A look at what we have learned so far from the public hearings of the January 6 Committee. Diane talks to Ryan Goodman, professor at New York University's School of Law. He explains what is next in the investigation, including whether we might see criminal charges against former President Donald Trump.
President-elect Trump takes office four weeks from tomorrow. During much of the campaign he vowed to eliminate many of President Obama’s signature accomplishments. His cabinet choices to date and the appointments he made yesterday on trade and federal regulation strongly suggest he intends to follow through: Join us to discuss the power of U.S. presidents in the modern era and what Donald Trump can and cannot do as our next president.
- James Thurber Professor and director, Center for Congressional and Presidential Studies at American University; author of "Obama in Office: The First Two Years"; co-editor with Antoine Yoshinaka of "American Gridlock: The Sources, Character and Impact of Political Polarization"
- Jeffrey Rosen President and CEO, The National Constitution Center; author of "Louis D. Brandeis: American Prophet"
- Juliet Eilperin White House bureau chief, The Washington Post
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. President-elect Donald Trump has promised to use his executive authority to overturn a number of laws and federal regulations focusing of many ushered through by President Obama. Here to talk about the powers and limits of today's executive branch, James Thurber of American University, Jeffrey Rosen of the National Constitution Center and joining us by phone from Atlanta, Juliet Eilperin of The Washington Post.
MS. DIANE REHMWe do welcome your contributions to the conversation. As always, call us on 800-433-8850. Send an email to firstname.lastname@example.org. Follow us on Facebook or send us a tweet. Thank you all for being with us.
MR. JAMES THURBERThank you so much, Diane.
MR. JEFFREY ROSENGood to be here.
MS. JULIET EILPERINThank you.
REHMJuliet, I'll start with you. These latest appointments of Peter Navarro and Carl Icahn would sort of indicate that President Trump is gearing up to undo much of what President Obama has championed on trade and federal rules. What can you tell us?
EILPERINWell, so exactly. We keep getting -- every day, we get a better indication of what the Trump administration will do and since on Wednesday, he named both billionaire investor Carl Icahn, one of the few hedge fund managers who backed him during the campaign and then also one of China's sharpest critics, Peter Navarro as high level White House advisors. That gives you a sense of exactly how he's going to begin to start dismantling President Obama's policies.
EILPERINFor example, Navarro is going to lead a new entity that Trump is creating within the White House, the National Trade Council. He's arguing that this will be similar to the very powerful roles of the National Security Council and the National Economic Council, which are housed within the White House. He's a business professor at the University of California at Irvine and he has written extensively and also appeared frequently to criticize China, arguing that both the role of China and globalization have undermined economic growth and competitiveness in the United States.
EILPERINAnd so he's going to work in trade policies. When you look at Carl Icahn, he's someone who has been very critical of several of the president's environmental regulations. He's actually defended some of the financial reforms that Democrats passed early on. But it gives you a sense of there are plenty of policies that are going to be on the chopping block come 2017.
REHMSo James Thurber, President-elect Trump has vowed he's going to remove some 90 percent of federal rules. Give us some idea of the scope of what that would mean.
THURBERWell, it's impossible to get rid of 90 percent of the regulations and I think that many businesses want these regulations. They want one federal standard. Certainly, where are many outside interest groups and people on the Hill, both Democrats and Republicans that want them. It's hundreds of thousands of regulations, approximately 10,000 regulations are passed each year. Probably 300 of them are major regulations. The rest are more minor things.
THURBERSo to say that he's going to get rid of these, it's almost impossible. Well, I'd say it's impossible. He can use the Congressional Reform Act, which has been used once in ergonomics, to take a regulation to the Hill and in an expedited form, they have to vote, majority vote, within a certain amount of time to get rid of it. But that's just one. There's on in the history of the United States.
REHMSo, but looking back, I mean, President Obama has used executive authority to an even greater extent than any other president has thus far. Is Donald Trump simply following in his footsteps? Could he do the same thing?
THURBERHe could have executive orders on certain areas, like maybe an executive order to limit EPA's regulation of new coal fired plants or emissions standards. By the way, he can get rid of all the executive orders if we wants, but even that is complex. And to get rid of trade, existing trade bills like NAFTA, is very, very complex. It takes a long time to pass them. It takes a long time to get rid of them.
REHMJeffrey Rosen, in your piece in The Wall Street Journal last weekend, you said President-elect Donald Trump will inherit an executive branch whose power has ballooned far beyond its Constitutional bounds. Explain what you mean.
ROSENIt's such a fascinating historical and Constitutional story because the framers of the Constitution feared that Congress would be the most dangerous branch. They were the ones with the power of the purse and the sword and the president had very few powers, just the power to veto, to make recommendations, to make treaties with the Senate's advice and consent. But in 1912, this was the key turning point, for executive power, President Theodore Roosevelt and William Howard Taft had a dramatic debate about constitutional power that continues to shape our conception of the office today.
ROSENEssentially Roosevelt said the president is the steward of the people and he can do whatever the Constitution doesn't explicitly forbid. Taft was a former judge and a constitutionalist and he was horrified by this expansive view. He said the president could only do what the Constitution explicitly authorized. And Roosevelt won this debate. And ever since Franklin Roosevelt, every president, Republican and Democratic, has taken this expansive stewardship view that the president can do all sorts of things, send troops without explicit congressional approval, pass executive orders, build up the regulatory state.
ROSENAs a result, as you said, Diane, both President George W. Bush and President Barack Obama used unilateral executive authority, essentially executive orders to do what Congress wouldn't let them do. As some people said, both Bush and Obama proposed, Congress refused to act and then both presidents did it anyway. And Obama, as you said, issued more significant executive orders, according the congressional research service, than any president in history. And the result of this constitutional shortcut, as you also said, is that these orders are vulnerable to being repealed. Just as Obama repealed Bush's orders with the stroke of a pen, so Trump can repeal Obama's with a stroke of a pen.
ROSENAnd on issues ranging from the Iran nuclear deal to global warming to climate change, to Title IX and gender discrimination in schools, Trump has the ability to repeal many of these orders. Now, as James says, there are complications and the courts will be involved and so forth, but unilateral executive action is vulnerable to being repealed by a successor.
REHMBut Jim Thurber, is this, in part, because there have been such bad relations between this White House with President Obama and the Congress?
THURBERWell, for the last six years, we've had divided party government. The first two years, we had unified party government. He got through 97 percent of the things he wanted through by one measure in the first two years and it's been defensive action since then, through executive orders, through pushing the EPA to promulgate rules and regulations and by going to the public to try to put pressure on Congress. Let me make another point. Surprisingly, as it may seem, the president actually has relatively little authority over the executive branch because Congress vests most of the authority in the officials in these departments.
THURBERRemember, it's 1.8 million people. We have 4,000 appointees. We have 200 assistant secretaries and 480, approximately, deputy assistant secretaries that are appointed. But below that, you have professionals in the bureaucracy. They know the law. They're not going to break the law. If they disagree with presidents, they'll slow walk it sometimes. They'll say, okay, we'll do it, but then it takes years to implement it. I think that he doesn't realize this. Presidents don't run to manage the bureaucracy, but he has to know how to do that and the people he's appointing have to know how to do that, too.
REHMBut Juliet Eilperin, let's take just one example. The EPA, where apparently people had to fill out forms requesting information on whether they had attended a global warming conference or done any particular work on global warming. Isn't that sort of expanding executive authority beyond the authority of the people at the top of, for example, that agency?
EILPERINRight. So just to clarify, so that was the energy department who got that request.
REHMAh, forgive me. Right.
EILPERINNo problem. They got that request from the Trump transition team a few weeks ago and essentially, Trump's transition team was asking the current career employees to identify which civil servants had worked on these issues. They also focused a lot on what were the activities of people in the -- scientists in the national labs who often do a lot of climate research and there, the energy department refused to answer that question. And then, this was done by the specific energy transition team, the overall Trump transition team then disavowed that request. But it gives you a sense that, in fact, the Trump transition team or members of it, were certainly trying to identify kind of what, you know, what we're just talking about.
EILPERINWho were the people in the trenches who were executing some of these policies and is there a way to identify them and then, you know, it's a little unclear. They didn't spell out what they wanted to do, but certainly, we know that President-elect Trump has been critical of the climate agenda pursued by President Obama and those who work for him.
REHMJuliet Eilperin, she is White House bureau chief for The Washington Post. Short break, right back.
REHMAnd before we get back to our discussion, just a reminder, I'm going to host a podcast which begins in early 2017. You can find it by subscribing to "The Diane Rehm Show" on iTunes. You'll also be able to find all episodes at our website, drshow.org. And please continue to follow us on Facebook and Twitter, where you can stay in touch and keep up to date on what we're doing.
REHMNow back to our discussion. An email from Leah, who says, check your numbers, Diane. President Obama has issued far fewer orders than did President George W. Bush. Jeffrey.
ROSENYes. I said that he issued significant -- more significant regulations and that's the crucial distinction. According to the Congressional Budget Office, President Obama enacted 560 major regulations during his first seven years in office. And that's nearly 50 percent more than during the first two terms of George W. Bush.
REHMOkay. And we have a caller here. Lander in Sherman, Texas, you're on the air.
LANDERIt's so good to speak with you again.
LANDERI'm very thankful for getting to meet you and John in Dallas a number of years ago.
LANDERAnd I appreciate your voice of curiosity and civility so much. I'm reminded of the story from 1 Samuel, where Israel wanted a king like all the other nations. And God said, no, you don't. And Israel said, yes, we do. And God said, he will abuse you. What I think of is that in a sense we have voted for someone because we want a strong man in office. We don't want a president like our Constitution calls for. We want a president like all the other nations have, who can be strongmen and who can act arbitrarily and unchecked.
REHMWhat do you think, Jeffrey?
ROSENIt's a powerful point. And fortunately for us, the Constitution does not allow the creation of a strongman. Alexander Hamilton wanted something like a monarch, but we denied the president those powers. And what President-elect Trump may well discover is that there are lots of checks, both by the courts -- if he issues orders that are clearly unconstitutional, like trying to take away the citizenship of citizens who burn flags -- but also from Congress.
ROSENIt's really striking throughout American history -- and Jim Thurber's written so powerfully about this -- how many times Congress has checked the president, ranging back to the 1840s, when a young Whig congressman called Abraham Lincoln demanded that President James Polk identify the precise spot where Mexican troops were supposed to have shed blood on U.S. soil. These were called the spot resolutions and Lincoln was known as Spotty Lincoln. And that need to get congressional authority onboard for your actions has led presidents, even of their own party, to be rebuffed. William Howard Taft fought with congressional Republicans who refused to lower the tariff as much as he wanted.
ROSENAnd I think President-elect Trump may not have a sense of how much he actually needs Congress to get his program enacted.
REHMOn the other hand, Jeffrey, you've written that when presidents have acted imperially, without the support of Congress, the Supreme Court has tended to rebuke them. But you may have a Supreme Court totally in step with this new president.
ROSENThat's true. But I think the historical pattern is, even Republican-dominated Supreme Courts have rebuked Republican presidents like George W. Bush, when he acted unilaterally. The Supreme Court said that Bush could not detain prisoners at Guantanamo without counsel or create military commissions without congressional approval. The Supreme Court repudiated Harry Truman's effort to seize the steel mills under his military authority, even though Truman himself had appointed the chief justice. And there was this great moment where, after the decision, Truman invited all the justices to his house and he couldn't believe that they'd rebuked him. They were his friends. And they were drinking and Truman finally said, you know what, I don't think much of your law, but by golly this bourbon is good.
ROSENSo I think the bottom line is that, if Trump can get Congress onboard, the Supreme Court will defer to him. If he can't, the Supreme Court's likely to push back.
REHMSo, Jim Thurber, how would you describe the kind of latitude, discretion that Donald Trump will have as our chief executive, given that Republicans will also have control of the Congress.
THURBERWell, I'd like to focus on Congress first. He has unified party government. He's likely to get through bills that he wants. Except if you're trying to get rid of something, like the Affordable Care Act, there is the filibuster in the Senate that will limit what you can do there. What I'd like to focus on is what happens after he passes something with respect to immigration or the infrastructure bill or cybersecurity or something on trade. It goes to the bureaucracy. The bureaucracy has people that know the issue, they know the process and they know the political implications for certain things. He needs to use those experts. He needs to hire people who know how to use those experts.
REHMHe needs to but will he? He tends to believe that what he thinks is what's right.
THURBERThat's right. And that doesn't self-execute itself. My point is that the bureaucracy will disagree with him on many things. They'll slow him down. The experts there are very important. There's 1.8 million people and people who've put their life into certain policies. And I think that they will not all quit. They'll try to slow him down. And maybe that's good. It's another form of checks and balances that's not in the Constitution.
REHMJuliet Eilperin, what are you hearing?
EILPERINWell, I mean, I certainly think that he is going to get a lot of cooperation from Congress in the beginning. And one of the really interesting things that I think we'll be watching very carefully is the fact that, because he has such a connection with the Republican base and with many of the voters who determine whether these members end up going back to Congress, that gives him this extraordinary leverage. One of the interesting things, you know, certainly that I observed over President Obama's time is that, while he was relatively popular with the American public -- obviously his rating waxed and waned -- but he could never seem to really harness his popularity with Americans, to put pressure on lawmakers to do what he wanted them to do.
EILPERINIt seems like Trump might have some potential to exercise this lever in a way that President Obama didn't. And just, you know, to speak to some of the points that, you know, both Jeff and Jim have been making, you know, we're going to see so much litigation going forward. I mean, if it's one thing that certainly people -- liberals are capable of doing, is they're smart about doing lawsuits. They know how to take a lot of these things to court. So you're going to see protracted legal battles, even potentially on the Congressional Review Act of 1996, which, as Jim pointed out, has only been used once and never tested in court. Although, you know, it might be sustained, but there could easily be a battle over that as well.
REHMJuliet, you know as well as I that thousands of people are signing up for Obamacare, even as the president-elect is vowing to repeal it. What do you make of that?
EILPERINI know. I think, you know, it's a complicated -- this is a complicated story, because there's no question that there are problems with the system, that we've seen private insurers drop out of the system. But, you know, on, you know, right before President Obama left town, he noted that the day before, on, you know, just earlier this month, 670,000 people signed up for insurance under the Affordable Care Act in a single day, its highest day ever. So it gives you a sense there's a demand for this coverage. And that's something that Republicans, including the next president, can't completely ignore. But they certainly can change that system.
REHMThey can try to ignore that these people have signed up. What can they do, Jim?
THURBERWell, they can try to ignore that. They'll try to -- I think in the end they'll try to repeal it. They'll repeal it in the House, they won't in the Senate. They'll make some amendments. They'll try to improve it. Remember, the rollout of this Obama care or Affordable Care Act was very poorly done, which gets back to this whole management thing and the bureaucracy, that presidents don't run saying they're going to manage the bureaucracy better. And so I think that he's going to have a tough time with Congress. He doesn't understand Congress, in my opinion. He's given that to Pence. And it's very frustrating for a president to get things done. It was frustrating for every president, Obama in the end. He's going to have frustrations there.
THURBERBut he's going to have even more frustrations when he says, I want this done and the bureaucracy doesn't do it because they don't get clear actions on how to do it.
REHMAll right. Juliet, take, for example, the Department of Education. The president has appointed someone who apparently believes very little in public education and veers more to charter schools. Some people have wanted to see the Education Department completely eliminated. Do you believe that might happen?
EILPERINI think that's unlikely. It's really interesting. Once you create these departments, there's a lot of impetus to keep them going. But will could -- will it be -- could it be radically overhauled and could it be downsized somewhat? That I could envision happening.
REHMJeffrey Rosen, Donald Trump seems to have a sense that he speaks for the people. When he looks out there at this bureaucracy, about which Jim is talking, is he going to defer to the Congress? Or is he just going to take his own thoughts into action?
ROSENI, alone, can fix it. I am your voice. That is not the words of someone intending to defer to Congress and the bureaucracy. And it's a remarkable apotheosis of the stewardship theory that progressives have embraced for more than a hundred years. This is the culmination of Roosevelt's vision that, because the president is the sole organ of the people and he alone is the one directly-elected official, then he has the power to act vastly without the traditional constitutional checks.
ROSENIt's so interesting to see, now progressives are rediscovering the Madisonian checks on executive authority that had laid dormant for a hundred years. All of a sudden, the idea of Congress checking the president, of states' rights and federalism, of a constrained executive who needs the support of the other branches -- all of which Madison insisted on -- are looking good. And all of these engines of direct democracy from the progressive era, from the referendum to direct primaries to even our opposition to the Electoral College are being rethought.
ROSENSo when you have a strong -- the framers were afraid of strongmen. They studied failed democracies. They studied Demosthenes and they studied the dangers of democracy deteriorating into authoritarian tyrants. They had a very dark view of human nature. And all of a sudden their cynicism, their constitutional cynicism is looking wise again to progressives as well as constitutional conservatives.
REHMDo you agree with that, Jim?
THURBERI have some problems with some of it. I think that when we have a clear external threat to the United States, or we have a clear issue of a recession, which turned out it looked like it was more of a depression for a year, then we built consensus to give power to the president to do something about it. George W. Bush, with TARP, bailing out the banks, eventually using that money for GM. But also this president really directing a way out of the recession. It's remarkable. And he will be known for that as well as many other things, but that's the primary thing.
THURBERNow, where did he get that power? He got the power because people saw a problem, as they did with FDR, with the Depression. And they gave him power. They had rally effects around the president. If we are attacked, like 9/11 or Pearl Harbor, it gives the president a great deal of power to move very quickly. But he moves, generally, with the consensus of Congress, except in war since World War II.
REHMAnd you're listening to "The Diane Rehm Show." I have here a fairly pessimistic view from Anne in Louisville. She says, I feel your being at best naïve, at worst disingenuous. Trump will run roughshod over any attempts to limit him and have him follow the rules. Republican members of Congress are terrified of being the first to generate a tweet saying bad things about him. A modern-day McCarthy Communist hunt. He will soon have control of the Supreme Court. People like me, working through organizations like the ACLU, will do everything we can. I expect not to be able to get through four years without being detained. Who do you think is going to stop him?
ROSENIf the president-elect were to detain citizens on the basis of their religion or nationality, for example, the Supreme Court would unanimously strike him down, liberals and conservatives. We have such a strong tradition against that sort of explicit race-based or ethnicity-based or religion-based determination, that just as the Supreme Court in a series of unanimous opinions has protected digital privacy and free speech, even unpopular speakers, so I think that tradition is established.
ROSENBut the listener raises a good point. Are our 18th century structures going to be challenged by these new social media technologies in ways that none of us anticipated? The idea of a president tweeting directly against citizens or using the emergency alert system to communicate directly with citizens, the framers never anticipated that the president would talk directly to the citizens. The one thing that Madison insisted on was no instruction of representatives or elected officials by the people. The people's views were supposed to be filtered through wise representatives. The presidents didn't campaign directly. It was a far more constrained and removed executive.
ROSENSo I think the caller raises a good point about whether this new post-truth, filter bubble, social media world will exercise new democratic pressures that the framers did not anticipate.
THURBERAnd we have First Amendment rights, thank goodness. We have the right to organize. There will be a women's march the day after the inaugural. My granddaughter is coming out from Seattle for it, to show where my family is (laugh) on this thing. We have First Amendment rights. People can organize. They can petition government. They can -- without getting arrested. She should not be worried about getting arrested, in my opinion. And it will go to the courts. And I -- even though there is a new Supreme Court Justice, it's probably going to be pretty conservative. I don't think she should worry.
REHMAnd here's a tweet. I think the fear is that partisan loyalty politics will stop Republicans from fighting Trump, because they are afraid of the party. Juliet.
EILPERINYeah. I mean, there's no question, as we're saying what -- I think that Trump does have such an appeal right now among Republicans, that certainly many Republicans will be intimidated. I think we've already seen, however, signs of dissent. When you look at, for example, John McCain and Lindsey Graham, who were quite comfortable defying their party from time to time. They've already questioned certain aspects of Trump's promises, whether it's the idea of bringing back waterboarding and other forms of torture to, you know, combat Islamic terrorism. Whether you're talking about Rex Tillerson, who I think will get approved, his nominee for secretary of state. They're still going to scrutinize it.
EILPERINSo, you know, not everyone is just going to agree to what he says.
REHMAll right. Short break and your calls when we come back.
REHMWelcome back. Time to go right to the phones to Chesapeake, Va. Sarah, you're on the air.
SARAHHi. Long-time listener, first-time caller. It's an honor…
REHMGlad to have you.
SARAHIt's an honor to be able to speak with you, Diane. I start my day listening to your program. I look forward to your podcasts.
SARAHI think it's important that the public hold Trump to the policies of the office he was elected to and to not allow him the leeway he has been afforded thus far. You know, his tweets are unacceptable. His lack of respect to take his job seriously and not divesting his businesses or holding a press conference to speak on these matters. I believe President Obama was expected to act a certain way, that Trump needs to be held to the same standards.
REHMWhat do you think, Juliet? Is he -- he's talking about getting rid of a lot of rules and regulation. What do you have as his sense of priorities?
EILPERINWell, I think that it's going to be -- there's certainly gonna be some focus on environmental regulation because that's both an area where President Obama has been aggressive and it's an area that Donald Trump has identified as something he thinks that is curbing American growth. And also, he did quite well among certain populations, for example folks in rural areas and folks in coal country who resented some of President Obama regulatory efforts.
EILPERINAnd so there's a synergy there and there's also a synergy with the priorities of the Republican leadership. So, you know, first up we're going to see things like -- there was a recent rule that Interior finalized curbing the release of methane, a powerful greenhouse gas, in oil and gas operations, drilling operations on federal land. That's, you know, that's got a bullseye on it already.
EILPERINThey just -- Interior just finalized a rule protecting streams when you have mining operations. And that's another thing. So, you know, there are certain areas where you could see him focusing from the outset. Though, it's important to keep in mind, when I talk to, for example, a top Republican Senate staffer about this and asked how many rules realistically might be overturned through the Congressional Review Act this aide identified say half a dozen that he though realistically might be able to be finalized by the time clock expires on doing these reversals. So, you know, it's not like everything the President does is gonna be reversed, which is one reason you see so much activity in these final days.
REHMWhat about Title IX and what about immigration?
EILPERINI think there you're certainly gonna see some changes. On immigration without question, there'll be changes. Whether it's to some of President Obama's executive orders -- now, one of them has already been reversed through a court challenge. But you could certainly see changes there. And there you'll also just see different policies pursued, particularly driven by the Justice Department and Senator Jeff Sessions, Trump's nominee for attorney general. So I think there you'll see a lot of changes over time.
EILPERINIn terms of Title IX, I think there'll also be changes there. Again, that's something that folks in President-elect Trump's Justice Department would be open to changing. Although there, you know, again, that's a little trickier, particularly when you deal with women. That's a more complicated question for both Trump and the Republican Party. And so it's not automatic that they would be quite as aggressive there then they would be on immigration, which was one of the hallmarks of Trump's campaign.
REHMAll right. To David in Charlotte, N.C., where there has been, I gather, a great deal of controversy going on. David, you're on the air.
DAVIDHi, Diane. How are you doing?
DAVIDMy comment is about the letter or the form that Trump asked people at the Energy Department to fill out. I'm having a hard time understanding what's wrong with that. These are people that are whose job is gonna be to put forth the policies of the president. Donald Trump's policies are different than Barack Obama's. And I would imagine there are probably a lot of people in the Energy Department whose views do not match up with the incoming president.
THURBERThe Department of Energy is -- about 70 percent of it is about nuclear weapons. And the rest of it is about basic research. Basic research into climate change, physics, other things. And the Department of Energy refused to send the names of individuals that went to conferences, but they -- anyone can find out what they've published in Referee Journal articles. And what they want is to keep those seven major labs -- and there's about 75 more. They want to keep this jewel of science together.
THURBERAnd if people think that it's a McCarthy situation and you're going to be named because you did some research on global warming and shunned or even fired or reassigned, they're going to lose some very good scientists. So it's in the public interest for the Department of Energy to protect those people in terms of who said what. Now, anybody can get that. It's in the public record. It's not secret. You can find out from the conference proceedings who did what and what they published.
REHMJuliet, they've backed off from that, though, haven't they?
EILPERINThey did. They said that it was not authorized and that they, in their words, counseled the individual who had made that inquiry. So I think that even the Trump transition realized that, you know, that while you're -- the caller actually makes, you know, a solid point, they need to understand how this department works, what its priorities are. There's no question that under the two energy secretaries that Obama has had, Steven Chu and Ernest Moniz, they did elevate the issue of climate change and research.
EILPERINAt the same time, you do want to be careful about singling out civil servants who were, again, obviously doing their jobs. And also, this idea that Jim raises, which is that if too many federal employees, particularly these top tier scientists who can be anywhere in the world and get any university appointment they want, if they end up leaving that could have a real ripple effect on what the federal government can do.
REHMHere's an email from Jerry. "Why is it you and your panel are so worried about Trump overstepping his authority when he hasn't even taken office? Yet, it was a Democratic president, FDR, who started it and Obama also did this many times. But you don't criticize them. You only criticize someone who hasn't done anything yet. Weird," says Jerry.
EILPERINDiane, could I just pop in and say that, you know, I think that certainly the press has scrutinized a lot of the executive actions that President Obama has done. And also examined how he certainly did not reach out to Congress. It was -- there were challenges there, but there's no question he dismissed Congress and made a deliberate attempt to ignore them. And in fact, ultimately, that may end up undermining his legacy because he's left his legacy vulnerable. So I think that -- while I understand the concern, I think there's no question that people have scrutinized Obama's excessive or, you know, bold use of executive power and what are the implications of that.
ROSENYes, I would echo that. And say that I think progressives are now acknowledging that they're reaping the wages of the expansion of executive authority that was supported by both parties. This is not a partisan thing. Democrats and Republicans in Congress have repeatedly acquiesced in the expansion of an office and the exercise of unilateral executive authority. There were criticisms of Obama. The National Constitution Center did great podcasts about whether President Obama was acting too unilaterally.
ROSENBut I think -- and it's not just Democrats. There were Republican critics of Trump, Constitutionalists in Congress who believe that Congress has failed to exercise its checking authority, who are also worried about an out-of-control president. If there's any silver lining in this partisan time, I think it's that both sides are now converging around the importance of all the three branches doing their jobs. And maybe we'll see Republicans and Democrats in Congress pushing back for the first time in nearly a century.
REHMHere's an email from Andy. "Does the panel see a hiring freeze for any or all agencies, beginning with the new administration?" Jim?
THURBERWell, I think that's one of the first things that he can do and he probably will do in certain agencies. Not in the military, not in the intelligence area, but he's already said he'd like to cut back on the bureaucracy. Most presidents say that. They -- he's attacked the bureaucracy. So it's a possibility and he can do it.
REHMWhat about his national trade council that you mentioned earlier, Juliet? And the extent to which it is going to -- I don't know -- overlap or be superior to the national intelligence data gathering.
EILPERINRight. Well, it's a little hard to tell. And obviously, again, since this is just being formed, it's hard to predict what it's gonna be like. But I think what this -- what's interesting about this, and we'll see, is that, you know, President Obama really centralized power within the White House. It's not just that he did all these executive actions. But essentially the Pentagon was less important, the State Department was less important when it came to foreign policy. It was the National Security Council that was driving most of his key policies.
EILPERINAnd what I think (unintelligible) again, this is the question President-elect Trump faces, does he decide to follow in the Obama model? Is he gonna have this national trade council be more important than the U.S. trade representative, than aspects of Treasury -- of the Treasury Department, or, you know, is he going to allow some power to go to the agencies?
EILPERINWe have been thinking that on certain things the Pentagon will be more important and will certainly drive some of these top decisions overseas. But when you see something like this, it makes you think that maybe Donald Trump is more similar to Barack Obama then you would think at first blush.
REHMGo ahead, Jim.
THURBERWell, trade's an interesting area in that it's so highly decentralized. It's not only in Commerce, the U.S. trade rep, it's in the Agriculture Department, it's almost in every department. Now, if indeed this council is about organizing things and managing the implementation of trade policy better, that's one thing. But if they are making decisions that these other institutions have to implement, they're gonna have some problems.
REHMYeah, I would think so. Let's go to Tyler in Baltimore, Md. You're on the air.
TYLERHi. And thanks for taking my call.
TYLERMy concern is with trade. And let me just briefly say I'm a small business owner. And I know politicians like to put us up on a pedestal every election year, as we're the engine of the economy and whatnot. But we trade heavily with China as a small business owner. We get a lot of our items and everything from China. And the concern with all of this talk over the last two months -- and he's not even president yet -- is he's essentially blowing up relations with China.
TYLERHe's talking about a tariff war. Essentially, if he had his way or -- and I know a lot of it is maybe bluster, given what he said. If he has his way though, it concerns that overnight we could essentially go out of business because we couldn't afford the type of tariff. And how is that good for business? And I'll take my comment off the air. Thank you.
ROSENYou know, the caller has a good comment. Remind us, there's a big divide within the Republican Party about tariffs. And ever since really the Wilson administration, Republicans and Democrats have been pretty committed to free trade. There is a big debate, again, so much goes back to the progressive era. For decades during the progressive era it was the Democrats who were the free traders and anti-tariff 'cause they thought it would help small farmers.
ROSENAnd Republicans were protectionists 'cause they were trying to protect certain manufacturers in the North. But after a big debate about that, eventually the tariffs were lowered, both sides came around to free trade. And now, all of a sudden, the Rust Belt and the swing states are saying we need tariffs again. And that's an anathema to people like Paul Ryan and other free trade Republicans who are not in favor of that. So there may be a fight between Trump and Congress on this very point.
REHMAnd you're listening to "The Diane Rehm Show." Jim Thurber, what about the wall that he has promised to build?
THURBERAnd to have Mexico pay for it. I don't think Mexico's gonna pay for it. He may expand the wall. I'd like to expand on a couple of these other points.
THURBERAnd that is that the Republican Party is not in agreement with this president on a whole lot of things. And they actually have said that. On trade -- trade is a big one. They're the free traders. But also on Social Security, says he doesn't want to do anything about Social Security. It's gonna run out of money by 2034. Something needs to be done. And there's a whole group that wants to do that. On the issue of education, you mentioned before. We had a bipartisan bill that Senator Alexander pushed through the Senate, passed the House, that it's a major reform, changing No Child Left Behind and great support for it.
THURBERBut it only passed with a -- major portion of the votes were Democrats. That's true also of chemical regulations. The industry wanted it. The only reason it passed was they had a substantial number of Republicans in the House of Representatives. The export/import bank, the Party was split. He's very -- he's questioning it, but it passed in the last two weeks of the last Congress because of a huge number of Democrats. That's -- the point is, in order to get some things done, Ryan has to reach out, work with the Democrats and isolate people on the far right. I think he doesn't care that much whether the President is going to go with him or not.
REHMWhat about, Juliet, his statement that he'd like to create a registry for Muslims and ban Muslims from coming into the country?
EILPERINI'm glad you mentioned that because there's actually something we just found out this morning, which is that the Department of Homeland Security just finalized a rule that, in its words, is removing outdated regulations relating to an obsolete special registration program for certain non-immigrants. This is specifically something that DHS is doing to make it harder to register Muslims. So again, the Obama administration is trying to make Trump's job more difficult. Does he push ahead with it? He may. But I think there he's definitely gonna get some opposition.
ROSENThat's just fascinating to learn from Juliet. And there is, in fact, an obscure Cold War era regulation that I think she's referring to, that gave the president the authority to ban immigrants whom he deemed dangerous to the United States. And if the Obama administration in its waning days is repealing that, as she says, it'll be tougher for him to do that.
THURBERIt takes a long time to change these things. Obama has changed it. And regulations, generally, it takes years and it takes evidence. Well, if you want to get rid of them, it takes evidence also, if you go through the regulatory process. If you go to the Hill and you use the Congressional Reform Act, ideology comes into account and evidence is not that important sometimes. So for example, silica in OSHA took 21 years to promulgate a rule that kills people when they inhale dust, 21 years. And if he tries to get rid of that, he needs to science to show that people are not dying because of it. So for him to get rid of a whole lot of regulations is going to be very difficult in my opinion.
REHMAren't Muslims worried, however, about his threats to ban Muslims from this country or to create a registry?
THURBERWords mean something. I was recently in two Muslim countries where I gave some speeches about our election, before it happened. And they were very worried. And they should be worried if he actually can implement and do something. But I think it's going to be very hard for him to do that.
REHMJames Thurber of American University, author of "Obama in Office: The First Two Years." Jeffrey Rosen is president and CEO of the National Constitution Center and author of the book, "Louis D. Brandeis: American Prophet." And Juliet Eilperin is White House bureau chief for The Washington Post. Thank you all so much. How wonderful to be with you.
THURBERDiane, it's a privilege to be on this broadcast. Thank you very much.
ROSENIt is always a privilege. Thank you, Diane, for everything you do.
EILPERINThanks so much, Diane.
REHMThank you all for listening. I'm Diane Rehm.
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