ROMAN MARS: This is The 99% Invisible Breakdown of the Constitution. I’m Roman Mars.
ELIZABETH JOH: And I’m Elizabeth Joh.
ROMAN MARS: Today we are finishing up our discussion of Article II, which establishes the executive branch of the federal government. Our special guest for this episode is Dr. Tom Frieden, who served as director of the Center for Disease Control and Prevention under President Obama from 2009 to 2017. We brought him on to talk about the experience of being a highly trained expert in an inherently political institution that was once considered to be about as apolitical as you can get, but not so much anymore. Dr. Frieden was also the New York City Public Health Commissioner under Mayor Bloomberg from 2002 to 2009, and he talks about the difference between running a city health agency and a federal health agency. Which one had the most power might surprise you. But first, Elizabeth is going to take us through Article II, section by section.
ELIZABETH JOH: We covered Article I before, that was addressing Congress–its powers and limitations. Now let’s take a brief tour of Article II. All right, so Article II can be seen as doing a couple of things: specifying the selection of the president and the function of the executive branch, listing the specific powers of the president, listing the duties of the president, and what to do with a constitutionally inadequate president.
So there are some–just like with Article I–very important aspects of the executive branch that are in Article II, but some things that are not in Article II at all, but nevertheless important. So we’ll get to those. But I think the big thing, unlike our discussion about Congress, is that, with Article II, a huge force affecting Article II is Trump and the Supreme Court’s treatment of Trump. Trump has had a very significant impact on how we think about the powers of the presidency. So, let’s start with Section 1. Section 1 contains the Vesting Clause, which says, “The executive Power shall be vested in a President of the United States of America.” Now, we saw a vesting cause in Article I as well. But Article I and Article II have a notable difference. Article I says, “All legislative Powers herein granted shall be vested in a Congress.” Article II doesn’t refer to just powers herein granted. Now you could say, “Well, maybe that was just a lapse on the part of the drafters,” but maybe not because that suggests there’s some ambiguity as to whether the powers in Article II are just examples or are they the only powers the president has. Now the spoiler, of course, is that every president has said, “No, we have more. We have more than what’s in Article II.” And practically speaking, we’ve treated presidents as having some more power than what’s specifically laid out in Article II, but of course, the contested part is always how much power. So that’s the opener.
Section 1 also describes our system of using electors and the electoral college. Each state appoints electors equal to the number of senators and electors. And Article II is a compromise between directly electing the president by popular vote or having the president selected by Congress directly. There is, of course, a popular vote. But when we all vote, we are actually voting for a slate of electors appointed by our state’s political parties. And that means the important number is not 51% of everyone voting, but 270 of the 538 electoral votes up for grabs. Because of Article II, a presidential candidate can win the popular vote but lose the electoral college and not become president, like Hillary Clinton did in 2016 and Al Gore did in 2000. This system is so central that, of course, we did have a fake electors plot during the 2020 presidential election, and that was when Republican officials in several Battleground States came up with a scheme to submit fake certificates claiming that Trump had actually won in states like Arizona and Georgia. And these were acts designed to overturn the legitimate election of Joe Biden.
ROMAN MARS: It just was so many scandals ago that I forgot this fundamental one that is truly mind-blowing just in and of itself. If that was the only scandal a president had, that would be enough to disqualify them in my mind.
ELIZABETH JOH: Right, but it was also both dastardly and completely inept. No one really thought it was going to work.
ROMAN MARS: I guess so.
ELIZABETH JOH: So, dozens of people have been indicted on these state criminal charges for participating in these fake elector schemes. In fact, the fake elector scheme was part of the criminal conspiracy alleged by special counsel Jack Smith and discussed in the criminal indictment of Trump in 2023. And of course, the Supreme Court put an end to that, in 2024, with its decision on presidential immunity. And the reelection of Trump ensured that the Justice Department would drop the remainder of the case, which it did.
Now, Article II then addresses the question of succession–if something happens to the president. Let’s say the president dies or somehow is unable to be president anymore. And while Article II is actually superseded by the 25th Amendment in 1967, After that amendment, there’s no question that the vice president becomes the president when the president dies or resigns or does something similar. There was some ambiguity before the 25th Amendment, but now we know for certain that there is vice presidential succession after the president can no longer be president.
ROMAN MARS: Oh, cool.
ELIZABETH JOH: The 25th Amendment also gives power to Congress to establish the line of succession. What if the vice-president dies or can’t serve in some other way? And so just as a little piece of information, the Presidential Succession Act today would mean, in order… You ready?
ROMAN MARS: Oh yeah, please.
ELIZABETH JOH: President Vance, President Mike Johnson, President Chuck Grassley–who by the way is 92–President Marco Rubio, President Scott Bessent, and President Pete Hegseth.
ROMAN MARS: [CHUCKLING] Oh my god.
ELIZABETH JOH: You can pick among all of those people. That’s just purely theoretical though. Purely theoretical.
ROMAN MARS: Miserable. Okay. Oh my god.
ELIZABETH JOH: And Article II then goes on to talk about the domestic–
ROMAN MARS: You said the list. And I’m just like, “Okay, it can’t get worse and it can’t get worse…” And it’s like, “Yeah, I think actually Hegseth would be worse.” You know? Like, oh my God. Okay.
ELIZABETH JOH: But so many things would have to happen for us to have President Pete Hegseth. And let us not wish for any of those things to happen.
ROMAN MARS: Absolutely.
ELIZABETH JOH: Okay. So, then Clause Seven of Article II contains the Domestic Emoluments Clause. Let’s go back to this for a second. The president shall not receive any emolument from the United States or any of them. And the plain English of this is the president can’t receive any gift from the federal government or any other state government. This is similar to the Foreign Emoluments Clause, which can actually be found in Article I, which says that no person holding any office of profit or trust accepts any emolument from any king, prince, or foreign state without the consent of Congress. Remember that, in Trump’s first term, a group of lawsuits were filed alleging that Trump had violated both the Foreign and the Domestic Emoluments Clauses. And the basis of their claims was that Trump’s continued stake in his business interests had led to some kind of improper influence. So, for example, if a representative of a foreign government was staying at the Trump International Hotel in Washington D.C., maybe we could think of that as an improper gift to the President, right? We never, of course, found out whether they were unconstitutional emoluments because, after Trump left office in 2021, these lawsuits were declared moot–no longer live issues that a federal court could decide. So we never really got the answer about whether or not these were unconstitutional emoluments.
ROMAN MARS: Yeah. And then there’s an emolument every hour at this point.
ELIZABETH JOH: Yeah, surprisingly, there haven’t been any lawsuits that I’m aware of. But again, we don’t know the answer. Okay.
Now, Section Two of Article II specifies the powers of the president. Clause One tells us that the president is the commander-in-chief of the military, right? So we have talked a bit about the war power and the fact that, in our system, the president–who is a civilian–is in charge of the armed forces. And that’s a very deliberate choice. There are some other powers here, but the other thing I want to mention now is that Section Two of Article II includes the pardon power. Article II says that the president “shall have Power to grant Reprieves and Pardons for Offences 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. And the president’s pardon power is so broad that the Supreme Court has said previously that the power of the presidency is not subject to legislative control. And there have been, of course, many controversial pardons in the past. For instance, in 2001, President Clinton pardoned his brother Roger for his conviction on drug offenses. And everyone thought, “Well, that’s just using his influence to help out his family, right?”
ROMAN MARS: Yeah.
ELIZABETH JOH: But Trump is a little bit different. Trump has taken this pardon power much, much further. So, for instance, on December 1st, Trump pardoned former Honduran president Juan Orlando Hernández. Hernández–why was he being pardoned? He had been sentenced to 45 years in prison for conspiring to import cocaine into the United States. Why am I mentioning this? Because this is just months after the administration began to blow up boats in the Caribbean because it claims that these boats are carrying narco-terrorists smuggling drugs into the United States from Venezuela. So a little bit of an inconsistency there.
ROMAN MARS: Have they ever spoken to why they did that pardon–like even their own story of this?
ELIZABETH JOH: You know, just unfair, witch hunt, too long of a sentence, etc… And Roger Stone reportedly lobbied the President directly on Hernández’s behalf. Stone’s a longtime Trump advisor. And apparently it worked. And on January 20th, as one of Trump’s very first acts in his second term, there’s a pretty significant use of the pardon power. Trump pardoned nearly all of the 1,600 people charged in connection with the attack on the Capitol on January 6th, 2021. Trump also commuted the sentences of 14 members of the Proud Boys and the Oath Keeper groups. And commutations are also part of the pardon power. These were folks primarily convicted of seditious conspiracy. As part of his pardon order here, Trump also ordered the Justice Department to dismiss all pending indictments against people who were still facing charges for January 6th. Now, months later, the Justice Department also took the very broad position that criminal cases that were secondary to the January 6th attacks were also covered by the pardon, although some judges have already rejected these claims. So, for instance, after January 6th, let’s say investigators were looking for evidence of your involvement in the attacks on the Capitol. And while they were searching your home, they found illegal firearms or illegal drugs. These folks have said, “Well, I’m covered by this pardon.” And the Justice Department said, “Well, yeah, sure,” because they’re somehow related in a very tangential way to investigating your involvement in January 6th, which, of course, seems kind of crazy, right?
ROMAN MARS: For sure.
ELIZABETH JOH: This is a pretty extraordinary use of the pardon power. I mean, definitely presidents in the past have used a mass pardon power. But this is of a different order altogether. This mass pardon is a political statement by Trump. This was an attempt to shut down a constitutional process on January 6th. And Trump’s really saying, “These acts are not worthy of punishment–not at all.” So, that seems pretty significant.
ROMAN MARS: Is there another example of a mass pardon that was sending a political message? If I’m not mistaken, Carter pardoned all the draft dodgers.
ELIZABETH JOH: Right, right, right. But yeah, I mean, for sure, we might say that I’m certain there were people who disagreed with it at the time. But it’s not quite the same political statement, isn’t it? I mean, I think it’s the same idea of mass political pardons. And they did in fact violate the law. But here, you might say that the attack on the Capitol was a kind of attack on the very structure of the democratic process, right? And Trump’s undoing of it, which was well within his power, is a way of saying, “This is completely fake. There’s nothing that they did wrong. In effect, you could do it all again, it’ll be fine.” I mean, that’s essentially the message of it. There’s no punishment whatsoever.
ROMAN MARS: Yeah, but you could say that the structure of the armed forces relies on the draft and therefore these people fundamentally undermined that structure and… You know…
ELIZABETH JOH: True. True. You know, I suppose you could say that. But I think that probably the January 6 attack was of a very different magnitude.
ROMAN MARS: Totally! Totally different. I’m not saying it’s not different. All I’m saying is that you could make a political argument that both of them are undermining the norms of our political, military, and governmental system. And it certainly was destabilizing to have people avoid the draft and all that sort of thing.
ELIZABETH JOH: True. True. Although I think we still would have had a government that was standing. Not totally sure what would happen if the attack had been successful on January 6th. I really would prefer not to think about that.
And on December 11th–this is another interesting one–Trump pardoned Tina Peters. Peters is a former county clerk in Colorado. She is an election fraud conspiracist, and she was convicted of election interference. Here’s the kicker. I’m not sure what to call this. A “symbolic” pardon? A “nonsensical” pardon? An “outrageous” pardon? Because remember, Article II gives Trump the authority to pardon someone for an offense against the United States. She was convicted on state charges. It is absolutely a meaningless pardon. He can say whatever he likes. And in fact, I suppose we could say it’s not really a pardon at all because it is not permissible for a president to pardon somebody on state charges. But these are the sorts of things that he’s doing, and everyone says, “Well, what does that mean?” And the answer is it means nothing.
ROMAN MARS: If a lawyer was thinking about getting convictions for people who are sympathetic to Trump, it used to be that the gold standard for getting a conviction is you bring up federal charges because you have the weight of the federal government to prosecute. And that’s really scary. When all of a sudden it’s, like, kicked up to the feds, it’s a big, big, deal. But tactically, it makes more sense today to make some of these things state charges if that’s appropriate. Is anyone thinking like that?
ELIZABETH JOH: I don’t know if anyone’s thinking like that, but that certainly makes sense at the federal level, if you want to avoid federal charges. There’s definitely more of a sense that there’s perhaps a pay-to-play system in some aspects of the criminal justice system now, not just only getting a pardon, but maybe you’ll have charges that are dropped or charges that were never brought at all. And, of course, that is deeply corrupting of the Criminal Justice System. And so, yeah, I assume that the flip side could happen as well. Not sure anybody would want to admit to that right now. But structurally, the incentives are certainly there.
ROMAN MARS: The incentives are there to use state courts to convict someone?
ELIZABETH JOH: I think so. Right. Although, you know, one example is that, if you do that–if you think about the post-January 6 attempts to prosecute or bring criminal prosecution at the state level–look what happened, which was harassment and intimidation of the very prosecutors that we saw in Georgia and elsewhere. You know, you can try to bring state charges, but then you have the entire apparatus of the right-wing media and people who– The president himself may call you out. So, there is that.
So then Article II goes next to bring in the Senate. In Clause Two, the president can make treaties with the advice and consent of the Senate. So here we now have the partnership with a part of Congress. Now, with the advice and consent of the Senate ,the president also can appoint ambassadors, Supreme Court Justices, and all other officers of the United States. That’s why we see televised hearings whenever the president selects new members of his cabinet. All of the secretaries must be given Senate approval. And the same is true, for instance, of federal judges. But there’s a more complicated part of this clause, which is called the Appointments Clause. Article II refers to the president’s ability to appoint officers of the United States, “but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Now, okay–I’ve got to say–pretty dry. A very boring part of Article II, right?
ROMAN MARS: Well, it’s more confusing than boring.
ELIZABETH JOH: Yes, it’s very confusing–not at all obvious to most people what this means or why it’s even important. But it is important. So, think of officers as the top people in the executive branch who don’t make up the vast majority of federal employees. Those folks are in the civil service, right? They’re not appointed by the president. So the Supreme Court has interpreted this part of Article II to mean that there are two kinds of officers of the United States: principal officers and inferior officers. Now, principal officers have to be appointed by the president and confirmed by the Senate. So, a member of the president’s cabinet has to be employed by the president himself and then confirmed by the Senate. Inferior officers can be, but they don’t have to be. They can be appointed by another part of the federal government, right? So think of the Appointments Clause as the hiring clause of the Constitution. When can the president hire people himself? Or when can Congress decide, “Hey, we want some other part of the government to do the hiring of these top executive officials?” Okay. So that’s hiring. Pretty important, right? Who gets to run different aspects of the federal government?
ROMAN MARS: Sure.
ELIZABETH JOH: Now, here’s the other aspect. Hiring implies firing, right? That’s something we think of. Well, presidents can do that, right? Well, the problem here is that Article II says nothing about when officers can be fired or–to use the constitutional language–be “removed from office.” So what we have is a set of practices in the Supreme Court. Everyone agrees that the president can certainly fire members of his own cabinet for any reason. The secretary of defense or secretary of state–they can all just be fired because the president just wakes up one day and says, “I don’t like you. You’re fired.” That’s fine. That’s absolutely within the president’s power. And our guest for later on in today’s episode, Tom Frieden, who was director of the CDC, held a position that could be fired by the President for any reason–any reason at all. “I don’t agree with you.” “I just don’t like you personally.” Now, historically, Congress has passed laws to protect some officials in the executive branch from being fired by the president for any reason at. In other words, they would say, “Well, this kind of person can only be fired or removed for certain reasons, like they’re convicted of a crime or they are obviously incompetent.” So this happens when Congress has decided it would be a good idea for this official to have some independence–to be able to stay in their position even if the current president disagrees with them. And the constitutional issue is whether that interferes with the president’s Article II authority. This matters now because the Roberts Court has been chipping away at this idea of protecting these folks and giving the President more control over the executive branch–and disagreeing with Congress providing these folks with some protections.
So, for instance, in 2020, the Supreme Court decided that Congress’ attempt to protect the director of the Consumer Financial Protection Bureau, by restricting the reasons for the President being able to fire them, was an unconstitutional interference with the President’s authority. So, in plain English, after this case–which is called Seila Law–the President can fire the CFPB director for any reason at all. And that’s why on February 1st of this year, Trump fired Rohit Chopra, who had been appointed by Biden and confirmed by the Senate. “Just don’t like you. You’re gone.” So that’s despite what Congress had tried to do–tried to protect this person because they should have some independence in creating the rules and forcing the regulations to help consumers. And now the Supreme Court is definitely not done with this issue. This Supreme Court is now considering what is very likely going to be a very important case. It asks, “Can Trump simply fire a member of the Federal Trade Commission–the FTC–even though Congress has tried, through legislation, to provide some protection for commissioners of the FTC?” Now, if the Supreme Court decides to allow Trump to do this, this means trouble not just for the FTC but the job protections for many other federal commissions and boards that are within the executive branch. These are the agencies meant to protect consumers, workers, the environment–all kinds of things.
ROMAN MARS: So what is the argument that Trump can do this, when they were specifically designed to be independent and laws were passed to ensure their independence?
ELIZABETH JOH: Yeah, so in one way, it’s not just Trump, right? It’s a longstanding conservative movement that was building long before Trump assumed office. But 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 because they’re accountable in lots of different ways. But that’s the conservative of 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 term, the Supreme Court will also consider whether Trump can fire a member of the Federal Reserve, Lisa Cook. She had been appointed by Biden for a 14-year term, which is the regular term, right? But Trump said, “I want to fire you.”
ROMAN MARS: Yeah. Yeah.
ELIZABETH JOH: So, one of the big problems here is that you have a conservative majority on the court. And remember, the Roberts Court has been around now for 20 years. The conservative majority on the Roberts Court wants to be protective of a very particular view of presidential power. “Let presidents fire agency heads whenever they want and fill them with the choices of whatever they want.” On the other hand, when agencies in a democratic administration issue decisions, they also seem to be targets for the Supreme Court to say, “Oh, no, no. You’re not allowed to do that. You’ve exceeded your powers.” So it turns out that agencies can’t win either way. Either they do things that the Supreme Court says, “You’ve exceeded their authority,” or when they try to be working within that power, then a Republican president–Trump–will say, “Well, I don’t like these policies. You’re fired.” So, the Supreme Court really just seems to be saying everything is within the control of the President and the President can dictate everything that happens within the executive branch.
ROMAN MARS: Okay. Okay.
ELIZABETH JOH: So we saw this, in terms of the agency stuff, during the height of the pandemic, with the Court striking down vaccine mandates, the eviction moratorium… Even expanded student loan forgiveness was something that really got its start from the inability of borrowers to pay during the worst part of the pandemic. Those are a series of agency actions. Biden, during his administration, wanted these things to happen. Even they began with Trump too, right? But nope, for the Supreme Court, that was too much for an agency to do. And so agency power seems to be attacked from every single angle under the Roberts Court theory of how the executive branch should be run.
ROMAN MARS: Is there consistency in the decisions of that set of things of what an agency can do? Or does that seem to be dependent on who the president is?
ELIZABETH JOH: It seems to be strangely dependent on who the president is. A Republican president tends to roll back regulations. That doesn’t seem to be a problem for the Supreme Court. But in a Democratic administration, an agency that tends to provide more enforcement–more regulation–that always turns out to be a bridge too far. Not always, but often. And, of course, the blame as well. “Why are you doing this extreme set of regulation? Congress didn’t allow you to do this. If Congress wanted you to do this, they should be more specific.” Of course, Congress made the choice to give these agencies a lot of power. Maybe it wasn’t this particular Congress, but it was the institutional body of Congress that said, “Well, we don’t really know what we’re doing. Let’s give the authority to the agency.”
ROMAN MARS: So you said that there were a set of laws that were passed by Congress to establish kind of independence and term limits for all these different agencies and to have that kind of control. And through these cases, is the Supreme Court determining that, like, all of those laws are basically unconstitutional and thus far just haven’t been tested?
ELIZABETH JOH: Well, not necessarily that the agencies themselves are unlawful, but just that the president has total control over the person at the top of these agencies. Or increasingly, a form of agency authority that folks had thought were more protected or in less danger were multi-member boards that had staggered terms, often with bipartisan membership, and that board was supposed to outlast any one particular presidential term. Well, it seems like even that, too, is going to be vulnerable in some way if the Supreme Court, during this term, is going to be cutting away at those protections even further. And that just means that, of course, whatever an agency does, you just get whipsawed every time there’s a new administration.
ROMAN MARS: Right. Right. I mean, there had been this notion of building these agencies out to be apolitical bodies in a certain way–to have a certain consistency in mission and execution and follow-through and vision that would maybe be shaped by a president somewhat in the agenda of a president but wouldn’t completely be altered. And 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 current President.
ELIZABETH JOH: Well, that’s right. And in particular, if you have a president who decides–as in the case of Trump in a second term–that some agencies just shouldn’t be agencies, there’s not much to argue about if you completely gut the agency. There’s no argument about “this has gone too far.” The agency basically is so crippled that it can’t do any work.
ROMAN MARS: Well, we have to take a quick break. But when we come back, onto Section Three of Article II…
[AD BREAK]
ELIZABETH JOH: Section Three. Section Three talks about the duties of the president. And of course we’ve talked before, in a previous episode, about the Take Care Clause. Article II says the president–
ROMAN MARS: Can I ask you a quick question?
ELIZABETH JOH: Sure!
ROMAN MARS: I have asked you this probably years and years ago. Who is the person who decides what the names of the clauses are? You know, like the Take Care Clause is one thing. Like, I know this language brought that out. But, you know, you could call it, like–
ELIZABETH JOH: The Faithfully Executed Clause?
ROMAN MARS: Exactly. Or instead of the Vested Clause, it could be the Power Clause. Who starts that convention and then who picks it up and determines that that is what you call a clause?
ELIZABETH JOH: That’s a great question. I don’t know. It just becomes kind of, like, tribal knowledge of people who work in con law. You know, every society has its lingo–its slang–and in constitutional law, that’s the slang, right? “We know you’re not part of the in-group if you don’t know it’s called the Take Care Clause.” That’s that’s the way I’d put it, right?
ROMAN MARS: I just wonder what was the first clause named in the Constitution, you know?
ELIZABETH JOH: Not sure. But definitely you’re right. They each have specific names. So this is the Take Care Clause. 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, right? 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. Now, if you think about the president can’t legislate, that’s sort of basic high school civics stuff. But what about executive orders? I’m sure you’ve heard of those.
ROMAN MARS: Right, right. Yeah, they certainly feel like legislation.
ELIZABETH JOH: Right. But Article II says nothing about executive orders. And Congress has no general federal statute that says, “Hey, President, you can issue executive orders.” Nevertheless, it’s still generally accepted that presidents have the authority to issue some executive orders. Now, usually executive orders are directed at executive officials within the executive branch. So it’s kind of like the president telling the members of the executive branches what to do.
ROMAN MARS: So if they’re not in here, how are they legal? And why can’t the Supreme Court come in and just completely invalidate every executive order that’s ever been given?
ELIZABETH JOH: Well, who knows at this point? They could do that. But to be legal, a president’s executive order either comes from Congress giving the president some power under a federal law, or alternatively, the power can come from the president saying, “I’m just using my Article II power.” So, for the first example, in Trump’s first term, remember he issued a proclamation called 9645 that was also known as the “Muslim travel ban.” That was denying entry into the United States of folks from several majority Muslim countries. And the Supreme Court upheld Trump’s executive order. And its reason was that Congress, when it passed the Immigration and Nationality Act, gave Trump broad authority about when and whether to suspend the entry of non-citizens. And of course, Trump was doing just that–maybe for improper, subjectively horrible reasons. But he was simply doing what Congress allowed him to do. So the Court says, “That’s an okay executive order.” As for an executive order that is based on constitutional authority, Truman gives us an example. When Truman desegregated the armed forces in 1948, he did so through an executive order. And how did he do that? He said his authority came not just from federal statutes, but from his authority as commander-in-chief.
ROMAN MARS: That makes the most sense to me. Yeah. Anything within the military makes the most sense.
ELIZABETH JOH: Now, a big aspect of Trump’s second term is just the sheer number of executive orders that he has issued. So to give you a sense, in his first term, Trump issued 220 executive orders total. So far–it’s just December of 2025–in his second term, Trump has issued at least, I think, 218. That was as of October. And of course, the first year isn’t even over yet. And I know there was another one just yesterday. Some of these are just ordinary or they seem to be symbolic. But others have tried to dramatically change how we understand how the federal government works. So targeting law firms that represent Democrats, ending climate and energy initiatives, freezing foreign aid, and of course, ending birthright citizenship. Now, just because the president issues an executive order doesn’t mean it’s legal, of course. And dozens of Trump’s executive orders have already been challenged in court.
ROMAN MARS: So how can an order be challenged then?
ELIZABETH JOH: Well, the easiest way is when a later president revokes the executive order, like a succeeding president just says, “All of that is undone.” And that happens all the time. When Biden became president, he revoked many of Trump’s orders from his first term. And then when Trump became president, he revoked a huge number of Biden’s orders from his term. Now, in his first two months in office, Trump revoked 91 of Biden executive orders. That’s just a lot comparatively. 67 of Biden’s executive orders were revoked in one executive order. He just, like, wanted to wipe out everything that Biden had done. That was the first actually. So many in one executive order.
ROMAN MARS: [CHUCKLES] If I became president after Trump, not only would I nullify every executive order, I think I would tear down every building he touched.
ELIZABETH JOH: Well, unfortunately that’s going to be a… I’m not sure if it’s a harder task or an easier task. Well, Congress can’t overturn an executive order because it’s really something that the president is just doing. But if the president is claiming that the reason why he can issue an order is because he’s implementing a statute, then Congress can simply modify or negate the order by passing another law themselves, like, “No, that’s not what we meant at all.”
ROMAN MARS: I see. I see.
ELIZABETH JOH: And of course, if there’s a constitutional problem, lawsuits can be filed alleging that there are legal constitutional problems with the order, right? And we’ve seen that; again, there are dozens of lawsuits right now.
ROMAN MARS: If the power to give executive orders is not in there, how do you begin to argue that he doesn’t have the power to do a certain thing? It just seems like it’s all kind of weirdly in the clouds.
ELIZABETH JOH: It is. But I mean, part of constitutional practice, of course, is always history. And, you know, George Washington had an executive order. So we have lived with something that is arguably constitutional because everyone has always agreed that it’s constitutional for the president to do this kind of thing, not the specific versions of them.
ROMAN MARS: Wow.
ELIZABETH JOH: But nevertheless, presidents are allowed to do this. Now, in modern presidencies, unfortunately, it becomes a way for a frustrated president to try to regulate when Congress will not do so.
ROMAN MARS: Right. Right.
ELIZABETH JOH: But they’re always very temporary because the next administration will tend to modify or revoke completely many executive orders.
ROMAN MARS: Right. That makes sense.
ELIZABETH JOH: So now let’s step back for a moment. Article II tells us that the president of the United States has some very important powers that are just for the president alone. The president has the duty to execute federal law. The president commands the armed forces. The president grants pardons, appoints officers of the United states, and negotiates treaties. The Constitution gives this one person in the federal government all of this power. So the question is: How do we ensure that the president, as Hamilton wrote in the Federalist Papers, is not a “feeble executive?” How do we make sure that the president isn’t hampered too much and can act in the way that Article II intended?
Well, in 2024, of course, the Supreme Court’s answer was immunity from criminal prosecution, right? So, we’ve done an episode on this previously. But remember that, in August of 2023, Special Counsel Jack Smith concluded his investigation. A federal grand jury indicted Trump, who was not president at the time, on a four-count indictment related to what happened after he lost the 2020 election, right? So this includes the fake electors scheme, pressuring state officials, attempting a sham justice department investigation, leaning on Vice President Pence to change the election certification on January 6th, and making public statements about election fraud. So the monumental decision in Trump versus the United States was simply summarized like this: “A president cannot be prosecuted for much of this conduct.” Specifically for unofficial conduct, the Supreme Court said, “That’s fine. A president can be prosecuted for things that have nothing to do with the office of the presidency.” But when it comes to official conduct, the Supreme Court said that the president’s official acts can be divided into two parts. So, sort of imagine a circle. At the edge of the circle are official acts that aren’t related to a core presidential power. And so there the president enjoys a presumption of immunity from prosecution that the prosecution can overcome in limited circumstances. But that included a lot of conduct, including, according to the Supreme Court, speaking to and on behalf of the American people. And at the time that was a lot of tweeting.
ROMAN MARS: I see.
ELIZABETH JOH: And then there’s the center of the circle. At the center of the circle, you have official conduct that the Supreme Court called “core constitutional functions.” What are they? The powers that we’ve just talked about: the pardon power, the power to remove or fire officers of the United States, and importantly for the criminal prosecution of Trump, the investigation and prosecution of crimes. So, in the Supreme Court’s view, even if this was a complete bogus and sham investigation, when Trump directed the Justice Department to say, “Hey, look into election fraud,” well, that was core Article II conduct. Therefore, it can’t be prosecuted, even if it’s based on bad faith, even if it was made up. And as for the other conduct that might not have enjoyed total immunity–the outer part of that circle–remember the Supreme Court decision in Trump versus the United States came out on July 1st, 2024. The Court took so long in deciding the case that time ran out. Trump was reelected, and then the case disappeared.
But the impact of Trump versus United States and core Article II conduct is just really enormous. We’ve talked previously about the Trump administration’s use of the military for these boat strikes to blow up alleged drug-smuggling boats in the Caribbean. Well, the administration claims that they’re in a war with these drug smugglers, and that’s why the boats can be blown up without any process. But of course, as we’ve discussed before, this doesn’t seem to be a war at all. And in fact, the decision to kill without arrest or trial has been characterized by many serious legal analysts as murder–just plain, simple murder. So what if it is murder? After all, Trump is the commander-in-chief under Article II. Well, I think the pretty clear answer from the 2024 decision is that, as long as Trump is exercising a core Article II constitutional power, he himself cannot be criminally prosecuted, even if the evidence suggests that these boat strikes amount to murder.
ROMAN MARS: Does that mean everyone around him is immune as well?
ELIZABETH JOH: No, this was only a decision about the President himself.
ROMAN MARS: Okay. So, everyone around him could go down for murder, and he would stand alone as the person who died.
ELIZABETH JOH: I mean, possibly. Of course, the Supreme Court was only deciding the question of–
ROMAN MARS: Yeah, it’s just interesting. Yeah.
ELIZABETH JOH: Also, there was that crazy hypothetical from the immunity case. Before the case was actually decided by the Supreme Court, one of the judges on the appeals court panel raised this SEAL Team Six hypothetical. SEAL Team Six is that elite group of Navy SEALs that carry out high stakes military missions, right? Judge Florence Pan, who was on the appeals court in D.C., asked Trump’s lawyer, “Could a president order SEAL Team Six to assassinate a political rival? That’s an official act.” Trump’s lawyer, John Sauer, would not give a direct answer. Well, the Washington Post reported at the end of November… Who carried out the boat strikes? Seal Team Six. It’s just a weird hypothetical come to real life.
ROMAN MARS: Wow.
ELIZABETH JOH: And then there’s section four of Article II, that is impeachment. Section Four is supposed to be a remedy, right? It tells us that “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” In 2021, President Trump became the only president in American history to be impeached twice, and in fact, in the same term. The first impeachment trial arose from the call he made to a Ukrainian president, Zelensky, in which he was apparently offering to unfreeze military aid if Zelensky would investigate Joe Biden and promote this bogus theory that Russia was not behind the foreign interference in the 2016 election. And the second impeachment trial accused Trump of incitement to insurrection over the January 6th Capitol attack. In both Senate trials, Trump was, of course, acquitted. So, I think the main takeaway here today is that when there’s Article II, there’s no question that Trump–as a president, as an ex-president, and now a president again–has left a definitive mark about how we think about Article II.
ROMAN MARS: And the Roberts Court has also led to a completely different view of Article II. Well, this is fascinating stuff. I’m so glad we went through Article II in greater depth. And what great fortune it is to have President Trump to guide us through this moment of exploration.
ELIZABETH JOH: We have survived one year. We’ll see what happens next year.
ROMAN MARS: I mean, I don’t even know. I don’t even know.
Coming up, our conversation with former CDC director Dr. Tom Frieden…
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ROMAN MARS: Now our conversation with Dr. Tom Frieden, a physician and public health expert. Today, he’s the executive director of the global health nonprofit Resolve to Save Lives and author of the recent book The Formula for Better Health: How to Save Millions of Lives–Including Your Own. He was the 16th director of the Centers for Disease Control and Prevention under President Obama, from 2009 to 2017, which makes him the second longest serving head in the CDC’s history. Before that, Dr. Frieden was the New York City Public Health Commissioner under Mayor Bloomberg, from 2002 to 2009. So he has experience at both the city and the federal level.
Dr. Frieden, thank you so much for being on the show.
TOM FRIEDEN: Great to join you.
ROMAN MARS: So, Article II establishes the executive branch and assumes that the president will have a cabinet, but what the drafters of Article II did not contemplate is the growth of what we call the “administrative state,” the many, many agencies in the federal government today that regulate everything from food that is safe to eat and water that is clean to drink, working conditions that are fair, corporate behavior that is honest for consumers… The Centers for Disease Control and Prevention is one of the roughly dozen agencies housed within the Department of Health and Human Services. The origins of the CDC go back to 1942. It’s a pretty interesting history. It was a wartime agency called the Office of Malaria Control in War Areas, then it became Communicable Disease Center in 1946, and then Centers for Disease Control in 1980. In part, because of those unusual origins, the CDC acquires its powers from different sources. Congress has directly given the CDC some of its powers, but some of the CDC’s powers have been delegated to it from the Secretary of Health and Human Services and from the Surgeon General. For example, the CDC has the power to issue quarantine orders because it has been delegating those powers by the Surgeon General, who in turn was given those powers from the Federal Public Health Service Act of 1944.
So it’s a long way of giving a little bit of a preamble of where those sort of constitutional powers of the CDC come from. So, Dr. Frieden, I’m hoping you can tell us. This agency began as a way to stop malaria from spreading among the military, but it does so much more than that now. Could you describe the objectives of the CDC today?
TOM FRIEDEN: Quite simply, what the CDC has traditionally done is to work 24/7 to protect Americans from threats, whether those threats are natural or man-made, whether they are infectious diseases or otherwise, whether they come from the United States or anywhere in the world. That’s the bottom line: healthier, safer people.
ROMAN MARS: The CDC and the entire federal government faced a gigantic health threat in 2020 with the COVID pandemic. And during that first term of the Trump administration, the CDC wasn’t insulated from political pressure. And there was a lot of criticism; experts criticized the different sort of calculation of risk. When it comes to this agency, which is within the executive branch and therefore sort of, like, under the president–but has its own expertise and its own guidelines and its thoughts on things–what is the right balance for an agency like the CDC to respond to what the president might want versus what is best for public health?
TOM FRIEDEN: I go back to a couple of core concepts here. The analyst and thinker about government James Q. Wilson and others have talked about what is the definition of a professional? And a professional is someone who has standards that are outside of the line of control–the line of command of their group. So, as a physician, if I’m working in an organization and my supervisor says, “Give this medicine or get this test,” and that’s inconsistent with my professional responsibility, I have to say no. Or I have to violate my professional responsibilities. In the same way, the CDC tries to provide clear, consistent, fact-based information, making clear this is what we know, this is what we don’t know, and this is how we know what we know. And the second big thing to understand that, I think, a lot of people have gotten wrong on all sides of the political divide is that the CDC’s role is not to set policy. The CDC’s role is to inform those who set policy, “If you do X, you will get Y.” This is really important because, for example–if you talk about something like masks–if everyone wears masks indoors when COVID is spreading widely, there will be less spread of COVID. That’s not saying that everyone should wear masks indoors all the time or we should close all the restaurants or we should close the bars. This is something that we think is best left to communities to decide with a community discussion and elected leaders of that community. So I think the essence of a science-based organization is that it provides valid information based on the best available scientific evidence openly and objectively derived.
ROMAN MARS: One of the most visible parts of the CDC is recommendations that come from the agency. And these can be anything from vaccine guidelines to hand hygiene in hospitals and doctor’s offices. Is that communication for recommendations one-way? Or is the recommendation for what the CDC has determined put forward to policymakers and the policymakers go, “Well, you know, this is possible, this is not possible, this is feasible, this not feasible,” and then you you rejigger your models with that in mind and then sort of come up with a sort of thing together? Or is it really just a one-way communication where you present proposals, and then they implement it as they see fit?
TOM FRIEDEN: The larger part of the dialogue is with the people who are most familiar with the facts about specific topics to say, you know, what is indicated and what is not indicated. Sometimes it’s plain and simple; you put your child on their back to sleep if you want to reduce the risk of SIDS–straightforward. Other times the evidence isn’t so clear, whether it’s about nutrition or physical activity. You know, how important is vigorous physical activity? What’s the minimum dose of physical activity? These are complicated topics. So I think when it comes to policy choices or recommendation choices, the bigger dialogue is both within CDC and among CDC and other parts of the Department of Health and Human Services, other parts of the federal government, academia, advocates, and others to understand what’s really the fact here that’s going to lead to a policy recommendation that will be most effective. In terms of policy implementation, that’s kind of a different science. That may involve Congress allocating money and saying, “Okay, CDC. Give money to states and cities to implement this program if they choose to do so or in the way they choose to do so.” Occasionally you’ll get a program that uses those federal dollars to incentivize localities to have healthier policies. And the classic example of that–not part of CDC but federal government–is road safety, where states were free to take or not take the federal dollars. But if they took the federal dollars, they needed to reduce the blood alcohol concentration and go to low-risk speed limits for a while.
ELIZABETH JOH: So I think one of the things that is sometimes confusing to the public is, “Well, maybe I do want to rely on expertise, but whose expertise?” So, if we turn to the current administration, there’s been a complete overturning of ACIP, the committee that advises the CDC on immunization. All of the former members were removed by HHS Secretary Kennedy, and there are new ones. But if you look at the list, if I’m a member of the public, I think, “Well, they seem to be well credentialed.” So maybe you could explain what is the difference between being well credentialed and actually being able to provide reliable expert advice on something like vaccines.
TOM FRIEDEN: I think we have a challenging situation in this country where the word “expert” has become a dirty word. And I think part of that is because people don’t want someone saying, “I’m the expert and I know what you should do.” That’s very offensive. So I always start with saying, “You are the experts in you.” But what science can do is it can tell you–if you want to achieve something health-wise–what’s proven and what’s unproven. I think, when it comes to levels of certainty, it’s really important to understand that there are highly specialized areas. Where there are things that are virtually certain–not such a hard thing. Where there are things where it’s no evidence–not so hard. It’s in that gray zone where it is so important. I work a huge proportion of my time on one particular health issue. A new article comes out on that, I’m still not the best person to understand whether that article is valid. I know who I can go to who are people who have worked on this for whole lifetimes. And that’s one of the things that CDC is so wonderful about or has been so wonderful about. If you opened a medical textbook to any random page, there have been people there who would be able to tell you, “Oh, here’s what’s really important about that topic.” And people have asked me if I miss being CDC director. And what I miss is, when an article comes out in the New England Journal of Medicine or some other newspaper or medical journal, I could call up one of the world’s experts in that area and say, “You know, what’s the real deal here?” So that kind of expertise is deep expertise.
You know, there is something called “Brandolini’s law”–that it takes infinitely longer to debunk nonsense than to spread it. And I’ve seen this, for example, with some of the things that RFK Jr. is saying. For example, he recorded a three-minute video when he announced that the U.S. is pulling out of the Global Vaccine Alliance, what’s called Gavi. And this is a terrible mistake. This means that lots of kids may die of preventable disease. The U.S. may be at greater risk if these diseases spread and come here because we can’t keep diseases out–viruses don’t need visas. And in this three-minute video, he had multiple falsehoods. And some of them–I understood the issue well enough to understand why it was a falsehood. But there was one that was really complicated. He said, “Oh, this vaccine increases the deaths of children.” And it took me days to track down the article. He mentioned an article. And then no one gets promoted in their university for debunking a bad article, right? So this article was in the literature for years. You know, it had been criticized in a kind of gentle way. But it took a couple of days to look carefully and understand–oh–it’s got a fundamental methodological flaw where the unvaccinated girls also had unrecorded deaths. So it looked like not vaccinating these girls resulted in saving their lives. But what it really showed was that the girls were neither accessing healthcare to get vaccines nor having their deaths recorded. So, sometimes it’s very hard to track down the reality amid a blizzard of falsehoods.
ROMAN MARS: It’s also not just falsehoods but also the difference between certainty and uncertainty. Science lives very comfortably in uncertainty. And politics does not. And when you’re talking about something–this professional list of principles–I loved hearing them. They are not shared with necessarily a political body. And so when those things have to interact–and necessarily they do have to interact–what is the friction of that outcome?
TOM FRIEDEN: I think that’s a really important point. And partly it has to do with science education. Partly it has to do with encouraging people to embrace nuance in our lives. I was part of a focus group with people who were reluctant to get vaccinated. And several of them kept saying, “Just tell me the bottom line.” And the bottom line is that it changes over time. And that’s why communication is so important. That way you are really clear with people. What do we know? How do we know it? What do we not know? What are we doing to try to find it out? And based on what we know now–and this may change–this is what we recommend. And to have some degree of certainty in that…
ROMAN MARS: An interesting paradox when it comes to public health in that sort of step is that any appropriate action when it actually prevents something will feel like an overreaction because it has prevented the thing that it was intending to prevent. How do you get people to believe in a preventative action doing its job when the result is things are going along swimmingly and they don’t– When government is working well and when the CDC is working well, people should not notice its existence. But you need them to notice its existence for it to continue healthfully. Like, how do you deal with that?
TOM FRIEDEN: My organization, Resolve to Save Lives, produces a periodic report called Epidemics That Didn’t Happen, where we highlight the great work of a team of doctors, nurses, and public health specialists somewhere in the world that stopped an epidemic that we never heard about. And part of it is emphasizing the progress. It’s part of human nature to kind of take for granted the things that aren’t problems. And yes, public health generally is not recognized because when we succeed, nothing happens. And when we fail, it’s headline news.
ELIZABETH JOH: Now, of course, then there are also epidemics that do happen. And of course COVID was kind of that thunderclap–that moment of cataclysm. And one response from the federal government during the pandemic was to put a moratorium–or a pause–on evictions around the country when many people couldn’t work. And this was to prevent homelessness in ways that widespread the virus even further. Now, that moratorium first began in a kind of regular way with Congress approving of the moratorium. But when Congress failed to renew it, it was actually the CDC that used its own authority to issue the moratorium in 2021 because federal law gives the CDC the authority to enforce regulations that are necessary to prevent the spread of communicable diseases. So the moratorium was ultimately challenged in court, and the Supreme Court put a halt to it the same year that it was issued. Now, this was after your time as director, but we were wondering, when you had an agency like the CDC–when you have to make a really big decision like this–do you think primarily and only about the public health decisions? Or are you also thinking, “Well, I have kind of a legal framework in my mind, too, to make sure that, if it is to be challenged, maybe we can have some safe assumptions about it going forward?”
TOM FRIEDEN: So I’m not a lawyer. I’m a doctor. And I will say that I found some of the regulatory approaches used during COVID, during both the Trump and Biden administrations of CDC, not to be appropriate. And I think they were kind of inevitable because Congress didn’t act. So, because there was a failure to act on the part of Congress, CDC authorities were used in ways they had never been used before on both the eviction moratorium and on some immigration issues that probably haven’t stood up to legal review. But your question is a broader one. And I think always public health should consider as broad a set of risks and benefits as possible. There’s a misconception, I think, that CDC didn’t consider what harm will it be to the economy or to education if there are closures. I wasn’t there at the time, but I can tell you that, in all of our recommendations, there is explicitly an understanding of the non-direct health-related costs, whether that’s of vaccinations or other recommendations. And it should be. Now, CDC isn’t always privy to what all of those things might be. So, to give you an example, during the Ebola epidemic, we wanted to track all incoming travelers, but they were coming into dozens of airports, 24/7, and we had no way to do that. I didn’t know, as CDC director, that the transportation department had the authority to mandate that all flights funnel into a limited number of airports. So instead of 32 airports, they could make it just five. And with just five, we could figure out a way to track every incoming passenger from the affected countries. So, when you have a cross-government collaboration, you often identify new ways to do something more effectively or costs or benefits or potentials that you didn’t know otherwise.
ROMAN MARS: So, there’s been this ongoing debate about whether the president should have the freedom to fire heads of agencies within the executive branch for any reason. The CDC director can be fired for any reason. And, in fact, Susan Monarez was fired by the Trump administration this past August after only one month on the job. Do you think that’s a good idea for the president to have that kind of latitude, and is there a better model for this?
TOM FRIEDEN: The fact is–and this came up when just recently Congress made the CDC director position one that is Senate confirmed–there are pros and cons of that approach. But fundamentally, if you’re a CDC director and the administration doesn’t agree with you, you’re not gonna be able to get your job done. So 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.
But there’s a related issue which has to do with what are called “national statistical products.” It sounds like a boring term, and it is a boring term. But it’s actually quite an important term. There are certain publications or series that are considered so important that they be not politically tampered with–that they have been national statistical products–including some of the publications from the National Center for Health Statistics, which is part of the CDC. It actually was independent for a while, then it became part of CDC. And as the CDC director, I was allowed to know what they were going to publish in terms of the title. “They’re going to publish–” Not even the title. “They’re going to publish a publication on X.” But I was not permitted legally to see that report before the media saw that report.
ROMAN MARS: Interesting.
TOM FRIEDEN: And that also goes for things like the Bureau of Labor Statistics’ employment data because you really want people to have confidence in it. In recent months, I learned–really to my astonishment–that that was not a legal or legislative protection. That was the result of a directive from OMB. And if it can be established by OMB, it can be changed by OMB. So I think it is really important for everyone that there is information that is produced by the experts in that information with transparent methodology and hasn’t been meddled with by a politician.
ELIZABETH JOH: I think that’s important. And one of the things that people may not realize is when an agency like the CDC is producing this kind of very important health data, it’s not just for public consumption at large. There’s a whole network of researchers outside of the federal government that absolutely depend on this data–can’t create or collect it on their own. It’s just too expensive to do. So there’s this vast infrastructure that really the CDC and other similar public health agencies are kind of holding up from the bottom.
TOM FRIEDEN: Absolutely. And this goes also for some of the survey systems. There are surveys that CDC does. And the results are anonymized, so you could never find who answered what. But researchers–they’re gold mines of information. And CDC will do the basic analyses of them and then make them available for researchers to look at more. And that’s another essential function of CDC, getting back to your first question of, “Why do we need a CDC?” It establishes the standard for that, and then states figure out how to apply that.
ELIZABETH JOH: So if you had a magic wand, what would be at the top of your list for reforming the CDC?
TOM FRIEDEN: Well, CDC is undergoing attacks–political and even physical–that are unprecedented. We’ve had, for the first time, the firing of a CDC director. About a quarter of CDC staff have either been fired or resigned. Most of the leadership of the agency has left. You have, by last count, a dozen or 15 political appointees basically running the agency; that has never happened before. You mentioned the Advisory Committee on Immunization Practices. That’s a committee that has used the highest standards of evidence and protection from conflicts of interest for decades. And it’s been basically taken over by a group of people who have very limited knowledge of vaccines–most of them, not all of them–and who have made recommendations that are so at variance with basic medical concepts that the professional societies, doctors, nurses, and the insurers have said, “We’re going to ignore what it says because it doesn’t make sense.” So this is a very difficult time. And I don’t think we’re gonna go back to the past. I think we are going to have to go forward to a CDC that’s faster, that’s better at communicating, that has better partnerships and alliances, and that delivers results that people can feel provides tangible benefits for people to understand and live a healthier, safer life.
I think one of the things that has to happen more is that CDC needs to be more tightly aligned with state and local governments because I had the benefit of joining CDC as director after having been New York City Health Commissioner. So I had a pretty good sense of what was needed on the front lines. And I felt there was a little too much of a disconnect between folks at the CDC headquarters in Atlanta and folks out there on the frontline. So this is not a political comment about this policy or that, it’s how fast you need results–how practical recommendations are. And one of the things I did while I was there was I increased the number of CDC staff embedded in state and local health departments, especially early in their career. So people could come in, spend a few years at a city or county or state health department, learn what it looks like on the front lines, and then rotate to CDC where they would be able to provide more practical, helpful guidance. The person who founded CDC, Joseph Mountain, wrote that he thought every CDC officer should have spent at least a year as a county health officer “long enough,” he wrote, “to have proposed a budget and gotten it through the City Council.”
ROMAN MARS: Well, this brings up an interesting point that I’m interested in in your personal biography. I mean, the mayor of a city–the mayor of the city of New York–has very different powers than the president of the United States. There’s also a big difference between what states and cities can legislate versus what the federal government can do still, you know, in terms of public health. Basically, what you were able to do as NYC health commissioner that you could never propose as the CDC director, I guess, is the question I’m asking.
Well, I’ll tell you. 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.
ELIZABETH JOH: [LAUGHING] Oh no!
TOM FRIEDEN: 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. If you don’t spend the money in the way that Congress allocates it, we were always told you could go to jail because Congress is your board of directors. And so that was called an “anti-deficiency act violation.” But with this new theory on impoundment, that seems not to be the way the current administration is working. But that meant that I literally had 20 times more flexible dollars as New York City health commissioner than I had as CDC director.
Second big difference was that, as the CDC director, I had very little control over the different parts of CDC because there are something like 200 budget lines. And they all run their own programs, divisions, and centers. And the director is kind of, at best, conducting an orchestra, but more realistically kind of walking alongside. So when I wanted to start a new program of putting hundreds of staff into state and local health departments, I had no way to do that. I had to go, kind of cup in hand, to my center and division directors. “Would you support three or four?” “Would you support five or six?”
The other thing that was so very different was actually authority. So as New York City health commissioner, I had a lot of authority. Like, when I was assistant commissioner and I ran the tuberculosis control program, we modernized the detention laws. So if you had tuberculosis and you didn’t take your medicines, we could order you detained in a hospital until you were cured. And if a restaurant is serving food in unsanitary conditions, we could close it. If there’s an environmental hazard in a place, we could order it to be abated. So there was a huge amount more of authority and power as a city health commissioner, especially in New York City because the city is kind of a hybrid between a state and a city. The New York State has delegated to New York City a lot of things that most cities don’t have the authority to do. It has its own health code. It has its own Board of Health. So I can say that coming from New York City–particularly with Mike Bloomberg, who has a public health school named after him and was willing to do public health stuff to the CDC–it was a very frustrating transition because the amount of authority and power was so much less, even though the organization is larger.
ROMAN MARS: I mean, would you like to see that power sort of– If there was a U.S. health commissioner, would that be a better system?
TOM FRIEDEN: I don’t think that will ever happen. And we do have a very decentralized federal system in the U.S., where we decentralized the states. What I think would be more effective is a system where there’s more alignment between city, county, state, and federal. Not that everyone’s working in lockstep–but if we’re going to try to address the opiate overdose problem or reduce food poisoning or reduce strokes or heart attacks or cancers, we can say, “All right, let’s do this in a coordinated way. Let’s learn from each other. Maybe we’ll try three different approaches and compare them.” Right now, there’s just too much distance between the different parts of the public health system.
ROMAN MARS: Yeah.
ELIZABETH JOH: Well, what’s so interesting about your tenure in New York City is that what you did there really shows that public health is a thing that sometimes is wildly unpopular at first and then becomes normalized, but it’s exactly the kind of thing that people don’t vote for. Nobody votes for “I want to end smoking in restaurants and bars.” But then we decide, “Oh, this is much better. I can breathe.” So that’s, I think, the real challenge for public health in a democracy.
TOM FRIEDEN: I tell, in the book, two stories from the Bloomberg administration. When Mayor Bloomberg was running for reelection for the first time, I was really enthusiastic about his leadership because he was an excellent manager. He was really focused on public health. We had made a lot of progress. We had banned smoking in bars. We had raised tobacco tax. We’d done new things on HIV care and prevention. And so I asked one of his inner circle, “How can I help with his reelection?” And she said, “I’ll tell you how you can help. Let us put you in a closet and put duct tape over your mouth until after the election.” And after he won reelection, he called all of the commissioners together and said, “Look, I financed my own election, so I don’t owe anything to anyone. And our job is to do the hard stuff that nobody else is going to do,” like building the new water tunnel for New York City–a multi-billion-dollar effort that would take many many years and he would never get the credit for. And so Mayor Bloomberg said, “It’s kind of a mark that we’re not doing our job, that my approval rating is in the mid 70s. And if we do our job, the approval rating will come down.” And the head of his communications unit shouted from the back of the room, “We’re counting on you, Tom!”
So, yes, it can be unpopular. But I will say, when we made all restaurants and bars smoke-free, it was a huge fight–a huge flight. And you know, the tabloids had a field day criticizing the mayor and me and everybody else. And by the first or second year after, people really appreciated it. And people said, “Oh, people are gonna not go to bars and restaurants.” The opposite happened. “Oh, they’re so much more pleasant. We’ll go there. We’ll eat. We will hang out for longer.” And I think this is the case with many public health problems. Another example of this–and it’s important to see the kind of evolution of social change I discuss in the book–is think of a generation or two when it was normal for a family to load up the car, drive to a beach, not wearing seat belts, put on not sunblock but tanning lotion, have a few beers, hop back into their car without putting on seatbelts, drive to a restaurant, smoke in the restaurant, have a few more drinks, and then–not wearing seat belts again–drive home.
ELIZABETH JOH: I think you might have been spying on my family.
TOM FRIEDEN: Well, most families because that was the social norm. That was the social norm. And there’s still too much driving under the influence. There’s still too much skin cancer. There’s too much exposure to secondhand smoke. But those things are much less common, and they’re no longer the social normal. And that’s the reflection of huge progress–progress that has saved millions of lives.
ROMAN MARS: It’s also a social norm to not die of measles and not be in an iron lung. And that has happened for enough decades that people probably… They’re playing footsie with risk, but they probably don’t understand. How do you make them understand that?
TOM FRIEDEN: I think this has been a real challenge. First off, there have been anti-vaccination movements ever since the first vaccines. And in the book, I talk about Ben Franklin, whose four-year-old child died from smallpox. And there was misinformation that he had died from the vaccine. And Franklin got on the social media of his day–which was his gazette that he was putting out–to say, “No. The child died from the virus itself.” And even a half a century later, when he wrote his autobiography, he very movingly went back to that episode and said basically, “Put yourself in the position of a parent whose child has died. Wouldn’t you have rather done everything possible to prevent it?” So there are effective ways to find the messaging.
We also find that vaccines are victims of their own success. We don’t have any problems getting people in Africa to get vaccinated against meningitis because it’s a terrible disease and they see people with terrible meningitis. So, yeah, I want that vaccine. This means that we need to improve communication. We need to listen carefully to people’s concerns. We need it to provide objective data. Fortunately–although some of the myths and the falsehoods get a lot of coverage–still the vast majority of Americans understand that vaccines are life-saving and get their kids vaccinated on schedule. But that’s not an assured progress. We’re seeing this firehose of falsehoods about vaccines. And it means that our defenses against microbial killers are going to get weaker.
ROMAN MARS: Dr. Tom Frieden, thank you so much for taking the time to talk with us. And I really enjoyed talking with you and enjoyed your book.
TOM FRIEDEN: Thank you, it’s been a pleasure speaking with you both.
ELIZABETH JOH: Thank you so much.
ROMAN MARS: Join us next month. We’ll be moving on to Article III, the judicial branch.
ELIZABETH JOH: The 99% Invisible Breakdown of the Constitution is produced by Isabel Angell, edited by committee. Music by Swan Real. Mix by Martín Gonzalez.
ROMAN MARS: 99% Invisible’s executive producer is Kathy Tu. Our senior editor is Delaney Hall. Kurt Kohlstedt is the digital director. The rest of the team includes Chris Berube, Jayson De Leon, Emmett FitzGerald, Christopher Johnson, Vivian Le, Lasha Madan, Jeyca Maldonado Medina, Kelly Prime, Joe Rosenberg, Talon and Rain Stradley, and me, Roman Mars. The 99% Invisible logo was created by Stefan Lawrence. The art for this series was created by Aaron Nestor.
We are part of the SiriusXM podcast family, now headquartered six blocks north in the Pandora building… in beautiful… uptown… Oakland, California. You can find us on all the usual social media sites, as well as our own Discord server, where we have fun discussions about constitutional law, architecture, movies, and music–all kinds of good stuff. It’s where I’m hanging out most these days. You can also find the link to the Discord server, as well every past episode of 99PI, at 99pi.org.
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