99% Invisible — Constitution Breakdown #5: Dr. Tom Frieden

Original Air Date: December 26, 2025
Host: Roman Mars
Co-host: Elizabeth Jo
Guest: Dr. Tom Frieden (Former CDC Director)

Episode Overview

This episode dives deeply into Article 2 of the U.S. Constitution, which defines the structure and powers of the executive branch (the Presidency). Roman Mars and Elizabeth Jo walk listeners through the section-by-section design and real-world evolution of executive power, especially in the context of recent years under President Trump. The second half features Dr. Tom Frieden, former head of both the CDC and New York City’s Health Department, reflecting on the design and realities of major public health agencies, political interference, and the delicate balance between expertise, politics, and public good.

Key Discussion Points & Insights

Article 2: The Executive Branch—Design, Evolution, and Modern Reality

Section 1: Presidential Powers, the Vesting Clause, and the Electoral College

[01:54 – 05:06]

• Vesting Clause Ambiguity:
  • Article 2’s language ("executive Power shall be vested") creates ambiguity—are presidential powers limited to those listed, or are there inherent "extra" powers?
  • “Every president has said, no, we have more. We have more than was in Article 2.” (Elizabeth Jo, [02:45])
• Electoral College's Centrality:
  • The episode explains the U.S.’s indirect president selection: we vote for state electors, not directly for president.
  • This design enabled winning the popular vote but losing the presidency, as with Clinton (2016) and Gore (2000).
  • “Because of Article 2, a presidential candidate can win the popular vote, but lose the Electoral College and not become President.” (Elizabeth Jo, [03:25])
  • The “fake elector” plot during the 2020 election stemmed from this system.
  • Roman Mars: “If that was the only scandal a President had, that would be enough to disqualify them in my mind.” ([05:06])

Presidential Succession and Emoluments

[05:20 – 09:03]

• Succession Safeguards:
  • Before the 25th Amendment, succession beyond the vice president was ambiguous.
  • The current line (as of 2025): Vance, Mike Johnson, Chuck Grassley ("IS 92," jokes Elizabeth), Marco Rubio, Scott Besant, Pete Hegseth.
  • “So many things would have to happen for us to have President Pete Hegseth.” (Elizabeth Jo, [07:28])
• Emoluments Clauses:
  • Domestic: President can’t accept gifts from federal or state governments.
  • Foreign: No office-holder can accept foreign gifts without Congress’s consent.
  • Lawsuits alleging Trump violated these clauses were mooted after he left office in 2021, leaving constitutional questions unanswered.
  • “We never really got the answer about whether or not these were unconstitutional emoluments.” (Elizabeth Jo, [08:54])

Section 2: Presidential Powers—Commander-in-Chief, Pardon, Appointments, Removals

[09:05 – 27:27]

• Pardon Power:
  • President’s authority to pardon is vast—limited only to federal offenses, not impeachments, nor state offenses.
  • Trump’s second term saw unprecedented use:
    • Pardon of former Honduran President Hernandez (convicted of drug trafficking).
    • Mass pardons (1,600+ charged for Jan. 6, including Proud Boys and Oath Keepers).
    • Symbolic/invalid pardons issued for state convictions (e.g., Tina Peters).
  • “This mass pardon is a political statement by Trump... In effect, you could do it all again, it'll be fine.” (Elizabeth Jo, [13:14])
  • Roman Mars: “If I became president after Trump, not only would I nullify every executive order, I think I would tear down every building he touched.” ([37:35])
• Appointments & Agency Independence:
  • Principal officers (cabinet-level) require Senate approval; ‘inferior officers’ sometimes don’t.
  • Removal protections and Supreme Court’s trend: increasingly, all executive officials can be fired at-will by the President, despite Congress’s intent to foster agency independence (e.g., SEC, CFPB).
  • “Historically, Congress has passed laws to protect some officials... The Roberts Court has been chipping away.” (Elizabeth Jo, [20:24])
  • Ongoing cases (2025): Whether Trump can remove FTC, Federal Reserve members—could eliminate agency insulation.
  • “There had been this notion of building these agencies out to be apolitical... It seems like now the Supreme Court wants all these agencies to basically just be arms of the President.” (Roman Mars, [27:27])

Section 3: Duties and Executive Orders

[32:06 – 39:08]

• Take Care Clause:
  • President’s duty to “faithfully execute” laws, not legislate.
  • The status and legality of executive orders: Only permitted if authority is conferred by Congress or constitutional powers (e.g., desegregation of armed forces).
  • Executive orders are fragile—successor can revoke en masse.
  • “In his first two months in office, Trump revoked 91 of Biden’s executive orders... That was a first, actually.” (Elizabeth Jo, [37:35])
• Practical Limits and Fragility:
  • Most executive orders are symbolic or reversible. Only Congressional law change or constitutional lawsuit can truly overturn.

Supreme Court and Presidential Immunity

[40:51 – 45:46]

• Trump v. United States (2024):
  • President is immune to criminal prosecution for “official” or “core” acts related to constitutional functions—includes pardons, firing, using Justice Department, commander-in-chief actions.
  • “As long as Trump is exercising a core Article 2 constitutional power, he himself cannot be criminally prosecuted. Even if the evidence suggests that these boat strikes amount to murder...” (Elizabeth Jo, [43:10])
  • Only the president—associates can still be prosecuted.
  • Discussion of surreal legal hypotheticals (could a president order Seal Team Six to assassinate a rival?).

Section 4: Impeachment as a Remedy

[44:33 – 45:46]

• Limits of Impeachment:
  • Trump’s dual impeachments (Ukraine call, Jan. 6th) and immediate acquittals demonstrate practical limitations of impeachment as a check.
  • “Trump... has left a definitive mark about how we think about Article 2.” (Elizabeth Jo, [45:46])

Interview with Dr. Tom Frieden: Public Health, Design, and Leadership in a Political World

[49:03 – 85:06]

The Design and Role of the CDC

[49:42 – 54:29]

• CDC’s Mission:
  • 24/7 protection against all health threats, from infectious disease to man-made emergencies—“healthier, safer people.” (Dr. Frieden, [51:13])
• Authority Origins:
  • CDC’s powers are fragmented—some direct from Congress, some delegated via HHS Secretary or the Surgeon General.

Expertise vs. Political Pressure

[54:29 – 56:59]

• Role of Expertise:
  • CDC’s role is to inform policy, not set it; experts can tell you the likely outcomes of a policy ("If you do X, you get Y"), but communities and their leaders must ultimately decide.
  • “A professional is someone who has standards that are outside of the line of command... the CDC tries to provide clear, consistent, fact-based information...” (Dr. Frieden, [52:21])

Communicating Science in a Politicized Climate

[57:40 – 62:42]

• Dangers of Undermining Expertise:
  • Recent politically motivated replacement of vaccine advisory committee members raises public confusion about credentials versus depth of expertise.
  • “We have a challenging situation in this country where the word expert has become a dirty word.” (Dr. Frieden, [57:40])
  • Deep expertise, not just credentials, is essential.
• Brandolini’s Law:
  • Falsehoods are quick to spread and laborious to debunk. Example: Misleading vaccine data manipulation takes days to untangle.
• Uncertainty and Science:
  • Science is about what is known, what is unknown, and the world’s irreducible uncertainty; politics and the public crave certainty, creating friction.
  • “Science lives very comfortably in uncertainty and politics does not.” (Roman Mars, [61:28])

Prevention Paradoxes and the Unnoticed Good

[62:42 – 64:00]

• The “overreaction problem”: Success in prevention looks like overreaction because the crisis never materializes.
• “When public health succeeds, nothing happens; when we fail, it’s headline news.” (Dr. Frieden, [63:18])

Legal Constraints, Politics, and Agency Actions (e.g., CDC Eviction Moratorium)

[64:00 – 67:45]

• CDC used never-before-tested authority during COVID to institute the eviction moratorium and immigration limits; courts later struck these moves down, but the root cause was Congressional inaction.

Political Firing of Agency Heads

[67:45 – 71:47]

• On At-Will Removal:
  • CDC Director is now a Senate-confirmed position, but if a president doesn’t agree with the director, “you’re not going to be able to get your job done.”
  • “It doesn’t really make sense to keep someone in if they’re not part of the team. That’s different from a technical agency that may need to make non-political decisions on the economy or something else.” (Dr. Frieden, [68:09])
• National Statistical Products:
  • Certain health/statistical data releases (e.g., labor data, or CDC surveys) are kept legally insulated from political meddling.

Disintegration and Rebuilding Trust in Public Health

[71:53 – 74:56]

• CDC Under Attack:
  • Surge in resignations, dismissals, and political appointees running the CDC.
  • Professional societies and insurers now ignore CDC vaccine recommendations due to politicized, unqualified appointees.
  • “CDC is undergoing attacks, political and even physical, that are unprecedented… most of the leadership of the agency has left.” (Dr. Frieden, [71:53])
• Needed Reforms:
  • More speed, improved communication, stronger state/local ties.
  • Embedding CDC staff in local health departments improves practical guidance.

Power Comparisons: Federal vs. City Public Health Agencies

[74:56 – 79:29]

• Surprising Reality:
  • NYC Health Commissioner, not CDC Director, wields more actual authority and flexible funding (20x more flexible dollars at city level).
  • As CDC Director, Dr. Frieden had to beg divisions for support on new programs; lacked real control over budget or operations.
  • As NYC Health Commissioner:
    • Could detain TB patients, close businesses, rapidly respond to threats—city is “hybrid between a city and a state.”
  • “I had substantial flexible resources that I could devote to emerging health threats... not how the federal government has traditionally worked... I literally had 20 times more flexible dollars as NYC Health Commissioner.” (Dr. Frieden, [75:36])

The Public, Social Norms, and Public Health’s Thankless Victories

[79:29 – 85:06]

• “Public health is a thing that sometimes is wildly unpopular at first and then becomes normalized.” (Elizabeth Jo, [79:29])
• Victories like smoking bans and vaccine mandates are invisible once accomplished—difficulties in sustaining public buy-in.
• “When we made all restaurants and bars smoke-free, it was a huge fight... by the first or second year, people really appreciated it and the opposite happened...” (Dr. Frieden, [81:10])
• Vaccine misinformation is centuries old (dating to Ben Franklin’s son). Vaccines are victims of their own success: eradicated diseases are forgotten, weakening public vigilance.
• “Vaccines are victims of their own success.” (Dr. Frieden, [83:22])

Notable Quotes & Memorable Moments

• On Trump’s Impact:
  • “Trump... has left a definitive mark about how we think about Article 2.” (Elizabeth Jo, [45:46])
• On Agency Independence:
  • “It seems like now the Supreme Court wants all these agencies to basically just be arms of the President and follow the whims of the president, the current president.” (Roman Mars, [27:27])
• On Public Health Success:
  • “When we succeed, nothing happens, and when we fail, it’s headline news.” (Dr. Frieden, [63:18])
• On Expertise in Politics:
  • “We have a challenging situation in this country where the word expert has become a dirty word.” (Dr. Frieden, [57:40])
• On CDC’s Power (or lack thereof):
  • “I found it a shock when I got to CDC because the CDC director is way, way, way less powerful than the New York City Health Commissioner.” (Dr. Frieden, [75:23])
• On Public Health’s Unpopularity:
  • “Let us put you in a closet and put duct tape over your mouth until after the election.” (Dr. Frieden, quoting a political aide [79:55])
• On Social Progress:
  • “That was the social norm... There’s still too much driving under the influence... but those things are much less common and they’re no longer the social norm. And that’s the reflection of huge progress, progress that has saved millions of lives.” (Dr. Frieden, [82:45])

Key Timestamps for Important Segments

• [01:54] — Article 2 overview and the ambiguous "vesting clause."
• [03:25] — Electoral College, fake electors, and implications.
• [08:54] — Emoluments Clause and unresolved lawsuits.
• [11:01] — Trump’s extraordinary use of the pardon power.
• [18:11] — Appointments clause and agency independence explained.
• [20:24] — The Supreme Court’s role in at-will removal and agency insulation.
• [32:06] — Duties of the president and the Take Care Clause.
• [35:47] — Executive orders—legal basis and limitations.
• [40:51] — Trump, Article 2, and immunity from prosecution.
• [49:03] — Dr. Tom Frieden introduction and CDC mission.
• [52:21] — What makes agency expertise and policy credible?
• [57:40] — The value and crisis of expertise in politics.
• [62:42] — Public health’s "overreaction paradox."
• [67:45] — Should the president have firing authority over agency heads?
• [71:53] — CDC under attack and needed reforms.
• [75:23] — Local health authority vs. CDC director’s real power.
• [79:29] — Social norms and the thankless difficulty of public health progress.
• [83:22] — Vaccines and the long fight against misinformation.

Thematic Summary

The design and power of America’s executive branch are ever-shifting, stretched far beyond the Constitution’s original text. This episode offers a vivid, sometimes alarming account of how political dynamics—both presidential and judicial—have dramatically altered the balance between law, bureaucracy, and individual civil service. At the core is the vulnerability of expertise—whether in architecture, governance, or public health—when beset by political pressure.

Dr. Tom Frieden’s interview is a powerful insider’s account of how design, structure, authority, and political weather shape the impact of even our most essential and supposedly apolitical public agencies.

Next Month: Article III — The Judicial Branch.