← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Redefining The Executive Power
00:55:05
Overturning the conventional wisdom on presidential powers with a radical reading of constitutional history.
Loading summary
Transcript56 lines
- [00:06]
A
Taking an intention or instruction that you had been handed and executing it like that's it in dictionaries and context and debates and pamphleteering and poems. That's how they talk about Executive power.
- [00:31]
B
Hi and welcome back to Amicus, Slate's podcast about the courts and the law and the Constitution and the Supreme Court. I'm Dahlia Lithwig and I cover those things for Slate. This show is part of our summertime series introducing you to all sorts of people in the world of the law and the courts who are doing and writing interesting things that maybe haven't crossed your transom yet. And this week we wanted to continue what started as a little boomlet at the end of last year spring of exploring presidential powers. We've talked a little bit on various shows this year about Article 2, specifically the take care clause and then the faithful execution clauses. And it's all by way of thinking about whether anything in the founding documents demands any kind of behaviors or compliance by the President. I think we all agree that presidential powers keep growing and expanding, whether that was the Bush administration wiretapping interrogation claims or the Obama era policies on drone strikes. And we probably also all agree that Donald Trump has taken these arguments to the next level with really sweeping claims about a border emergency or executive privilege. So our guest today comes with a pretty radical new reading of those executive powers and the constraints on them. And his law review article from earlier this year rocked a lot of people back on their heels with his pretty radical claims about the meaning of three little words, possibly two little words, the executive power and what the framers intended the words the executive power to mean. Julian Davis Mortensen is a professor of law at the University of Michigan, where he specializes in constitutional and international law. His research focuses on the process of establishing constitutional structure, usually from a historical perspective. And his article that's called Article 2 vests executive power, not the Royal Prerogative, is in the Columbia Law Review this year. It was a year's in the making enterprise and challenges the conventional wisdom on executive authority in really profound and big new ways. Julian Mortensen, welcome to Amicus.
- [02:49]
A
I am thrilled to be here and have the chance to talk about this with you and share some of it with your audience. As you know, I've admired your writing and work for a very long time, so it's an honor to be here.
- [02:59]
B
Well, thank you. I want to start just being mulish and difficult with you and locating your research amidst this what I'm describing, this boomlet of sudden love affair with constraining presidential powers. And we've covered a bunch this year on the show. We talked to Ian Bassin, who was trying to give real teeth to the obligation to take care, and then to Jed Sugarman and Andrew Kent about their thinking and research around the faithful execution clauses. It looks a little bit like liberals who don't like this president and they just want to use their formidable brains to kneecap Donald Trump. Now, I know you started this project a very long time ago, and maybe that's your answer is I started this project thinking about George Bush and about Obama. But is this just a movement to use deep scholarship to take this president's powers away?
- [03:57]
A
It's hard to say that the president wouldn't affect what people are interested in. It's hard to say that people's sense of overreach might not motivate certainly the projects they choose and maybe also how they pursue those projects. And certainly there is like an in fact both sides phenomenon where when the office holder changes the criticisms, flip flop. That said, I feel, well, I can say confidently about myself that for me it was very much President Bush, the second President Bush and President Obama, whose in my view, overreaching, in particular overreaching arguments grounded in the Constitution as opposed to in statutory text motivated my interest and sort of kicked off a sequence of questions that just kept going further the further I looked. So this is for me a long standing project and I think it certainly has relevance in this presidency, as it probably will go on to do, because it hasn't at the end of the day, the claims I'm challenging haven't at the end of the day been partisan claims. They've been claims made by presidents of both parties. And so for me, this is actually not at all about Donald Trump. And there was sort of a flurry on Twitter when I first posted the piece that I very significantly discounted in my own mind because I think there are, as you say, people who will retweet anything of it says Donald Trump is bad, but that's not where I'm coming from.
- [05:18]
B
Okay. And can you just describe briefly your path to Article 2 and this question of how power is allocated between the three branches. How did that become interesting to you? I know it's like you said, it's been a long time.
- [05:34]
A
I think that first kicked off my interest really was the emergence of news about the second Bush's wiretapping program. And not just the wiretapping program, but the claims that the wiretapping program weren't and couldn't be restricted by Congress. Right. That he's the President, he gets to conduct national security policy, he gets to conduct the pursuit of warfare, wiretapping, and then as it turned out, torture. Exactly. Are things that are for him to make the call on. It's the President's call. The buck stops here. And that just so. And there's a certain naivete to the whole project. I'll cop to that. But that's so just rubbed up against like, I feel like everything I learned as a kid and everything that it felt to me like law school had taught me about the rule of law. And I'm not claiming great intellectual insights here, but like it was the sort of thing that just rubbed me really, really wrong and really bothered me. And the more I looked at it and explored the arguments, the more bothered I got. That's sort of the. The genesis of the project. I mean, in some respects, like layers of an onion, you just go deeper and deeper on a question and you see where the arguments are proceeding from. And it just turns out to be like a radical in the sense of a root issue in the Constitution and behind a lot of the things we've been talking about.
- [06:44]
B
And I want to be clear because I now have mentioned the take care clause and I've mentioned the oath. You're building on that. Not building, because I think you predated it, but you're certainly going way further than they are. You're not saying, look, the President has an affirmative duty to either be a fiduciary to the people the way the Sugarman Leeb piece does, and you're not saying he has an affirmative duty to take care. You're going very far in saying, actually no, the framers meant to very much constrain the President to being an executive that he executes. And so this is a pretty far reaching, I think, view of things. And I wonder if maybe you could start by just defining a few terms for us, because I think that in your piece you write about the vesting clause, you write about royal residuum, help us understand the language, the lexicon that you start from.
- [07:49]
A
I'll go maybe even one step further back, and I don't want to get too technical or too esoteric, but I don't think this is so esoteric because I think that many people, certainly many lawyers and legally informed types are very familiar with the idea that ours is a government of limited powers. Right. That's sort of a thing that you say about the government, a true thing that you say about the national government. And it references A really important idea that lawyers are most familiar with in the context of congressional power. This is that idea, the idea that for a federal actor to do anything pursuant to constitutional grant, that actor has to point to some grant of authority in the Constitution. And that's often contrasted, and rightly so, to what people call the police power, which isn't limited to, as you know, like police officers, but like police in the sense of policy, a wide ranging general jurisdiction to set any rules you want to within your jurisdiction. The federal government doesn't have that. It's got enumerated powers. And so we argue about whether the commerce Clause reaches wetlands and we argue about, right. Whether the treaty power allows us to criminalize the act of putting poisonous goo on a doorknob and Right. Like so that's at the, at the heart of a lot of these debates. It is a taken for granted principle, generally speaking, about how the Constitution works. And we seem to forget about it or the discourse seems to forget about it when it comes to the President. And what I mean by that is certainly there are discussions about whether some particular chunk of text in Article 2 of the Constitution, that's the article that gives the President his powers, relates to something the President wants to do. But over and over and over again there will be much more open ended hand waving gestures to he's the President, he's the Executive. They can't make him do that. They can't stop him doing that because he is the executive. And he does occupy this particular sort of gap filling, foreign policy oriented, national security oriented, like needful things, role in our system. And so if you want to sort of situate, and I think you're just right to sort of start with the architecture, situate the architecture of the claim it starts off by. And again, I'm not claiming this is a blinding insight like taking the same idea of enumerated powers and kind of taking it seriously when it comes to the President. So what does it mean when you apply that to the President? Well, I think at this point maybe it's useful to contrast three articles and three clauses of the Constitution. Right. And again, now we're a little bit back in 9th grade civics, 3rd grade history class. The first sentence of Article 1 vests one legislative powers or references the vesting of legislative powers in Congress. The first sentence of Article 3 references the vesting of judicial powers in the Supreme Court and eventually lower courts as well. And then the first sentence of Article 2, which is my project, vests the executive power in the President and the intuition has long been both explicitly, but more often kind of inchoately to say the legislative power is a power to enact laws. So what that conveys is the power to enact laws and things related to the power to enact laws that relate to the subject matter grants later in Article 1. Right. So legislative power, power to enact laws, executive power, kind of the other stuff that the government has to do. And we could talk about the boundaries of how people seek to flesh that out, but essentially it interprets this initial kind of stage setting grant for the President in contrast to the legislative power in the following way. We define legislative power as the power to make things that are called laws. We define executive power as the kind of powers an executive has. And from that starting point comes a startlingly large amount of separation of powers law. And the further I go into this project, the more I think, maybe ambitiously, but the more I think it has very significant implications across just about the entirety of separation of powers laws.
- [11:54]
B
Wow, that's a lot. I mean, so essentially, like, if I were to summarize what you're saying, Julian, you're saying we think of the legislative power grant that's given to the Congress as really cabined and all the other stuff that doesn't go to the judiciary, we just have just all acceded to this principle that that's all the President's power. That's essentially what you're saying and that we've all so internalized that, that it's in the way we talk and think about. We start from the proposition. And that's where you talk about this residual power. Right. It's everything else, because we don't know where everything else goes. It goes to the executive. Am I, am I saying that right in every respect?
- [12:38]
A
Yeah, I think that's. That's exactly right. I don't think that for those listeners who are familiar with the famous Morrison case involving the independent coun think that you can do better for a concise statement of the point of view that I'm sort of tilting against than Justice Scalia's celebrated dissent, and in my view, very wrongly celebrated, historically speaking, but his celebrated dissent where he says more or less, how else could you define executive power, meaning like the executive power of Article 2, how else could you define executive power except with reference to what all executives everywhere have always done? Right. So in other words, he's saying, and the word I use for it in the papers I'm writing is like the metonymy error or the metonymic relationship he's Saying, to understand what the executive power means, you look at what institutions that are executive can do and assume that everything that an institution that is executive does, absent good evidence to the contrary, is executive. And that's just completely wrong. And there's a much simpler actually understanding that, like, from my perspective, just obviously permeates the founding discussions. But that's the error, I suppose, that I'm seeking to dislodge, historically speaking.
- [13:53]
B
And I think that I want to stop you now and talk about Madison's Bookshelf, because that's your work. I mean, your work has been in the Atlantic in June. You described, you know, just massive amounts of sources, revolutionary and founding error sources, and all the. What you had to pore over in order to bolster this claim that you're making, which is, no, we've all been getting it wrong. Can you just take a step back and tell us what Madison's Bookshelf is to you?
- [14:30]
A
It's fascinating because it both is and isn't a metaphor. Right? Like, we actually don't know the full contents of what was on Madison's bookshelf specifically, but we have a lot of lists of what was in people's possession in their libraries. I mean, one really great resource that I was initially tipped to by Josh Chaffetz, who also writes in this space, was Madison's Book List, where he actually sort of writes up a list of books that the Library of Congress or the to be Library of Congress is supposed to buy. And you can, you can look at citation counts. There have been really interesting studies by both political scientists and historians to see, like, quantitatively, who and what is getting cited the most. So we sort of know what they're reading. We know the books that are on their bookshelf. And what's meant by it is that body of, to be sure, often like internally disputatious, but that body of, I mean, literature, political theory, political philosophy, religious texts, poems. Poems. Some of the poems are wonderful, right? But the things that they would have had that in fact, we know they did have, and that they did reference. And I just did a lot of reading over a long period of time.
- [15:39]
B
And so this brings us to the central claim, which is nobody intended for the executive to be monarchic. Nobody expected all these residual powers to flow to the President. How do you know that?
- [15:55]
A
The simplest answer is they said so over and over again. And that claim isn't in this first piece, the Madison's Bookshelf piece, although there is now the sequel piece that's been posted that shows this evidence. But the simplest answer is they said it over and over again, both explicitly and, like, unmistakably, implicitly. The slightly more complex answer is that you can't coherently describe the use of the word executive, like, across any number of publications that they are reading without rejecting that interpretation of executive. And the slightly more complex answer and leave it for last, because I'm not generally a big fan of, like, just take the dictionary definition and plug it in and there's your answer. But, like, there are zero definitions in. I forget the number. But it's, you know, dozens and dozens of dictionaries that are viewed. There are zero definitions in the dictionaries that even colorably support this residual understanding of executive power. They all have a very different, very distinctive. And like, frankly, in a world where history is so often like a story about contestation, and I don't want to fight that, they contested all kinds of stuff, like an absolutely uncontested sort of. And this is the sort of naive, you know, almost like, trivially obvious point, like, it's just a vocabulary point. It's how they talked about a certain function of government. And that function of government was taking an intention or instruction that you had been handed and executing it, executing it like, that's it. There's not more complicated than that. The repercussions and implications are enormous. But that's the usage in dictionaries, in context, in debates and pamphleteering, in poems. That's how they talk about executive power.
- [17:32]
B
And so what stands to reason, and I guess this is what you're proving, is that that means to the extent that there's residual power lying around, it goes to the Congress, right. It goes to the legislative branch. Or is there just residual power of monarchs that's floating in the ether, unclaimed by any of the three branches.
- [17:55]
A
I would pick door, the last door.
- [17:57]
B
Whichever door that was floating in the ether. Residual power.
- [18:00]
A
No, no, no. It wasn't allocated. Floating in the ether in the sense that nobody got it. There's all kinds of questions about how to interpret the boundaries of particular grants of power. Does the Commerce Clause literally mean only regulating commercial transactions, or does it also mean the ability to stop a stick of dynamite being put next to a factory because that's going to disrupt. Or a train station. Right. Like, we can talk about the boundaries of individual clauses. And this research really doesn't speak to lots of that, although I'm happy to hazard speculation. And so, too, right. Does the power to receive ambassadors that the president have in its kind of Penumbra and emanation, does it include some form of diplomatic authority? Probably Right. Like I'm not taking a position on that. But structurally speaking, there is no reason to assume that everything the king could do, somebody in the federal government could do. In fact, we know for a fact. I mean, and to be clear, it's because the fact part is because it's prohibited. We know for a fact that something that the king can do, the President and nobody can do, establish a church or rather run a national church, like that's a thing that other parts of the document prescribe. And it goes to the real architectural point, which is there's no reason to expect that you have to answer the question of where the residuum is. Rather you take everything on a clause by clause basis, or maybe is an aggregation of clauses, if you want to think about structural implications and so forth. I'm certainly not opposed to that. But you're working from the text up rather than saying what does the government need to do? And then where will I put that thing? Because it's possible, maybe improbable, but it's possible that some of the things the government needs to do might not expressly be in the Constitution. And they had an answer for that.
- [19:42]
B
What was the answer for that?
- [19:44]
A
Two answers. One is the necessary and proper clause. Yeah, right. So the necessary and proper clause most famously allows Congress to do things that are necessary and proper. Whatever exactly. That means these days, necessary and proper to effectuating its other powers. But a less well known part of that clause, I mean, it's not obscure to constitutional types, but it's not the thing you focus on in first year con law allows Congress also to enact laws that are necessary and proper to the effectuation of the powers of the other branches. And so if it's useful for the President in being able to run the administrative branch and to execute the law to remove officers. And I probably picked the most tendentious issue that you could like Congress can extend the power to remove officers to the President pursuant to the necessary and proper clause. And so answer one is necessary and proper clause. Like if you think about the things that people point to as being missing from the explicit text of the Constitution, they're all trivially connectable to some other power of some other entity by the necessary and proper clause. The second is people in the late 18th century were a lot less, for better or for worse. And this part I haven't nailed all the way down yet, but this is my emerging sense. They appear to have been Less horrified by the idea that government officials might sometimes act outside of the law. And they had a relatively well established process for handling that, which was you do it, you take the risk, and then either the legislature enacts an indemnity for you or they don't. And you can see this kind of thing happening over and over again, often with very, and it's interesting to me, not at all surprising, very gendered metaphors. Right. Like the officer made the choice in a manly way. Right. I mean, it really is sort of like the courage or the republican masculinity is sort of the thing that they lean into and they say, and we think that under the circumstances it's understandable, but it's forgiveness. It's forgiveness. And in a legal sense, indemnity for an extra legal action, rather than the actor is saying, hey, I can do this and you can't do anything about it.
- [21:41]
B
So it starts from the proposition that this is pretty fluid and we're working it out, and if you overstep, you get checked, but it's not. There are these immutable buckets and all power is allocated in advance into the immutable buckets. Yes, that's right. So I have to ask you this metaphysical question because you have. You started by saying the framers come to this from a point of disputation. They are rejecting monarchy, and yet we've kind of built a monarchy in this country. And then we say, well, you know, there's nothing we can do about the border wall because the President has virtually unlimited powers. Right. CF the steel seizures. There's nothing we can do about foreign affairs because the President has virtually limitless powers. And I guess I wonder, just as a meta question, Julian, is it simply the case that human beings abhor the kind of, I don't want to say vacuum, but the kind of diffusion of power that you're describing, and that we almost inevitably worked our way back into a monarchic tradition.
- [22:48]
A
I think there's a lot of power in that analysis. I'm not sure I sign onto it. I don't disagree with it. I'm not sure that I think that explains all of it. I will say that there is a strong flavor of anxiety, both in the scholarly writings and in sort of the, you know, more polemical middle level public discourse around the idea of the President really needing to do something that the President wouldn't be able to do. And I think that kind of maybe sometimes consciously, but I suspect, especially in the scholar's case, less, less consciously working backwards from that intuition drives some of the analysis. I should also say, and this is a really important point, it's one point on which I think some of the people who are all about this project in terms of hearing something that restrains the President and we don't like the President now and so for may not fully appreciate, which is that this has important consequences for how to interpret statutes. But this really has almost nothing to do with what Congress can authorize the President to do. Again, you have to ask the predicate question. Is there some basis in Article 1, that is to say in the article that grants congressional power, is there some basis in Article 1 for Congress to enact a statute letting the President set tariffs or build a wall or a fence or whatever the particular statute uses? And that can be relevant. This theory, or as I see it frankly, this understanding from the Founding is actually quite consistent with extremely robust and perhaps extremely unwise delegations to Presidents who might take the powers they've been delegated and use them poorly, unwisely or even like to undo the constitutional order. And so in that respect, like the theory as such, I guess is agnostic on how much power the President should have. And one of the things that I think really shouldn't be missed is just how powerful a power this is. Some folks think, I mean Harvey Mansfield at Harvard is a person I'd like to cite to for this because he's so good and so interesting and so authoritative in this area. He and sort of picking up on the Youngstown case that you've described, talks about the mere executive power or on a pass through understanding of executive power, how unimposing it is. And anybody would roll their eyes if somebo that that's all the President can do. It's sort of the shades of the dissent in Youngstown talking about the messenger boy theory of the executive branch. And that's true. You can give instructions that are unbelievably specific and precise and give somebody no discretion at all. Or you can say, I mean I just finished reading a thing. It's in the military context, but it makes the point. You can say to George Washington, hey, we hear that letters are coming in that have anti patriot propaganda from England take care of those, period. That's it. And then Washington is then thereafter empowered to go out and you know, essentially take care of those as were by any means necessary or to be more realistic, by any means that within his judgment made sense. It's not that this theory leads to a weak president. It emphatically doesn't. In A world where we have statutes that authorize any number of things. But from a constitutional perspective, it's a radically different theory that at least potentially and demonstrably, sometimes in our history, in fact, has resulted in legislative checking of the President.
- [26:07]
B
Before we go any further, Julian, can you just explain for listeners the Youngstown steel seizures case and the kind of tripartite system that came out of that.
- [26:17]
A
The Youngstown case is a case from the 1950s, one of maybe the most important cases in the field of executive presidential power doctrinally. And it involves what effectively amounts to the takeover of steel refinery by the federal government during the Korean War in the face of a labor strike. And the fear is the labor strike cuts off production of necessary material and so on and so forth. So a highly plausible, like actual boots on the ground national security situation in which the President does a thing and among other things, relies on his possession of the executive power to claim that he's both statutorily, maybe, and especially constitutionally entitled to do this.
- [27:03]
B
Right.
- [27:03]
A
So that's a big picture background. The most important thing in that case is not so much the majority's opinion as the two concurring opinions. The majority opinion, we drive by it too quickly, actually, because it comes back to that enumeration point that I made at the beginning. It's really good in that it emphasizes the need to find something in the Constitution to pin this to. Right? And we sort of are all so sophisticated now that we all roll our eyes at clause bound interpretivism and what have you. And okay, fair enough. But on that, the majority is really good. But historically speaking, the two most important things that come out are a pair of opinions that are sympatical with one another and that kind of get blended by later decisions. One is Justice Jackson, like one of my favorite justices of all time, who says we have to think about presidential power differently in three different zones. Zone one is no more complicated than saying the President can point to a statute that says you get to do this. Zone three is, in the simplest case, a statute that says you can't do this. And zone two, right there in the middle is if there is neither authorization nor prohibition, and there's more to say about it, but bottom line, his proposal, and he's here not actually innovating, but synthesizing strands that clearly predate him by quite a bit improperly. So is that when you're in zone one and the President, you're on great ground from a separation of powers perspective, when you're in zone three and you're the President, you're on terrible ground from a separation of powers perspective. And when you're in Zone two, I often do a fake question with my students in class where I'll say, so what's the test in zone 2? And the sentence that comes after his mention of Zone 2 is something like, you look to the contemporary imponderables to resolve the question. Right? So that's a very hard edged test of contemporary imponderables. But so the first part of this concurring legacy that's really important is dividing the world between those actions that are authorized, those actions that don't have authorization, and those actions that are prohibited, and suggesting we ought to think differently about these things. The second piece of it, and in some ways this maybe relates most to what you and I have been discussing, comes from Justice Frankfurter. Although Jackson is clearly on board with Frankfurter's position here where he says, look, these terms aren't self defining. There's lots of instances in constitutional law where we look to evolving political practice over time to flesh out the contours of an ambiguous word. And we should be all the more eager to do that, he says, with separation of powers questions and with questions of presidential power, because there are just so few of them. So they're hard. I think they're not nearly as hard as he thought they were actually. But as he understands the term at the time, they're hard, they're complicated. And so what we should do is we should look to an evolving sort of political practice, especially of the federal President and the federal Congress, where if you can show that the President has done a thing in the past without authorization and that Congress has either said, hey, that was great, or has said nothing has acquiesced to what the President did. And if you can accumulate enough of those instances of the President doing that kind of thing, then we treat that political practice. It's emphatically a non originalist argument. He says, we look to the actual political practice of the national political branches and that the sort of ebb and flow and tug between them over what the President gets to do. And we will add powers to the President's list if we can show the President doing that thing often enough and can show always combined with that Congress acquiescing to it. And so that's the role of the Youngstown case. And it involved what turns out to be, if you're doing it right, like an immensely hard historical analysis over like wildly disparate periods, it's really hard to do. But that's what Youngstown is about. It's about saying, as I think of it today, it's most importantly about saying we pay close attention to what the political branches have done in deciding what the president can do today.
- [30:56]
B
I want to take a moment to talk to you about our membership program, Slate Plus. If you are hearing me say this, you're listening to the regular version of our show, which is awesome and thank you. But if you were to sign up for Slate plus, you could enjoy this show commercial free and get access to bonus segments and extended versions of all your favorite Slate shows. And it's only $35 for your first and you can sign up for free for two weeks just to check it out first. And that's not all. By signing up for Slate plus, and this is important, you'd be supporting this show and all the journalism we do here at Slate. We know you value our coverage and you know how urgent the work we do is, especially right now. We just need your help to do it. So sign up for Slate plus and help secure Slate's future. To learn more and to begin your own free two week trial, go to slate.com amicusplus and now back to our conversation with Julian Mortensen and his Larva article that seeks to reframe. Oh, the entire conversation about executive power and the Constitution. I guess I have to ask about the ticking time bomb which you kind of cited, but that's always, at least in the Bush era, that was always the example they used to justify torture, to justify virtually boundless executive power was you just want one guy there making you can't workshop them. This organ failure question. You just got toone person's got to do it. And you're telling us, I think that there was no quarter given to the ticking time bomb or whatever the exigent male interception question was, that the framers had no interest in having the decider be the executive.
- [32:47]
A
So I think the framers and the founders had, or would have had two answers at least. Maybe there are more, but at least two answers. And the first is to circle back again on this idea of and it persists after the founding, Jefferson in his presidency, Lincoln, this idea of violating the law, not claiming that you're doing so as a matter of right, but claiming that you do so or preserve some sufficiently high value that the political process is willing to forgive you. And I think the founders were demonstrably, certainly in terms of political practice in England and also in the US demonstrably more comfortable with that than we are. And so that's the first answer. Like I think that they would have said, well, surely he would do the thing that was necessary and then take.
- [33:30]
B
His licks for it afterwards.
- [33:31]
A
And then take his licks for it afterwards.
- [33:32]
B
Okay.
- [33:33]
A
And the second thing to say is like, as a realistic matter, man, the president is authorized to do an awful lot. You know, these hypotheticals are hypotheticals because they're hypothetical. Right? The President is authorized to do spectacularly large amounts of stuff. And in any event, the actual scenario in which the a ticking time bomb and the President doesn't have authority to do the thing that will actually make a difference is A, the founders say bite the bullet, and B, sort of so factually improbable that using that to drive our intuitions about the entire constitutional apparatus is just getting things backwards.
- [34:04]
B
And same answer on foreign and diplomatic affairs. I'm thinking of Zivitovsky. I think we covered that on this show. Obama making claims like, I don't have to answer to Congress about recognizing Jerusalem as the capital of Israel. I am without limits in my authority, delegated authority to make decisions about foreign affairs. And same answer. The framers just did not intend for Barack Obama to be the sole arbiter of where we recognize capitals.
- [34:37]
A
Correct? Or to put it differently, they're quite clear. And one of the places you see the dynamic they expect is in some of the debates back and forth in the Washington administration now in the first decade of the Republic under the Constitution, that is where the most pro executive arguments from Alexander Hamilton contemplate the President taking action to recognize somebody or to recognize obligations under a treaty which implicated recognition questions. And then he specifies that Congress can later go back and revisit that decision. And he acknowledges the political power to take action in the first instance pursuant to some entitlement has real political salience. But even the most. And he's inventing stuff from my perspective when he's making these arguments. But even the most aggressive theorist lawyering his hardest at trying to support Washington's neutrality proclamation in the first decade of the Republic, even he in his incorrect theory, by the way, but even he recognizes that Congress will have a second look and final say on the issues that are in play.
- [35:40]
B
So your claim begins and ends with the proposition that there are people out there making these monarchic claims. And you've given a couple examples. And I think maybe John Yoo and the torture memo is one of the examples that comes to mind. I think the current Attorney General Bill Barr making claims about, you know, the executive presidency, right, falls within that scope But I'm curious. When did these claims start getting made? Is this something that started with Washington? Is it simply the case, Julian, that presidents have really good lawyers who come out the chute arguing for limitless powers, and Congress doesn't have good lawyers to answer back?
- [36:26]
A
The argument has been around at least since Hamilton writes on behalf of Washington's authority to deliver the Neutrality Proclamation in the first decade of the Republic. And as far as I can telland now, I'm straying from my confidence in tracing the lineage of the argument. That's the first time it's raised. There is no hint, not a single whiff of that claim at any point up to and including the moment of ratification. It's definitely not like a contested thread that some people thought and some people didn't. And who knows? It is like it is invented out of whole cloth by somebody somewhere. And at the moment, it looks to me like it's Hamilton, and gosh, that guy was a good lawyer, and so it's plausible that it was him. But I don't. I'm not making a strong historical statement on that. It's possible he's drawing on other people because that's always possible. But Hamilton makes the argument and is confronted and strongly, well, disagreed with by Madison, among others. And then the references that I'm familiar with over the course of kind of the next 20 or 30 years are consistent with my thesis. Right? And so it surfaces there. I don't yet know how strong a legacy it left, whether it was just like a loaded gun on the shelf and somebody came back and saw that, you know, 70 years later, a century later, and pulled it back out. So it's actually one of the questions that I want to pursue and investigate more. It's comparatively lower priority at the moment, but I want to investigate more exactly that question of how an understanding that was so startlingly consistent was retold and respun so as to become something like almost the opposite of what the actual.
- [38:00]
B
Understanding was you described earlier. But I want you to go back and tell me how he did it. Justice Scalia's famous dissent in Morrison vs. Olson, that's the special counsel case. And you describe it as, and I think you're generous in your language, just like a series of mistakes and bad calls. Can you just walk me through the process of how he takes exactly the opposite meaning and imports it into one of the most celebrated dissents about executive power that we reference again, constantly. We take it as this is a given. Can you just walk me through his process of how he upends the conventional wisdom that you're describing.
- [38:47]
A
Yeah, I mean, I think it's fair to say that there are two moves. It's a long opinion and there's some interesting good stuff in it because he was an interesting thinker. And so I'm not going to capture all of his argument, as you well know, but I think it boils down to, in this respect, two arguments. The first argument is, and he starts off with a quotation from. I think it's the Massachusetts State constitution at the. At the founding, which says that there are three powers and they must be kept separate. Right. Sort of in a very affirmative, strong, explicit state constitutional statement of the separation of powers. And then he says, essentially in this first sentence of Article 2, the President has the executive power. That's the line that everybody remembers from the case. Not some of the executive power, but all of the executive power. Exactly. And so the first mistake is like that's just. That's just completely wrong and actually wrong in a way that he ought should have known about, because like the Federalist Papers say that that's not right. I mean, one of the vulnerabilities that the Federalists had, that is to say, the supporters of the Constitution, the people who liked the Constitution, who wanted a more centralized government, who advocated a forceful central executive authority. One of the problems they had was people's ability to invoke separation of powers nostrums, I guess, Montesquieu in particular, and things like the Massachusetts Constitution saying the powers must be kept separate. The critics say, hey, the powers are supposed to be kept separate. The latest, best, awesomest political theory tells us that if you don't separate the powers, we're headed towards tyranny here. There are ways in which the powers are mixed and commingled, and there's lots of ways in which that is in fact true by their standard. But one of the ways they emphasized in this respect was to talk about the Senate's possession of the power of appointment, which. Which is on many accounts plausibly entailed within the executive power. Not necessarily some disagree, but plausibly entailed. And so here as in the other ways that their contemporaries were criticizing the non separation of powers in the Constitution, the Federalist response was actually not to deny it, but to say, yep, that's right. And actually we have new political science that is now enabled by our experience as revolutionaries and as people who are able to shake off the fetters of the past. And Montesquieu got a lot right. But in this respect, it turns, you have to read him really carefully, kind of wink, wink. He actually didn't get this right. You have to read him really carefully to understand that really, he just means there can't be one branch that has all the powers, but some mixing among them is. Okay. Coming back to the main point. So Justice Scalia's first really big error is to say that the executive power means all of the executive power, and therefore anything that's understood to be executive has to be with the President. And that's, like, just definitely not true. So that's the first thing. The second big thing is what I mentioned earlier. But is there sort of the second step in the argument?
- [41:38]
B
Right.
- [41:39]
A
Having said that all of the executive power is in the President, he then says, how else do we know what is executive except with reference to what institutions known as the executive have been able to do always and everywhere? And that's also plainly wrong. And it brings us back to why this is so architecturally central. There was a conceptual schema that, like, whacked up the world of government powers and either did or didn't allocate them, depending on the choices that any given Constitution made. But it wasn't the one I started by describing in which legislative power means the power to pass laws. And, you know, forget judicial for the moment. Executive power means, like, all the other stuff that a government of that sort ought to do that the executive usually does. That's not it. It's way simpler than that. Legislative power is the power to issue instructions that command or authorize. That's it. Executive power is the power to take instructions that come from some authoritative font of legislative power. Could be. It doesn't have to be Congress, by the way, but certainly Congress and put them in play or make them a reality. It's a really thin power. It's an incredibly important, powerful power. And as I said, Congress could choose to give tons of stuff to the President. But Justice Scalia is just simply radically incorrect to say that we reason our way towards what executive power is with reference to, like, an inductive analysis of lots of different executives and looking what most of them. That's just wrong. That's just historically wrong. He's just wrong about that. It's much simpler than that. They talked about complete government as involving two and sometimes three steps, legislation and execution, or sometimes legislation, adjudication and execution. You will a thing, you bring the thing to being. You have a thought, your hand goes out and does it. It's just all over what they wrote, and it's all that is meant. I have yet to see any evidence that anything else could possibly have been meant by the vesting clause of Article 1, the vesting clause of Article 2, and the vesting clause of Article 3, then the standard reference to the standard trope of a complete or perfect government. And that's in the historical context of what they were worried about at the time that we could talk about more. But that's the ways in which, from my perspective, Justice Scalia just messes it up really, really badly in a way that really misleads a lot of people, starting with, but definitely not limited to law students.
- [44:09]
B
And the thing that you're saying that I want to just catch because it's important is the way that this becomes a one way ratchet. I mean it leads invariably to the next person who's analyzing, doing the thing that you're saying Scalia did, which is say, like, look, it's this almost perfect circle where you say the bigger, you know, the, the bigger the argument for limitless executive power gets, the more self fulfilling that becomes down the road. That's the thing you're trying to push back against now is I think this claim that we heard, particularly around the declaration of emergency at the border, you know, which had right. Specifically not authorized by the Congress, Congress had said we are not giving you this money. So you can imagine what your notions of executive. What that does to upend that. And then the almost totality of the discourse around that was, well, the President just has limitless power to do this, to declare an emergency. And so what you're trying to say is this isn't sort of static, that this, as it builds and grows over time becomes more and more actually true for sure.
- [45:21]
A
And that connects to a really important methodological point. One of the reasons that I've been so. It's weird to feel so intense and focused and even stressed about trying to get stuff out about something that is, you know, 200 odd years ago. But like there's a risk that some sufficiently authoritative actor will say and then be deferred to by the other authoritative actors. This in a way that is unmistakable, can't be understood any other way. And then that gets baked in, in a more permanent way than it is right now into how we understand what we do. And I mean especially the Supreme Court. Supreme Court's never said this, never said anything like this. And I have some anxieties about what might be said. And so in the sense of the stakes here, that's part of the story. And building on your point about a one way ratchet, a second feature of how we do presidential power makes express reference to historical practice. Right. This piece, my comfort zone is history. My comfort zone is saying the way it seems to me a thing was understood in historical context, taking you to a. The secondary literature and the primary sources, like that's where I'm comfortable. And so this is really a historical piece about a really important question. But it's a historical piece. But not everybody agrees, and I include myself in this group, that the original understanding should settle everything. Lots of people think that evolving understandings of one kind or another ought to and maybe especially in the realm of presidential power. And this is where the one way ratchet for me comes right in. It's a great way to put it. When one president does a thing that attributes to the executive power more than just the power to execute, the next president can refer back to that and maybe do something a little more aggressive and a little more aggressive and a little more aggressive. Then it's like the opposite of a pearl and I'm gesturing in the air now where it's like you're layering on error on error rather than pretty things on pretty things. And the result is you end up in a place very different from where you started precisely because of the ratchet aspect of being able to now refer back to the last person who did it and taking it a little further.
- [47:14]
B
And on and on. And that's Obama building on Bush.
- [47:17]
A
Right.
- [47:17]
B
I mean that's, that's not a Republican or Democratic proposition, I would say.
- [47:24]
A
1 thought I'm going to go for some cred here with the conservative listeners. I'm not sure what I think about the Trump wall. I do think that it's a statutory question. I think that there is, it's laughable to think that there would be a basis for it in certainly in the executive power of the Constitution. And boy, I can't figure how you'd squeeze it in anywhere else. I actually think it's a tricky question as a matter of statutory analysis because there are some really broad statutes. As a matter of the best way to understand Youngstown and the Frankfurter customer tradition analysis in Youngtown that you're familiar with and like What Pelosi said versus what McConnell said, I actually think that the answer is a little tricky. I think probably the administration has the worst of the argument on the statutory construction piece. But. And here's me again shamelessly trolling for cred. But like, I actually wouldn't take the position that that was obviously an excess of authority. It was clearly against what Congress wanted or was willing to approve. But I'm not actually sure I have a definitive position on whether I'm convinced or not convinced by the administration.
- [48:24]
B
No, I mean, and I think I start from the proposition that the National Emergencies act impliedly says exactly the thing that you point out, which is that's an act that purports to constrain the president and then puts no constraints on him. So I think it starts from the presumption that you're pushing back on, which is, look, the president just gets to declare all the national emergencies. But we'll try to cabin that somewhat. I mean, it seems that the statute itself does the sort of head feint you're describing, where it purports to take away, but actually gives over more for some of the structural reasons that you've described. Right. I actually, I agree with you. As a statutory matter, the act is what it is, but I think it builds on exactly this presumption that you're fighting against. Right.
- [49:14]
A
And your point about, I don't know if it's perverse or not, it's certainly interesting perverse, maybe from the drafter's perspective, it's a terrific point about how acts, a series of them that were brought into being in order to constrain presidential power end up getting flipped by clever lawyers and maybe less than fully scrupulous administrations and saying, actually the statute that was supposed to constrain my use of, for example, emergencies, I'm actually going to look for every way which it allegedly ratifies and maybe even further authorizes things that it's not at all clear that the original drafters of the statute now intended to empower that is to say, statutes really intended to constrain War Powers act as an example of this, are now spun as recognizing, at least implicitly, some aspects of presidential constitutional authority, which, boy, I mean, I just think that's I think that's not a fair reading of the statute.
- [50:07]
B
Last question. You are making some pretty big and radical claims here. I'm wondering what the pushback has been, particularly among originalists who have rooted their work for a long time in the sorts of Scalia Morrison dissent that you're talking about. Have you been just filleted over this work you're doing?
- [50:40]
A
No, and in fact, I would say I haven't gotten any pushback at all, and it's been long enough now that I haven't gotten any responses or engagement that I am starting to scratch my head a little bit and if anybody's listening and you have thoughts, boy, I'd really like to hear from you. And I'll say that as decorously as I can. I would like to think that where claims like these are being made and they run so hard against like foundational principles that have been relied on by lots of folks over a long period of time, there'd be some engagement with them, even if disagreeable. And I try to be respectful in how I approach these questions. And this paper's been in a lot of folks hands for a long time and I haven't heard happen it anything at one level. Like maybe that's a suggestion that there's not something obviously wrong with it. Like the paranoid part of me is like are people sandbagging? Am I missing something? But I'm not missing anything. So I would love to hear it. I just haven't, I haven't heard people push back on this. I haven't. I look forward to it and I mean it. I look forward to actually having conversations about this where people speak to it and we talk about it. And don't pretend that it's not there because I'm excited about to build the research forward. And I think the tricky part's going to be like what flows from this for things like control over the administration, for things like non delegation doctrine. I have views but a lot of the second order questions around what flows for a constitutional construction of this conveyance of executive power I don't think are as 100% definite as the thing that I've been showing so far. And the questions are super interesting. And so I am, I am maybe naively hoping for engagement and I'm eager for engagement and I'm looking forward to engagement and I'm very pleased to have the chance to do that here with you.
- [52:34]
B
It makes me think a little bit. And this is dating back to my history as a lit major, Julian. But this notion of belatedness that you making actual claims about what history actually said in a world in which we've all moved on because we all just agree that the executive power has no longer and it's not just residual, it's that it expands and contracts with his or her whim. I think we might live in that world now. And in which case these are really good, interesting originalist claims. But that's my very, very depressing take on. I hope I'm wrong, but I'm just remembering that word belatedness. You know, that we've all just lived in this lane for so long that your lane is like troubling and weird to us. I don't know. That's a kind of a dispiriting note to end on. But it doesn't often happen on this show that people invite abuse. So Julian has now asked for it. And I could talk to you about this for seven more years. And when your next installation is ready to bandy about, I hope you'll come back. But for right now, Julian Davis Mortensen is a professor of law at the University of Michigan, where he specializes in constitutional and international law. His article, Article two Vests Executive Power, not the Royal Prerogative, is right there. We'll put up the SSRN on the page in Columbia Law Review. It really was years and years. Seven years in the making. Eight many years. A lot of years.
- [54:10]
A
Seven odd years.
- [54:11]
B
Three presidents in the making. And Julian, it's been just amazing to have you. Thank you for coming.
- [54:16]
A
Thank you so much for having me. It's a real pleasure and honor to be here.
- [54:25]
B
And that is a wrap for this episode of Amicus. Thank you so much as always for listening. If you want to get in touch, Our email is amicuslate.com we love your mail and you can always find us@facebook.com AMICUSpodcast Today's show was produced by Sara Burningham. Gabriel Roth is editorial director of slate podcast and June 4 Thomas is senior managing producer of Slate Podcasts. And we will be back with you with another episode of Amicus in two short weeks.