In this Teleforum, two of the nation’s leading scholars of presidential power — and former office mates — debate whether Trump’s aggressive fight for presidential power goes beyond the Founders’ original designs. In his new book, Defender in Chief (St. Martin’s 2020), John Yoo argues that Trump — despite his populism — has become more often the defender rather than the opponent of the original Constitution. In The Living Presidency (Harvard 2020), Sai Prakash counters that Trump, like many modern Presidents, has violated the Constitution’s grant of executive power.
Prof. Saikrishna B. Prakash, James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law, University of Virginia School of Law
Prof. John C. Yoo, Emanuel S. Heller Professor of Law; Co-Faculty Director, Korea Law Center; and Director, Public Law & Policy Program, UC Berkeley School of Law
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Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.
Dean Reuter: Welcome to The Federalist Society's Practice Group teleforum conference call as today, July 29, 2020, we discuss “The True Extent of Executive Power.” I’m Dean Reuter, Vice President, General Counsel and Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today's call. Also, this call is being recorded for use as podcast in the future.
We’re very pleased to welcome back two guests to Teleforum today. We’ll be hearing opening remarks from each, some back and forth between them. But as always, we’re looking for questions from the audience so please have those in mind for when we get to that portion of the program.
We’re going to hear first from Professor Sai Prakash. He’s the James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law at the University of Virginia School of Law. He’ll be followed in opening remarks by Professor John Yoo, Emanuel S. Heller Professor of Law and Co-Faculty Director at the Korea Law Center and Director of the Public Law and Policy program at the U.C. Berkeley School of Law.
Interestingly, for our purposes today, they’re both authors of just emerging books, just now on the bookshelves. Defender in Chief is the name of the John Yoo book, St. Martin’s press, 2020, coming out -- yesterday, I think it came out, first day on the shelves. That’s Defender in Chief, again, St. Martin’s Press by John Yoo, and The Living Presidency from Sai Prakash which came out earlier this year. Both are available at bookstores everywhere, if you can find a bookstore that’s open, but certainly online. So check them out.
With that, let’s move to our opening remarks. Sai Prakash, five to ten minutes. The floor is yours.
Prof. Sai Prakash: Dean, it’s great to be with you and John. I’ve known you guys for decades. John and I were office mates for Justice Thomas. We clerked together for Justice Thomas, and it was great fun. And we’ve been co-authors and friends ever since then. So it’s just an honor to be here with both of you.
So for my book, the book is meant to describe what the presidency has become. It’s not really focused on Trump at all. It barely mentions President Trump because the book is trying to describe where the presidency was and where it is today. And I think a focus on Trump sometimes distorts people’s sense and sensibility about the presidency.
So the original Constitution created a fairly strong executive, far stronger than it existed at the time. But over time, the presidency, I think, has become stronger still. It’s stronger still in three areas. With respect to foreign affairs, I think the President has acquired more authority over the conduct of foreign affairs than was true at the Founding, and we see this in the sidelining of treaties. Congressional-executive agreements have filled that space.
What do I mean by that? It’s very common now for the President to submit something that internationally is a treaty to Congress to vote upon by majority rule, and that makes it easier for the President to make treaties because he doesn’t need two-thirds of the Senate.
War powers, I think the President has essentially acquired a power to declare war, a power to use military force overseas. So John and I disagree about that.
But finally and perhaps most importantly, the President has far more authority over law execution than was true at the Founding or legislation in general. The presidency was conceived, I think, as a third branch of Congress with the veto. But today, the President has lawmaking authority by virtue of thousands of delegations from Congress. And John talks about them in his book, and I do as well. This is, I think, a fundamental reconception of the executive.
The executive really isn’t executive anymore in most people’s mind. It’s a policy generator. It’s a policy changer and a policy implementer. And those policies aren’t often from Congress; they’re internally generated by the Executive Branch. And I think many people sense that the Presidency is far stronger than it was at the Founding, certainly with respect to legislation and policy making.
Why and how has that happened? And the book describes why presidents do this. We've placed greater expectations on them than we have in the past. We expect them to solve all our problems. The coronavirus would not have been a national problem. It would not have been a presidential problem decades ago.
So the President just feels pressure to do more things and runs on a platform where he’s promising to do tons of things. And presidents are able to expand their authority because they are, as John notes in his book, they have energy, they’re unitary, they’re able to act quickly. And their rivals, the Congress and the courts, are plotting multi-party institutions where it’s much harder to react. And so the end result is the President’s able to create authority over time, and the other branches are hard pressed to stop them. And the Executive Branch, in fact, openly says, “We can acquire new powers by virtue of repetitive practices,” citing an opinion by Justice Frankfurter.
So that’s, in a nutshell, the book. As you said, Dean, it’s in stores everywhere and on Amazon as well. And I’d be delighted to chat further about it with you and your callers.
Dean Reuter: Terrific. Professor John Yoo, your opening thoughts.
Prof. John Yoo: Hey, Dean, thanks for having me back. And it’s also great to be here with Sai. For any of the listeners who’ve always wanted to clerk at the Supreme Court, I think the next hour, hour and a half is going to be proof that it really wasn’t in your best interest because you’re going to see what it was like to sit in the office with me and Sai. We argued all the time about everything, and still, even now, 25 years later, I am making no headway with him. But let me try here to win an argument with Sai yet again.
I agree with Sai that the powers of the President in all these areas that he’s mentioned, foreign affairs, war powers, delegated regulatory powers, have expanded vastly since the time of the Founding. The question is whether they’re permitted or not by the Constitution. And I would like to throw in whether Trump, then, is guilty or not of these accusations that he is somehow shredding the Constitution, not just in these three areas but many others. In fact, most importantly, and I think one area Sai didn’t mention, the area of law enforcement, executing the laws, and managing the government.
Sai would say, “Of course, the country’s position on foreign affairs has grown, but I argue that part of the reason for that is because the country’s position in the world has grown.” Tocqueville said, for example, that the powers of the President, when he visited from France back in the early 19th century, seemed quite weak to him. But he said that’s because America’s a small, unimportant country. Once it grows, and he predicted it would grow, once it has international interests, then the power of the presidency will naturally grow, too, because that’s where the locus in the Constitution of managing relations with the foreign world rests. And I think Tocqueville was right about that.
And consider war powers. In war powers, I think the Founders thought that Congress would have to sign off on only the most important, most serious armed conflicts. That’s what they meant by declaration of war. But now that we’re a large world power and we have a lot of interests around the world, there are all kinds of uses of force that fall beneath that level and that the Founders would not have said, “Oh, you must have a declaration of war or congressional approval for all those.”
And I think Congress admits that when it votes. Ever since 1945, an enormous standing army designed for offensive military operations all around the world, not really well designed for homeland defense, mind you, and then makes no effort to place limits through the funding power on Congress’s use of that.
And then I also agree that there’s been this vast delegation of power from Congress to the presidency, to the executive agencies. It’s actually been in the interest of lots of presidents to actually try to bring that under some kind of control. I really would put the fault there at Congress. I think it’s Congress that loves to escape responsibility and accountability for important and difficult public policy questions by shrugging them off over to an unaccountable bureaucracy that’s not really, I don't think, contemplated by the original Constitution but really is more the innovation of progressives like Woodrow Wilson and accelerated by F.D.R.
Let me close by -- if this Sai’s critique of the modern presidency, then let me try to be provocative and say that Sai’s favorite President in recent years should be Donald Trump. Now, why do I say that? Well, look at what Trump’s done in these three areas that concern Sai. In the area of foreign affairs, yes, Trump has been very aggressive, perhaps disruptive, in switching our foreign affairs away, I think, from an internationalist, multi-lateral model towards something that’s more based on American sovereignty, more aimed at following a rational national self-interest.
Well, how has he done that? Has he been running around the world entering the United States into lots of new, weird treaties and agreements and international ones? Actually, quite the opposite. What Trump has been doing in foreign affairs has mostly been terminating and withdrawing lots of treaties.
Ever since he tried to pull us out of NAFTA, he’s pulled us out of the INF treaty, he’s pulled us out of Paris accords, he’s pulled us out of the Iran nuclear deal, the Open Skies Treaty, and on and on. He’s actually been freeing us of foreign entanglements, not trying to dive deeper into them. And I assume Sai believes because I think this is the implications of the argument about the removal power, for example, that presidents have the right to undo treaties unilaterally just the way they have the right to fire cabinet officers.
What about war powers? Again, President Trump has been trying to withdraw troops from abroad. Congress is angry at him for saying he wants to withdraw the level of troops in Germany, for wanting to pull troops out of Afghanistan, and for pulling them out of Syria. Trump’s not going around using vast new executive war powers. If anything, unusually, he’s a President who’s actually trying to reduce the amount of armed conflict that the United States is engaged in.
And then look at the last one, the delegation of powers. It’s interesting, I think. You’ve got a President here who’s trying to deregulate. He’s trying to get the federal government to use less of these delegated powers. There’s a rule, I think, formally now an executive order, saying that for every new regulation an agency issues, it has to undo an earlier one. And by practice, it appears to be that the Trump administration has actually eliminated three regulations for every new regulation.
And you can see Trump now claiming, I think, based on the DACA opinion of the Supreme Court recently upholding Obama’s right to not enforce the immigration laws and the DACA program, at least to make it very difficult to repeal them unless you use the Administrative Procedure Act, that President Trump might use a similar power to engage in even more deregulation and more efforts to stop using this vast effort by Congress to transfer its legislative power abroad.
And so let me just return -- I think this brings in to end my -- the thesis of my book, which is that Trump’s a populist. And many people were wary, including me, of him at the beginning of his term in office because populists are usually the ones who want to overthrow constitutional understandings. But in the end, after the last three, four years, which really feel like eight or twelve years, frankly, it’s been Trump’s critics, I think, that have been calling for an upending or overthrow of our traditional constitutional understandings.
It’s not Trump but his critics who make claims that they want to get rid of the Electoral College. It’s his critics who say we should pack the court from nine to fifteen. It’s his critics who want to rejuvenate the independent counsel, restrict the President’s right to remove officers and thereby control this vast agency, these vast bureaucracies created by Congress. They’re the ones who want to have a nationalization of the economy in favor of some Green New Deal. And I think the argument in my book is that Trump has become more the unexpected defender of a more spartan, limited Constitution of the kind that Sai wants, and I think the kind that our Founders wanted.
So thanks, Dean. Thanks, Sai. Thanks a lot for giving me a chance to continue wailing on Sai 25 years later, which you richly deserve.
Prof. Sai Prakash: Let me just say I’ve had the pleasure of reading John’s book, and I think it’s excellent. It’s very nuanced. It’s not a full-throated defense of the President. There are criticisms of the President, both his personality quirks but also his policy judgements, but finally and most importantly, his constitutional claims.
And so John is consistent. He has consistent views. He’s not going to change them just because Trump is President. He’s not going to praise everything he’s done, and he’s not going to say that everything the President’s done is Constitution permissible. The title of the book will confuse some people and think it’s some sort of an unmitigated defense of the President or unvarnished or unqualified, but it’s not.
And my book is the same thing. I’m not trying to defend the President or attack the President. It’s really not about the President. As John said, it’s about the Constitution and it’s about the presidency. So I think people looking for an honest assessment of what the presidency is or has become should buy these two books.
Dean Reuter: Well, I would -- this is Dean. I would love to see on my next visit to Amazon that people are buying these books in pair. Again, Sai Prakash, The Living Presidency is the title; John Yoo, Defender in Chief is the title.
Prof. John Yoo: And then Dean Reuter’s book on Nazi hunters. So that would be a threesome lineup on Amazon. It’d be irresistible to readers.
Dean Reuter: That’s exactly right. And they all make excellent gifts, I’m sure. I want to get the exchange going back and forth between the two of you. While we do that, I want to open the floor to questions so people can begin to queue up.
Let me start with a question for either or both of you, and that is that everything right now -- you guys have both been careful, I think, to distinguish this President or the President from the presidency, and I think that’s important and I agree with that. I want to ask a question about the current state of affairs, though. Everything right now seems so momentous and so important and so unique. Are we, in terms of presidential power, are we really living in unprecedented times? And if so, what does that mean for presidential power? Is there going to be a reset button? Is this just a natural evolution?
And I guess let’s start in the order we went. We’ll check in with the author of The Living Presidency first, Sai Prakash.
Prof. Sai Prakash: So Dean, I agree with John that the President’s critics have been unrelenting, but I think John misdescribes the motives. I think the President isn’t really inherently interested in the presidency. He’s just interested in his own authority. That’s true of every President. And I think the critics of the President really aren’t interested in the presidency either. They’re just making political arguments against the President. Their views on the presidency will switch if Joe Biden becomes President, and Republicans might well switch as well the other way.
So there aren’t any enduring positions on presidential power outside of the academy. John has an enduring position, I do, other professors do, but politicians do not. Barak Obama did a 180 degree turn once he was President, and so will Joe Biden. Joe Biden thinks he can’t do certain things, but he’ll do them when he’s President. Sorry, go on.
Dean Reuter: I was going to ask if you could substitute the word principled for enduring. Or are you saying the same thing there, that everybody else is more opportunistic and less principled than academics in their assessment of presidential power?
Prof. Sai Prakash: Well, I don’t want to -- principled is a loaded term, but I do think that you will often see this, that politicians will say one thing when they’re in the opposition, and they’ll say the opposite when their party is in power. You can describe that as unprincipled, or you could just describe that as cyclical amnesia. But it’s certainly not an enduring position.
And I think Joe Biden’s comments about the President attacking Iran can’t be squared with the Obama administration’s attack on Libya. Whatever you think of the legal question—and John and I disagree on that—there’s no doubt that he’s flip-flopped, and he’ll flip-flop again if he becomes President.
So I don’t think we’re in a singular moment. I don't think Trump is really fundamentally different than Obama when it comes to executive power. They both want more because they’re President. And I have another article where I say the presidency is always at a crossroads. That is to say the presidency is constantly changing in minor and major ways, and it’s a mistake to think that this particular President is the worst or the most grabby President. That’s just something that partisans say about the opposite President.
Dean Reuter: Professor Yoo?
Prof. John Yoo: This is a great question, Dean. One thing is just that -- in fact, this is an argument that I make in The Defender in Chief, too, is, yes, President Trump is pursuing his self-interest, members of Congress are pursuing their self-interest. That’s what the Founders expected. We have that famous phrase from The Federalist Papers. The separation of powers is there to make ambition counteract ambition; the interest of the man will be those of the interest of the place.
The Founders wanted people in office to pursue their political self-interest. It’s kind of like the free market. They thought when those actors pursue their self-interest, they will still produce some greater constitutional good, and that greater constitutional good was that they would constantly be checking and fighting each other, and that would limit the government and preserve our individual liberties far more than the courts, far more than written parchment barriers like the Bill of Rights, is what the Founders called them.
So I don't think it’s necessarily wrong. And so in a way, it doesn’t matter so much whether Trump is conscious or not of it because the Constitution tries to funnel his actions in that greater -- in fact, you might say maybe President Obama was worse because he allegedly taught constitutional law at the University of Chicago, so his flip-flop -- he knew he was flip-flopping when he changed is views on war powers, whereas Trump is just responding to the incentives of the office without thinking too hard about it.
And the second thing that is interesting is, and this is also part of the debate and these questions, are they making a significant impact on the office, as you said, Dean. Is there something -- and it ties in with Sai’s question. Are these people really being principled or not? And so you can always, I think, take the law school approach and just say, well, do a search-replace of the President that’s in the opinion that you like or you dislike and switch the parties and see if you still agree with the rule. And I couldn’t think of a better example of that, and I think this could be a real turning point.
I couldn’t think of a better example of that than now with the DACA issue. So you have in 2012 and then 2014 President Obama makes, I think, an extraordinary claim that he doesn’t have to enforce the immigration laws against two classes of aliens that range somewhere from two to maybe six to even some estimates have eight million people in them.
And he’s not claiming that the law is unconstitutional. No one thinks the immigration laws here are unconstitutional. He just doesn’t like the policy. And he says, “Well, it’s prosecutorial discretion, and we don’t need to spend that many resources on the dreamers.” I agree in the sense that I think that having the dreamers stay would be a good idea. I’d be in favor of more immigration, but it’s up to Congress, not the President.
The Supreme Court just said, “Well, President Trump can’t just end DACA in the way President Obama created it.” Instead, President Trump has to go through the onerous Administrative Procedure Act, itself the subject of many teleforum calls, unending detail of this Administrative Procedure Act. But think about that. That means that President Obama was able to create a program almost directly at odds with congressional purpose and intent and the design of the statue merely by not enforcing it. And the successor is going to have to take years, here, Trump, four years, to try to undo it.
Now, what I say to my liberal friends is, well, search-replace. You just gave Trump the same power that you recognized Obama has. If you had this presidential power of nonenforcement, I think that could actually be quite a startling expansion of presidential power quite at odds with the Founding design. They put in the Take Care Clause. But at the same time, it would allow the President to create all kinds of new statutory programs.
Say you could change the immigration law completely. You could say, “Well, I’m not going to enforce immigration law against aliens who have STEM degrees or aliens who bring millions of dollars into the country to invest in American businesses,” really reorient immigration law in a way Congress never approved. And according to the Supreme Court opinion, that’s all going to be okay until the next President comes into office and goes through a three year APA process to undo it.
Dean Reuter: Professor Prakash, do you want to weigh in here or can we move on?
Prof. Sai Prakash: I think I would just go back to what I said earlier. John has principled views, and he’s enunciated them over a decade. And so do I. And these books, they discuss presidents, and John’s discusses President Trump quite a bit, but these aren’t books for people who just want to dump on the President or books for people who just want to laud the President as infallible. They’re far more nuanced than that.
Dean Reuter: Well, they are definitely more straightforward analyses. And John, I wonder if the DACA case, your description of it, maybe this demonstrates something a little more broad, and that goes to the relationship between the Supreme Court and the Executive Branch, and what could be described, I think fairly, as the Court’s new or new-ish willingness to look behind the motives of the Executive Branch, and the President and key leaders in particular. And I would cite DACA as an example where I think what the Court was saying, at least in part, is that this was done for illicit reasons. And the census case as well. Is there a shift there, or is this a new phenomenon, or have I misdescribed it?
Prof. John Yoo: No. I spend more time -- Sai’s book doesn’t talk so much about that relationship. I spend about a chapter or two talking about Trump and the courts. And I think you’re right, Dean. This question of can courts look behind the formal presidential actions to dig around into what they think the President’s motives are, that is a new development.
Dean Reuter: It seems like it’s the opposite of rational basis analysis where virtually any claimed reason counts. But go ahead.
Prof. John Yoo: Yeah, that’s quite right. Until, I think, the Trump administration, you had never had the Supreme Court ask -- even say that courts could question presidential motive, that they had to accept at face value what the court did. That was similar to the rational basis test. And actually, I would say it even began before the census case.
If you remember the travel ban case, Hawaii v. Trump, yes, in the end, Trump won, I think rightly so. I think that on the face of it, the regulation was just the exercise of the President’s power delegated by statute to close off movement between the United States and other countries. I think everyone forgets it, but thank God it did because that allowed President Trump to cordon off travel from China and the European Union at the outbreak of the pandemic. Nobody’s questioning President Trump’s right to do it now.
But you remember, in the back half of the opinion, John Roberts did say that the courts might be able to examine the presidential state of mind, animus. And then he just said, “Well, when you look at things pretty quickly, we don’t think President Trump’s a racist. And so we don’t think this is done out of racial motivation.” But that has steamrolled, yes, as you point out, Dean, in the census case and then now, other cases.
And this is part of -- I think what’s also going on is, yes, the presidency has grown. The presidency has been fighting with the other branches, but another story of what’s been going on the last four years, and actually going farther back than that, Sai and I have written on this question, is this claim of judicial supremacy, this claim by the Supreme Court that it gets to have the final binding interpretation of the Constitution for the whole government.
And this goes back to cases like City of Boerne v. Flores and cases sometimes that conservatives at the time liked because what we didn’t see or didn’t catch was this broader trend of -- and I think this is something -- maybe this is an area where Sai and I would agree because I don't think that’s what the Founders thought about the relationship of the branches to constitutional interpretation.
Of course, at the Founding, most of the great constitutional questions are resolved by the political branches, and I would have thought they’d be closer to departmentalism, the idea that each branch gets to interpret the Constitution in the course of conducting their own unique functions. And in the book, I try to argue that Trump has tried to do that in a very traditional fashion, and that the courts are the ones that have been intruding in an effort to expand its own power supremacy.
Dean Reuter: Professor Prakash, is that exactly what happens? Don’t agencies and other branches get to do what they want largely unchallenged, so in a sense, they’re determining the constitutionality of their own actions, and it’s only the rare case, statistically speaking, that ends up being ruled on by courts, especially the Supreme Court?
Prof. Sai Prakash: Dean, you’re absolutely right. Most legal questions are decided within the Executive Branch, and they never see the light of day in the sense of never being litigated. It’s only the rare issues that get so far. I agree with John that the Constitution does not make the court supreme in constitutional interpretation. John and I wrote a piece saying as much.
I think in terms of looking at presidential motivation the question I think to ask is, do we have constitutional rules that turn on motivation of the constitutional actors? And if you think we do, do we look at what Congress’s motivations are in deciding the constitutionality of legislation? And I think there are cases where the courts certainly have looked at legislative motivation in deciding whether or not a statute is constitutional. I think of something like the DOMA case where I think the court majority rightly or wrongly said it was motivated by a bare desire to harm.
And so the question then is, is the President different? And so I don’t think it is. Once you decide that you can look at motive and look beyond the face of something to decide whether the motive was bad, then I think you’re going to be able to say the same thing of the President.
I think John -- in the book, John says that the first travel ban was unconstitutional. I think he says it’s unconstitutional because it only covered Muslim states and it had an exception for Christians within those Muslim states. But I think that, in part, is based on John’s reading of the President’s motivations because I don't know how you can infer a discriminatory purpose just from the six nations listed. They happed to be all Muslim nations, but you wouldn’t be able to infer any sort of religious bias just from the fact that they’re all Muslim.
So I think John has a nuanced position. It’s an interesting one. It’s certainly the one that the Trump administration took. But again, I would generalize and ask the question, do we ever care about the motivation of policy makers? And if we do, why is the President different than the members of Congress?
Dean Reuter: We’ve got two questions pending. We’re speaking, of course, with the author of The Living Presidency, that’s the book by Sai Prakash, and John Yoo, the author of Defender in Chief.
Prof. John Yoo: And a dog.
Dean Reuter: I think we have a dog on the line.
Prof. John Yoo: A canine review.
Dean Reuter: Let’s check in with our first caller.
Caller 1: Well, you just covered my question, but I’ll try to rephrase it. The motivation issue kind of got me off my track, but the motivation is now fair game. And I think the question is, do we look at Congress as motivation? And then I kept waiting for a motion to dismiss the impeachment proceeding on the grounds of motivation because there seem to be no grounds in the constitution for impeachment, but the motivation seemed to be screaming as the reason behind the whole process. And Republican didn’t drive that, the motion to dismiss the impeachment claim.
But my original question which I got sidetracked by your motivation question, which I -- anyway, is it possible to have an original constitution anymore? Isn’t the presidency by definition almost a living constitutional article, Article I, because of the rapid evolving conditions and the way the courts even respond to it? Injecting motivation, for example, that’s clearly not originalism. It’s something else. It’s a response to contemporary attitudes about the President. So is it possible to have an originalist approach to Article I in the 21st century? I mean Article II. I’m sorry.
Dean Reuter: Who wants to take a shot at that?
Prof. Sai Prakash: I’ll take a shot at it. It’s really the thrust of my book that we have a living presidency because the presidency, I think, has changed in various dramatic respects. And I try to describe why and how that’s happened. And the ultimate argument is we should revert to the Founder’s presidency because if we don’t, there really aren’t any limits to what the President can acquire over time.
If practice is the yardstick for presidential power, it’s often the case that even one deviant practice then becomes cited going forward, which means, in effect, that a President can change the presidency and his or her successors can just build upon it. And I think that does describe certain changes to our presidency that the accretion of practice, sometimes just one practice, fundamentally transforms the presidency. So there’s a question of whether we should applaud or condemn this, and I condemn it in the book.
There’s a separate question of whether we can really go back to the original Article II that John and I adore, even if we disagree as to its contents. And the originalist project is basically an argument that we should go back to it, and the book argues that if we don’t go back to it, we don’t have a Constitution. If our agents, the politicians, can just change their authority by assertion and practice, there is no Constitution. It’s just plastic. It’s whatever the politicians and the presidents and the court and the Congress make of it. And unfortunately, that does describe what we have today to a large degree.
But the point I make in the book is that we have a lot of critics of the presidency who long for a more narrow conception of the office and claim the mantle of the Founding. And my point is if you believe in a living Constitution, how could you be against a living presidency? If you’re against a living presidency, how can you be in favor of a living Constitution? So I echo the sentiment of the questioner.
Prof. John Yoo: I think of a different take, although we may have different parts, which is I take the question to really be is the presidency -- I’m sorry. Was the presidency understood by the Founders to be an office that could change and grow in response to circumstance? And still, would that not be originalist because you are giving meaning to what the Founders originally understood the Executive Branch to be? And I think that’s my position.
I think that’s different than Sai’s. I think Sai’s applying a sort of traditional, originalist approach to try to figure out what are the fixed limits on the presidency that were understood in 1787. But what if instead, that very intention, that very understanding was that executive power itself was more protean, was more mutable? And I think that’s the case because if you look at the history of thinking about what the executive power was, what made it different from the legislative and judicial powers, it was exactly this idea that there would be some branch of the government always in existence that could respond quickly and decisively to unforeseen events, to circumstances, to challenges, to war even, in a way that the other branches could not.
And this is taken right from The Federalist Papers, from Federalist No. 70 that Sai quoted that there’s this idea of energy in the executive. And it talks about having a steady administration of the laws, but Hamilton also talks about this ability of the Constitution to respond to these kinds of challenges and emergencies. And it’s got to be the Executive Branch, it would seem, that is the branch of doing. So wouldn’t -- The Federalist Papers say this. You wouldn’t try to write down every kind of case beforehand that you would want the Executive Branch to respond to because you couldn’t do it. The human condition doesn’t permit that. Human affairs don’t permit that kind of foresight.
So the second thing is that, well, then, which branch is the one that’s really grown too far? Is it really the presidency that is so unlike the original design, or is it really more Congress that’s unlike this? And I say Congress in terms not just a sweep of federal power, but in terms of its efforts to grow its involvement and interference with the Executive Branch.
Sai is the great scholar, and I think Sai’s the greatest scholar we’ve ever had about the removal power. He’s not so good on the war power, though, but he’s really good on the removal power. I mean, really, he’s uncovered so much evidence that shows that the removal power is really key to the President’s thinking -- the Founders’ thinking about how the executive would work, how we would control the Executive Branch.
And I argue that in my book. Trump’s favorite phrase, “You’re fired,” actually has a deeper constitutional meaning and tradition. Has he really been the one abusing the power, or is it really Congress that’s created all these agencies and tried to insulate them from presidential control that is really the one doing the distortion of the original constitutional intent?
Prof. Sai Prakash: I want to echo some of the things that John just said. I think you could say that each of the three branches has expanded its authority. That’s just crystal clear. Congress regulates far more than it could at the Founding. It’s claiming all kinds of powers that the Constitution doesn’t grant. And the courts themselves are transforming the Constitution by their decisions, expanding certain rights, contracting others, sanctifying congressional power grabs, sometimes sanctifying presidential power grabs.
So my book is not a claim that the President is unique. Every branch is doing this. My claim in part is that liberals who complain about an imperial presidency have to pick their -- have to decide on their position. Are they for a living Constitution or are they against it?
And I’d actually say something similar to John. John’s book does say that certain things the President does are illegal or unconstitutional. He’s just talked about DACA earlier. But I don't know why DACA and DAPA are illegal because John just said that the executive power is protean. And if it’s protean, why doesn’t it include this authority?
And John has an article about this in the Texas Law Review. It’s worth taking a look at. I’ve got a response online to it. But basically, presidents have been using their discretion that Congress has provided them to decide that certain people shouldn’t be deported. And they’ve been doing this, announcing classes, for decades. And Congress has statutes that actually recognize this deferred action category.
So either John has to have the view that presidential power is fixed and the President can’t do this, or that it’s flexible and that even if he can’t do it now, he might or his successors might be able to acquire it. And if that’s true, then I don't know why it is that President Obama did anything wrong with DACA and DAPA.
Dean Reuter: Well, it’s interesting the assertion, Sai Prakash, that all the branches have enhanced power vis-à-vis their status a few decades ago or centuries ago. It raises the question of where is all this power coming from, and I guess it’s from the people but also from the states. And it feels to me like the balance of power the presidency is enhanced not just with regard to foreign relations and war powers but vis-à-vis the states. I don't know if either of you talk about that balance of power, vertical federalism, in your books.
Prof. John Yoo: I don't know. I don't think Sai’s does. Mine does a little bit. Of course, I start out with the Electoral College, and I try to show how the states are actually an important element of picking the President, and presidents are wise to try to get state cooperation and involve the states in the formulation of policies.
But I quite agree with you, Dean, that we have had a situation where states, I don't think so much, think about their rights as states, that they’ve become more partisan or more policy oriented in how they think of exercising their political power. They think of themselves as more Republican or Democratic states, and you don’t see people fighting so much.
Maybe the high point was the opposition to Obamacare where you did see a coalition of states getting together. It wasn’t all the states, but I think it was a majority of states just saying this nationalization of health in our country—it was about 18 percent of the economy at that time—has just gone too far in terms of federal power. And you have a President now -- it’s interesting, Trump, who I think it trying to return power back to the states, much or probably even more aggressively than President Reagan tried to.
But it’s harder when basically on most issues, as you say, it’s the states themselves are often interested in giving up their own authority so they can get federal money, or they can make a political point. One thing that strikes me about the current pandemic is that you have some governors saying President Trump or the federal government should demand that all businesses close, or have to mandate that everyone wear mask, or do A, B, or C.
Under the Constitution, I think it’s pretty clear that the primary responsibility for public health and safety is in the state and local governments. Why is the governor of Michigan telling the other governors how to do their jobs? The governor of Michigan can arrange for a mask requirement, and the governor of Michigan has shut down businesses in Michigan. It’s not her job to worry about what they’re doing in Florida and Georgia. But it’s an odd thing for them to say, “I would like to give up more state power and expand the powers of the federal government to handle something like the pandemic, or perhaps, public health and safety with the rioting we’re seeing in some of the inner cities.”
So I quite agree with you, Dean. The President, though, whether it enhances or decreases his power to try to advance that kind of transfer from the state and federal government or not, I’m not sure. I think definitely people like F.D.R. and L.B.J. would have thought of -- would have wanted and cooperated with the shift of power from the states to the federal government because I think it also made them more powerful. And a Sai points out in his book, they always have a political incentive to expand that power because they want to meet national expectations that the President is going to solve every problem.
But the interesting thing is Trump hasn’t done that. Remember, Trump was the one out there saying, “I’m not going to close down the economy. That’s up to governors.” And he’s trying to, but he knows, and he hasn’t tried to open up the economy everywhere and override state bans on businesses operating because I think, constitutionally, he realizes he can’t do that.
Dean Reuter: We’re speaking, of course, with John Yoo, author of Defender in Chief, and Sai Prakash, author of The Living Presidency, both available now. We’ve got three questions pending. We’ve got about 15 minutes left. Let’s see if we can move through some of our audience concerns here. Go right ahead, caller.
Caller 1: Yes. Gentlemen, thank you. Professor Yoo, I just wanted to hear you expand on your point you just made, just engage in a little thought experiment. Come November, new administration comes into office and COVID-19 has a resurgence, a true second wave. And Congress wholeheartedly encourages the President to enact -- whether he has the constitutional authority or not, he goes ahead and starts mandating that everything get shut down. Congress supports him.
In that environment, do you think courts would step in and recognize and put a limit on that, or do you think that a true second wave would lead to a really disturbing expansion of presidential power? Thank you.
Prof. John Yoo: Well, there’s a difference between whether courts should and whether this Court would because you’ve seen this Court -- just recently, I think there’s a case out of Nevada denied cert in a case where a religious group said, “Why can’t we meet and have services when the state is allowing a lot of businesses and other kinds of groups to meet?” And I think there was a great point, I think it was Justice Gorsuch made that Nevada was basically saying it’s okay to go to the casino but not into a church.
I think you saw similar inconsistencies with the way some cities were allowing large protests to occur without social distancing or masks, but we’re still pursuing churches. It seemed quite flatly inconsistent, and maybe even a violation of the First Amendment. So I expect that you would -- I think, given the way Chief Justice Roberts has been acting lately, I would think that the Supreme Court would try to duck and not decide these kinds of cases, even though I think they present real, viable constitutional questions.
The second point is would it actually happen in the first place, this kind of expansion of federal power, in a different kind of administration? Well, this is the unusual thing is that Trump, although he has a political incentive, maybe, to try to expand nation power in response to the pandemic, he hasn’t. And I’m not so sure that the critics who I think generally favor much broader exercises of federal power—you could see that in the proposals for Obamacare, and then the Green New Deal—I don't think they would have any hesitation in a Biden administration with a Democratic Congress to try to impose some kind of national restrictions in response to the pandemic.
But I agree. I think that would be going too far, that the Commerce Clause allows for regulation of things moving between states. And I’m not even sure, but the precedents do say that it allows the regulation of intrastate business that affects interstate commerce. But I don't think that extends to forcing -- regulating every single business in the country, whether it can be open or closed, and regulating everybody’s personal conduct in wearing masks or standing a certain number of feet apart. That doesn’t mean the governments of the states can’t do it. I just don’t see how the federal government can do it.
Dean Reuter: Professor Prakash?
Prof. Sai Prakash: I agree with much of what John said. I think the caller has a great question. If Joseph Biden tried to shut down the economy or forced people to wear masks, would he have authority to do it? And there are two sources of authority. One would be a claim that the Constitution authorizes him to do it. One would be a claim that the statutes of Congress authorize him to do it. I don't think that the Constitution authorizes the President to declare this sort of emergency. I think John is more open to the idea, but you just heard him say he doesn’t believe the President could do this.
With respect to statutes, I don't know there is any statutory authority for the President to order businesses nationwide to shut down. There’s no such statute of Congress. So I think if it got to the courts, the court would say it was beyond Presidential power, given our current conceptions of it.
But the point of the book is that it’s beyond current conceptions, but there’s no permanent frontier to what the President can acquire. It’s all a matter of politics, and that can change over time. So if Joe Biden did it and succeeded, we would’ve, in the caller’s view and in my view, we would’ve changed the Constitution just by a raw assertion of authority. But it’s a great question because, obviously, the Democrats believe that it’s important for health reasons to shutter large portions of the economy.
Dean Reuter: Let’s check in with another caller.
Caller 2: Hi. [Inaudible 48:06] from Yale Law School. Thank you, guys, for doing this today. I had a question about the appropriate institutional mechanism for reforming the presidency if you think that it’s gotten off track with regards to an original understanding. So obviously, the courts run into some issues, thanks to certain kinds of political question doctrine or certain kinds of deference, especially national security issues. Congress has attempted, at least in 1974 with the Impoundment Act and the War Powers Act, to do something like this.
But I’m wondering what both of the professors think is the right path to reforming the presidency and whether it happens entirely politically, or whether or not there are real legal, enforceable constraints that the court should be considering in getting things back in line with an original understanding.
Prof. Sai Prakash: I’m happy to take the first crack. I think the courts have traditionally played a role in checking the executive. That goes back to England. They separate judicial power from the executive because they want the courts to be a check on the crown. And that’s true in this country from the beginning where the courts are disagreeing with the executive. There are, of course, justiciability limits on what cases the courts can decide, but I think if you really think that the presidency needs to be reined in, it’s multi-prong approach. It’s the courts, it’s the Congress, and it’s ultimately the people.
Do you really believe the President can’t take some act? Well then, you’ve got to have that view regardless of the President. That’s John’s position. That’s mine. We don’t change our view on the constitutional authority of the President based on who is the President and who is not. And I think that’s what people should be doing as well. They should not be adopting different theories of interpretation based on whether they like what the President is doing.
John’s book says repeatedly, “I don’t like what the President did here, but he has legal authority.” You may disagree with his legal claim, but that’s the precise way to approach these questions. The policy merits of a dispute should never decide whether it’s legal or not. So to answer your question, it’s going to require multiple institutions and the people themselves to decide they want to chuck the presidency, and for that matter, Congress and the courts.
Dean Reuter: I think it was Justice Scalia, John, maybe, who had a stamp on his desk in chambers that, paraphrasing, “stupid but constitutional” was the stamp.
Prof. John Yoo: I’ve never heard that. That’s great. Maybe we should get more of those and hand them out with every book.
I actually don’t -- I agree with Sai in that courts have checked executive power, but I think if you take a look at it beyond the common law casebooks and look at the history of the presidency, I don't think those cases have made a big difference in if you’re Sai and you think this is an unconstitutional growth away from the original presidency, or if you’re like me and you think the Constitution permits a great deal of presidential power and growth in the office.
So it’s a great question because in law school, of course, or in legal practice, we’re going to focus on cases like U.S. v. Nixon. We’re going to focus on cases like Youngstown Sheet & Tube or Curtiss-Wright. Actually, there aren’t that many big precedents about limiting presidential power, but if you look at did those cases really change the trajectory of the growth of the office?
So you might -- if you were to take common law, you would think Youngstown Sheet & Tube was the biggest decision ever, perhaps. But actually, the presidency becomes much stronger and broader with the introduction, perhaps, of the national security state in the wake of the end of World War II and the beginning of the Cold War. I don't think Youngstown really stopped it at all. It’s hard to notice Youngstown actually affecting the great expansion of our intelligence bureaucracies and the CIA and the NSA and the large standing military we have now.
Part of it is that I don't think that it’s going to be the courts. So you say, well, is it going to be Congress? I think, first of all, that’s what the Founders really thought that what would be that the real check on the presidency would be from Congress. There wouldn’t just be at a constitutional level that we’re talking about. It would just be from the trench warfare of day to day politics. Again, it’s this ambition countering ambition.
I think the one thing that changed that maybe the Founders didn’t anticipate and that perhaps raises a problem for this—Madison could have been wrong—is that Congress necessarily doesn’t want to fight anymore, that Congress wants to get reelected. And in their reelection, they figured out that they could delegate powers over the really hard questions over to these unaccountable agencies.
So if I were to say maybe the one thing that has prevented or handicapped the Framers’ original idea for the containment of presidential power, it has oddly been the growth of the administrative state. It has been the creation of all these weird bodies like inspector generals and independent counsels and independent commissions. I think those have sapped executive responsibility, but they have also sapped, not deliberately, congressional responsibility.
I think once Congress has to do the job itself of oversight, of checking the executive through funding rather than relying on all these inspectors without remit -- with limitless remit to go snoop around the Executive Branch. Once they have to do the job themselves, then I think maybe you will get real checks on the executive instead of hoping that the courts are going to save us all.
Dean Reuter: Let’s see if we can get a final question in here.
Caller 3: Yes, this is Matthew. I’m the President of the John Marshall Law School Chapter, Atlanta. And I was wondering your thoughts concerning the effect on presidential power and if the courts would let stand this idea that the national compact to award electoral votes to the national popular vote winner.
Prof. John Yoo: That’s a great question. I talk about that in the first chapter. The first chapter in my book is called “You’re Hired.” And it talks about the Electoral College and response to these claims that the Electoral College is illegitimate, even racist, which is a claim that’s long been made. In fact, it was made by one of Sai’s and my teachers, Akhil Amar. I try to show that actually in the Founding, the discussion of the Electoral College really doesn’t show that the Founders had some kind of illicit motive to protect slavery, although this was before the 1619 Project and everything we’re talking about today.
So the response, I guess, by some people is that the proposal you’re talking about, for people who don’t know, is called the National Popular Vote initiative. And the idea is that every state that signs up would not award its electoral votes based on who won the election for President in their state, but they would award it to whoever won the national majority vote. And it really relies, actually, on this provision of the Constitution that reminds us it’s the state legislatures that decide, not necessarily the direct popular vote, how the electoral votes from a state are awarded.
I tend to think, though, that this is a violation of the Compact Clause. I think that for it to work effectively, the states have to reach an agreement. There’s a kind of collective action problem here if you’re the states because you’re not going to do it as a state unless a majority of the other states in the Electoral College do it because they might all change their minds. They might all cheat. And then your casting of your electoral votes for the national winner might become a mistake if everyone else just votes, in the end, for who they want to win based on the elections in their state.
And so the Compact Clause requires Congress to approve the compact. And I would expect the small states in the Senate to gang up and try to prevent any kind of compact like this from being approved because then no one would ever go anywhere to campaign for President aside from maybe the five or ten largest cities in the country.
Dean Reuter: Professor Prakash, do you want to weigh in on this?
Prof. Sai Prakash: Yeah. I had never thought about whether the Compact Clause regulates a state’s ability to make this pledge. I think the way to think about it is, is this an enforceable agreement, or is it just parallel or reciprocity? So Congress has long had statutes that say, “If you lower your tariffs, we’ll lower ours.” But there’s no compact. There’s no agreement there with the foreign nation. That’s how it doesn’t run afoul of the Treaty Clause.
And so if the states are just saying, “We’re going to do this if you do that. But if you don’t do that, no harm, no foul,” then I don't think it’s a compact any more than Congress’s statutes were a compact. It’s basically just saying, “If you do this, we’ll do that. But we’re not requiring -- we’re not making a contract to do this, and you’re not making a contract to do that.” So I’d have to know more about what statutes the states are applying. But it’s a very interesting question.
Dean Reuter: Well, we’ve got one question pending, but we’re just about out of time. I want to give each of you a chance to wrap up, express a final thought. So let’s go in the order we opened. We’ll hear first from the author of The Living Presidency, Sai Prakash. Final thought, Professor Prakash?
Prof. Sai Prakash: Well, again, this has just been tremendous, Dean and John. Thanks for arranging this. I think we’ve got two very interesting books that approach the presidency from different perspectives. Mine scopes out and doesn’t really talk about President Trump at great length. It talks about what the presidency was and what it’s become. And I do think the presidency has greatly expanded over time, just as Congress and the courts have. And I propose solutions to that from an originalist perspective.
And John’s book is, I think, a very neutral, dispassionate view of the President, his flaws and his advantages. And it’s consistent with John’s prior work. This is not an encomium to the President, it’s not a claim that he’s done nothing wrong, and it’s not a view that the President is perfect. And that’s the kind of scholarship that people should reward, not the sort of toadying, full-throated defense of someone. Politicians are people. People aren’t perfect.
Dean Reuter: Professor John Yoo, author of Defender in Chief, final thoughts?
Prof. John Yoo: Yeah, that’s interesting. I think Sai puts it well, just the way these two books, in a way, fit together. Sai doesn’t talk directly about Trump except maybe at the very end of his book, and my book is mostly about Trump. I think they fit together in the sense that they bring up this longer debate, I think, that’s gone back to Hamilton and Jefferson.
How do we read the parts of the Constitution that talk about the executive powers, the executive power itself, something that can grow? Can we find powers in it that weren’t necessarily around in the 18th century because that was actually the purpose of the executive power? And then has Trump, interestingly, tried to really upend or change that? Or in my view, is he not really trying to return us, in a way, to the more spartan, limited Constitution in actually the areas that Sai’s most worried about? Hasn’t Trump actually been more restrained than past presidents have been?
But again, it really brings us back to that Hamilton and Jefferson argument. And I think I’m probably more in the line of Hamilton, and Sai, unusually, is in the position of Jefferson, who really didn’t want executive power to be somewhat elastic. You remember the Louisiana Purchase. Jefferson thought it was unconstitutional, and he thought his claim of executive power was really a prerogative outside the Constitution. But that’s because he wanted to keep the presidency and the Constitution, as a whole, narrow, whereas I think a Hamiltonian like myself would have said, “No, the power to buy Louisiana is in the Constitution. It’s an unforeseen, great opportunity, and that’s got to lie somewhere in the executive power.”
But I agree. And the bottom line message should be buy both books so you can read them and compare them and figure out who’s right rather than just hearing us talk about them. And then buy Dean’s book, too, and make it a nice triple play of reading during this pandemic when we’re not allowed to go outside or do anything.
Dean Reuter: That is a perfect place to end, Professor Yoo, author of Defender in Chief. My thanks to both our guests here, Sai Prakash, author of The Living Presidency, John Yoo, author of Defender in Chief. Thank you for joining us, and we’ll have you back on. There are some questions pending, so there’s more to discuss here.
I want to thank the audience as well for dialing in and for your thoughtful questions. A reminder to check the website and monitor your emails for upcoming teleforum conference calls, but I do happen to know that our next scheduled teleforum conference call begins in less than a half an hour on the World Trade Organization, I believe. But until that next call, we are adjourned. Thank you very much, everyone.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.