Amicus With Dahlia Lithwick: “Redefining The Executive Power”

Date: August 31, 2019
Host: Dahlia Lithwick
Guest: Julian Davis Mortensen (Professor of Law, University of Michigan)

Episode Overview

This episode of Amicus explores the meaning, scope, and historical understanding of “executive power” under Article II of the U.S. Constitution. Host Dahlia Lithwick speaks with Professor Julian Davis Mortensen, whose legal scholarship challenges widely-accepted but, he argues, historically misguided interpretations of the executive powers of the presidency. The discussion delves into what the framers intended, the roots of modern debates over presidential authority, and the perils of creeping executive overreach.

Key Discussion Points & Insights

1. Why Rethink Executive Power Now?

• Context of Booming Executive Power:
  Dahlia introduces the trend of scholars and commentators scrutinizing presidential power, especially amidst episodes from the Bush (wiretapping, torture) and Obama (drone strikes) eras, and accelerating under Trump (emergency declarations, sweeping claims of privilege).

  • “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.” (01:14)

• Not Just About Trump:
  Mortensen emphasizes his research was rooted in concerns about overreach from both Republican and Democratic administrations.

  • “For me it was very much President Bush... and President Obama, whose, in my view, overreaching, in particular overreaching arguments grounded in the Constitution... motivated my interest...” (04:25)

2. The Article II “Vesting Clause”: Myths and Misreadings

• Founding Principles of Limited Government:
  Mortensen notes Americans accept that Congressional powers are enumerated and limited, but this gets "forgotten" when interpreting presidential power.

  • “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….” (08:20)

• Three Branches, Three Clauses:
  Comparing the opening grants of power to Congress (Article I), the President (Article II), and the Judiciary (Article III), Mortensen highlights the “executive” function was explicitly defined and not a catch-all for any power not granted elsewhere.

  • “Legislative power—as the power to make things that are called laws... Executive power—as the kind of powers an executive has…” (10:58)

3. The Core Historical Claim: "Execute" Means Execute, Not Rule

• Evidence from "Madison’s Bookshelf":
  Mortensen’s research delves into the books, pamphlets, and debates that shaped the Founders' understanding, reinforcing that “executive” meant carrying out laws, not wielding broad undefined powers.

  • “Taking an intention or instruction that you had been handed and executing it—like, that's it. There’s not more complicated than that.” (16:56)
  • “There are zero definitions in... dozens and dozens of dictionaries... that even colorably support this residual understanding of executive power.” (16:38)

• No “Royal Residuum” for the President:
  The idea that all leftover powers (“the residuum”) naturally belong to the executive is debunked; unallocated powers, Mortensen argues, simply remained unallocated or required proper legislative action.

  • Dahlia: “So what stands to reason... is that means to the extent that there's residual power lying around, it goes to the Congress, right?” (17:32)
  • Mortensen: “No, no, no. It wasn't allocated. Floating in the ether in the sense that nobody got it.”* (18:00)

4. What Happens When Government Must Act Beyond the Text?

• Necessity and Indemnity:
  If something absolutely needed to be done but wasn’t authorized, Congress could act under the Necessary and Proper Clause, or officials could take “extra-legal” action and later seek forgiveness (indemnity) from Congress.
  • “The necessary and proper clause... allows Congress also to enact laws that are necessary and proper to the effectuation of the powers of the other branches.” (19:46)
  • “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.” (20:22)

5. The Modern Error: How We Got Here

• "Metonymy Error" and Justice Scalia’s Morrison Dissent:
  Mortensen identifies a conceptual mistake: defining “executive” power by inductively referencing what various historical executives have done, instead of rooting it in the Founders’ actual intent. He singles out Justice Scalia’s fierce dissent in Morrison v. Olson as a pivot point.

  • “He [Scalia] says... how else could you define executive power except with reference to what all executives everywhere have always done?... That's just completely wrong.” (12:45)

• A Historical Turn: Hamilton’s Innovation:
  The broad vesting of executive power in the presidency seems to have been invented by Alexander Hamilton, not present at the time of ratification or early government.

  • “It is invented out of whole cloth by somebody... at the moment, it looks to me like it's Hamilton...” (36:26)

• Why the "One Way Ratchet" is Dangerous:
  Mortensen warns that each new assertion of executive power becomes a precedent for more expansion; Congress and the courts rarely roll back overreach.

  • “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... it’s like the opposite of a pearl... error on error rather than pretty things on pretty things.” (46:08)
  • Dahlia: “That's Obama building on Bush... that's not a Republican or Democratic proposition, I would say.”* (47:14)

6. The Youngstown Case and Presidential Power in Practice

• Youngstown Steel Seizure (1952) and the Jackson Tripartite Test:
  Mortensen explains the legal test from Justice Jackson’s concurring opinion:
  • Zone 1: President acts with Congressional authorization (strongest)
  • Zone 2: No clear Congressional instruction (in the “twilight”)
  • Zone 3: President acts against Congress (weakest)
  • “Zone one is no more complicated than saying the President can point to a statute...” (27:12)
• Justice Frankfurter’s Approach:
  Political practice shapes power: repeated presidential action, tolerated by Congress, accretes legitimacy.

7. On the Ticking Time Bomb (Exigency and Executive Action)

• Crisis Scenarios:
  The Founders expected that if a crisis demanded extra-legal action, the official would act and then “take his licks afterward.”
  • “He would do the thing that was necessary and then take his licks for it afterwards.” (33:31)

8. Statutory vs. Constitutional Power—The Border Wall Example

• Statutory Grants Can Still Endow Presidents with Massive Power:
  Mortensen reminds listeners that Congress, not just constitutional theory, can grant sweeping authority (sometimes unwisely).
  • “This theory... has almost nothing to do with what Congress can authorize the President to do... 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.” (25:12)
• The National Emergencies Act:
  Both host and guest agree that statutes meant to constrain presidents can end up enabling more discretion.
  • Dahlia: “That's an act that purports to constrain the president and then puts no constraints on him.”* (48:32)

9. Reception and Pushback

• Little Direct Challenge So Far:
  Mortensen is surprised not to have faced more engagement or criticism, especially from originalist scholars:
  • “I haven't gotten any pushback at all... I would love to hear it. I just haven't, I haven't heard people push back on this.” (50:39)

10. Concluding Thoughts: Why It Matters

• The Risk of “Belatedness”:
  Dahlia points to the possibility that Mortensen’s retrenchment against the broad executive may seem “troubling and weird” precisely because the country has lived too long inside the myth of a king-like president.
  • “We've all just lived in this lane for so long that your lane is like troubling and weird to us....” (52:49)

Notable Quotes & Memorable Moments

• Defining Executive Power:
  • Julian Mortensen: “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.” (16:56)
• On the “One Way Ratchet”:
  • Mortensen: “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 a little more aggressive and a little more aggressive. Then... you end up in a place very different from where you started.” (46:08)
• On Jefferson, Lincoln, and Biting the Bullet:
  • Mortensen: “I think the founders were demonstrably, certainly in terms of political practice in England and also in the US demonstrably more comfortable with [extra-legal action] than we are...” (32:46)
• On Scalia’s Error in Morrison:
  • Mortensen: “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.” (39:03)
• On Modern “Monarchy” Drift:
  • Dahlia Lithwick: “We've kind of built a monarchy in this country... there's nothing we can do about foreign affairs because the President has virtually limitless powers....” (21:41)
• On the Absence of Pushback:
  • Mortensen: “I would like to think that where claims like these are being made... there’d be some engagement with them, even if disagreeable... I just haven't, I haven't heard people push back on this. I... look forward to it.” (50:49)

Timestamps for Key Segments

• Origins of Mortensen’s Project – 03:57
• Defining “Executive Power”; Royal Residuum – 07:48
• Madison’s Bookshelf & Founding Sources – 13:52
• Disproving Monarchic Intentions – 15:55
• Where Does Residual Power Go? – 17:32
• Handling Unallocated Powers—Necessary & Proper, Indemnity – 19:42
• Cultural Drift Toward Monarchy – 21:41
• Statutory Authorization vs. Inherent Powers (Youngstown Explainer) – 26:06
• The Ticking Time Bomb (Crisis Action by Executive) – 32:46
• Hamilton as Origin of Expansive Executive Theory – 36:26
• Justice Scalia’s Morrison Dissent – 38:47
• The ‘One Way Ratchet’ of Expanding Executive Power – 44:09
• Border Wall & National Emergencies Act – 47:24
• Pushback and Scholarly Debate – 50:39

Episode Tone

The conversation is intellectually rich, historically grounded, and at times urgent, reflecting both scholarly rigor and concern for the implications of legal misunderstanding. Mortensen is precise and measured, while Dahlia brings energy, clarity, and a sometimes wry sense of futility at the drift toward unchecked power.

Summary: Why Listen?

This episode is essential for those interested in the intersection of law and democracy, showing how historical misunderstandings can shape—and dangerously distort—America’s most powerful office. Mortensen’s research does not just critique current leaders but unravels a centuries-old conceptual error, offering a foundation for reclaiming the Constitution’s original checks and balances.