Constitution Breakdown #4: Janet Napolitano

Summary

99% Invisible – Constitution Breakdown #4: Janet Napolitano
Airdate: November 28, 2025
Host: Roman Mars
Co-host: Elizabeth Jo
Guest: Janet Napolitano, former Secretary of Homeland Security

---

Episode Overview

This episode delves into Article 2 of the U.S. Constitution, which addresses the executive branch, with special guest Janet Napolitano (former Secretary of Homeland Security, Governor and Attorney General of Arizona, and former President of the University of California). The conversation explores what it means to operate within the “vague” powers given to the executive branch, how major programs like DACA were conceived and implemented, the boundaries and consequences of prosecutorial discretion, executive authority in immigration and war, and the evolving role of Congressional and judicial oversight.

The discussion then pivots (approx. 52:24) to a deep analysis of the President’s war powers—anchored in recent and historical context—by examining the legality of executive actions such as Trump’s military strikes against Venezuelan boats, tackling the War Powers Resolution, the legacy of Congressional authorizations, and the implications this all has for American democracy and constitutional balance.

---

Key Discussion Points and Insights

ARTICLE 2 AND EXECUTIVE AUTHORITY

The Vague Design of Article 2

• Roman Mars notes that Article 2 is “probably the vaguest” section of the Constitution when establishing the executive branch ([02:16]).
• Janet Napolitano reflects that the role of a Cabinet Secretary is “a combination of things”:
  • Carrying out White House policy
  • Generating policy ideas, especially in complex domains like Homeland Security ([02:45])
  • “How you implement or operationalize a policy, particularly when you’re dealing with a huge federal department, is a management challenge.” ([03:47])
• Implementation details ranged from managing staff/resources to tracking effectiveness and outcomes.

The DACA Case Study

Napolitano recounts the formation and rollout of DACA as an illustrative exercise of executive power paired with prosecutorial discretion ([04:10]-[05:27]):

“We had to, first of all, design the forms, set the fee because there was no appropriation for it, educate the people who were going to be reviewing the DACA applications, educate the community at large who were working with young people who were eligible for DACA, and do that all in record time... Setting up a federal program in 60 days—that’s got a rocket speed.” (Napolitano, [04:26])

• DACA began as a Cabinet department initiative, was approved by the White House, then implemented by Homeland Security—demonstrating a two-way dynamic between the president and Cabinet ([05:27]).

Prosecutorial Discretion & the “Take Care” Clause

• Napolitano asserts prosecutorial discretion is a foundation of law enforcement management, justified by:
  • Scarcity of resources
  • Judgment regarding priorities ([08:39])

“No prosecutor’s office or law enforcement office has enough people, has enough resources to investigate, prosecute, whatever, every conceivable violation of law.” (Napolitano, [09:25])

• DACA focused on “lowest priority” undocumented immigrants—those brought to the U.S. as young children—emphasizing proportionality and pragmatism in enforcement ([10:24]).

Discretion in Context: DACA vs. Travel Ban/Raids

• When asked if Trump’s travel ban and aggressive immigration raids are merely another form of this discretion, Napolitano draws sharp distinctions ([14:37]):
  • DACA: Constrained, precedented, targeted discretion.
  • Raids: “Way too many people they have no business picking up,” lack of coordination with local police, instilling “enormous tension within communities... an atmosphere of fear”—violating sound law enforcement principles ([17:32]).

“Law enforcement agents ought to be clearly identified. They ought to be acting pursuant to clear rules that people understand... It seems totally bass ackwards to me.” (Napolitano, [18:09])

Building and Maintaining Trust (DACA’s Success Conditions)

• Implementing DACA required vast efforts to earn trust from a vulnerable population, which included firm commitments on confidentiality:
  • Information “would be held only in CIS and not given over to ICE”—a policy Napolitano fears is no longer secure ([19:51]).

DACA’s Fate as a Congressional Failure

• Both the initial necessity for DACA and its current precariousness are rooted in repeated Congressional inaction.

“Our current Congress is just... incapable of dealing with really big complicated problems in a way that makes sense.” (Napolitano, [21:36])

The Role of the Courts and Doctrinal Shifts

• Napolitano criticizes doctrines like the “major questions doctrine” for presuming Congress is more capable than it really is:

“...the Supreme Court is developing these doctrines... that they do not take into account the institutional capabilities of the Congress.” ([23:23])

• The proliferation of executive orders in the Trump era and the Supreme Court’s increasing readiness to let executive actions proceed (“shadow docket”) are branded as a combined crisis of constitutional governance ([25:02], [26:23]).

“We are so far along the executive order spectrum… it creates instability in the government in addition to overuse and abuse of power.” (Napolitano, [25:18])

• Remedy? Let lower court injunctions stand and fully brief cases before Supreme Court intervention ([26:27]).

State Authority as a Check

• Napolitano discusses how states (notably via the National Guard) have become crucial in checking federal excess, pointing out the need for statute clarification regarding when the president can federalize state resources ([28:56]).

---

DESIGN, MISSION, AND ADMINISTRATION OF DHS

Building the Machine and Setting Priorities

• The Department of Homeland Security (DHS) was rapidly assembled post-9/11 out of 23 scattered agencies.
• “You go into this department, you’re a newbie… And you have to say, 'These are the things I want to focus on.'” ([34:21])
• Napolitano's focus areas included cybersecurity (creation of CISA), risk-based airport screening (TSA PreCheck), and FEMA reform ([36:43], [37:29]).

“I’ve often said that on my gravestone it’s going to be: Janet Napolitano developed DACA and Precheck.” (Napolitano, [37:29])

• Changing administrations inherently brings shifting priorities—a good thing in a democracy, but also a cause for instability ([38:09]).

Dangers of Hollowing Out Expertise

• Napolitano laments the attack on career expertise and the hollowing out of federal agencies:

“It’s easy to destroy. It is hard to build old. And when you look at the leadership at the Department of Defense… Health and Human Services, you have to ask yourself, is our country safer?... I would have to say, no, absolutely we’re not.” ([41:54])

The Role of Norms—and Their Erosion

• Much of effective government runs on norms and not codified rules:

“There is a bunch of stuff that isn’t in black and white in the Constitution. It is all about norms and procedures and stuff that is not written down. And a lot of it depends on the personality of the people involved…” (Roman Mars, [43:53])

• Napolitano admits that reliance on norms may have led to complacency and left the system vulnerable to bad-faith actors ([44:30], [46:11]).

Looking Ahead: Restoration, Reform, or Evolution?

• Returning to “how things were” isn’t enough:

“What we ought to be thinking about is how do we make government better in a better way? How do we actually support the experts that we need?... How do we better use technology to help with people who need access to services…? I think we ought to be thinking forward. Not only in terms of restoration.” (Napolitano, [46:11])

---

THE EXECUTIVE & WAR POWER: A CONSTITUTIONAL MAZE

Historical Precedent: The Prize Cases ([52:24]-[57:40])

• Elizabeth Jo provides a rich lesson on the Supreme Court’s only direct ruling on presidential war power absent Congressional approval.
• During the Civil War, the “Prize Cases” (1863) established that Lincoln could issue a naval blockade without a Congressional declaration of war because he was required to “resist force by force.” ([56:18])
• This ruling continues to undergird broad claims of inherent war powers.

Trump’s Military Boat Strikes—A Contemporary Crisis ([58:04]-[86:48])

The Facts:

• At least 21 U.S. military strikes on boats in the Caribbean, mostly Venezuelan and some Ecuadorian/Colombian, allegedly linked to drug running and/or terrorism ([58:57]).
• Death toll: at least 83; 2 known survivors.
• Strikes conducted by drones from U.S. Navy ships.

The Law: Constitution & War Powers Resolution

• The Constitution splits military power:

  • Article 1: Congress declares war, funds military.
  • Article 2: President as Commander in Chief.

• The War Powers Resolution (1973) aims to force President-Congress coordination and sets three key periods ([65:02]):

  • 48 hours: President must notify Congress of use of force.
  • 60 days: President must withdraw forces unless Congress approves.
  • 90 days: Extra 30-day window if necessary.

Trump’s Rationale and its Precedents

• Trump did file the formal 48-hour notice ([67:24]):

  • Claimed self-defense, invoked role as Commander in Chief.
  • “Having it both ways”—complying with the letter but denying the constraint.

• Underlying Legal Justifications—OLC’s Two-Part Test:

  1. Does it serve “important national interests”?
  2. Does the action rise to the level of “war” in the constitutional sense?

• This broad and flexible standard, originally used for targeted strikes under Obama, is now being stretched to justify far more violent, ambiguous actions ([73:41]-[74:56]).

“According to reporting from the New York Times, the Justice Department has written a document justifying the boat strikes as lawful because Trump has inherent constitutional authority... That’s the same two part test that we’ve just talked about.” (Elizabeth Jo, [75:03])

Debating "Hostilities" and Congressional Control

• "Hostilities" is undefined in the Resolution, allowing presidents to sidestep constraints ([78:13]).
• Obama administration set a precedent in Libya by arguing that airstrikes didn’t amount to “hostilities,” thus avoiding 60-day limits ([78:17]).

“The use of American military force was not sustained fighting or active exchanges of fire with hostile forces, nor do they involve US ground troops.” (Elizabeth Jo on Obama’s legal logic, [78:17])

The Dangers of Executive Drift

• The roundabout result: both parties’ presidents have exploited ambiguities in statutory and constitutional text, leaving nearly all checks on presidential war power dependent on willful cooperation and good faith.
• Trump’s actions are a “rogue” escalation of these tendencies ([79:53]-[80:47]).
• Both hosts note that Congressional abdication—especially leaving the 2001 Authorization for Use of Military Force (AUMF) in place—has created a perpetual, ill-defined legal basis for ongoing wars ([82:52]).

“If you don’t have that [Congressional check], then you have nothing. You just have a person who can just run roughshod over all morals and ethics.” (Roman Mars, [83:26])

The Dangers of “Emergencies” and Language Games

• Both hosts highlight the potential for abuse through the constant invocation of “emergency” ([86:24]):

“As soon as you read some part of the law that says emergency, I’m like, oh, well, this is the end. This is a huge problem for us because he’s just, emergency here, emergency there... Maybe we need a new, stronger word than emergency.” (Roman Mars, [86:24])

---

Notable Quotes & Memorable Moments

• “You go into this department, you’re a newbie. I was the first Democrat to be the secretary. ...There was a lot of learning that had to be done and done quickly because you take over the new administration and you’ve got to look at the budget like within the first two weeks.” (Janet Napolitano, [34:08])
• “I think one of the things that I’ve been troubled by in Trump 2.0 in the current administration is the Supreme Court’s willingness... to let so many of these executive orders stand. ...That’s the Supreme Court’s abuse of power and the executive’s abuse of power...” (Napolitano, [25:18])
• “No business would operate like this. And that ultimately is a failure of the Congress.” (Napolitano on government shutdowns, [21:36])
• “You don’t know you need FEMA till you need FEMA. The notion that you can just devolve all those resources, all that experience and talent to go state by state by state doesn’t make any sense.” (Napolitano, [40:43])
• “There is a bunch of stuff that isn’t in black and white in the Constitution. It is all about norms and procedures and stuff that is not written down. And a lot of it depends on the personality of the people involved…” (Roman Mars, [43:53])
• “We ought to be thinking forward. Not only in terms of restoration.” (Napolitano, [46:11])
• “If you don’t have that [Congressional check], then you have nothing. You just have a person who can just run roughshod over all morals and ethics.” (Roman Mars, [83:26])

---

Segment Timestamps of Interest

• Introduction to Article 2 and Janet Napolitano’s background: [01:16]-[02:14]
• Vagueness of Article 2 and Cabinet roles: [02:16]-[05:27]
• Origin of DACA, prosecutorial discretion, implementation details: [05:27]-[11:43]
• DACA vs. Trump-era immigration enforcement, raids, trust, Congress’ role: [14:37]-[23:23]
• Supreme Court doctrine & executive overreach: [23:23]-[26:23]
• State authority & National Guard: [28:56]-[30:42]
• Building & priorities of DHS: [33:54]-[38:39]
• DHS under Trump, FEMA, expertise, attack on civil service: [38:39]-[43:53]
• Norms, personality, and government stability: [43:53]-[47:40]
• War Powers, historical background (Prize Cases): [52:24]-[57:40]
• Analysis of Trump’s military boat strikes: [58:04]-[86:11]
• Debate on legality of strikes, War Powers Resolution, OLC rationales: [60:00]-[80:00]
• Language, emergencies, and constitutional fragility: [86:24]-[86:48]

---

Tone and Language

The conversation is frank, intellectually rigorous, and often laced with frustration at the erosion of norms and the persistent gaps between the Constitution’s spirit and governmental reality. Both hosts and guest express concern at present dysfunction, while recognizing how design, law, and realpolitik shape government in practice. The tone swings between explanatory, cautionary, and at times exasperated.

---

This summary covers all key segments of the episode, highlights notable moments with attribution and timestamps, and preserves the inquiring, plainspoken spirit of 99% Invisible’s breakdown of executive power.

Transcript

[A]

Oh, hey, welcome to gift wrapping.

[B]

Whoa.

[A]

So is Saldana.

[B]

Hey, can you wrap these please? Wow.

[A]

IPhone 17s.

[C]

You splurged at T Mobile.

[B]

You can get four iPhone 17s on them. The new center stage front camera is amazing for group selfies. It's the perfect gift for everyone.

[A]

I'm the worst. I only got my mom a robe.

[B]

Well, it's better than socks.

[A]

So I have to trade in my old phone, right?

[B]

No AT T mobile. There's no trade ins needed when you switch. Keep your old phone or give it as a gift.

[A]

Incredible.

[B]

In fact, wrap up my old phone too for my aunt Rosa. Forget that. Aunt Liz will be jealous.

[A]

Sounds like my family drama.

[B]

Oh, I got it. I'll give it to my abuela. I'll take reindeer paper with. Hey, where are you going?

[C]

To T Mobile.

[A]

The holidays are better. AT T Mobile get four iPhone 17s on us. No trade in needed when you switch plus four lines for just 25 bucks a line. And now T Mobile is available in US cellular stores with 24 monthly bill credits and four eligible board inside essentials for well qualified customers. Auto pay + taxes fees and $35 device connection charge credits and imbalance due if you pay off early or cancel. Contact us Finance Agreement 256GB required.

[B]

Visit t mobile.com Save over $200 when you book weekly stays with VRBO this winter. If you haven't seen your college besties since, well, college, you need a week to catch up in a snowy cabin. Take a week long vacation and save over $200. Book [e-mail].

[A]

This is the 99% invisible breakdown of the Constitution. I'm Roman Mars.

[B]

And I'm Elizabeth Jo.

[A]

Today we are discussing Article 2, which establishes the executive branch of the federal government. Our special guest for this episode is Janet Napolitano, who served as Secretary of Homeland Security under President Obama from 2009 to 2013. Prior to that, she was the governor of Arizona, so she has executive experience at the state level as well. And she was the Attorney General of Arizona before that. After leaving the Obama administration, she became the president of the University of California, the largest public university system in the country. Today, she teaches at the Goldman School of Public Policy at UC Berkeley. Later in the show, Elizabeth explains the Trump administration's attacks on Venezuelan boats through the lens of constitutional law. But first, our Article 2 conversation with Janet Napolitano. Secretary Napolitano, thank you so much for being on the show.

[C]

Oh, thank you.

[A]

So Article 2 establishes the executive branch using probably the vaguest terms possible Section 2 of Article 2 contemplates that there will be a Cabinet, but not much is specified beyond that in terms of a job description. There's no required meetings, for example. So when you were Secretary of Homeland Security, was that job an extension of what the President wants, or is the President expecting you to come up with lots of policy proposals? Like, how does it work in practice?

[C]

Well, I think how it works in practice varies with whomever is the President. I was Secretary under President Obama, and it was a combination of things. You're a member of the Cabinet, so there's an expectation that you're going to be carrying out the policies that have been enunciated by the White House. But those policies, particularly in the Homeland Security area, which deals with everything from cybersecurity to disaster response to immigration and all the complications with immigration, those policies need to generate from somewhere. And so President Obama used his Cabinet to help generate policy ideas, as well as using the National Security Council and the Domestic Policy Council as well.

[B]

And so what did that look like on a sort of day to day basis? Are you sort of implementing, you know, you have a team that comes up with different kinds of how are we going to respond to this initiative? Is that how it works?

[C]

Well, yeah, and that's really important because how you implement or operationalize, to use that word, a policy, particularly when you're dealing with a huge federal department, is a management challenge. Among other things, you've got to figure out the fte, you got to figure out the resources, you got to figure out the deployments, you got to figure out the logistics. And then you've got to have some way to actually monitor and see whether what you're doing is achieving the policy result that is intended. And so it's a constant kind of push, pull sort of thing. And it can be easy, it can be tough. I remember when we started DACA Deferred Action for Childhood Arrivals, that was a brand new policy. It was generated by actually by me, by the Secretary of Homeland Security, went to the White House, got the White House's approval, got the President's blessing, he actually announced it from the Rose Garden. But then he gave us 60 days to actually put this new policy into practice. And we had to, first of all, designed the forms, set the fee because there was no appropriation for it, educate the people who were going to be reviewing the DACA applications, educate the community at large who were working with young people who were eligible for daca, and do that all in record time. You think about setting up a federal program in 60 days. That's got a rocket speed.

[B]

That's right.

[C]

But we were able to do it, and we didn't know. We didn't know on the first day whether we'd have five people or 500 or 5,000. And it turned out it was a very popular program. I think at its peak, we had about 850,000 young people enrolled in DACA. But that was an illustration of an idea that originated in a Cabinet department that went to the White House, got the President's approval, and then was sent back to the Cabinet department to actually implement. On other examples, the word kind of came from the White House. We want you to do X and you figure out how to do X.

[B]

I'm so glad that you mentioned daca. I'd like to maybe we could familiarize some of our listeners with what the program is. If they're not familiar, of course. DACA started by you in 2012, and it's a program that allows a group of undocumented young adults who arrived in the United States when they were children to be protected from deportation. They're supposed to register and then apply for renewals every two years, if I remember correctly. Now, part of this is you mentioned the idea of implementation, how to implement the President's will or his or her policies. And of course, that goes Back to Article 2 and Article 2, Section 3, we have the Take Care Clause. And of course, Section 3 states that the President shall take care that the laws be faithfully executed. Now, on the one hand, the clause imposes a kind of obligation or duty on the part of the President. That means the President, and really the executive branch must execute the laws Congress passes. On the other hand, the Take Care Clause is also a presidential power. It's the executive branch alone that has the authority to make sure federal law is followed. Now, previously, when you've talked about daca, you've mentioned that when you first created it, you and your team focused a lot on the word. Shall I wonder if you could talk a little bit more about that?

[C]

Well, we didn't focus on the text of the Constitution when we were forming daca. I mean, the lawyers looked at it, the Department of Justice looked at it and concluded that it was within the executive power of the President. Because in the field of law enforcement, and immigration really is law enforcement, there's enormous discretion that is given to prosecutors and enforcers to set priorities. Right. Because you never have the resources to prosecute everyone. So to set priorities and then to implement those priorities that are set. And I And I think that falls within the Take Care clause, because that is the only common sense way to interpret it.

[B]

And you mentioned this idea of this law enforcement discretion that's actually part of what's in the memo that you signed when you established daca, that this, in your view, as an example of prosecutorial discretion, can you explain a little bit more about what you mean by that term or what was meant at the time and how that actually justifies the DACA program itself?

[C]

Sure. So prosecutorial discretion, and I'm a former U.S. attorney and a former state attorney general, so I kind of came out of the prosecution ranks. And what it means is that the prosecutor always has a discretion to decide who to charge, what to charge, what to plead, if there's going to be a plea bargain, if there's going to be an offer. And that is inherent in the role of the judgment of the prosecutor. It's supposed to be, until the current administration, guided by very strict standards about the predicates you need to have before making those decisions and kind of the boundaries in which those decisions can be made. But it goes, goes back to, I think, two points. First, that a prosecution inherently involves some judgment, that is discretion. But secondly, no prosecutor's office or law enforcement office has enough people, has enough resources to investigate, prosecute, whatever, every conceivable violation of law. And so there are actually guidelines in the U.S. attorney's Manual to help with the exercise of that discretion. In the immigration context, we translated it in the immigration context, and we were very firmly of the view that the enormous weight of the federal government where immigration is concerned ought to focus on recent border crossers so that they don't get settled into the United States ought to be focused on those in the United States illegally who've committed other crimes. And those in the United States for whom we actually had evidence of connection to terrorists or terrorism groups or organized gang activity. But the lowest kind of priority were these young people who were raised in the United States, grew up here, oftentimes had never been to their country of origin. Once they were here, on the average, were brought to the United States under the age of six years old, and, you know, they'd gone to school, many of them were trying to go to college, they were trying to, or some had joined the military, et cetera. And we felt that it was both in terms of judgment and in terms of resources kind of just didn't make sense that they should have to always be looking over their shoulder to see whether there was an ICE agent following them. And Also, we thought it made sense that they should have some sort of deferred deportation arrangement, which is what this is, deferred action that would allow them to get work authorization so that they could actually work while they went to school. They could actually work for a business instead of trying to get a job and having to be paid under the table and so forth.

[B]

So it sounds like this is kind of similar to another initiative under President Obama which was the guidance officially from the Justice Department about not going after every single person who might be violating the federal laws regarding marijuana. So maybe we don't have enough resources. So is that fair to say that it's a kind of similar discretion?

[C]

It's similar. I mean, in fact, the marijuana thing is really kind of funny because I was the U.S. attorney for the District of Arizona in Clinton's first term. And of course Arizona is a border state and this was in the early 90s and we didn't deal with small baggies of marijuana. We were dealing with like tons of marijuana being brought over the border. And we would prosecute those big cases. No kidding. But the notion that we would then spend time on personal use cases was kind of ludicrous.

[A]

So DACA was somewhat created in a vacuum of a legislative solution for solving this problem. Can you talk about that role and what it meant to create it and what that vacuum was about?

[C]

Well, that's true. And the background was the young people had organized and they were known colloquially as dreamers.

[B]

Right.

[C]

And they now don't use that name, but that was the term that they were known as in Washington D.C. and the Congress had tried several times to pass a so called DREAM act to have a statute that would actually do, actually do much more than what DACA did. And the Senate was never able to get to the 60 vote threshold to get it through. So when they failed at the end of, I think it was 2011 to pass the Dream act once again, I can remember this clear as day. I called my staff into my office and I said, you know, we've gotta do something here. Give me a memo, give me some options that are possible. And remember, President Obama was very careful on immigration. He didn't wanna proceed simply by executive order because he felt this was Congress's responsibility. And I think he's right about that. But in this particular instance, we felt that within the statutes, within the power of the executive, he could adopt a program that in essence was a form of discretion that was used by the Department of Justice and other sorts of situations and the like. But we had to do some convincing. I mean, the White House was initially a little bit. They really wanted to make sure the I's were dotted and the T's were crossed.

[B]

So that brings me back to this idea of discretion again. You know, I think one of the things people are trying to do is understand the, the current moment and the way that the White House is flexing its authority. So if the president has the broad authority to establish a program like daca, which is, as you say, an exercise of executive discretion, well, isn't that the same broad authority that President Trump in his first term relied on to justify the travel ban on majority Muslim countries? And couldn't it simply also be the same broad authority to justify some of these really frightening immigration raids that we've seen around the country? Is that all part of the same spectrum of discretion?

[C]

I think they're different issues. DACA was, in essence, was a very confined program that fits squarely, I thought, within precedent. Interestingly enough, the first Trump administration tried to rescind daca. Remember that? And the University of California, I was then the president.

[B]

Right, right.

[C]

We sued. We sued them and it went all the way to the Supreme Court. And the Supreme Court didn't uphold the legality of daca, but what it said was that the way that the Trump administration had gone about rescinding it violated the administrative procedure. They had tried to rescind it incorrectly. But there's still cases out there that brought by Republican attorneys general and others that have challenged the underpinnings, the leg underpinnings of daca. But when you talk about the travel ban and when you talk about these raids that are going on, those involve different exercises of immigration authority. The raids, for example, get to what kind of requirements must an ICE agent or a Border Patrol agent have before they can detain somebody? And like I described earlier, we always tried to have a set of priorities for our ICE agents so they didn't just go Willy Dilly around streets, pick it up people. Because we felt, yes, agreed, people are in the country illegally, that's a violation. But like every other thing in the law enforcement realm, you don't really have the resources to go after everybody. And so you really have to set some priorities. With the street level raids, not only are they, I think, bad law enforcement policy, but they implicate a whole set of rights of the individuals involved that really were not implicated by daca.

[B]

When you say it's bad law enforcement policy, could you say a bit more about that? Why, you think so?

[C]

Oh, for heaven's sake. Yeah, I mean, first of all, you know, you know, it creates enormous tension within the communities that these raids are going out and a whole atmosphere of fear among people who are here legally as well as those here illegally. There have been too many documented instances of abuse by the agents who are out on the street, and the fact that they are masked and the fact that they are driving in unmarked vehicles and so forth. Law enforcement is supposed to enforce the rule of law. Law enforcement agents ought to be clearly identified. They ought to be acting pursuant to clear rules that people understand. And when you think about just kind of law enforcement policy, they're not coordinating with local police. In fact, I think in some of these cities, they've created an enormous problem for local police. So that's a law enforcement problem. The second problem is that they are picking up way too many people. They have no business picking up, that is, people who are in the country either already legally or who are in the immigration process already. And then third, they have taken away any restriction on going into schools, into churches, and this business of standing around courthouses where people are actually going for their immigration hearings and then picking them up. Well, talk about a disincentive for people to try to actually legalize their process and become naturalized citizens or at least get some legal status within the United States. It seems totally bass ackwards to me.

[A]

I mean, this is a key part of daca, because you had to convince, you know, these dreamers who were afraid of immigration authorities for most of their lives to trust you enough to go through a federal legalized process that they were okay. What was that like, sort of convincing people and establishing that trust?

[C]

It was all about trust. Because many of them were, as you suggest, nervous because they had to turn over. They had to turn over their addresses, they had to turn over the names of their parents, all that kind of basic biographical information. So we had a policy in DACA that the information was collected by a branch of the department called uscis, Citizenship and Immigration Services, that that information would be held only in CIS and not given over to ice. And we adhere to that policy. Of course, in this era, if I were a young person, I think I would be well advised not to apply for daca, because ICE now has been given access to all kinds of information. It's been given access to tax documents by the irs. It's been trying to get information about people who are enrolled in state benefit programs. So, you know, but it ultimately involved trust. And when we started daca, we spent a lot of time with the immigrant community, talking about what the program was, what it wasn't. It didn't provide for route to citizenship, only Congress could do that. But it was a temporary fix for these young people so that they could move on with their lives.

[B]

Well, and when you mentioned that it's a temporary fix, you know, what does it mean to you that now, you know, 13 years later that this really seems to be the only solution and it's kind seems to be fading actually for this group of undocumented young people. What does that mean to you now?

[C]

Well, it gets to the genesis of this conversation, which is what is Congress's responsibility under Article 1 versus what is the executive's responsibility under Article 2 of the Constitution and Congress, unfortunately our current Congress is just, and this has been going on for too long, but seems incapable of dealing with really big complicated problems in a way that makes sense. You can see it in things like immigration overall, for sure. You can see it just in all the budget craziness and the inability to actually engage in a regularized budget and appropriations process that makes sense. Even under Obama we were dealing with repeated either threats of shutdowns or shutdowns. Well, try running a department with a quarter of a million employees and half a million contractors when you're constantly having to send out warnings, oh, you're going to continue to work, but you're not going to get paid while you're working or you have to stay home. And by the way, you can't access your computer or your phone or anything else while you're staying home. And, and people always say you ought to run government like a business. No business would operate like this. And that ultimately is a failure of the Congress. Right. They just can't get their act together.

[A]

So I think of DACA as this like amazing success and a great policy that was forged out of a failure of the Congress. And so is that always a part of it for you? Like, do you think of it always as being this thing that was done because some part of the system was failing?

[C]

No, I think there are ideas and policies to implement that are more on the executive level, their management level, et cetera, that don't require necessarily an action by Congress. But here's where it gets interesting from a legal point of view, because the Supreme Court is developing these doctrines, the major questions doctrine, the non delegation doctrine, et cetera, that I think one of their failures is they do not take into account the institutional capabilities of the Congress. They presume that Congress always, when it wants to, can speak clearly and Precisely not giving any kind of give in the system for the congressional process itself. How messy it is, in a way by design, but how messy it is and, and how they can actually, by creating these doctrines, presume a capacity that, particularly in the present day, simply doesn't exist.

[A]

Yeah, you do feel that unrealistic, like they're sort of saving this sort of idealized form of what the legislators are supposed to do. And it just. Yeah, it is completely unrealistic. It just doesn't function today like that at all.

[C]

Right. But it's important because Congress has to do its job to avoid the executive exceeding what was intended, I believe, under Article 2.

[B]

Yeah. And so do you see Trump's use today of just a whole slew of executive orders? Is that part of what you see as the exceeding the boundaries of what the President can do? Because executive orders, of course, have existed for a long time prior to Trump. Trump.

[C]

They've existed, but not to this degree. We are so far along the executive order spectrum and, you know, governing by executive order. Here's the problem with it, which is you can do anything. You know, you can govern by executive order. The next executive comes by and retracts it. So it creates instability in the government in addition to overuse of an abuse of power. And I think one of the things that I've been troubled by in Trump 2.0 in the current administration is the Supreme Court's willingness under the so called shadow docket to let so many of these executive orders stand and the harm is being incurred while the underlying merits case is still being litigated. I think if we want to talk about abuse of power, that's the Supreme Court's abuse of power and the executive's abuse of power power. And so I think we're really in a constitutional quandary right now.

[A]

Do you have a remedy for how we're supposed to get out of it?

[C]

Well, I think the Supreme Court needs to do its job. It doesn't need to take all these cases. It can let the lower court injunctions stand while the cases are being litigated. I think they've been too eager to reach out and take cases that are not fully briefed, that are not fully considered, and kind of bless them in one line orders, as opposed to saying, you know what, we're going to let the district court's injunction against firing all these federal employees or terminating all these programs or getting rid of all of these commissioners on independent agencies. We're going to let those stand and we will take those cases when They've gone through the normal process because, because the way it's been working, the harm is already being incurred and it's being incurred at this kind of injunctive level. As opposed to the tariff case. Now the tariff case is interesting because it's been fully briefed, fully argued. It's a fascinating, very important case. But think if the Supreme Court had reached out and decided that on the shadow docket, and I'm sure some of them were tempted to. So that's what I mean by saying that the way they've been operating seems to me to not follow normal Supreme Court practice. And the Supreme Court is the ultimate arbiter of the rule of law in the United States. And when they don't give us their legal reasoning, when they rush to one line orders, it's like, well, I could do a one line order. I mean, but I want to, to see what the Supreme Court says to give us the law, the legal analysis, the reasoning behind their decisions. I think it would make them look much less like just another political branch like the Congress or the Executive, and more like what they are supposed to be. I know we've strayed into Article 3 now, but what the heck.

[B]

That's all right.

[A]

They all talk to each other.

[C]

Yeah.

[B]

So if you're suggesting, and I think we all agree here that, that Congress is not really stepping up and the Supreme Court isn't either, now you're in the unique position of having been the highest levels of the federal government and having been governor of a very important state. What do you see as the role of the states now and maybe checking what the President is doing?

[C]

Oh, I think this is also a fascinating issue. And you see it really come to life in its use of the National Guard. So I'm a former governor, the commander of your National Guard typically sits in a governor's cabinet. You use them for all kinds of reasons in the state emergency services. We actually deployed the Guard to the border when I was governor, not to do actual apprehensions or anything, but to handle kind of back office work because there was just a huge number of people coming across the Arizona border then to free up the federal agents who were actually assigned to, to police the border. So they're a very important tool that a governor has. They're the state, quote, militia. And the notion that the President would federalize the Guard over the governor's objection, over the mayor's objection, and just send them in for long periods of time. I mean, you have to recognize the men and women in the Guard, they have real jobs on the outside. They're civilians. I mean, they give a couple weekends a month to the guard and two weeks of training in the summer whatsoever. But he's actually almost using them in some cities like an occupation force over the objection of governors. And I think that the statute needs clarification here as to when and how and under what circumstances the president can federalize the Guard.

[A]

More of our conversation with Secretary Napolitano when we come back. Your new home is now ready. Dr. Horton, America's Builder has new homes that are ready today with new construction communities in Ellensburg and throughout the Greater Seattle area. Dr. Horton has the right home for you at Dr. Horton. We're still building with flexible living spaces, smart home technology and two and three car garage garages. More communities and more homes available every day. Find your new home in Ellensburg now [e-mail] Dr. Horton, America's builder and equal housing opportunity builder.

[C]

Oh, hey.

[A]

Welcome to gift wrapping.

[B]

Whoa.

[A]

So is Saldana.

[B]

Hey, can you wrap these please?

[A]

Wow. IPhone 17s.

[C]

You splurged at T Mobile.

[B]

You can get four iPhone 17s on them. The new center stage front camera is amazing for group selfies. It's the perfect, perfect gift for everyone.

[A]

I'm the worst. I only got my mom a robe.

[B]

Well, it's better than socks.

[A]

So I have to trade in my old phone, right?

[B]

No @t mobile. There's no trade ins needed when you switch. Keep your old phone or give it as a gift.

[A]

Incredible.

[B]

In fact, wrap up my old phone too for my aunt Rosa. Forget that. Aunt Liz will be jealous.

[A]

Sounds like my family drama.

[B]

Oh, I got it. I'll give it to my abuela. I'll take reindeer paper with. Hey, where are you going?

[A]

The holidays are better. At table T Mobile get four iPhone 17s on us. No trade in needed when you switch plus four lines for just 25 bucks a line. And now T mobile is available in US cellular stores with 24 month legal credits and four eligible board inside essentials for well qualified customers. Auto pay + taxes, fees and $35 device connection charge credits and imbalance due if you pay off early or cancel. Contact us. Finance Agreement 256 gigabytes $830 required.

[B]

Visit t mobile.com they say if you want to go fast, go alone. But if you want to go far, go together. At Amica insurance we're built for our customers and prioritize your needs. Call 87741Amica and get a quote.

[A]

Today holiday doorbuster deals are on At Lowe's today only get select 1 quart poinsettias and select translucent plant saucers for $1 each. That means for a limited time, you can decorate to get in the Christmas spirit for less, shop in store to make sure you don't miss out on on big savings all day. But hurry, these offers won't last long. Lowe's we help you save ballot 1128 in store only. Limit 16 per person. Selection varies by location while supplies last. So the Department of Homeland Security was created in 2002 compared to the State Department, which was created in like 1789. And you were the third person to lead this massive agency. It managed everything from border control to hurricane relief. And I read your book that you published during the first Trump term, and there's a lot of you kind of building the machine as you're using the machine. Even at that point. How do you figure out what you can do, what your remit is, what you can't do? The Constitution doesn't provide a lot of advice here, unlike Article 1, which has a list of things Congress can and can't do. So how do you begin to figure out what the department is capable of achieving?

[C]

That's a good question. You know, the DHS was created in the wake of the attack of 9 11. And the genesis of it was this kind of presumption that if various departments were under one umbrella, they would communicate with each other better, their actions would be better coordinated, and maybe another, it could help prevent another 9 11. I mean, that's really what DHS was deciding to do. And so then they decided they just threw everything in the. And so then I was, as you say, the third secretary. And there were 23 separate agencies that were thrown under the Department of Homeland Security. And some new ones created. Like we federalized airport security under the TSA. And so, you know, we had. There are 23 agencies, but there are seven major operational agencies within the department. And so I spent most of my time with those seven. There's Citizenship, Immigration Services, there's ice, there's Customs and Border Protection, there's fema, there's tsa, and. Oh, my gosh. Yeah, yeah, yeah, they're going to kill me. But anyway. And, and we spent most, most of my. Oh, Secret Service and Coast Guard. Sorry, sorry. And we spent. I spent, spent most of my time with the heads of those agencies. But there was Intelligence and Analysis, there was an Office of Civil Liberties, there was a presidentially appointed Privacy Office. So I mean, it was really broad ranging and quite fascinating. And Important. And what I did was, you go into this department, you're a newbie. I was the first Democrat to be the secretary. I'm a governor, so I know FEMA very well. I'm a border state governor. I know the immigration side very well. But you know, I didn't know anything about airport security. I didn't, I didn't, you know, Coast Guard, I'm from Arizona. We didn't have a Coast Guard. So, you know, so there was a lot of learning that had to be done and done quickly because you take over the new administration and you've got to look at the budget like within the first two weeks. So there was that. And then, you know, it's like any major challenge of a large institution, you have to sell clear. These are the things I want to focus on. And I had a list of a half a dozen things that were going to be our focus. And we just kept even in the day to day crisis management and so forth, of which there's a lot in dhs we were always focused on, for example, cybersecurity. Nobody was really talking about cybersecurity too much in the early 2000s, but we could see it as a growing threat vector. And so we really embarked on the process of building what became cisa, the Cyber Infrastructure Security Administration. We looked at TSA and we began thinking about how to be more risk conscious in how we screen passengers. Did all passengers have to undergo the same screening at the airports? And we developed TSA PreCheck.

[B]

Thank you for that.

[C]

Thank you. I've often said that on my gravestone it's going to be Janet Napolitano developed DACA and Precheck. You know, but that was based on a real policy analysis about what was the threat information we were getting about airline air travel, what made sense, what was the technology capability and so forth. So we're always emphasizing those kind of key priorities. And a new administration will have different priorities. I mean, that's part of the nice thing about changing administrations is you get fresh blood.

[A]

Right. But one of the not nice things about it is that, and I felt this when you were writing about this during the first Trump term is the department was being run with and used in ways that you didn't agree with. And I can only imagine that feeling is more acute today. I mean, do you think what is happening now calls for different structural changes in dhs or is that possible? Or how do you see what was created and how it's being used today and what to do about it? If there is anything.

[C]

Personally, I don't think it's a matter of moving different elements of the department to different agencies and splitting it up and all that. I don't think that's worth the time, effort or trouble. To do it requires a different White House and a different secretary. Just plain point of fact, there's nothing about the department that is inherently wrong, but it is a very challenging department with a huge remit and it has to be carefully administered. It is not solely the Department of Immigration Enforcement, although that's what you would think if you saw the White House and how the current secretary manages it. Fema, which has come under attack in the current administration. When I took over, FEMA was still suffering from post Katrina issues because it had failed. It clearly failed in Katrina. So here's what we did. We went out and recruited ahead of fema, who was the head of emergency services for the state of Florida. So he knew hurricanes like the back of his hand. And he had just a solid, not only experiential grounding in emergency management and recovery, but also really strong ideas about how FEMA ought to operate and its role vis a vis cities and states in terms of emergency preparation and response. And we did a lot on fema. In fact, toward the end of the first term, President Obama's first term, we had Hurricane Sandy that came up into New York harbor, and that response was night and day from what had happened in Katrina. And that was because of years of work to improve fema. But FEMA plays a critical role and you don't know you need FEMA till you need fema. Right. And the notion that you can just devolve all those resources, all that experience and talent to go state by state by state doesn't make any sense. But FEMA is part of the Department of Homeland Security. Why?

[B]

Why?

[C]

Because if you want people to feel safe and secure, they need to have some confidence that when the hurricane hits, the earthquake happens, the forest fire comes swooping down, that there will be capacity to help them.

[B]

So your example of how you decided to pick ahead of FEMA brings to mind the current moment in which there's been a kind of attack on expertise. I mean, you clearly wanted an expert to head fema. And we see a lot of this sort of, you know, don't trust the experts, whether we're talking about science and, you know, even crisis management. What's your view on how that's affecting the federal government at large?

[C]

I think they're hollowing out the federal government. And I, you know, here's the Thing, it's easy to destroy. It is hard to build old. And when you look at the leadership at the Department of Defense, Department of War, which is the largest federal department, when you look at dhs, when you look at what they've done at the Department of Health and Human Services, you have to ask yourself, is our country safer? Are people healthier? Are we better? Because we don't have have people who are qualified and confident enough in themselves to rely on experts running the government? And I would have to say, no, absolutely we're not. And when you look at foreign policy, now, foreign policy is kind of a key power of the executive. Article two really gives the President, President that. But in prior administrations, you had a whole process. You had the National Security Council, for example, that considered options, and they went to the deputies of the Principals Committee, the National Security Advisor. So when the President made decisions, he was well advised about options that he had, and also possible pros and cons of those options, whichever way he went. And the professionals in that world are professionals. They'll do what the elected official ultimately tells them to do. But in the current administration, I can't identify what the national security process is, you know, beyond, you know, whom the President talked to last. And so. And that should be of concern to everyone because that is a core presidential power, but it needs to be well exercised.

[A]

I mean, what you're pointing to is a big part of the sort of ongoing project that Elizabeth and I have been, when we've been discussing the Constitution in reference to Trump, is that there is a bunch of stuff that isn't in black and white in the Constitution. It is all about norms and procedures and stuff that is not written down. And a lot of it depends on the personality of the peoples involved and the sort of ethics and ideologies of the peoples involved in ways that I don't know if the average American knew until this moment. And so, you know, what does this make you think of vis a vis the Constitution in terms of, like, the actual operation of the government?

[C]

Well, I think you're exactly right. The President has. He's got his own set of norms. I mean, he's a unusual sui generis character in American politics. In a way, I hope he's sui generis. But norms have a function. And when I think reflexively of my time in federal service, so as a U.S. attorney under Clinton, I was a secretary under Obama, I was on President Biden's Intelligence Advisory board. What I am critical myself of is we didn't think enough about how to make government better, how to evolve it, move it forward so that it was the most efficient and fair government that the people could expect. In other words, we relied too much on norms instead of saying, well, does this one still make sense? Or maybe we ought to do it differently, Maybe we ought to do this or that, that, and, and that kind of just our assumptions that things were working fine, I think, caught up with us. And I think, you know, when you look at the election of, particularly the, the election of 2024, I think the voters were saying, you know what? We're not happy. We want something different. Well, they got something different. I don't think they got what they thought they were going to get, but they got something different.

[B]

Different.

[A]

Yeah. Interesting.

[C]

Yeah. But, you know, there to, for us to say, you know, when the Democrats ultimately take the White House back or what have you and we'll restore the government, I think that's the wrong way to think about it. I think what we ought to be thinking about is how do we make government better in a better way? How do we actually support the experts that we need? How do we actually recruit and retain the best talent to be in these positions? How do we actually have processes that move decision making with more alacrity than in the past? How do we better use technology to, to help with people who need access to services, who need access to information? I think we ought to be thinking forward. Not only in terms of restoration.

[B]

In a practical way, though, are you concerned that in a future administration beyond Trump, it's going to be hard to say, hey, come and be a scientist at the EPA and work for the next 20 years without us, or come and be someone who works for the FDA and work on drug science. Are people going to be willing to, maybe it's not a restoration, but to try this new project for the long haul? What do you think about that?

[C]

I think that's a really hard question and we won't know until that time comes. But the people, so many of the people I've met in government, career civil servants, they have a, A, an ethos. They want to spend their lives helping things be better for other people. To put it basically, and you can't do that in the private sector. I mean, it's a different ethos than the private sector and the notion of just willy nilly firing people and moving things. Don't get me started about Doge. But the fact of the matter is we live in a very large, complex, diverse. It's urban, it's rural, it's east, it's West. It's many types of ethnicities and backgrounds and histories. It's a complicated place. But the federal government should serve as kind of the bones, the skeleton on which, which all of these other things can happen and where people can feel with some sense of confidence that basic problems, their basic problems are being dealt with and that the future is moving forward. And when you denude the federal government, when you remove expertise, when you make the federal government not an attractive place for really good people to work, that in the end hurts all of us.

[A]

Well, Secretary Napolitano, thank you so much for talking with us about Article 2 and about your experience. I just had a great time with our conversation.

[B]

This was wonderful. Thank you for your time. Thank you for DACA and thank you for TSA PreCheck.

[C]

Thank you all. Enjoyed it.

[A]

Coming up, what Trump can teach us about Con Law the War Power Edition.

[C]

Foreign.

[A]

The day you need to use your insurance is rarely a good one. It's when the ceiling leaks or a storm takes out your roof and your plans. Cincinnati Insurance understands for 75 years they've shown up with expertise and personal attention that make bad days better. From protecting your home to ensuring your most valuable possessions, they're there when it matters most. Because when the unexpected happens, you deserve support. You deserve the Cincinnati insurance companies. Let us make your bad day better. Find an independent agent@cin fin.com oh hey. Welcome to gift wrapping.

[B]

Whoa.

[A]

So Saldana.

[B]

Hey, can you wrap these please?

[A]

Wow. IPhone 17s.

[C]

You splurged at T Mobile, you can.

[B]

Get four iPhone 17s on them. The new center stage front camera is amazing for group selfies. It's the perfect gift for everyone.

[A]

I'm the worst time. We got my mom a robe.

[B]

Well, it's better than socks.

[A]

So I have to trade in my old phone, right?

[B]

No @t mobile there's no trade ins needed when you switch. Keep your old phone or give it as a gift.

[A]

Incredible.

[B]

In fact, wrap up my old phone too for my aunt Rosa. Forget that, Aunt Liz will be jealous.

[A]

Sounds like my family drama.

[B]

Oh, I got it. I'll give it to my abuela. I'll take reindeer paper with. Hey, where are you going?

[C]

To T mobile.

[A]

The holidays are better. AT T Mobile get four iPhone 17s on on us. No trade in needed when you switch plus four lines for just 25 bucks a line. And now T mobile is available in U S cellular stores with 24 month legal credits and 4 eligible board inside essentials for well qualified customers. Photo Pay + taxes, fees and 35 device connection charge credits and imbalance due if you pay off earlier. Cancel contact us. Finance Agreement 256 gigabytes $830 required visit.

[B]

T mobile.com hey crafters, you're invited to visit the new Knit and Sew shop at Michael's. Find hundreds of fabrics in over 800 stores and over a hundred thousand styles on michaels.com shop your favorite yarn brands, including Big Caron cakes and Bernat in multiple styles and colors. You'll also find all the machines, tools and notions you need with top brands like Singer Brother and Pellon, plus Essential thread and Floss. It's all new at Michaels.

[A]

Get ready to shop Lowe's Black Friday Door Buster deals to save $150 on a 30 inch blackstone griddle now $299 plus choose a whirlpool top load washer or Midea top free freezer refrigerator for just $398. These limited time doorbuster deals go fast, so get holiday ready today at Lowe's. We help you save valid 1128 through 12. One selection varies by location while supplies last. See lowe's.com for more details. So we are now into the what Trump can Teach Us about Con Law portion of the show. It is November 20, 11:15am as we are recording this, what are we going to be talking about today?

[B]

Okay, Roman, here's a question for you. Was the Civil War a war?

[A]

Oh God. Huh.

[B]

Whoa.

[A]

Let's see. Declared. I'm trying to think of like what I know from Article 1.

[B]

At this point you could just have it off the cuff.

[A]

Yeah, I mean, I'm going to say yes, yes, the Civil War was a war.

[B]

War.

[A]

Let's go with that.

[B]

Yeah, I think that's right. And it might seem obvious to us now that it was a war, but in 1863, it was an open question and a dangerous question for President Lincoln. And that was because of the Amy Warwick, the Hiawatha, the Briante, and the Crenshaw, all four ships that were captured by the U.S. navy. Now, after Confederate troops fired on the U.S. army garrison at Fort Sumter in April of 1861, and that's the start of the Civil War, President Lincoln responded by issuing a series of executive proclamations. He called up 75,000 volunteer soldiers to form what would become the Union Army. And Lincoln also issued a naval blockade of the South. Now, this was meant to cut off supplies to the Confederacy and to prevent it from selling its goods overseas to raise funds for the Confederate army army. All of this was premised on Lincoln's war power as president. Now, why a naval blockade? A blockade meant that the US Navy could seize private ships that were violating the blockade, and in fact, such a ship and its cargo could be claimed as a prize of war. By the 18th century, there existed a complex body of law called prize law. Law and prize law worked like this. The navy would board a ship to determine whether it was violating the blockade. And if the ship appeared to be in violation of the blockade, the captured ship would be sent to a union port where a prize court was located. The prize court would then determine whether the ship would be claimed as a prize of war. Now, prize law has some really wonderful terms. The prize master sailed the ship to the prize court and would provide all of the papers found on board the captured ship. And the lawyers involved would libel the prize. That means asking for an investigation of all of the facts to determine whether the ship and its cargo would be forfeited. After all the evidence was considered, the prize court would then condemn or release the prize. Now, at this point, you might be wondering, what does prize law have to do with the civil war being a war? A lot, it turns out. Out, and that is because Lincoln chose to impose a naval blockade rather than just close the ports of the south. Now, that choice is significant because a naval blockade, under recognized principles of international law, is allowed only in wartime between two enemy nations. Okay, well, that was a problem for Lincoln, right? Because Lincoln's position was that the confederacy was engaged in insurrection, not a war. If the confederacy was engaged in a war with the United States, well, then other nations might recognize the south as a sovereign nation. But if this was not a true war, then the blockade was illegal. You see the problem. Yeah, it's tricky, right? So if all of the ships seized during the blockade were unlawfully taken, then the union might be forced to pay huge sums in compensation. But most importantly, if Lincoln did not have the authority to issue a blockade, then he lacked the authority to call up troops to direct the treasury to pay for the union effort, and even to issue the emancipation proclamation of 1863. All of these were acts issued under Lincoln's constitutional war authority. So if the blockade was unconstitutional, then these other things were, too. The Amy Warwick, the Hiawatha, the Briante, and the Crenshaw had all been seized separately for violating the blockade. The owners and the merchants laying claim to these ships appealed to the supreme court, and their legal claims were heard together in what would be known as the prize cases. In March of 1863, the Supreme Court decided by just one vote in favor of the Lincoln administration. Yes, according to the Supreme Court, this was a war. The concept wasn't limited just to a conflict between two independent nations. And yes, Lincoln did have constitutional authority to issue the blockade. And if war was brought to the United States by invasion or rebellion, as the court explained, the president was not just authorized, but required by the Constitution to resist what it called force by force. In other words, Lincoln did have the authority for the blockade, even though Congress hadn't approved. The prize cases were a turning point in the constitutionality of the Civil war. And the prize cases also happen to be the only time the Supreme Court has ever addressed the constitutionality of presidential war power without congressional approval.

[A]

Wow.

[B]

Yet president after president has claimed that they have independent war authority, no matter what Congress might say. And that raises the question of whether President Trump can constitutionally order military strikes on what appear to be fishing boats in the Caribbean, because the Trump administration alleges that these boats are carrying illegal drugs into the United States.

[A]

So what do we know about these strikes in the Caribbean?

[B]

So remember that in March, President Trump signed a proclamation that designated trendiagra, or tda, as a designated foreign terrorist or organization. And tda, as a reminder, is a criminal gang that originated in Venezuela, but now it's considered kind of a multinational criminal organization. And Trump's proclamation back then stated that TDA was perpetrating, attempting and threatening an invasion or predatory incursion against the territory of the United States. And so in our previous episode, we talked about how this proclamation has been used by the Trump administration to detain Venezuelan non citizens in the United States and then designate them as alien enemies and simply deport them. And so there's been a controversy over that, of course. And that designation also leads us to these boat strikes.

[A]

Right.

[B]

On September 2nd, the Trump administration announced that it had carried out a strike on a drug carrying boat that came from Venezuela and was operated by the tda. Now, boat strike is really an indirect way of saying that the military had blown up the boat and the people on board, 11 of them were killed. And that was just the first boat strike. So, as of today, we know of at least 21 US military strikes on boats in the Caribbean that have killed at least 83 people.

[A]

Wow.

[B]

There are two known survivors that were sent back to their home countries of Ecuador and Colombia. And these strikes have taken place in international waters. And from the reporting, these strikes appear mainly to be carried out by drones that are launched from US Naval ships.

[A]

So are these strikes legal at all?

[B]

Simple Answer is no.

[A]

Yeah, I would think not assassinating people.

[B]

Like this, it seems pretty much like summary execution.

[A]

Yeah.

[B]

They are not justifiable under any rational reading of any law, and even some of the most conservative legal analysts agree with that conclusion. But why these strikes are unlawful takes a little bit of explanation. And as we go through this topic, I think you'll see why the boat strikes are both shocking but also not entirely surprising at the same time. Okay, let's start with the war power. The Constitution splits the war power between the Congress and the President. And we know that from the text itself. Article 2 designates the President as the commander in chief of our military. And Article 1 gives Congress the power to declare war, to raise and support an army, and to provide and maintain a nation navy. The only problem is that Congress hasn't declared a formal war since World War II, and yet we have sent troops to armed conflicts many, many, many times since World War II. So in many of these instances, Congress has formally given the President the ability to use military force by passing a law. And we can call that an authorization to use military force. And the Supreme Court has generally treated this as an acceptable constitutional compromise is not quite a war. But Congress is allowing the President to do this. So Congress grants the President formal approval to send troops, and then the President is essentially acting under that Congressional authority. So, for instance, after September 11, 2001, when the terrorist attacks happened, Congress passed the 2001 Authorization for the Use of Military Force, or the 2001 AUMF. And the 2001 AUMF allows the President of the United States to use all necessary and appropriate force against all nations or groups that planned, committed, or aided the 911 attacks. It's still in effect, actually.

[A]

Wow.

[B]

Yep. It's also true that every President has said that no matter what Congress says, the President of the United States has his own inherent or implied war power under Article 2 of the Constitution.

[A]

What makes the President think that they have this inherent war power? That's not what I read when I read it.

[B]

Well, it's just an assertion.

[A]

Right.

[B]

So there's that problem. But we can also return to the prize cases there. The Supreme Court endorses the idea that the President has the constitutional authority to defend the country from an armed attack, an armed invasion, even if Congress doesn't provide formal authorization. So I think there's definitely agreement among all three branches that the President has some kind of inherent war power. The problem is that it's not clear what the limitations of this inherent war power is. Presumably there's some limit otherwise that would upend our understanding of the federal government's idea of limited authority. So there has to be some limit, but it really hasn't been defined.

[A]

So then who gets to define what a war is?

[B]

Well, there's no definitive answer to that question. Both Congress and the executive branch have asserted their own primacy over who gets to make the final call. So there are some hints about the extent of war authority in some Supreme Court decisions, but in general, the United States Supreme Court just doesn't want to get involved in making this essentially political determination who gets to make the final call in deciding when a war is a war. And so there's always a back and forth between the Congress and the President. So let me give you.

[A]

I love that they get to just decide like, we just don't want to get involved in this. It seems too messy, you know, and that's what they do.

[B]

Yeah, exactly. And it's not. I mean, they'd certainly get involved in other highly charged decisions, but war making, they generally don't. Yeah, fair enough. Okay, so let me give you an example. In 2013, the Obama administration considered military intervention in the Syrian Civil War after reports that chemical weapons had been used by the Assad regime against its own civilians. So Obama went on TV in 2013, and he announced that he would actually ask Congress if they would authorize military action in Syria. Now, what's interesting about Obama's speech is at the same time he's telling the public, I am going to ask Congress for authorization, he also said this. I believe I have the authority to carry out this military action without specific congressional authorization. So you see, Obama's sort of having it both ways. He's saying, I don't need Congress's permission, but I'm going to be cooperative and I'm going to do it anyway. And that's been essentially the position of every single modern American President. I don't have to ask Congress for permission, but. But when it's convenient, I will ask Congress for permission, although I don't have to.

[A]

Okay.

[B]

And so that's where the War Powers Resolution comes in. The formal name of the War Powers act is the War Powers Resolution, but it's actually a formal law that was passed over Nixon's veto in 1973.

[A]

Okay, so what does the War Powers Resolution do?

[B]

So the resolution doesn't actually give the President any powers at all. Instead, you can think of the War Powers Resolution as kind of a way for Congress to step in and ask for some coordination from the President. Anytime the President wants to use military force and the President doesn't, ask Congress beforehand. So the resolution has several provisions, but here are the key points. Section 4 of the War Powers Resolution requires the President to tell Congress within 48 hours anytime that American armed forces are sent into. And here's the specific language which will be important for later hostilities or into situations where imminent hostility is clearly indicated by the circumstances.

[A]

Okay.

[B]

That notification to Congress is supposed to explain the legal authority the President is relying on to use military force. So this is a formal. I'm telling Congress what I'm doing and why I'm using the military. And the President is also supposed to estimate how long and extensive the military involvement will be. So, of course, when these things happen, of course Congress knows in this world of media, but it's a formal notification.

[A]

Got it, Got it.

[B]

Okay. So the second part of the War Powers Resolution that's important here is that within 60 days after that military action, the President is supposed to stop using the military unless Congress declares war. It's not going to happen. Or gives the President some other formal authorization or there's some kind of national emergency because there's some ongoing attack on the United States. Of course, that doesn't happen either. Now, the President can extend this by another 30 days if he declares that there's some unavoidable military necessity. So the War powers resolution has three important numbers. 48 hours, 60 days, 90 days. And this is all meant to ensure that Congress and the President work together whenever the President decides, hey, I'm going to send troops abroad for some reason.

[A]

Yeah, yeah, yeah.

[B]

So every President since Nixon, and of course Nixon, tried to veto the resolution. It didn't work. Has raised doubts that the War Powers Resolution is actually constitutional. But every single President since Nixon has also complied with the resolution in varying degrees.

[A]

In terms of the boat strikes, is Trump, like, engaging with the War Powers Resolution at all or just ignoring it completely? What's going on?

[B]

Well, yes and no. So let's get to the yes. So after the first boat strike in September, Trump actually sent a formal letter to Congress within 48 hours on September 4th. And the letter to Congress confirms that the US military did, in fact strike a vessel at a location beyond the territorial seas of any nation. Now, the letter also says that the boat was. Was assessed to be affiliated with a designated terrorist organization and to be engaged in illicit drug trafficking activities. Now, it doesn't say anything about tda, but Trump announced at the time of the boat strike that this was an action against tda. He announced this on Truth Social. How long will this last? The letter says, well, we don't know. It's not possible to know at this time the full scope and duration of these military operations. So Trump's letter to Congress says, I'm writing to Congress because this is to comply with the War Powers Resolution. But the letter also says that Trump directed these strikes under his constitutional authority as Commander in Chief and Chief Executive to conduct United States foreign relations. So again, having it both ways, I'm complying, but I actually don't have to seek any kind of approval here. Right. Very similar to what all other modern presidents have said in their own 48 hour notice forces anytime that they've complied with the War Powers Resolution. So let's sit back for a moment and think about what this means. Trump is saying, I've used military force against these boats, at least some of which actually appear to be fishing boats. But what is this use of military force?

[A]

So is he asserting that this is actually a war or is he even engaging with that level of argument at all?

[B]

Well, you know, if you look at the letter to Congress, the Trump administration says that it is acting under the nation's right to self defense. But if this is in some sense a war. Let's go with that idea for a moment. How are the people in these boats, combatants in armed conflict with the United States? Right. Even if we assume that there are people in these boats who are bringing illegal drugs into the United States, and remember, the administration hasn't offered any evidence supporting this yet, then the usual manner of dealing with drug runners would be as a matter of law enforcement, not war making, right?

[A]

Yeah, of course, yeah.

[B]

So presumably you'd have something like the Coast Guard who would stop the boats and arrest the crew and bring them in for criminal prosecution. But these weren't prosecutions. They simply blew up the boats. These were executions without any process of at all. And so if you bring illegal drugs into the United States, that's certainly a crime. But, you know, is it really an attack on the United States? That's not really the way we think about armed conflict.

[A]

Yeah.

[B]

And there's no sense that the TDA is engaged in any sustained or organized campaign against the United States as a sovereign nation. Right. And a basic principle of armed conflict means that you distinguish between combatants and civilians. So even if we assume that these are drug runners, that they are in fact bringing illegal drugs into the United States, they're still civilians. They're not wearing uniforms, they're not trying to pretend to be soldiers. In any sense. But the administration told Congress in September that essentially we are in an armed conflict with non state actors. And they called the people that they had killed in these boats combatants. So that's really a stretch. But you see, they're trying to assert that this is some kind of war, that the United States is engaged. I see, but they aren't. They're civilians. And the United States can't simply kill civilians because they're allegedly importing illegal drugs into the United States. Right. That's problem number one and maybe the easiest one to think about. This isn't a war at all, period.

[A]

So Trump used the military to do this. At this point, we're, you know, it's two months after September 4th. So that 60 day where they have to stop using force unless Congress says. So we've reached past that point. What has happened in regards to that?

[B]

Well, this is the trickier part. Remember the three numbers of the War Powers Resolution, you just brought up one. 48 hours, 60 days, 90 days. So it's very clear contemplation in the resolution that the President can't just go it alone. If he orders the use of military force, he needs the cooperation and approval of Congress. Right. When the military first blew up the boat, the first boat on September 2nd, that triggered. Triggered not just the reporting requirement, but the 60 day clock that you just mentioned. Right. So remember, the President is supposed to withdraw the military force unless Congress authorizes the military action. But remember, the Trump administration has continued to strike these boats and kill people. Right. Dozens of people at this point. So the Trump administration, what are they doing? Did Congress approve? No, no.

[A]

But they're declaring it a national emergency.

[B]

Not quite. That that would be like an alien invasion. But so that Trump is claiming that the War Powers Resolution doesn't constrain him at all. Right. So the War Powers Resolution does recognize that the President has some inherent or implied constitutional authority to use military force. And the War Powers Resolution essentially says, fine, but Congress does get to play a role here by authorizing that force at some point.

[C]

Point.

[B]

Now, here's where the OLC is relevant.

[A]

What is the olc?

[B]

Right, the Office of Legal Counsel.

[A]

Oh, yeah, yeah, yeah, yeah, yeah, yeah, yeah.

[B]

The Office of Legal Counsel is a part of the Justice Department that provides legal advice to the President. Now let's go back to 2011. In 2011, the Obama administration's OLC looked at the history of presidential action and concluded that the President has constitutional authority that doesn't need any approval whenever military action would serve what it Called important national interests and important. Yeah, very important.

[C]

That's not enough.

[A]

That's not a strong enough word. Okay, continue on. I'm sorry.

[B]

Okay. And when the military action doesn't rise to war in the constitutional sense. So the OLC wrote the memo to justify whether Obama would have constitutional authority to use airstrikes in Libya. So remember, in 2010 and 2011, there were pro democracy movements spreading across the Arab world in places like Egypt and Tunisia and Libya. In Libya, this led to a violent crackdown against civilians. And as a result, the UN Security Council had passed a resolution for military intervention in Libya and the United States was to lead the NATO coalition establishing a no fly zone over the country. This was to protect civilians who were being targeted by the Gaddafi regime. That's a very specific objective, right?

[A]

Yeah.

[B]

But the OLC is saying, well, we can do this because it serves important national interests. That's a pretty broad standard supporting presidential authority.

[A]

Real. Oh my God, it's like, I want to murder these people. No, that's illegal. But it's important. Well, if it's important, I mean, then I guess so.

[B]

Right, right.

[A]

Crazy. Okay, keep going.

[B]

So there you have a pretty specific objective. And then the OLC says, that's why we can do it. It's serving important national interests and it's really not war in the constitutional sense. Okay, that's 2011. But then you see this very same two part test from the OLC being used by the Trump administration, the first Trump administration, to justify airstrikes in Syria. And then we get to the boat strikes. According to reporting from the New York Times, the Justice Department has written a document, document justifying the boat strikes as lawful because Trump has inherent constitutional authority to order these strikes. Number one, because these boat strikes are in the national interest. And two, these strikes are not war in the constitutional sense. That's the same two part test that we've just talked about. So that means in one sense, the American military blowing up fishing boats in the Caribbean is. Is shocking and unprecedented. But the legal pathway the Justice Department is using isn't wholly new. Even if we couldn't have predicted it would be used in this particular and very extreme way.

[A]

Again, we're running into this thing where language fails us because it can't stop a bad actor interpreting these as broadly as possible to sort of just to do whatever they want.

[C]

Exactly.

[B]

I mean, we sort of think, well, with a good faith president, we think, well, that's a broad standard about. Maybe you could differ on whether that's appropriate in a Policy sense. But we never would have thought we'd get to the boat strike situation.

[A]

Totally.

[B]

Unfortunately, it gets worse. There's another significant interpretation of the War Powers Resolution that's important here, too. So, Roman, remember that the War Powers Resolution applies whenever. Whenever the President sends armed forces into hostilities or into situations where imminent hostility is clearly indicated by the circumstances. Yes. So what's your general sense of what we mean when we say hostilities?

[A]

That they are attacking the United States. That would be my sense of what hostilities are, yeah.

[B]

I mean, that's pretty reasonable. The problem is that the War Powers Resolution does not define what hostilities are. Right, right. But the underlying presumption is that the War Powers Resolution only applies when there are hostilities. Then the President has to tell Congress and then later ask Congress for permission to keep using the military force. But because the act doesn't define the term, that's become contested, too. So let's go back to 2011 and Libya again. So Obama did notify Congress in March of 2011 about the military campaign. Campaign. And the airstrikes kept going, and they kept going on after the time allowed by the War Powers Resolution and Congress had not authorized it. Well, In June of 2011, President Obama sent a report to Congress, and the gist of it was, well, the military is not engaged in hostilities, so the War Powers Resolution doesn't apply.

[A]

So why not? What was the justification here here?

[B]

Well, according to the Obama administration, the use of American military force was not sustained fighting or active exchanges of fire with hostile forces, nor do they involve US Ground troops. So remember, this was part of a NATO coalition to enforce a no fly zone from the air. There were no US Troops on the ground. And Obama administration lawyers argued like Libyan forces couldn't realistically fire back. So this wasn't a hostility.

[A]

So, you know, these Venezuelan fishermen or Ecuadorian Caribbean fishermen are not firing back at the drones either. So does that apply here, too?

[B]

Yeah, that's essentially what they're saying. In early November, the Justice Department told Congress that Trump was going to continue to order lethal strikes on boats that were suspected of bringing illegal drinks, drugs into the United States. And they said what? Well, these don't count as hostilities under the War Powers Resolution. I guess the idea seems to be these aren't hostilities because the people in the boats can't shoot back because they aren't armed. Possibly would be the reason.

[A]

Yeah. Or, you know, I mean, but it's so. This is so infuriating because the pretense of doing it at all is that these people are combatants. That are shooting, shooting or shooting back. And then when confronted with the fact that if people are shooting back, you need to behave this way, they're like, no, they weren't shooting back. That is so infuriating. In both cases, it's infuriating, right?

[B]

And remember, why is the Trump administration doing this? They're trying to avoid being restrained by that 60 day clock that would require Trump to stop the boat strikes or to have Congress approve of what he is doing, which I think seems unlikely. So these boat strikes are definitely unprecedented. I mean, Trump is ordering the execution by the military of people who are allegedly, allegedly bringing drugs into the United States rather than apprehending them and arresting them. That is unprecedented. But Trump's attempts to legally justify what's happening, that by itself is not completely a surprise. So if you go back to 2011, the Obama administration interpreted the Constitution and the War Powers Resolution so that the United States could participate in part of this NATO coalition effort. And we could raise questions about the wisdom of that specific intervention. But it was backed by a UN Security Council resolution. And the reason this happened, or the reason why the Obama administration took the direction it did, was because there were a lot of Republicans who objected to this particular intervention. It was not realistic that he was going to get congressional authorization. So it crafted a legal interpretation to try to justify its use of military force. But even if you disagreed with what the US Was doing, I don't think we'd really call it the actions of a rogue president. We might say, well, maybe the US shouldn't have intervened to the extent that it did or to the amount of time that it did, but it's not exactly a rogue president in this way. But I don't want to just dump on Obama here. We can go back further to 2001. Now, the country's response to the terrorist attacks on 911 was to pass the 2001 AUMF. And again, that AUMF has not expired. It is still in force today. In fact, the 2001 AUMF has been used to address terrorist organizations that didn't even exist in 2001. And so for that reason, the 2001 AUMF has been called the beginning of our forever wars, in part because it's just not clear how the Objectives of the 2001 AUMF that stretches from the Bush administration to today, how those objectives will ever be completed, how will we know that those objectives are done? And even before 911 presidents have long argued that their constitutional authority to exercise the war power is Very, very broad. So broad that Congress can't really impose any checks on it. But of course it takes Trump, right, a president who's not fond of any limits at all, to really force us to ask what kind of limitations there should be on what the President's war making authority is. Yeah.

[A]

Has there ever been an effort to pass another bill like rescinding the 2001 AU?

[B]

Oh, there are often many. There have been many calls to do this, but they've been unsuccessful. I mean, for lots of reasons. But I think maybe the obvious political reason is politically you wouldn't want to do that as a lawmaker to say we should get rid of this. But as a result, we have this very old authorization that is very broad, allows the President to do all kinds of things. And presidents of both parties have relied on the AOM to engage in military actions all over the world that sometimes have kind of just a secondary association with what happened in 9 11.

[A]

It still leads us back to this foundational part of the Constitution, which is that it wasn't built around parties, it was built around opposing branches. And that the loyal opposition wasn't just the other party. The loyal opposition was the legislative branch. Because when you see this 1973 act trying to, to trying to rein in Nixon, it's like a veto proof majority passed it. And it really takes Congress saying, no, this is our domain and we're going to fight back with it. And if they try to work around it, fine, and they pass other laws. But it requires that sort of jockeying to come to some kind of solution that represents America in some way. And if you don't have that, then then you have nothing. You just have a person who can just run roughshod over all morals and ethics.

[B]

I think that's right. And also remember, because of the way the war powers are defined, meaning not defined very clearly, and the Supreme Court doesn't get involved in these kinds of questions, it means that it's just an endless, ongoing, unresolved conversation between Congress and the President. And remember, remember, Presidents continue to raise the question. I don't even think that Congress has the authority to do this. Make me report. I will report if I feel like it. But sometimes if I don't feel like it, I'm not going to comply at all. And Congress's hands are tied. And also, if you think about it, what is the President doing? Any President who orders military force is using our troops, which means paying for the troops, paying for everything they need. One thing that Congress could do even without the Compliance of the President would be fine. We'll withdraw the funding. But Congress is never going to do that. Never going to do that. Yeah.

[A]

I mean, sometimes it's okay to have things be undefined in words so that it forces negotiation, and that negotiation is like part of the ongoing conversation of what it is to make a society. Like, I'm okay with that. You know, like, you know, like having discretion and discussion and negotiation, you know, instead of like a wall, for example. You know what I mean? Like, you know, like having not a hard solution, but a negotiation solution. So, like, as things develop, that's fine. But this one seems particularly messy, like. Cause there's so many lives and so much awful activity can happen underneath the sort of the vagaries of trying to work this stuff out.

[B]

I think that's right. And also, you know, the problem is, you know, even if there is an emergency power that we want to keep in reserve for the President of the United States States, the problem is when everything is an emergency, as the Trump administration keeps asserting, then this expansive power is never going to end. And we can't always point to the Civil War as our precedent because that was the national emergency. The nation almost split apart, but that's not the way we think of ordinary uses of military force. Yeah.

[A]

As soon as you read some part of the law that says emergency, I'm like, oh, well, this is the end. This is like, this is a huge problem for us because he's just, emergency here, emergency there, emergency. I ran out of milk. Emergency. Like, everything is an emergency and no one anticipated that. We maybe need a new, stronger word than emergency. I don't know what it is, but we maybe need something else to put into our laws.

[B]

That's right.

[A]

Well, this was really fascinating stuff. Thank you so much for talking me through it.

[B]

Thanks, Roman.

[A]

Join us next month. We're continuing our discussion of Article 2. We covered a lot with Secretary Napolitano, but there's plenty, plenty more to talk about.

[B]

The 99 invisible breakdown of the Constitution is produced by Isabel angel, edited by Committee, music by Swan Rial and from Doomtree Records, mixed by Martine Gonzalez.

[A]

99% Invisible's executive producer is Kathy Tu. Our senior editor is Delaney Hall. Kurt Kohlsted is the digital director. The rest of the team includes Chris Barube, Jason De Leon, Emmett Fitzgerald, Christopher Johnson, Vivian Leigh Lashmar, Madonna, Jacob Medina Gleason, 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 Sirius XM podcast family now headquartered six blocks north in the Pandora building in beautiful uptown Oakland, California. You can find the show on all the usual social media sites as well as our own Discord server where we have fun discussing about constitutional law, about architecture, about movies, about music. We talk about the power broker like a lot. All kinds of good stuff. It's where I'm hanging out most of the time these days. You can find a link to the Discord server as well as every past episode of [e-mail]. Your new home is now ready Dr. Horton, America's builder has new homes that are ready today with new construction communities in Ellensburg and throughout the greater Seattle area area. Dr. Horton has the right home for you at Dr. Horton. We're still building with flexible living spaces, smart home technology and two and three car garages. More communities and more homes available every day. Find your new home in Ellensburg now [e-mail] Dr. Horton, America's Builder and Equal Housing Opportunity Builder at LinkedIn we know.

[B]

Hiring is a big deal for your small business. Sometimes it can feel a little bit, ah, overwhelming. LinkedIn uses data that you can't find anywhere else to give you the best candidates. All so you can feel confident you're hiring the best person for the job and even a little hiring Bliss. See why 86% of small businesses who post a job on LinkedIn get a qualified candidate within a day. Post a job for [e-mail] Pandora LinkedIn. Your next great hire is here. Hi, I'm Chef Franklin Becker.

[C]

You know the jingle now discover the facts about Ozempic.

[A]

A GLP one. There's only one FDA approved Ozempic made by Novo Nordisk.

[C]

Learn about the real thing.

[B]

Talk to your healthcare professional today. Call 1-833-OZEMPIC or visit ozempic.com to view the medication guide and to learn more about Ozempic. Semaglutide injection 0.5 milligrams, 1 milligram and 2 milligrams.