad in scope to fit the second prong of that analysis either. So we'd have to apply the Humphreys exception.

And what might the Court do? So the Court—in particular some justices—seem very hostile to Humphreys altogether. So–

Jack Goldsmith: Maybe five, maybe at least five of them seem hostile to Humphreys, right?

Zachary Price: Yeah, that's probably right. But at the same time, you know, having just kind of gone out of its way, not to overrule Humphreys in Seila, I think some of them will be reluctant to just say, oh, nevermind, we, you know, we're, we're all, you know, it's totally unitary now.

So the question then is, well, what are they going to do with this exception? So they could, I mean, they could just say, you know, the NLRB falls within it and the administration loses. They could distinguish it based on something special about the NLRB. Or a third possibility they left open in Seila is–. So Humphreys is from 1935, and it's generally been understood to kind of bless this independent agency structure, but the Court actually—two of your colleagues point this out an article after the Seila case—that, you know, it subtly links it's analysis to the authorities the FTC had in 1935.

And the authorities even the FTC has now—not to mention other independent agencies—are much broader. So it might, it could just say, well, the Humphreys exception applies to agencies that have the sort of powers that the FTC had in 1935 and that's all we meant and say, well, and then the administration would win

Jack Goldsmith: And let's just do a third, and I think, again, different, type of example, but, and that is the Trump firings of—or the administration firings, sometimes it's the DOJ—of people who have civil service protections.

Now, I have a hard time understanding here exactly what's going on. It's, the legal basis for the firings is not clear to me. The administration has asserted in various places a very powerful constitutional authority to fire. They might be basing these firings on, you know, discrete statutory grounds that I'm not deeply familiar with.

So I guess just two questions. Do you know, can you tell, whether any of these firings of lawyers and people in the FBI—or maybe just, just in DOJ, career attorneys who presumably have civil service protections—can you tell whether they're relying on constitutional arguments or statutory arguments? And then I want you to tell us about the statutory arguments in any event.

Zachary Price: I found it very hard to tell. It seems like a lot of the firings have concentrated on probationary employees.

Jack Goldsmith: You should explain what that is. Explain it, just give a general sense of what that is.

Zachary Price: Yeah. So I'm not an expert on civil service laws in general, but my understanding is, you know, typically you'd have a probationary period where you're hired. But before the full kind of tenure protections kick in, the administration doesn't need to go through the administrative process that might apply down the road.

It can, it can kind of see what your performance is like, you know, before, before those—the idea is that you're, you're there for probationary period, make sure you're up to the job and only then do the civil service protections kick in.  So I don't know if under the laws employment is totally at will during that period, but in any case, the administration presumably has a stronger legal case for those people.

Now to the extent the firings are going beyond that and are, you know, not voluntary departures—you know, I did see reported that some FBI agents were fired and the rationale they were given was Article II of the Constitution. So there may be at least a few cases where people should have civil service protections against just arbitrary termination and the administration is asserting a constitutional basis for going around that.

I think this—that constitutional argument, if they're asserting it—would really be going well beyond what the Supreme Court's cases have embraced. I think they should be viewed very differently on the merits. And we can get into why, which is in terms of the, the Supreme Court's cases, I think the Court has been pretty careful to say that it is addressing offices—those positions have to be appointed under the Appointments Clause—and distinguishing those from non officers or employees.

And so under the Appointments Clause, people are officers if they have basically a continuing position in the government that involves significant authority. And the idea is though—the Appointments Clause applies to those people because they're kind of running the show, but then their employees people are, you know, the staff of the agency, they’re subject to the control of the officers.

Those people are sort of the administrative capacity of the government, and that's, the president may need, kind of, policy control over the people at the top of the agency, but if he has that, it's not clear why he would need a kind of removal authority extending down to employees. So I don't think the Court's cases have addressed that question. And I think it should be viewed differently if it comes up in court.

Jack Goldsmith: So, you know, more about this than I do, but they have addressed it to the extent that even Myers seemed to carve out space to allow. Myers was this very robust unitary executive opinion viewing the president—this is before Humphrey's—viewing the president's removal protection very broadly, but even Myers seemed to carve out space for civil service protections.

Zachary Price: Yeah, that's correct. I think even for inferior officers in,

Jack Goldsmith: Yeah.

Zachary Price: –in Myers.

Jack Goldsmith: Yeah, yeah. And there may be some things that have happened in the cases since then that implicitly get at that, but the Court has been pretty clear in all the cases that I've seen—the main case before that, I think it was a case called Perkins—they've been pretty clear to leave those cases alone.

So the unitary executive theory taken to its extreme would give the—to its logical conclusion—would give the president and not considering count, Congress’s counterfeiting power, would give the president the authority to remove every executive branch official.

But there is this kind of large exception built into even the robust unitary executive cases, it seems to me.

Zachary Price: Yeah, I think that's right. I agree with that. I think I mean, you mentioned the way Trump v. United States does this. I mean, Seila does this too. They've just thrown around these really broad statements of the unitary executive theory.

So in Seila, they say that the reason that the president needs removal authority is that those other executive officers are wielding the president's own power. And I think they have similar language in Trump v. United States. And that—if you took that to its logical extreme—that could have really broad implications. It would imply that anyone in the executive branch needs to be subject to, you know, direct control by the president, and that might affect those civil service points.

It also would suggest that the president doesn't necessarily need to act through other officers, could kind of personally exercise those powers because they're part of his own executive power. Those would go well beyond what the holdings of past cases have said, and I think would be quite disruptive of subtle understandings about how the government works.

So I hope the Court won't follow through on those implications, but it has kind of thrown around this language that opens the door to stuff like this claim with the FBI agents.

Jack Goldsmith: And my last question about this and the thing that. I think may be very salient is Trump v. United States in my view—and this is actually a good transition to where I want to go next—recognizes what I think is for the first time—setting aside some dicta in U.S. vs. Nixon—recognizes for the first time, seems to be a pretty robust, what the Court calls exclusive power in the president to basically control law enforcement investigation and prosecution and law enforcement.

And that rationale and calling it exclusive vis-a-vis Congress—which is what the Court held in Trump v. United States—that rationale, it seems to me, might just cut across the removal cases and give the president, because all of this stuff about civil service protections has been conceptualized mainly through the president's removal power and limitations of the removal power and the scope of the removal power.

But if the Take Care Clause, if, if, if the president's law enforcement discretion is exclusive—and not clear what that means, but that's what the Court said—it arguably does give him that type of control all the way through the executive branch, at least over law enforcement officials.

What do you, what do you think about that argument?

Zachary Price: I think you're right. that the language is very broad. I mean, it, it, it's, but again, it's a little hard to interpret. I mean, because the, Trump v. United States, as you've written about is, is, is a puzzling case, because you, you can understand it's holding pretty narrow way, but then it's just uses all this really broad language about presidential authority that, and it's hard to know what to make of it.

So they do talk about prosecutorial discretion being a kind of exclusive presidential power, but it seems to be thinking of it in the context of kind of case specific decisions and, you know, it's in the context of deciding whether to fire the attorney general over specific choices. So, you know, it opens the door to that type of interpretation as you're suggesting.

I mean, I think on the merits, Congress has a lot of power to regulate prosecutorial discretion. In fact, I think there are constitutional limits on what president should presume the authority to do. So I hope that isn't throwing all that out the window. I think you could understand it more narrowly, but it is ambiguous.

Jack Goldsmith: Okay. Let's move on to that. That's exactly where I wanted to go next: law enforcement discretion. And you just said, you think the Congress has robust power to control law enforcement discretion.

So a lot of what Trump has been doing in my judgment, I think we're—I'd like to talk about the TikTok executive order and the impoundment stuff—and in those contexts, especially, it seems like the president, and again, it's not clear, is asserting a pretty broad power to, of absolute discretion to enforce the law.

I mean, the TikTok decision is the most extraordinary thing. It was a congressional ban that the Supreme Court upheld before Trump became president and Trump became president and decided, announced that he wasn't going to enforce it, wasn't going to enforce the ban, main reason being he didn't like it. He thought he could work a deal and then he ordered the attorney general to tell private, the private entities subject to the regulation that they didn't need to comply with it. That seems extraordinary to me.

We'll talk about impoundment in a second. So what do you—tell us what the law is as you see it. On the president's—and you've written really great stuff on this—the president's, the president's discretion to enforce the law. Just give us the law and then tell us what you think about the TikTok ban.

Zachary Price: Yeah. So I think there's a lot of confusion around this issue because we built up legal structures that—particularly in criminal justice—that depend heavily on prosecutorial discretion. The law is just much broader than anyone wants or expects to be fully enforced. And so executive officials in practice have a lot of discretion over how it's how it's implemented.

And that's led to these sorts of arguments that this is that kind of necessarily an Article II constitutional prerogative. But I think if you look at the constitutional text and structure and history surrounding it, that's not really plausible. You know, people say this is an implication of the Take Care Clause, but what the take care clause actually says is the opposite. It says the president shall take care of the laws, be faithfully executed, which suggests to me that the president's duty is to ensure laws are carried out faithfully, right, the way, you know, in accordance with their, with their meeting.

So I think the Constitution—I made this argument article back in 2014—I think the Constitution implies certain default rules; that it implies that there is a kind of case-specific discretionary power, that kind of president's not supposed to be totally robotic about enforcing laws, but president should not presume the authority to basically license violations in advance or categorically suspend enforcement because those kind of undermine the law rather than faithfully execute it.

And they also edge close to certain historic prerogatives of the English crown which were to suspend laws and dispense with their application. And those powers were basically repudiated in England and the Glorious Revolution. And it, you know, it seems like the framers were trying to carry that principle, that repudiation forward in the, in the Take Care Clause.

Jack Goldsmith: So just to make sure I understand, and the audience understands the Take Care Clause, which gives the president a duty to take care that the law be faithfully executed cannot be seen—and there are cases that say this, Kendall, the Kendall case, which you cited—that article cannot be seen, among others, cannot be seen to give the president the power to not enforce the law. Basically that's what the dispensation power is or the dispensing power is, right.

Zachary Price: Exactly, so historically, the suspending or dispensing power would be the power to actually eliminate the law.

Jack Goldsmith: Right.

Zachary Price: And the TikTok order actually claims the power to do that which I think is kind of totally beyond the pale. But I think, you know, it's sort of not quite a suspension if you just say I'm never going to enforce this law, or I'm never going to enforce it in this category of cases, but it's kind of functionally quite close. And therefore, I think that's not something presidents or executive officials should presume they have the power to do.

So the TikTok order just, you know, again, it seems to claim an actual suspending power by saying that the attorney general can hand out permission slips saying you can, you know, you're, what you're doing is fine, even though it's contrary to the law. And it also just, just categorically halts enforcement.

Jack Goldsmith: And it's not a matter of, it's not a matter of resource constraints; it's not a matter of trying to reconcile policies; it's just I don't feel like enforcing it. I think—I agree with you—I mean, if we're making a list of the most illegal things the Trump administration has done, that would be near, near the top for me.

Zachary Price: I agree. And it's, it's really egregious, particularly with a just brand new law that Congress, you know, came to bipartisan agreement about. And, you know, if presidents are just going to say, I can wipe anything I want off the books—you know, apart from the constitutional problems—it, it could make it harder for Congress to do that sort of thing in the future. And we should want Congress playing an active—.

Jack Goldsmith: It makes it impossible. If it's taken literally, it makes it impossible. I mean, what they did in that case is a real challenge to congressional authority and a real upending inversion of the allocation of authority across Article I and Article II, as arguably is what's been going on in the impoundment context, impoundment being the president's claimed authority not to spend appropriated funds.

Here again, I can't really tell; I mean, I don't know if you can—the administration has talked about a constitutional impoundment power, an Article II power, to not spend appropriated funds, even though there's a 1974 statute that with some conditions and exceptions says the president has to spend appropriated funds.

Here again—and there's been a lot of non-expenditure of appropriated funds since Jan. 20—but here again, I can't tell—and I haven't dived to the bottom of this—I can't tell how much of this is based on discrete statutory arguments or all sorts of little loopholes and qualifications buried in the federal statutes, or whether they're asserting some kind of constitutional power.

On that preliminary question. Do you have a view?

Zachary Price: Yeah, so I also find it hard to tell, partly because it always depends on getting into the weeds of each particular appropriation and the very blanket quality of these pauses and, you know, terminations and so forth makes it hard to figure out what's lawful and what isn't. You know, we make it court cases that—and other forms of resistance—over time that that flesh that out.

But I guess my sense right now is—so the Impoundment Control Act that you mentioned, it does two things. It, first of all, prohibits altogether what it calls rescissions, meaning a kind of outright cancellation of spending authority. For those, you can propose a rescission to Congress, but only Congress can actually make the rescission.

It also restricts what it calls deferrals, in other words, delaying spending even within the same fiscal year. It lets you do that only basically for kind of non-policy reasons. But it, it, you can't make a deferral that's going to mean you can't, you don't end up spending the money before that end of the, end of the fiscal year.

And then confusingly, both the Government Accountability Office and, which is a congressional agency, and OMB, Office of Management in the White House—they, they say there, there are certain types of what they call programmatic delays that just aren't deferrals at all. Deferrals have to be reported to Congress. They say some, if there’s just some external problem meaning you have to kind of slow down the expenditure, that might not be a problem at all.

Jack Goldsmith: So just to be clear, just to be clear for me and the audience, these programmatic delays, that's a third way of, third justification—in addition to rescission and, rescission and deferral—this is a third justification for not spending that’s kind of grown up in OMB practice that Congress has kind of accepted. Is that fair?

Zachary Price: Yes. I mean, GAO has, GAO has written opinions, you know, deciding this is a programmatic delay or not, so they've, they've—.

Jack Goldsmith: So this is kind of a non-statutory customary practice, I would say, between the branches. So I just don't know, I can't tell how much—as you say, it's kind of blanket and sprawling and non specified non-spending. So it's hard to tell whether some of this should be done under the Impoundment Control Act, whether it's programmatic, or whether it's Article 2.

Zachary Price: Exactly. So I think, I mean, the administration also hasn't been very clear about its legal basis for doing any of this, but I, it's theory as I understand it—so it's got these pauses in two executive orders for foreign aid and for spending under the key Biden era statutes. And then it, OMB tried to kind of pause certain federal financial assistance government-wide, court stepped in and enjoined that, and then it rescinded that memo, but then people are saying they're not getting money they're expecting to get. So it's a little hard to know what's going on.

So I think the administration's theory for all of this is these are programmatic delays, we're kind of figuring out how to bring the spending in line with our policy goals, how to use our legal discretion. And, and, you know, that fits with what has been accepted as programmatic delay.

So my sense is that theory is probably plausible for some spending, but probably not everything that's, that's being, being paused. So there could be unlawful forms of deferral going on.

But I think the bigger deal would be if they end up making what the statute calls a rescission. In other words, if they never spend money that Congress said you need to spend, and we get to the end of the fiscal year and it hasn't been spent and they didn't propose a rescission or anything. That would be a much bigger blow to congressional authority because that would really, you know, get to the heart of what the Impoundment Control Act was trying to stop.

Jack Goldsmith: And what is your view, if they asserted an Article II, Richard Nixon-like exclusive constitutional power—I guess, Nixon wasn’t arguing in the face of a contrary, general contrary statute—if they argued for a general constitutional exclusive power to not spend despite impoundment control; I know you've written about this and you think that just doesn't fly. Could you explain why?

Zachary Price: Yeah, I think it's a very weak argument and I think it's, it would be very damaging if it, if it prevailed. I think it's weak just textually and structurally because the Constitution again requires the president to faithfully execute the law and, you know, a spending mandate is a law. And that's the president's job to, to carry it out.

And that's the view that both the Supreme Court and actually the Office of Legal Counsel within the Justice Department have taken about, about this issue.  That Kendall case you mentioned earlier—it was a law that required an expenditure; President Andrew Jackson didn't want to pay the money, but the Court said, your Take Care Clause says you have to do it, it doesn't say you have the power not to. And the future Chief Justice William Rehnquist, when he was in the Office of Legal Counsel during the Nixon administration, he said exactly the, exactly the same thing. So I think that just the formal textual case for an impoundment power is sort of backwards.

So people allied with the administration point to historical practice, and it is true that presidents before 1974 sometimes impounded funds, but when you dig into those examples, a lot of the time, the statute just made the spending optional. In other cases, there just was ambiguity about what the kind of default rules were and it created this kind of push and pull between the branches that got worked out politically.

But overall there's no consistent practice of presidents on constitutional grounds defying clear directives to spend money by Congress. And I think that's what you would need to establish as a matter of practice, kind of practical gloss on Article II that ,that says you can disregard the Impoundment Control Act.

So I think the argument is quite weak, and I think—to go to the practical stakes—I think Congress's power of the purse is really kind of the central check on executive power administrative policy these days. And so to, you know, blow that up in this way, I think, would, would really be a blow to checks and balances and, and responsive government.

Jack Goldsmith: I want to just amplify that. I mean, basically between the TikTok claim that you don't have to enforce laws that you don't like, and to the extent they're making the constitutional impoundment claim that you don't have to spend appropriated money, that basically wipes out Congressional power.

I mean, if you take away Congress's power to enact laws that the president will enforce, and if you take away Congress's ability to appropriate funds because the president doesn't have to appropriate, you're basically wiping out an already weak institution from the constitutional scene. And I don't think that's an exaggeration, is it?

Zachary Price: No, I mean, what would be left would be, you know, would be things the president couldn't do without getting new authority from Congress, but it would be a big blow.

And I think also another feature of it is, you know, it's inherent in the legislative process to bargain over issues, reach compromises and that's what we want. I mean, we've got a society with a lot of divisions, and it's through that legislative process where we would hope to negotiate those differences, come up with policy compromises that people can live with. But why would you go through that process and vote for a compromise that has elements you dislike if the president is going to come in afterwards and just not enforce or not spend the pieces that, you know, were the benefits to you.

So I think the legal points, you know, matter for the congressional process and for, you know, could not only weaken congressional authority legally, but also really interfere with Congress's internal deliberations in a way that would be unhelpful.

Jack Goldsmith: Okay, I want to wrap up by going back to your book. You have a chapter in the book on how to think about constitutional symmetry in connection with the separation of powers, and conveniently for us, the first example you talk about is removal.

So tell us what your basic view is about how the Court should approach—and this is a normative view that you're recommending to the Court—how the Court should approach separation of powers issues with this constitutional symmetry idea in mind. And then if you could talk about how you think about the removal issues in that light.

Zachary Price: Yeah, so I think, you know, again, my proposal is courts should favor these symmetric understandings, understandings that give kind of comparable benefits and protections to interests on opposite sides of key partisan ideological divisions.

So what would that mean for separation of powers? So it actually should generally be pretty easy in this area. People often have trouble with it because the immediate controversy is so overwhelming, but if you just imagine the sorts of presidents we have these days, they're very different policy outlooks, policy agendas. You should think about, you know, is the theory I'm embracing, is this something I would accept, you know, if the shoe were on another foot. So it has a kind of natural application in this area.

I think what makes it a little tricky, though, is that you could have a power that is sort of formally equivalent for presidents of both sides, but nonetheless kind of slants the deck towards one policy agenda or the other. And so if you're trying to be symmetric, you should avoid, that sort of understanding as well.

So I think removal helps, helps make this more concrete. So removal has been a big point of ideological division, jurisprudential division since the Reagan era, but I think in some ways, the current political stakes are less clear, at least if you're talking about kind of high level policymaking bodies.

So if they go back to that NLRB example—I mean, the idea of these multi member expert commissions was that they'd be sort of like a ideologically mixed judicial panel that tries to deliberate together, get to, it gets to better answer by virtue of ideological diversity and so forth, and then would build up a kind of expert based body of law over time that would be stable.

And there's actually—-I wasn't aware of this when I wrote the book, but there was a great recent article by Neil Devins and David Lewis that goes through this and, and gets at it with some empirical evidence. But I think that picture doesn't really fit the way these commissions work these days. I mean, they're, they're very partisan and presidents tend to be able to get control of them anyway, maybe with some time lag. So I think the stakes aren't terribly—so they're not as independent as they're supposed to be, they flip flop back and forth in the same way that executive agencies do—so in that sense the stakes aren't all that high.

Jack Goldsmith: The stakes aren't high just because you're saying getting rid of independence is going to basically replicate the situation we have now.

Zachary Price: Exactly, they're not all that independent.

Jack Goldsmith: Yeah.

Zachary Price: And also like to the extent the independence is doing something, it cuts equally against both sides. I mean, both types of presidents want to shift policy in certain ways, and so if there's, if there's no removal protection, then you can do it immediately. Otherwise you're, you're stymied.

So I think people, kind of either rule could be symmetric and we should be a little bit more dispassionate about it.  I mean, the CFPB case is a great example, right? So the Congress created this powerful new agency to regulate consumer financial products, made it tenure protected.

The two parties have very different ideas about what this agency should be doing and, you know, whether it's agendas appropriate at all. And so the immediate effect of Seila was to mean that Trump could fire the Obama holdover but by the same token, if the Court had gone the other way, then Biden could have been stuck with a with a Trump appointee.

So, you know, I think at least in those contexts, it's not clear that there's a real asymmetry. I think either, either way could be could be symmetric in the sense that I'm that I'm advocating.

I just, I would distinguish—I mean, there could be other sorts of offices where that logic doesn't apply, but in particular, extending it down to the civil service, I think is different in ways that overlap with the discussion we're having about impoundment. I think the, the civil service is sort of the administrative capacity of the government. That's something Congress has the authority to build up and design.

And if you let the President's Article II authority come in and wipe out the civil service or, you know, gut it in particular agencies, then that would let the president kind of limit the regulatory capacity that's available for future presidents. And that's generally going to favor, that's a power that's more useful for the party with a more deregulatory agenda, meaning the Republicans in most areas. So that's why I think that theory is not only wrong in the merits, but would be asymmetric in ways that the Court should disfavor.

Jack Goldsmith: Alright, Zach, that was very illuminating. Congratulations on your great work in all of these areas and the book. As I said, I've been reading a lot of it and learning a lot. So thank you very much.

Zachary Price: Well, thanks very much. It was an honor to be here.

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