>> we are in the sanctuary of democracy. >> great responsibilities fall once again to the great democracies. >> american democracy is bigger than any one person. >> we are still at our core a democracy. >> this is also a massive victory for democracy and for freedom. >> second trump administering. also a great day to have jeffrey rosen, president and c.e.o. of national constitution center in philadelphia. and what a start with you taking the lead. what do you think has been the most interesting constitutional question that has come up in these first 50 days of the second trump administration? guest: the most interesting question is the scope of the

unitary executive. ever since the reagan administration, conservatives as well as some liberals have been arguing that the president should have complete control over the executive branch and that means he should be able to fire any official he wants for political reasons, not just for cause. ever since the 1930's, the u.s. supreme court has upheld the constitutionality of independent agencies like the federal trade commission, some of which say the president can't fire their officials except for good cause like corruption or malfeasance. the big constitutional question is are independent agencies constitutional? should the supreme court overturn the decision from the 1930's that allowed congress to set up independent agencies and should the president have total control over the executive branch? host: what is an independent agency? guest: an agency established by congress to check the president whose heads can't be fired by

the president. in upholding the supreme court said they're quasi-judicial. the federal trade commission might adjudicate claims against companies for violating eapt trust laws as well as enforcing those laws, or the federal reserve is independent. the head is appointed for a term that transcends the term of a particular president and the president can't tell the fed what to do. that's what makes them independent. host: unitary executive theory, what does that term mean? guest: unitary executive, it comes from alexander hamilton writing in the pacificus letters, the most famously pro-executive of all the founders. he wants an executive so energetic that jefferson accused him of trying to set up a quasi-monarchy. remember at the constitutional convention he says the president should serve for life, so that he can't be corrupted by the

legislature. he didn't win on that score, but he did insist the president should be very vigorous, and in a case called the myers case, chief justice william howard taft, a huge admirer of hamilton, says the president should be able to fire any executive branch official. myers involved a postmaster and the president wanted to fire him and the chief justice agreed saying article 2 of the constitution which makes -- gives the president the executive power invests the executive power in the president to use the language of the constitution, means that the president's control over executive officials should be complete. these questions about hiring and firing, removal they're called, are central to the unitary executive theory. in the myers case, justin louis brandeis, another great hero, except brandeis' hero is thomas jefferson, he dissent and says

the point of the constitution is liberty, not efficiency and it's designed to prevercht the president from being an autocrat. brandeis thought the congress should be able to protect executive officials from being fired and the u.s. supreme court embraced brandeis' view. host: wasn't it brandeis that said sunlight is the best disinfectant? guest: absolutely. a great hero of transparency. host: on the hiring side, we were talking about this week in doge and there was a caller earlier that said that elon musk was never confirmed by the senate, that he should be confirmed, that what he is doing is illegal of the when does the advise and concept role apply and should it apply to an agency within the white house like doge? guest: a crucial question that will likely be tested before the courts and the constitution gives the president power to appoint what are called inferior

officers. inferior officers do -- host: they probably don't like that term. guest: nor did lower court judges like that. the constitution is rough when it comes to language. inferior officers do have to be appointed by advise and consent. if elon musk is an inferior officer, he does have to go through senate confirmation. is he running doge? that their -- in their court rerptions, the administering has said elon musk is not running doge. in the state of the european union, president trump said he was. host: what is your read on the supreme court right now and especially that decision last week when it came to the white house trying to cancel contracts out of usaid and the supreme court saying with the 5-4 ruling last week that the usaid had to honor some $2 billion in contracts? guest: such a fascinating and

illuminating decision. chief justice john roberts and justin coney barrett joined three other justices in saying they allowed a lower court it stay the cancellation of $2 billion in funds. the claim is there would be irreparable harm because a lot of foreign countries have come to rely on this aid and it was arguably in violation of the administrative procedure act to cancel the funds without further study. what is so interesting about this case is it suggests there might be a split on the court in particular with justices roberts and barrett. they might be far more sympathetic to claims about a unitary executive branch than they are to the president's effort to refuse to spend congressionally allocated funds. this is called impoundment when the president doesn't want to spend money congress has

allocated. there is a law on the books passed in the wake of watergate that some say is an unconstitutional infringement on the unitary executive power but it's possible, though we have to see, that chief justice roberts and barrett might say no, we have to enforce the separation of powers. congress allocates money and the president is infringing on congressional prerogatives when he refuses to spend it. that would be a significant difference on the court broad power of the -- over the executive branch but also broad power of congress to require that he spend funds. host: what do you make of some of the concern that's out there right now that the president -- that donned trump could -- donald trump could defy the courts? the dean of the berkley school of law at the university of california, if trump defies the courts, then what? saying judges are constrained in

their ability to make presidents obey their court orders. guest: the most widely accepted definition of a constitutional crisis is if the president defied an unambiguous order of the u.s. supreme court. that's never happened before in american history. andrew jackson famously may have said john marshall has made his decision, now let him enforce it. he probably didn't because the court didn't order him to do anything but neither jackson nor any other president has directly defied an unambiguous order. if the president did that, that would be a crisis. if he doesn't, according to that definition it's not a crisis. it's true that the president can't be forced to obey the supreme court. he has -- the courts have neither purse nor shield as alexander hamilton said in the feld ral -- federalist papers. so it is significant that despite some very serious judge

bashing by administration officials of lower court decisions, the president has not said he will defy the u.s. supreme court. he suggested he would comply with the u.s. supreme court and in that sense we are not yet in a constitutional crisis. host: do you think we throw around the term constitutional crisis too easily or too much these days? guest: yes, i think we do because -- host: when should we use it? guest: i like the rigorous definition, a president defies an unam bigger use -- unambiguous order of the supreme court. short of that i don't think we are in a crisis. host: jeffrey rosen is with us. taking your phone calls in the last 35 minutes or so. phone lines split as usual, democrats -- 202-748-8000. republicans -- 202-748-8002. independents, 202-748-8003. folks are calling in and if they've never visited that beautiful building in philadelphia, what is the national constitution center? guest: it's so exciting.

as we prepare for 23026 -- 2026 in the 250th anniversary of the declaration, you have to come to the national constitution center. bring your kids and come see it. of course it's right on independence mall across from independent hall. the most inspiring view of independence hall in america. there's the statues of the framers. you can see how tall they were and imagine what it was like to be in the room where it happened. live thweatter for -- theater for kids. we are about to announce a new founding principles gallery with really exciting documents for 2026 that we will talk about soon. mazing exhibits about -- amazing exhibits about the first amendments. it's the most inspiring place imaginable. if you can't come to philly, you have to go to the website constitutioncenter.org. it's such an illuminating resource in these challenging

times. you can find the best scholars on the left and the right, liberals and conservatives exploring areas of agreement and disagreement about the constitution. you can find justin amy coney barrett with 1,000 words about what the habeas corpus clause means. it's this modeling of civil dialogue about the constitution and a great resource. host: i will say it's a great resource for somebody in this job. it's helpful. constitutioncenter.org. barbara is up first,barbara and. you are on with jeffrey rosen. go ahead. caller:hi, . i have a question about, it was in the news, nobody was talking about it, either last year or the year before, where president biden was not signing his

executive orders, supposedly. and the question is, who was signing those documents? mike johnson, the speaker of the house mike johnson, met with joe biden a year and a half ago, and he asked him a question about when he signed the order to stop the lng, you know, delivery, whatever, having lng available to people, and he said no, i did not do that. it was really for an investigation to see how that would work, whatever. joe biden did not know what he was signing, so constitutionally, talking about a crisis, what is going to happen to those documents, and who is signing them? host: barbara, i think we got your question. guest: thanks so much. i do not know the details whether or not president biden signed executive orders. but the question is important,

because it does remind us that the use of executive orders by presidents to achieve what they are unable to achieve by congress is something presidents of both parties have been doing, and they've been doing it ever since the new deal, when executive orders numbers jumped from about 300 and the theodore roosevelt and administration to 3000 or 4000 in the fdr administration. president biden famously attempted to cancel student debt, even after the supreme court said he could not. he did not defy an unambiguous ruling of the supreme court, he tried to do a different statutory provision, but it was not under his executive authority to try to, you know, try to get around the courts and congress.

that said, president trump is not trying something new. host: how much does the constitution revert to executive orders? is there a specific place where he or she cannot use an executive order for yucca guest: the word executive order does not appear in the constitution. the first executive order was issued by president washington, who issue just a handful of them, i think less than 10. there's an amazing copy of washington's constitution, president washington going through the constitution, writing president, powers, taking notes in the margin, president, and here are my powers. there are so few powers. he's got to execute the law. washington decided on his own that he could choose ambassadors, even though that was not in the constitution. george washington decided he had the power to issue executive orders, though it was not implicitly in writing. host: amazing to see the first

president do his homework and be able to read it. guest: it is so diligent and thoughtful and included in the text. you have such a sense of role of what he was and was not allowed to do. that is what he is the greatest american of all time. host: chester, virginia, democrat. your question for jeffrey rosen? caller: yes, the supreme georges our government officials, the president is a government official, the senators are government officials. what stops the president from taking over their responsibilities and duties? guest: great question. the constitution would stop him. article three of the constitution appoints judges of the supreme court for life, for good behavior, along with the judges on such inferior courts, as congress may choose to establish. so that tenure from judges come from the constitution.

congressional terms comes from the constitution as well. the constitution specifies how long house members and senators are appointed, and therefore it is really clear from the constitution that although the president may have a lot of control, complete control to hire and fire executive branch decision, he has no power, zero control, over the other branches. host: robert in ohio, republican, you are on with jeffrey rosen. caller: how are you doing? host: what is your question, robert? caller: my question is, you know, you said we've never been in a constitutional crisis, but just when biden was president, he refused to accept the supreme court's ruling over us not paying for everybody else's college. i did not get to go to college. i could not go to college. the reason was i could not pay

for it. i cannot afford it. but now i'm paying for everybody else's college. if we ain't never been in a constitutional crisis, what was that? guest: great question, and as i suggested a moment ago, president biden was not defying an explicit order of the supreme court. remember, the supreme court said he could not cancel the debt under one provision of federal law, and in fact, chief justice roberts in his the supreme court opinion made exactly the point you did, that some people safe, so they could try to go to college, and it is not fair to cancel the debt. when president biden tried to re-cancel the debt, he was trying to do it under a different provision of federal law, kind of a legal assistant, effort to parse the statute and say ok, since i cannot do it here, i'm going to do it here instead. that's why i said it was not a crisis, because he was not refusing to carry out an order. but you are absolutely right, he was trying to circumvent the spirit of the supreme court opinion. host: is that you need to joe

biden, that other president's has that, if i cannot do it this way, i will circumvent and do it another way? guest: happens all the time. remember president trump come in his first term, the muslim travel ban. the supreme court did not do it this way, so he tried it another way. host: jennifer, democrat, good morning. you are next. caller: good morning. i was just wondering, where is a constitutional that the president can pardon people who tried to murder federal police officers, the people who scaled the walls of the capital. those people, they attacked federal police officers. they tried to kill those people. guest: another really important question for yes, the constitution gives the president the pardon power, and the pardon power is deemed to be unlimited. that basically he can pardon people for any reason, although it does not -- as long as it does not corrupt another law, so he cannot sell a pardon.

that would constitute bribery statutes. freedom fighters, insurrectionists, and wants to pardon people who murdered someone else, he has total power to do that. now, of course, no president has ever tried to pardon himself. that would raise a novel constitutional question. if president trump or any president were to say he himself could not be prosecuted, that would go up to the u.s. supreme court, and we don't know what they would say. host: yesterday, canada's liberal party chose its next prime minister to replace justin trudeau. what does the constitution say about tariffs and the president? certainly an issue the next prime minister will be dealing with. guest: really interesting, the constitution gives congress the power to pass duties in posts, but ever since the waves of tariffs at the 21st century --

20th century, tariffs seem to be driven by presidents. it was the main defining position in the late 20th century, was republican. in the spirit of their hero, alexander hamilton, favoring moderate tariffs for incomes as well as protection, and the democrats being less sympathetic to the tariffs. host: you talk about congress delegating the power to the president. has it been a one-way street over the centuries? is there a place where the president delegated a power back to congress, saying, oh, this is your territory? or has always been the creeping executive theory? is that what it is called? guest: creeping executive theory is a really good phrase. host: i don't mean to coin a new phrase. guest: i think we will hear to get in the future. it is a one-way, and the phrase

imperial presidency come from marcus/finger -- marcus schlesinger. it really started, the election of 1912 turned out to be important, both theater roosevelt and woodrow wilson insists that the president is a steward of the people who directly channels popular will. this directly alarms william howard taft, my hero, who is a constitutional president, the last president who thinks his powers are constrained, a chief magistrate khomeini things william and roosevelt are demagogues, trying to secrete power in a nonconstitutional way. and resent and wilson, presidents -- ever since wilson, the biggest delegation happened during the new deal, when

congress created these executive agencies, some of our independent agencies are now being questioned, and passed laws allowing the executive branch to fill in the blanks. is the delegation constitutional? and there is a legal doctrine that says congress cannot give the president a blank check. it cannot give the president power without specifying the contours. that would strike down several of the regulations that congress has passed since the 1930's, and the supreme court has just recently overturned a case called chevron, which required judges to defer to administrative interpretations to federal statutes when the statutes are ambiguous, and in this case, the local judge case, the judges should make their own decisions about whether or not the text allows the regulation or not. that is one example of the supreme court's pushback on

congressional delegation of the executive branch, and to enforce congress' prerogative. host: i love the history here. 1912, taft was running as a republican, roosevelt as a bull moose party, then wilson as a democrat. roosevelt split the vote sort of and wilson comes in and wins the election. guest: absolutely. remember, he's yearning to be chief justice taney never wanted to be president. the wife of theodore roosevelt basically made him the vice president. he wanted to retire. he is so afraid of demagogue presidents and also attacking supreme court justices. taft was afraid that roosevelt was attacking supreme court justice is by name, justices ruling of railroad cases for workers, were attacked by theater roosevelt. roosevelt said congress should

be able to pass the congress's own amendment, overturned by majority vote. taft thought that was a great threat to the constitution. it's worth thinking about the is a tax on judges today, and just speaking historically, calls for the impeachment of judges because you disagree with their ruling are pretty unprecedented. ever since justice samuel chase was impeached during the jefferson and administration for his drunken partisan harangues on the bench, and he was indeed drunk and, partisan, who would attacked defendants convicted under the sedition act, passed by the adams administration give the jeffersonian republicans come in, say he is a big partisan, we got to impeach him. john marshall said that defeats the whole independence of the judiciary. and because of martial's efforts and ultimately the patriotism of

jeffersonian republicans, the chase impeachment failed. ever since chase was acquitted, it we have come to the understanding you cannot impeach justices because you disagree with their ruling. we do not do that in america. that underlines the judiciary. so to the degree that some members of the trump administration, particularly e! online musk -- elon musk, who has been explicit about this, calling to be a piece because he disagrees with the ruling, that is a great violation of the chase presidents and the independence of the judiciary. host: one more thing of congress seating overpowers to the executive, has there been an instance that you can think of where that has happened in congress was able to claw back the powers, or once it is going from is it gone? guest: really great question. i think back to the watergate

era, the impound and control act of 1978 was a response of nixon's efforts to impound, and jefferson, some congressionally authorized, it was not totally clear whether or not he could do it. congress had basically acquiesced. but after watergate, they said you cannot do that. they also pass to war powers resolution, another example. the president has been sending troops without a declaration of war. congress that come after a certain time, you have to come back. but corrupting the presidency by insisting the presidency was above the law, and many tried to . host: independent, good morning. good morning, maurice, what is

your question? caller: i've got to shut off the tv. just a minute, please. my question is, why are we so upset about somebody trying to control excessive spending? host: jeffrey rosen. guest: good question. some people have said, and others like it, of course, but the constitutional question is, how do you control excessive spending? if congress passes money and requires it to be spent, as was the case with usaid, is a question of upholding the law, and the president cannot arbitrarily refuse to spend money congress has allocated. people have come to rely on it. there are contracts, foreign governments expect it, and there are jobs at stake. that's why the lower court decision last week said the administrative procedure act, which requires notice and comment and reasonable

procedures before you can make a policy change for bids with the president is doing. it is just not a rational way of cutting spending. and that is a decision and that the supreme court, at least temporarily, has upheld. host: so it is not that you can't do it, you just have to do it the right way? guest: i think that is the case. host: boynton beach, florida, alicia, independent. good morning. are you with us? then we go to anne-marie out of tampa, republican. you are on with jeffrey rosen. caller: hi. i was calling regarding one of the last callers talking about the january insurrection, how the people were pardoned. from what i've read, of course they don't show this on all the networks, but it was a set up by

the committee that looked into it, and it looks like they did a whole big set up, and you don't see that in all the news. host: what do you think was a set up, anne-marie? caller: the people that were on the committee, there were so many things about it. host: you are talking about thesaly january 6 committee? caller: yeah. yes. they did want, you know, i know the president asked to get back up, you know, to make sure nothing crazy happened, but he did tell his people, go peacefully, you know, and then all of these crazy things happened. i don't know, all these things happen, and they never went into who did that. host: that is anne-marie in tampa. what was your view during those hearings, the selected january 6 committee? did it bring up cost issues in your mind? guest: well, it certainly

brought up the question of whether there was historical precedence of this insurrection. the committee found, in findings that has not been challenged factually, that the president invited his supporters to come to washington, that he encouraged the march on the capital, that he did not stop violins for three hours, as the crowd was attempting to hang mike pence, that a tweet that the president sent in the middle of the insurrection expressing sympathy helps to threaten life, and only after three hours did he call off the attack, and i think those findings have not been challenged, factually. is there a precedent for this in american history? certainly ever since the whiskey rebellion at the time of the founding, there have been insurrections against federal powers. thomas jefferson famously

encouraged the whiskey rebellion could he always said that a little rebellion every couple years is good for liberty. he also encouraged violence against alexander hamilton, when a mob threw a rock at him during the early republic, and jefferson pardoned the sedition act people who were convicted come on the grounds that the law was unjust. so you can agree, you can debate whether or not that tolerance for insurrection by jefferson and others justifies president trump's part and, but in terms of the facts of what happened, i do think it is important, you know, to note the committee's report has not been factually challenged. host: another column in today's paper, in "the wall street journal," talking about a tweet from march 4 from president trump on, i should say x, a post on x, about who protest on

college campuses. when president trump tha all college funding will stop, he puzzled academics, because protests are protected speech. guest: unless it is intended to or likely to cause imminent violence, and, of course, the question of whether january 6 is that was a legal protest or insurrection is exactly the legal question that president trump himself saw. so on january 6, the argument was that although president trump may have encouraged the march, he did not intend to and succeed in inciting illegal violence, and in the case of protests before universities, there are few examples of

protesters who are intending to and succeeding in citing legal violence. that is why you can understand that philip hamburger was pointing out donald trump's double standard. it was a ku klux klan rally. in the 1960's, a guy gets up in a clan outfit and said unless the way people are attended to in this country, there will be revengeance. host: revengeance? guest: that is his word. the supreme court said it was not intended to or likely to cause violence. that is incredibly high standards. that makes the united states one of the free speech places of the

world. unless it is intended to or likely to ripen into violence. brandenburg was channeling and building on a brilliant concurrence written by justice brandeis who, as you can tell, is one of my heroes, who in the whitney case and the progressive area said that those who won our independence believed a commitment to develop their faculties, and should prevail over the arbitrators. it is incredibly inspiring passage. go to the constitution center website and read the case, then read brandenburg to get a sense of how strong free speech protections are in america. that is why generally even speech that is hateful and upsetting and even if people gather and rally around in

response to it, and less it is intended to and likely to cause any violence, it is protected in america. host: seven or eight minutes left with jeffrey rosen this morning today reminder, the house is in at noon eastern, for legislative business. the senate is in at 3:00 p.m. today. you can watch gavel-to-gavel coverage, of course, like always, on c-span and c-span2, respectively, for the house and senate. alicia is back. we will try for a second time. go ahead. caller: hi, good morning. host: good morning. what is your question or comment? caller: yeah. my question is, how we cut the mustard here, when we run the numbers, no matter in any direction, we understand that 70% of the voting, eligible voting population in the united states, 70% did not vote for donald trump. so, moving forward, is there a

historical method that previous populations have dealt with this in history? guest: great question. it is really striking how the founders did not expect popular majorities to necessarily elect the president. they thought that many presidents would not get a majority in the electoral college, and that the elections would be thrown into the house of representatives. and that is the method they thought would solve elections. that happened in 1824, when john quincy adams was running against andrew for nobody gets a majority in the electoral college, the house chooses atoms, even though he had gotten less votes than jackson, in exchange for the support of henry clay, who said it is a corrupt bargain, and he does not accept the election results in wins against adams four years

later. so the fact that the president is elected without a popular majority is not historically unprecedented, but it certainly does violate increasing expectations of the 21st century that the majority rule rules, and to the degree that a president is elected with a minority of the popular vote but a majority of the electoral college, as we saw in 2016 and in 2000, people feel that violates the democratic principle, and the fact that we may have a whole series of president elected without majority vote, it may become a structural reality. host: you mentioned the founders. there's a great book that came out last year. it is titled "the pursuit of happiness," how classical writers on virtue defined america. we featured it on book tv. what is it about? guest: it is about the classical moral philosophy that inspired

thomas jefferson and the other founders lenape of that famous phrase, "the pursuit of happiness," in the constitution. during color, i've read thomas jefferson's reading list. this is marcus aurelius, seneca, cicero's expectations, which so many of them read. what i discovered was for the founders, happiness meant not feeling good but being good, not the pursuit of a media pleasure but the pursuit of long-term virtue. that discovery changed my life and to change the way i think about how to be a good person, how to be a good citizen. most importantly, it changed my reading habits. i spent a year reading these great book steering covid, when i wake up now, i have to read before i browse or serve. that is a great new habit, and c-span viewers should check it out. host: what are you reading right now? guest: i am reading the biographies of the forgotten

founders, because my next, the next book is about how, it is called "the pursuit of liberty," how hamilton and jefferson ignited the lasting battle of power in america, and that will be out in october. the one after that, which i just started, is going to be about how the character of the founders shaped america, and founders like governor morris, roger sherman, the amazing biography of george witt, i'm so excited and cannot wait to share their stories. here's the amazing story of george witt, thomas jefferson's favorite law professor, who teaches in everything he knows about law, and also his useful abolitionism. witt's grandfather is a key abolitionist, devoted to end slavery, freeze his own slaves, writes an opinion for the

supreme court, striking down slavery. then he goes home and has a kid with his housekeeper, a formerly enslaved woman who he freeze, he has a sign michael with her, and he leaves half of his estate to the housekeeper and michael, and have to his nephew, who has come to live with him. the will notices -- michael notices that the will give half to the housekeeper and the son. any poisons all of them -- and he poisons all of them. the housekeeper wants to testify against the nephew, by virginia law at the time for bids black people from testifying against white people. so this horrific murderous nephew is acquitted, and the horrific -- the heroic wythe goes unmitigated. host: jeffrey rosen, always one

book and sometimes two books i had the national constitution >> tuesday on c-span the house meets at 10:00 a.m. speeches and will consider the republican six month spending legislation backed by trump to fund the federal government passed midnights deadline to avert a shutdown. on c-span two, punch bowl news hosts of forums with lawmakers and white house officials. at 10:00 the senate will vote on the nomination of steve bradberry and abigail slater. on c-span three at 10:00 a.m., a house armed services subcommittee hearing will focus on the current challenges and prospects of u.s. shipbuilding. and at 2:30, a sub committee meets to discuss legislation that allows victims to sue companies that post child sexual

abuse material. these all stream on the c-span now and on c-span.org. c-span. democracy unfiltered. we are funded by these television companies and more, including charter communications. >> chatter is proud to be recognized as one of the best internet providers, and we are just getting started, building 100,000 miles of new infrastructure to reach those who need it most. >> charter communications supports c-span as a public service, along with these other television providers, giving you a front row seat to democracy. >> now to the national league of cities news conference during the congressional city conference hosted here in washington, members addressed housing, disaster assistance, infrastructure projects andow