Welcome to Discourse where we cut through the noise and make sense of the chaos. I'm your host, Wayne Unger. I'm a law professor and former Silicon Valley nerd, and I've spent years breaking down complex topics into digestible takeaways. And on this podcast, we'll take a deep dive into the pressing issues, shaping our world in law, politics, technology, business, and more.

No echo chambers, no corporate influence, just thoughtful analysis and respectful civic dialogue because understanding different perspectives isn't just important. It's necessary. Let's get started. All right. Welcome back to Discourse. I'm your host, Wayne Unger, and we are recording today's episode on Saturday, April 5th at 5:22 PM And as always, things may have changed since.

So first, let me apologize for the little bit of a hiatus in between this episode and the last episode. Turns out doing your taxes takes longer than I anticipated. Now here's the funny thing. Here's the funny thing, 'cause TurboTax estimated that it would take me two hours to do my taxes. It took a lot longer than that.

But then again, I have to [00:01:00] compile the papers and kind of do all the work, and I'm not necessarily prepared to do my taxes when I sit down to do my taxes. So there's a lot of prep work that goes into it, but that's not why you're here. You're not here to talk about the taxes, except maybe a friendly reminder that everyone's taxes are due on April 15th.

That is 10 days from today from this recording, so make sure you get them in. 

Alright, on today's episode, we are going to answer a question that I often get both from friends and family as well as ordinary individuals and journalists. Journalists, when they ask me questions and when they have an interview or they have me on their program to discuss these matters.

And that question quite simply is. What can the President do? What authority does the president of the United States have? Now, before I get too far ahead of myself, let me begin by saying we're gonna talk specifically about the tariffs in a separate episode, which will come [00:02:00] very soon. That will be a longer episode.

That's gonna be a longer episode, and so it's taken me a little bit longer to edit that episode than I anticipated, on this episode, we're just talking broadly what can the president do and what can't he do 

As I describe it to my students in my constitutional law course, it can be summarized as simply as before the President can do anything, before he is allowed to act well, then he has to have the legal authority to do so in the legal authority to act comes from the Constitution of the United States and or.

From a federal statute. So let's start with the Constitution for a second and then I'll get into his statutory authority and what Congress has permitted the President of the United States to do. First with the Constitution, the president derives his power in Article two of the United States Constitution, and it has several sections, specifically four [00:03:00] sections where we're only gonna cover a little bit of it, the relevant part of it where it talks about the powers and authorities.

But first. Section one of the Constitution has the vesting clause, is what it's generally known as, and it reads, the executive power shall be vested in a President of the United States, and he shall hold his office during a term of four years together with the vice president. That's pretty straightforward.

It's the executive branch all rolls up into the presidency and the president of the United States.

So the president of the United States derives the actual powers from section two of Article two of the United States Constitution, and in it are key clauses that we often talk about.

So pretty much everyone knows. Of the Commander in Chief Clause, be it that the President shall be the commander in chief of the Army and Navy of the United States. Of course, we have more than just an army and a navy today. So this president, as the commander in [00:04:00] chief, is read to include all of the United States military, but the president is also in charge of the militia of the several states.

So any state authorities there, he can federalize them and call them into service at the federal level. Now, he also has the authority with the advice and consent of the Senate. That just means it has to get approval from the United States Senate to make treaties provided. Two thirds of the senators present concur, but he also has the nomination authority or appointments authority, meaning that he can appoint with the advice and consent of the Senate, all senior or principal officers of the United States government, including ambassadors, public ministers, and.

At least with respect to the federal courts, he can appoint all federal judges, but particularly the judges of the United States Supreme Court.

Now inherent in the appointments clause [00:05:00] is the president's authority to remove officers of the United States government, but that removal authority does not extend as far as the appointments authority. And here's what I mean by that. The appointments authority only goes so far as saying all principal officers, all inferior officers, all ambassadors, and all judges in the federal court system.

The thing with the removal is he cannot single-handedly remove any judge or justice in the federal courts single-handedly. The removal authority only extends to the executive branch. It does not extend to the judicial branch. So while he has the power to appoint. Federal judges, he does not have the power to remove them.

The only way that federal judges can be removed is through the impeachment process where the House of Representatives passes, the articles of impeachment and the United States Senate vote to convict, and they've convicted several [00:06:00] judges over the course of our history.

So that is pretty much all that is in the Constitution with respect to what the President can do. Just to summarize first, the vesting clause, that the executive power shall be vested in the President of the United States. Second, the commander in Chief clause third, that militia can call 'em into actual service at the United States, the federal level, the appointments and removal authority, and that's pretty much it.

So you would think that at least on the face of the Constitution, the president doesn't have that much authority. Except he does because Congress has given him authority. Decade after decade after decade, they've increased the power of the presidency through legislative action. So as I previously mentioned, the president of the United States can get his power from one or two places.

Number one, the Constitution, which we just covered. And then number two, statutory law. So Congress can create [00:07:00] legal authority for the President to do something, and that's what he's been invoking with respect to immigration laws, with respect to tariffs and other economic policies.

All of those. All of that, and a lot more for that matter are. The statutes that give the president of the United States legal authority to do whatever he's trying to do now, here is the catch to what we are in right now. I have said for a number of years now, that a Donald Trump presidency is an intriguing time for any constitutional law scholar.

Because of what he does when he's in office. Unlike pretty much any other president in recent memory, at least those that I am familiar with and I have studied, president Trump has pushed the boundaries of his legal authority, both his statutory authority as well as his constitutional authority. How do we know this? Well, we don't have to look very far. It's all of the [00:08:00] cases that have been brought in federal court to either stop or pause the actions of President Trump. But Donald Trump isn't alone in that because other presidents of the United States have also pushed the legal boundaries of the office.

They've also presented novel constitutional questions. But I'm pretty sure that many constitutional law scholars, including myself, would conclude reasonably. I. Donald Trump has produced more constitutional questions that the federal courts have had to answer than any other president in recent memory.

Again, at least according to my research of certain presidents of the United States, but I have not researched every single one of them. So what is an example of Donald Trump pushing a constitutional question that we have never had to answer before, but we don't have to go far. Back in history to find it.

In fact, perhaps the most notable one, at least that comes to my [00:09:00] mind is the criminal immunity decision from the United States Supreme Court. Just last term, so in 2024, the United States Supreme Court concluded that the presidency, not Donald Trump specifically, but the presidency, whoever is the president of the United States, has some level of criminal immunity.

So number one, he has absolute criminal immunity for all official acts that are tied to a core constitutional duty where his constitutional authority is conclusive and preclusive, meaning it's very clear that the Constitution gives him the authority to do something. Now all other official acts, however, and perhaps those are the ones given to the president via statutes.

 If Congress has given the President of the United States the authority to do something. Issue tariffs. Nowhere in the Constitution does it say that the President of the United States can issue [00:10:00]tariffs.

 There has been a reasonable argument that tariffs are essentially trade policy. And trade policy is essentially foreign policy. And because the president of the United States is the singular head of the federal government. He manages all foreign affairs, and the United States Supreme Court has been very clear on recognizing that in the last two centuries, for that matter, that the president of the United States manages the foreign relationships and the foreign affairs of the country.

Except we have to turn to another article to find more clarity, at least with respect to trade. International commerce and that is Article one of the United States Constitution, where article one of the United States Constitution discusses what Congress can and cannot do, 

and particularly Section eight of Article one is the enumerated powers of Congress. Section eight says, the Congress shall have the power [00:11:00] to lay and collect taxes, duties in posts and excises to pay all debts and to provide for the common defense and general welfare of the United States.

And it also says Congress has the authority to regulate commerce with foreign nations and among the several states and with Indian tribes. So it's actually pretty clear that when it comes to the authority to tax and when it comes to the authority to manage international commerce or international trade, that power lies within Congress, except over the years.

We have seen Congress delegate some of that authority to the President of the United States through statutory action. During the Great Depression, when FDR stepped into office, Congress gave him the authority to issue tariffs, to manage the economy here in the United States in response to the recession.

And over time Congress has passed more and more statutes that expand the President's [00:12:00]authority to issue tariffs. So I use tariffs because of course that's been in the news I. But the President has much more than just tariff power and much more than what the Constitution has given him. He has the power, for example, to issue economic sanctions against state actors, foreign state actors specifically.

He, of course, has various powers related to war under the War Powers Act, and he has countless other powers typically created by an enacting statute of a federal agency. Okay, so what do I mean by that? 

The vast majority of the federal government, particularly the executive branch, is administrative agencies. So administrative agencies are those departments, the bureaus, the commissions, et cetera. I. That essentially run the federal government, and that is what Doge and Elon Musk and Donald Trump have been shrinking since he took office once again on January 20th.

Now, it's the administrative agencies that [00:13:00] are the most important here because every administrative agency is created by Congress. That also means it cannot be shut down unless Congress consents to that, unless Congress passes a bill to shut a federal agency down. Every administrative agency is created by a enacting statute. The enacting statute, number one, creates that administrative agency, and two, provides an intelligible principle with respect to what that agency can and cannot do.

Essentially, what is the scope of work of that administrative agency? And oftentimes in those enacting statutes, we find. The authorities expressly given to the executive branch, which again, at the end of the day, all roll up to the president of the United States. 

That enacting statute where the president can turn and say, Congress has given the executive branch, these authorities, the authority to approve new drugs or the authority to [00:14:00] issue new guidance. The Department of Education, as an example, the Department of Education, well, the Secretary of the Department of Education has the authority to outline the loan repayment programs.

So that prompts a greater conversation on this body of law called administrative law, an administrative law. Is the branch of law governing the creation and operation of administrative agencies. The powers granted to administrative agencies are particularly important, along with the substantive rules that such agencies make and the legal relationships between those agencies and other governmental bodies.

So let's consider another federal act for a second. The ACT that created the IRS, the Internal Revenue Service, responsible for collecting income taxes and others. Well, that the first income tax was not enacted until 1913 here in the United States. And since I mentioned at the top of the episode[00:15:00] my taxes and the Internal Revenue Service, I figured, let's look into them a little bit more for the purposes of this episode.

So it was in 1913 that the 16th Amendment to the United States Constitution was ratified, authorizing Congress to impose a tax on income and leading to the creation of the Bureau of Internal Revenue, or better known today as the Internal Revenue Service The IRS is responsible for collecting the revenue needed to fund the United States Federal Government with the rest being funded , 

either through Customs and Border Protection

they collect the duties and tariffs the. Now the Federal Reserve is also part of the revenue generation. At the federal level, the Federal Reserve purchases US treasuries. So we have different sources of income, different ways in which the federal government collects revenue.

But the primary, the vast majority of the revenue comes from the Internal Revenue Service. Via say, income [00:16:00] taxes and other taxes assessed to individuals and corporations. So it's a series of federal acts that Congress has enacted. Give the IRS its current authority to collect federal taxes and audit taxpayers bring enforcement actions against taxpayers and the creation of the tax court, which is actually an executive branch court. All of that was created by legislative action, Congress had to create it.

All of the powers and authorities that Congress has delegated to them, all of that rolls up into the president of the United States because he's in charge of those administrative agencies. Now, I don't know whether this number is accurate, but I asked Google a very simple question, how many federal administrative agencies are there?

Google AI returned that. There are approximately 100 regulatory agencies within the federal government in addition to 15 executive departments and other [00:17:00] agencies that make up the federal administrative structure. So every one of those administrative agencies was created by a Congressional action.

So I'll name a couple of agencies here.

Now, of course, I'm not gonna name 'em all because there's lots of them, and I get this list from the Sandra Day O'Connor College of Law, my alma mater at Arizona State University. So they published a list of the federal agencies. Now, the federal agencies just take care of so much that as I rattle them off here, you're gonna see how broad the President's authority is.

Agriculture department, board of Immigration Appeals Bureau of Alcohol, tobacco and Firearms, the Civil Aeronautics Board, the Comptroller of the Currency, the Commodity Future Trading Commission, the Employee Compensation Appeals Board, the education Department, the Environmental protection. Agency, the Interior Department, the Internal Revenue Service, [00:18:00]the International Trade Commission, the International Trade Court, the Post Office, the Occupational Safety and Health Review Commission, the National Mediation Board, the National Transportation Safety Board, the Nuclear Regulatory Commission, the National Labor Relations Board, the Treasury Department, the Social Security Administration, the Department of Veterans Affairs, the Padden Trademark Office. 

These are all examples of the administrative agencies that, like I said, were created by Congress through a congressional action and in those congressional acts. Each one of them that created all of those agencies that I just read off and others that I did not read off, that is where the president gets a lot of the authority to act.

So in fact, if we zoom out for a second, the Constitution gives the President of the United States some constitutional authority, but the vast majority of the power [00:19:00] of the presidency is given to him by statutory law. Now, what does this mean though, and why do I go into detail here? This means that a lot of the presidential authority can be pulled back by Congress through subsequent congressional action.

But to be fair, the article three courts, the federal courts can check the president. Through judicial review that's well established, that's widely accepted going back as far as Marver versus Madison, and in that way, the president's authority can also be limited, so Congress can take back power from the president of the United States. 

So looking at what Donald Trump is doing today, and of course looking back at what the most recent presidents have done all of them have acted via statutory authority. At least the vast majority of their actions that those presidents have taken have been [00:20:00] by statutory authority.

But this gets us to the litigation, the litigation against the president of the United States. Since January 20th, many lawsuits have been filed against the president. Many temporary restraining orders or ts have been issued against the president of the United States as well as preliminary injunctions.

These injunctions and the temporary restraining orders. Are all put in place because the president has acted in some way that is questionable. 

One of the key lessons that I tell my first year constitutional law students is whenever there's ambiguity, whenever it's not black and white, chances are that's the litigation, right? That's what we litigate. We litigate what we can't agree on. We litigate on in this context, on whether the president actually has the authority to do what he is trying to do and the way in which the law is written.[00:21:00]

Purposefully or perhaps not. The way in which the law is written is often ambiguous, which is why it leads to litigation because the courts have to interpret what the law says. So the courts have to sit down and hear the states as they file suit against the presidency and hear what their legal argument is in perhaps how and why the President of the United States has acted unlawfully, which just means in its peers, the forms outside the boundaries of what the law allows him to do.

if the President of the United States invokes something like the Alien Enemies Act. Of the 17 hundreds, which gives him some authority to deport unlawfully present individuals. Well, if he cites that as his legal authority, the states can check him on that exercise of that legal authority, and then the courts will have to review on whether the [00:22:00] president's actions that he claims is lawful under the Alien Enemies Act is actually lawful, whether it's actually permitted.

By that statute. So that is how all of this works. The president is gonna point to somewhere and say, I have the illegal authority to do X because this statute says I can. And perhaps this constitutional clause says I can. And then if it gets litigated it, he might get checked by either private industry, the public sector, or individual states, and they, I.

Whoever is challenging that presidential action is essentially going to argue that the president has acted outside the bounds of the law, has acted unlawfully. While the president can interpret a law one way, of course, a State attorney general, just as an example, could interpret the same law differently because there's some level of ambiguity in [00:23:00] the law because there are reasonable interpretations on both sides.

And why do these questions keep coming up in the federal courts? Why do these questions keep working their way up to the United States Supreme Court? Well, that's because Donald Trump pushes his legal authority claiming as he, for example, invokes an act from the late 17 hundreds, the Alien Enemies Act and the States come in and say, well, that's actually not what that was designed to do.

So the states file suit.

So the states are seeking to block the presidential action, but perhaps on a more principled basis, perhaps on a more principled basis. Let's look at this for a second. So, not only do the states file suit out of political reasons, so if a Republican is in the White House like Donald Trump. We typically see Democratic states bringing [00:24:00] a lawsuit against the president to check the president.

 There are certainly political reasons there, but there are also lawful and principled reasons why states act this way. It's the structure of our entire country to where we have two sovereigns, we as individuals, as citizens and non-citizens alike, are subject to the laws and the authority of the state government and the federal government simultaneously and concurrently in many ways.

Now this system of governance. We have two sovereigns against state and federal. And part of the reason why we have that is because one can check the other.

So we've seen this over the course of the country's history over two centuries and counting. We have seen the federal government bring lawsuits against state governments. For infringements of powers and duties and potentially civil rights and liberties. We have seen that over and over and over again.

Well, in addition to [00:25:00] that, states can bring lawsuits against the federal government to block what the federal government is trying to do, and all of this is how it's supposed to go. It's our system is just fundamentally designed to where the state governments can check the federal government and the federal government can check the state governments.

It's been happening for over two centuries now, really since the birth of this country.

So one question that I often get asked, and I was asked this just this last week by a reporter at NBC Connecticut, is, is this abnormal? Can states do this? And the short answer is yes. They can, states can bring these lawsuits and states have brought these kinds of lawsuits for as long as well history shows, so it's nothing abnormal there.

That's how, again, our system is designed to work and it's designed this way to check power. So that no branch of government and no governmental actor becomes too [00:26:00] powerful.

And if you think about how our country was founded, our country was founded as a rebellion against the crown against the king. And so the framers rebellion against the king did not want to create a government in which a monarch would rule. That is the system of governance that we have, one that is created in which we prevent monarchy, authoritarianism, totalitarianism.

The states can act in such a way to check the federal government in any abuses of power or when the federal government acts outside of its legal boundaries. The same is true the other way. The federal government can sue state governments when state governments exceed the boundaries in which the law outlines for them.

I hope you found this helpful as I ran through what the President of the United States can and cannot do and the [00:27:00] basic structure of our government, and I hope it adds a little more context to the past episodes and to future episodes that I'll bring during these chaotic times. 

Now before I sign off for today, I must say if you have any topics or any questions that you would like me to address on a future episode, please feel free to visit our website@discoursepod.org and then send us a message. You can also click on the link to text us inside the show notes of every episode.   

That's it for today's episode of Discourse. Thank you for tuning in and being part of the conversation. You can catch future episodes of discourse wherever you get your podcasts. If you found this discussion insightful, be sure to subscribe, leave a review and share it with others who value thoughtful analysis over the noise.

You [00:28:00] can also join the conversation by visiting discourse paw.org and following me on x and blue sky at Prof Unger for more insights and updates. Until next time, keep thinking critically, stay curious and engage with respect. We'll see you soon.

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