SCOTT DETROW, HOST:

As soon as he returned to office, President Trump began to remake the federal government swiftly, aggressively in his image.

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UNIDENTIFIED REPORTER #1: The president has been talking about his Day 1 actions, and it’s believed 200 orders will be executed.

UNIDENTIFIED PERSON #1: A requirement that federal workers return to full-time in-person work immediately.

UNIDENTIFIED REPORTER #2: The administration plans to issue a new memo in the coming days directing agencies to prepare for large-scale firings.

DETROW: Trump has made it clear that one of the key goals of his second term is to shrink the size and scope of the federal workforce and eliminate programs he doesn’t like.

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PRESIDENT DONALD TRUMP: We’re removing all of the unnecessary, incompetent and corrupt bureaucrats from the federal workforce.

DETROW: Tens of thousands of federal government employees have already been fired.

UNIDENTIFIED PERSON #2: Thursday is when things started coming to a halt. We started pausing meetings. There was a palpable tension in the air. And we started receiving emails from our new acting administrator.

DETROW: That is a federal employee who was fired in the early days of Trump’s second term. She’s with the United States Department of Agriculture, or USDA, and spoke to us on the condition of anonymity because she fears retribution in the workplace. For the past couple of months, she was doing a fellowship program that had her working at the United States Agency for International Development, or USAID.

UNIDENTIFIED PERSON #2: I logged on, and I got an email, which was just a copy-and-paste template that they sent to probationary employees, telling me that because of my, quote, “poor performance,” I was determined unfit for the civil service, and that’s why I was being terminated. My supervisors did not know. I had to be the one to notify them that I was no longer under their employment.

DETROW: And to her, that felt strange. She says she had received glowing performance reviews. She felt her work was important. She was doing things like helping new mothers and infants with nutrition and food security in developing countries.

UNIDENTIFIED PERSON #2: The priorities that this office works on is the first 1,000 days of life, so when a woman finds out she’s pregnant all the way up until a child is 2 years old.

DETROW: Soon, nearly the entire staff had either been put on paid administrative leave or fired. And the majority of the department’s programs ended.

UNIDENTIFIED PERSON #2: It’s devastating. We worked on child wasting, for example, is when a child has a low weight for their height. There are kids who will no longer receive treatment, who will slide back into wasting. There are families who really, really relied on this care.

DETROW: The choice to unilaterally dissolve a federal agency, one established by Congress, was a shock to Washington. But the concept at the heart of it – that the president has broad authority to act unilaterally without consequence, that the executive branch should reflect his priorities – stems from one idea, the unitary executive theory.

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DETROW: It is an idea at the heart of a recent landmark Supreme Court ruling, Trump v. the United States, the immunity decision. And it is an idea that we are going to explore on this episode of “Supreme Consequences,” a series about the real-world impacts of the Supreme Court’s rulings. One consequence for many federal workers – career stability.

UNIDENTIFIED PERSON #2: Do I need to just make money where I can and hope for the best? But it would be sad to give up my version of what my career path was, but at this point, it seems like we just need the money. I mean, who cares about a dream at this point?

DETROW: And her family’s well-being.

UNIDENTIFIED PERSON #2: I have an 18-month-old little boy. He’s enrolled in a great day care, and I don’t think we’re going to be able to afford to keep him there anymore. And my son has to get a procedure, and I’m already really stressed about the copay. We have to pay for that. I have no idea how we’re going to pay that. I’m already looking at the bills, and it makes me sweat. I don’t know.

DETROW: In the past month, two federal judges have ordered federal agencies to reinstate thousands of federal employees, including those at USDA, decisions the Trump administration strongly disagrees with and is appealing, and that has led to a stressful state of limbo. For the time being, they have jobs, but only until the appeals process plays out. It’s not clear to the employee we talk to or others whether this is permanent or just another few weeks. The legal back-and-forth center on questions about the limits of President Trump’s power. It is a power that was expanded by the Supreme Court last summer, through its ruling in Trump v. the United States, the immunity case.

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UNIDENTIFIED REPORTER #3: In a 6 to 3 opinion, the Supreme Court ruled that former presidents have absolute immunity from prosecution for official acts related to their court constitutional powers.

UNIDENTIFIED REPORTER #4: Orders a Navy Seal Team 6 to assassinate a political rival – immune.

TIM NAFTALI: This decision was written as if America has never had a corrupt president.

UNIDENTIFIED REPORTER #4: Organizes a military coup to hold on to power – immune.

NORM EISEN: This is one of the worst opinions in American history from the Supreme Court.

UNIDENTIFIED REPORTER #4: Immune, immune, immune, immune.

DETROW: The decision came down to a key question that has big implications on topics far beyond the criminal case at the heart of it – when a president does something that is potentially illegal while executing his duties, who or what can regulate his actions? Who can hold him accountable? These questions have come up a lot in the first weeks of Trump’s second term in different contexts, from dismantling agencies established by Congress to deporting migrants without due process. President Trump is asserting his power, and one idea that seems to be motivating his actions is the unitary executive theory. But where does this idea come from, and how does it relate to the Supreme Court?

AMANDA HOLLIS-BRUSKY: Many of the judges currently on the Roberts court who embrace the unitary executive theory, which is a muscular understanding of a president’s Article II powers – part of it is how we understand the president’s powers when it comes to war, emergency, foreign policy.

DETROW: That’s Amanda Hollis-Brusky. She’s a politics professor at Pomona College where she teaches classes about the Supreme Court. The theory started to gain traction and developed in the Reagan administration, among a group of young attorneys in the Justice Department who thought the presidency had recently been weakened.

HOLLIS-BRUSKY: The Reagan Justice Department had a deep sense that since Watergate and the post-Watergate reforms that sought to really rein in and control an imperial president – right? – to prevent another Watergate, to prevent another president from abusing the trappings of their office, to prevent corruption in government, that the Congress that was elected after Nixon resigned went too far.

CHARLES COOPER: The Reagan administration were quite animated about efforts to restore presidential authority to its true scope under Article II.

DETROW: Charles Cooper was deputy assistant attorney general in the Reagan administration.

COOPER: And that’s where the concept of the unitary executive kind of was born. There is only one president, one chief executive. And that chief executive, under the clear command of Article II, possesses all of the executive power of the federal government.

DETROW: So how did this idea that was discussed among young government lawyers make its way to the federal courts and eventually to the Supreme Court? Hollis-Brusky points to one major factor – the Federalist Society. She wrote the book “Ideas With Consequences: The Federalist Society And The Conservative Counterrevolution.” It documents the group’s founding by a group of conservative law students in the 1980s.

HOLLIS-BRUSKY: As the founders of the Federalist Society were going through their coursework, they were looking for the ideas that had excited them that were becoming ascendant on a national level – so ideas like limited government, free market capitalism, anti-regulation. And those were largely absent in their conversations in law school. And so they got together and said, how do we bring these perspectives into our law schools?

DETROW: Hollis-Brusky spoke with many of the Federalist Society’s founders and explains how they were thinking about growing their influence.

HOLLIS-BRUSKY: It’s the network. It was important that the founders recognized, within the law specifically, if you want to build and strengthen conservatism in the law, you needed the law schools, yes, but you also then needed folks who were active in public interest law. You need folks who were active in positions of power within the executive branch. And finally, of course, as we know, you need the judges.

DETROW: Judges, a key part of shaping American law. Cooper, who worked in Reagan’s Justice Department, has been active in the Federalist Society for years.

COOPER: The Reagan administration was quite devoted to trying to identify potential nominees to the bench who adhered to the kind of conservative legal philosophy that the Federalist Society was founded to develop, to debate, to advance. And it has become extremely successful.

DETROW: And that success has continued over many Republican administrations, creating what some call a pipeline to the federal bench, especially to the Supreme Court.

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COOPER: Chief Justice Roberts, he was my colleague. He was just down the hall from me.

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GEORGE W BUSH: And tonight I’m honored to announce that I am nominating him to serve as associate justice of the Supreme Court.

COOPER: Justice Alito was in the Reagan administration.

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GEORGE W BUSH: I’m pleased to announce my nomination of Judge Samuel A. Alito Jr.

COOPER: Justice Thomas, a couple of important posts in the Reagan administration.

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GEORGE H W BUSH: Judge Clarence Thomas to serve as associate justice of the United States Supreme Court.

COOPER: Other justices in different later administrations, but still executive branch officials – Kavanaugh.

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TRUMP: Judge Brett Kavanaugh.

COOPER: Gorsuch.

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TRUMP: Judge Neil Gorsuch.

COOPER: There’s no question that it has become a very effective organization for the promoting of the tenets of a conservative legal philosophy that conservative administrations understandably are interested in seeing ascend into prominence on the federal bench.

DETROW: But Cooper says the Trump presidency took it to another level.

COOPER: I believe it was unprecedented that a president actually published a list of names that the president would likely consider for appointments to Supreme Court.

DETROW: With President Trump in the White House and Republicans in control of the Senate, the conditions in 2017 were ripe for the unitary executive theory to go mainstream.

MIKE DAVIS: This is so much bigger than Donald Trump. This is so much bigger than one president. This is about the presidency.

DETROW: That’s Mike Davis, a conservative legal activist who once worked as chief counsel for nominations for Senator Chuck Grassley, who chaired the powerful Senate Judiciary Committee. Davis oversaw the floor votes for hundreds of judicial nominees, nominees that reshaped the federal bench. That includes now Supreme Court Justice Neil Gorsuch.

DAVIS: Justice Neil Gorsuch is a very close friend and a mentor.

DETROW: Gorsuch, who was Trump’s first Supreme Court pick, wasn’t even on that initial list from the campaign of potential nominations, which is something Davis quickly worked to fix.

DAVIS: And I got him on the second list. And I did it by – basically, beat down every door I could to make sure he was put on that list and then make sure he was picked and make sure he was confirmed and set up.

DETROW: Davis now runs the Article III Project, a conservative legal group that is trying to install what he calls constitutionalist judges on the federal bench. One issue he cares a lot about – a powerful chief executive.

DAVIS: We can’t have a president of the United States worried that what he does as the president of the United States in his official capacity is going to end up having him indicted and thrown in prison by his successor. That would destroy the presidency and, therefore, destroy our country.

DETROW: That argument was a key part of the court’s ruling. But what about the other branches of government? Where did they fit in when a president could do whatever he or she wants to as a leader and not face consequences?

KIM WEHLE: That was an astonishing decision. I think it is a turning point not only in Supreme Court law on the separation of powers, but also really in the trajectory of the country and democracy. I don’t think it can be overstated how transformative it was because the court essentially put the president above the Constitution, above the rule of law, above Congress, above the judiciary, above juries, above everything.

DETROW: That’s Kim Wehle. She is a constitutional law professor. And earlier in her career, she worked for independent counsel Kenneth Starr as he investigated Bill Clinton’s presidency. I asked Wehle if she sees a connection between the immunity decision and President Trump’s actions – actions like closing USAID and firing thousands of federal employees.

WEHLE: Yes, that’s a direct line to the unitary executive theory. I mean, bear in mind, Article II says the president can appoint executive branch officials, hire them. It does not say he can remove them for any reason. The Constitution’s silent on that.

DETROW: Right now, there are a number of lawsuits challenging the legality of Trump’s ability to fire federal employees, cases that may ultimately be decided by the Supreme Court. Already, five justices ruled that the Trump administration must pay $2 billion to USAID contractors for work they’ve already completed.

WEHLE: So that was not a good decision for the expansion of executive power for Donald Trump, but there were four dissenting justices, and Justice Alito wrote a very fiery dissent. So I think these are going to be close, nailbiter decisions. Whether the Supreme Court will decide that Congress’ design of federal agencies is beside the point – that not only can the president just demolish them as he sees fit but can anoint a private party to do that with no ostensible legal or constitutional authority. And I say that because the courts can’t really even figure out what Elon Musk’s role is.

DETROW: It’s an open question on how the court will approach these matters. But in the meantime, Wehle says the immunity decision has emboldened Trump to push the envelope on what the executive branch can do. And in doing so, it’s taken power from other branches of government.

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WEHLE: Since Donald Trump took office the second time on January 20, this is just a massive dismantling of a delicately created system of checks and balances, where Congress does its job, passes laws that should be enforced and respected by the executive branch. Congress creates agencies, gives them their power, and that power is restrained by the law. And if you want more power in the president, then you have to go back to Congress. That’s what’s breaking down, and it’s not entirely the Supreme Court’s fault. It’s also the fault of the United States Congress, which is not insisting on its own constitutional prerogative.

DETROW: Welcome to “Supreme Consequences,” a series about how the Supreme Court’s decisions affect people’s lives.

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