The Lawfare Podcast: Episode Summary Episode: Lawfare Daily: Zachary Price on Judging in a Divided Republic
Release Date: March 12, 2025
Host: Jack Goldsmith, Harvard Law School
Guest: Zachary Price, Professor at the University of California, College of the Law, San Francisco

Introduction

In this episode of The Lawfare Podcast, Jack Goldsmith engages in a comprehensive discussion with constitutional scholar Zachary Price about his latest book, "Constitutional Symmetry: Judging in a Divided Republic." The conversation delves into the intricacies of constitutional interpretation, the evolving dynamics of the judiciary in a polarized political landscape, and the pressing issues surrounding the President's removal powers, particularly in the context of actions taken during the Trump administration.

Constitutional Symmetry: Core Concepts

Zachary Price introduces the central thesis of his book, arguing for a "constitutional symmetry" approach to judicial interpretation. This approach emphasizes that courts should strive for constitutional understandings that are balanced and equitable across the prevailing partisan divides, rather than favoring one ideological side over the other.

"The book makes a general argument about constitutional interpretation. And its basic thesis is that court should favor, when possible, constitutional understandings that are symmetric, by which I mean understandings that protect interests on opposite sides of key current partisan ideological divides..."
[03:10]

Jack Goldsmith prompts Price to elaborate on this normative constitutional theory, seeking clarity on how constitutional symmetry can best serve the country amidst severe polarization.

"Is the book a normative constitutional theory about what the federal courts and especially the Supreme Court should do, and you alluded to this, but I want you to flesh it out."
[04:47]

Judicial Interpretation in a Polarized Era

Price contrasts the conservative and progressive visions of constitutional law:

• Conservative Vision: Focuses on restoring traditional separation of powers, devolving moral regulation (e.g., abortion) to the states, and enforcing colorblind equal protection.

• Progressive Vision: Advocates for expansive regulatory powers, centralized moral governance, and actively ensuring equal protection across diverse groups.

He critiques how these polarized interpretations have led to a perception that the judiciary is ideologically stacked, undermining the legitimacy of constitutional law.

"If courts are adopting rules that are perceived as stacking the deck one way or the other, then that undermines the legitimacy of that effort."
[07:12]

Application to Removal Power and the Trump Administration

The discussion transitions to the presidential removal power, particularly actions undertaken by the Trump administration. Price examines Supreme Court cases shaping the removal jurisprudence:

1. Free Enterprise vs. Public Company Accounting Oversight Board (PCAOB): The Court limited tenure protections when multiple layers of protection existed, deeming them excessive for executive control.

2. Sale of Law vs. Consumer Financial Protection Bureau (CFPB): The Court struck down tenure protections for the CFPB’s head, highlighting its principal officer status and broad regulatory power.

3. Trump vs. United States: Reaffirmed broad presidential authority over law enforcement, emphasizing the exclusive power of the President to control investigations and prosecutions.

"The Court held that was unconstitutional, but then left those two precedents hanging out there as exceptions to the general rule."
[13:30]

Case Studies:

1. Firing of the Head of the Office of Special Counsel (OSC):

   • Issue: OSC head had removal protections.
   • Analysis: As a principal officer with broad authority, likely falls outside the Morrison exception, challenging the administration's grounds for removal.
   • Quote:
     "I think it could be something of a close call... But you're trying to argue they're inferior because they can't do anything without other officers, but that might not hold up."
     [19:17]

2. Firing a Member of the National Labor Relations Board (NLRB):

   • Issue: NLRB members have tenure protections under the Humphreys exception.
   • Analysis: Given their principal role and broad regulatory duties, recent Court skepticism towards Humphreys implies a potential loss for the administration.
   • Quote:
     "They could just say the Humphreys exception only applies to agencies that have the sort of powers that the FTC had in 1935."
     [24:49]

3. Firing DOJ and FBI Attorneys:

   • Issue: Probationary vs. tenured civil service protections.
   • Analysis: While probationary employees may be at-will, tenured positions claim constitutional protections, which executives using Article II to bypass could face legal challenges.
   • Quote:
     "The Constitution implies certain default rules... presidents should not presume the authority to license violations in advance or categorically suspend enforcement because those kind of undermine the law..."
     [40:34]

Constitutional Duty vs. Executive Discretion

Price emphasizes the Take Care Clause of the Constitution, arguing that it mandates the faithful execution of laws rather than granting the President the authority to selectively enforce them.

"The Take Care Clause actually says the opposite. It says the President shall take care that the laws be faithfully executed."
[40:00]

He critiques the TikTok ban executive order as overreaching, likening it to the historical dispensing powers repudiated during the Glorious Revolution. Price warns that assertions of exclusive Article II powers to withhold enforcement or expenditure of funds undermine constitutional checks and balances.

"The TikTok order just... claims an actual suspending power... which is kind of totally beyond the pale."
[41:07]

Implications for Separation of Powers

In applying constitutional symmetry to separation of powers, Price advocates for judicial interpretations that ensure balance and prevent any single branch from disproportionately wielding power.

"If you let the president's Article II authority come in and wipe out the civil service or gut it in particular agencies, then that would let the president kind of limit the regulatory capacity that's available for future presidents."
[55:59]

He argues that strengthening presidential removal powers at the expense of civil service protections favors agendas typically associated with one political side, thereby disrupting symmetric constitutional interpretation.

Conclusion and Recommendations

Zachary Price's "Constitutional Symmetry" calls for a principled and balanced approach to judicial interpretation, particularly in highly polarized political environments. By advocating for interpretations that offer equal protections and benefits across ideological divides, Price believes the judiciary can maintain its legitimacy and uphold the constitutional framework effectively.

"Congress's power of the purse is really kind of the central check on executive power administrative policy these days... to blow that up in this way, I think would really be a blow to checks and balances and responsive government."
[50:51]

Jack Goldsmith concludes by acknowledging the depth and insight of Price's work, emphasizing its relevance in understanding and navigating the current constitutional challenges.

Notable Quotes with Timestamps

• Zachary Price [02:18]: "I think Congress's power of the purse is really kind of the central check on executive power, administrative policy these days..."

• Zachary Price [03:10]: "The book makes a general argument about constitutional interpretation... understandings that protect interests on opposite sides of key current partisan ideological divides..."

• Zachary Price [05:17]: "So in some ways, my paradigm case for symmetry is the modern First Amendment free speech jurisprudence..."

• Zachary Price [19:17]: "It's obviously a single member head, so we can't apply Humphreys... might just say the special counsel is not inferior because there's no intervening head."

• Zachary Price [40:00]: "The Take Care Clause actually says the opposite. It says the President shall take care that the laws be faithfully executed."

• Zachary Price [41:07]: "And the TikTok order just claims the power to do that, which I think is kind of totally beyond the pale."

• Zachary Price [50:51]: "Congress's power of the purse is really kind of the central check on executive power administrative policy these days... would really be a blow to checks and balances and responsive government."

Final Thoughts

This episode provides a nuanced exploration of how constitutional interpretation must adapt to maintain balance in a deeply divided political landscape. Zachary Price's insights offer a compelling framework for understanding and addressing the challenges facing the separation of powers and the judiciary's role in upholding constitutional integrity.