Article Two's Reinterpretation: Unchecked Presidential Power and Eroding Checks

99% Invisible · December 26, 2025 · Listen to Original Episode →

Original Title:

TL;DR

The vesting clause in Article Two suggests ambiguity regarding the scope of presidential powers, implying that enumerated powers may not be exhaustive, which has historically led to presidents claiming broader authority than explicitly listed.
The Electoral College, established by Article Two, creates a system where a presidential candidate can win the popular vote but lose the election, as seen in 2000 and 2016, fundamentally altering election outcomes.
The Supreme Court's interpretation of presidential immunity in Trump v. United States grants presidents broad protection from prosecution for "core constitutional functions," potentially shielding actions like directing investigations, even if in bad faith.
Article Two's appointments clause allows Congress to vest the appointment of "inferior officers" in departments or courts, not solely the President, creating a mechanism for distributing executive branch hiring authority beyond direct presidential control.
The Supreme Court's recent rulings, such as Seila Law, increasingly favor presidential control over executive agencies, potentially undermining Congress's ability to establish independent agencies with protections against arbitrary removal by the President.
The "take care" clause in Article Two, a presidential duty, is the constitutional basis for executive orders, which can be legally derived from congressional delegation or the President's inherent Article Two powers, though many are challenged in court.
The broad pardon power in Article Two, with exceptions only for impeachment, has been used by presidents to grant clemency for federal offenses, with recent applications, such as mass pardons for January 6th defendants, signaling significant political messaging.

Deep Dive

Article Two of the Constitution, which establishes the executive branch, is currently being re-evaluated through the lens of former President Trump and the Roberts Court's interpretations of presidential power. This re-evaluation has profound implications for the balance of power between the presidency and other branches of government, the operational independence of federal agencies, and the very definition of accountability within the executive branch. The implications extend beyond mere legal interpretation, shaping how public health crises are managed, how prosecutorial powers are wielded, and the potential for unchecked executive action.

The vesting clause of Article Two, stating that "the executive Power shall be vested in a President of the United States," has been interpreted to grant broad, potentially unbounded, presidential authority, extending beyond explicitly enumerated powers. This expansive view is amplified by the Supreme Court's decisions, particularly concerning presidential immunity. The Court's assertion that a president cannot be prosecuted for "official conduct" that involves "core constitutional functions"--such as directing investigations or commanding the armed forces--creates a significant shield against accountability. This immunity, especially when applied to actions that could be construed as murder or attempts to subvert democratic processes, fundamentally alters the checks and balances intended to constrain presidential power. The implications are stark: presidents may act with impunity when performing duties deemed "core," irrespective of potential illegality or malfeasance, leaving Congress and the judiciary with limited recourse.

Furthermore, the Supreme Court's recent rulings have significantly eroded the independence of administrative agencies. Decisions that allow presidents to fire agency heads for any reason, even when Congress has legislated protections for those positions, suggest a trend towards consolidating all executive branch power under the direct control of the president. This undermines the rationale behind agencies designed to be apolitical and insulated from political whims, such as those in public health or financial regulation. The consequence is a system where agency actions can be dictated by the president's agenda, leading to policy whiplash with each new administration and potentially compromising the integrity of data and regulatory enforcement. For instance, the CDC, as an agency tasked with providing objective, science-based information, is vulnerable to political interference, which can distort public health guidance and erode public trust.

The expansion of presidential power under this interpretation also impacts the practical administration of government. Dr. Tom Frieden's experience highlights the stark difference in power between a city health commissioner, with flexible resources and direct authority, and a CDC director, whose power is constrained by numerous budget lines and congressional oversight. The erosion of agency independence and the potential for politicized decision-making, as seen with the ACIP committee, suggest that expertise may be sidelined in favor of political loyalty. This shift has downstream effects on the ability of agencies to effectively address complex issues, from public health crises to national security, potentially leading to less effective governance and increased societal risk.

Ultimately, the current trajectory suggests a significant redefinition of the presidency, moving towards an executive with nearly unchecked power in executing its core functions. The implications are a weakening of congressional oversight, a judiciary increasingly deferential to presidential claims of authority, and a potential for executive actions that operate outside traditional legal and ethical boundaries. The system of checks and balances, designed to prevent the concentration of power, is being fundamentally tested, with the potential for presidents to act with impunity in areas previously considered subject to scrutiny and accountability.

Action Items

Audit executive branch appointments: Analyze 5-10 recent appointments for adherence to the appointments clause and identify potential conflicts or undue presidential influence.
Draft standardized runbook for agency policy communication: Define 3-5 key sections to ensure clarity and objectivity in communicating scientific findings to policymakers.
Implement a system for tracking federal agency regulatory changes: Monitor 5-10 key agencies for shifts in policy interpretation or enforcement to identify potential systemic impacts.
Evaluate historical data on public health interventions: Analyze 3-5 past public health initiatives to identify common factors in their acceptance and effectiveness across different administrations.

Key Quotes

"The executive power shall be vested in a President of the United States of America. Now we saw a vesting clause in Article One as well, but Article One and Article Two have a notable difference. Article One says all legislative powers herein granted shall be vested in a Congress. Article Two doesn't refer to just powers herein granted."

This quote highlights a crucial distinction in how executive and legislative powers are described in the Constitution. The author explains that the omission of "herein granted" in Article Two, unlike in Article One, suggests an ambiguity regarding the scope of presidential powers. This ambiguity has led to presidents claiming more power than explicitly listed, creating ongoing debate about the extent of executive authority.

"Article Two says that the President shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment. So what this means is that the Constitution gives the President broad authority to grant pardons and the only real limits here are that they can only be used for federal criminal offenses so you can't use them for state offenses or civil claims of any kind and it cannot be used in cases of impeachment."

The author points out the broad scope of the presidential pardon power as outlined in Article Two. This interpretation emphasizes that the President can forgive federal crimes, with the sole exceptions being impeachment cases. The author notes that this power has been used controversially by past presidents, with Donald Trump significantly expanding its application.

"The conservative argument and Trump's argument is that everybody every single person within the executive branch should be within the control of the President, otherwise they're totally unaccountable. Now I mean that's kind of silly right because they're accountable in lots of different ways but that's the conservative argument and it's one that the Supreme Court might adopt in this case that I mentioned and it's pretty clear that the Supreme Court is very interested in this question because this is not the only case that they are considering this term."

This quote describes a core argument for presidential control over the executive branch, as presented by the author. The author explains that the conservative perspective, including Donald Trump's, posits that all executive branch personnel should be under presidential authority to ensure accountability. The author notes that the Supreme Court is actively considering this issue in multiple cases, suggesting its significant current relevance.

"The President shall take care that the laws be faithfully executed. Interestingly enough, this is not in the part of the powers of the President, it's one of their duties. It's both an emphasis that the executive branch enforces the law, that's the will of Congress, and it's a type of constraint too, that the President isn't allowed to legislate in any form."

The author highlights the "Take Care Clause" from Article Two, emphasizing its dual nature as both a presidential duty and a constraint. The author explains that this clause mandates the faithful execution of laws passed by Congress, thereby reinforcing the executive branch's role in enforcement. Crucially, the author points out that this duty also serves as a limitation, preventing the President from legislating.

"The CDC director is way way way less powerful than the New York City Health Commissioner. Oh no. So as New York City Health Commissioner, I had substantial flexible resources that I could devote to emerging health threats or potential new programs and the way that worked was if money weren't spent in one area, we could spend it in another area and inevitably money gets underspent and so you can spend it. That's not how the federal government has traditionally worked."

Dr. Tom Frieden, in this quote, expresses a surprising contrast in power between his roles as CDC Director and New York City Health Commissioner. The author explains that as NYC Health Commissioner, Frieden had significantly more flexible financial resources and autonomy to address health threats. This contrasts sharply with the federal system, where unspent funds are typically restricted by Congress, limiting the CDC Director's ability to reallocate resources.

Resources

External Resources

Books

"The Formula for Better Health: How to Save Millions of Lives, Including Your Own" by Dr. Tom Frieden - Mentioned as the author's recent book discussing public health strategies.

Articles & Papers

"Epidemics That Didn't Happen" - Mentioned as a periodic report produced by Resolve to Save Lives highlighting successful epidemic prevention.

People

Dr. Tom Frieden - Former CDC director, author, and executive director of Resolve to Save Lives.
Roman Mars - Host of 99% Invisible.
Elizabeth Joe - Co-host of 99% Invisible.
President Obama - Mentioned as the president under whom Dr. Tom Frieden served as CDC director.
Mayor Bloomberg - Mentioned as the mayor under whom Dr. Tom Frieden served as New York City Public Health Commissioner.
Hillary Clinton - Mentioned as an example of a candidate who won the popular vote but lost the electoral college.
Al Gore - Mentioned as an example of a candidate who won the popular vote but lost the electoral college.
Special Counsel Jack Smith - Mentioned in relation to the criminal indictment of Trump in 2023.
President Clinton - Mentioned for pardoning his brother.
Juan Orlando Hernandez - Former Honduran president pardoned by Trump.
Roger Stone - Long-time Trump advisor, reportedly lobbied for Hernandez's pardon.
Tina Peters - Former Colorado county clerk convicted of election interference, pardoned by Trump.
Rohi Chopra - Appointed by Biden, fired by Trump as CFPB director.
Lisa Cook - Federal Reserve member whose potential firing by Trump is being considered.
Joseph Mountain - Founder of the CDC.
Ben Franklin - Mentioned for his writings on smallpox vaccination in his day.
RFK Jr. - Mentioned for spreading falsehoods about vaccines.
James Q. Wilson - Analyst and thinker about government, discussed in relation to the definition of a professional.

Organizations & Institutions

99% Invisible - Podcast producing the "Constitution Breakdown" series.
State Street Investment Management - Mentioned in relation to SPY ETF.
Alps Distributors Inc. - Distributor for SPY ETF.
Center for Disease Control and Prevention (CDC) - Federal agency discussed extensively regarding its powers, history, and challenges.
Department of Health and Human Services (HHS) - Department within which the CDC is housed.
Federal Public Health Service Act of 1944 - Legislation granting powers to the Surgeon General.
Resolve to Save Lives - Global health nonprofit led by Dr. Tom Frieden.
New York City Department of Health - Agency where Dr. Tom Frieden served as commissioner.
Consumer Financial Protection Bureau (CFPB) - Agency whose director's firing by the president was discussed.
Federal Trade Commission (FTC) - Agency whose commissioners' job protections are being considered by the Supreme Court.
National Center for Health Statistics (NCHS) - Part of the CDC that produces health data.
Bureau of Labor Statistics (BLS) - Produces employment data.
Advisory Committee on Immunization Practices (ACIP) - Committee that advises the CDC on immunization.
Gavi (The Vaccine Alliance) - Global vaccine alliance mentioned in relation to US withdrawal.
New England Journal of Medicine - Medical journal mentioned as a source of articles.

Websites & Online Resources

statestreet.com/iam - Website for SPY ETF prospectus.
givewell.org - Website for donations to foreign aid organizations.
article.com/99 - Website for furniture purchases with a discount.
simplysafe.com/invisible - Website for Simply Safe security systems.
brainhealthmatters.com - Website for information on brain health.
chumbacasino.com - Social casino mentioned during a race delay.

Other Resources

Article Two of the Constitution - Primary subject of the podcast episode, detailing the executive branch.
Vesting Clause - Clause in Article Two regarding the vesting of executive power.
Electoral College - System for electing the President of the United States.
Fake Electors Plot - Scheme discussed in relation to the 2020 presidential election.
25th Amendment - Amendment to the Constitution regarding presidential succession.
Presidential Succession Act - Legislation outlining the line of presidential succession.
Domestic Emoluments Clause - Clause in Article Two prohibiting the president from receiving emoluments from the US or states.
Foreign Emoluments Clause - Clause in Article One prohibiting certain emoluments from foreign states.
Pardon Power - Power of the president to grant reprieves and pardons.
Appointments Clause - Clause in Article Two concerning the appointment of officers.
Take Care Clause - Clause in Article Two stating the president shall take care that the laws be faithfully executed.
Executive Orders - Directives issued by the president.
Muslim Travel Ban (Proclamation 9645) - Executive order issued by Trump.
Immigration and Nationality Act - Legislation passed by Congress that provided authority for the Muslim Travel Ban.
Federalist Papers - Writings by Hamilton discussing the executive branch.
Trump v. United States - Supreme Court decision on presidential immunity.
Seal Team Six Hypothetical - Hypothetical scenario discussed in relation to presidential immunity.
Treason, Bribery, or Other High Crimes and Misdemeanors - Grounds for impeachment.
Impeachment - Process of removing a president from office.
ACIP (Advisory Committee on Immunization Practices) - Committee that advises the CDC on immunization.
Brandolini's Law - Principle stating it takes infinitely longer to debunk nonsense than to spread it.
SIDS (Sudden Infant Death Syndrome) - Health issue discussed in relation to public health recommendations.
Eviction Moratorium - Pause on evictions implemented during the COVID-19 pandemic.
Communicable Diseases - Diseases that can spread from person to person.
Ebola Epidemic - Public health crisis mentioned in relation to tracking travelers.
National Statistical Products - Publications or series considered important for political independence.
Omb (Office of Management and Budget) - Agency that issues directives regarding statistical products.
Anti-Deficiency Act - Law prohibiting federal employees from spending or obligating funds in excess of appropriations.
New York State Health Code - Health regulations specific to New York City.
New York City Board of Health - Governing body for health regulations in New York City.
Seatbelt Laws - Legislation requiring the use of seatbelts.
Driving Under the Influence (DUI) - Laws prohibiting driving while intoxicated.
Secondhand Smoke - Health hazard from tobacco smoke.
Smallpox Vaccine - Vaccine discussed in relation to historical misinformation.
Meningitis Vaccine - Vaccine mentioned in the context of vaccine success.
COVID-19 Pandemic - Major health crisis discussed throughout the episode.