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- [00:01]
Benjamin Wittes
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull and the Aftermath.
- [00:32]
Paige
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- [01:32]
Julian Mortensen
The youth mental health crisis is growing and social media is a major driver. Kids are spending up to nine hours a day on screens, often unsupervised, and studies show a direct link to anxiety, depression and even suicidal thoughts. That's where Gab comes in. Gab offers safe phones and watches with no Internet or social media, just the right tech at the time. From smart watches for young kids to advanced parent managed phones for teens, Gab keeps kids connected safely. Visit gab.com getgab and use code getgab for a special offer. That's G A B.com getgab Gab tech in steps independence for them, Peace of mind for parents.
- [02:21]
Mary Ford
Foreign.
- [02:28]
Paige
I'm Mary Ford, intern at Lawfare, with an episode for the Lawfare archive for July 13, 2025. On Monday, Kilmar Abrego Garcia appeared in federal court in Greenbelt, Maryland. The Salvadoran man whose wrongful deportation and unlawful detention in an infamous Salvadoran maximum security prison led to a federal court order mandating his return, has been indicted on human smuggling charges. As discussed by Roger Parloff in Lawfare this week, the government's paramount goals in this detention hearing, the criminal case it relates to and Abrego's civil litigation are the same Advancing President Trump's political messaging for today's Archive episode, I selected an episode from April 12, 2019, in which LawFair editor in chief Benjamin Wittes sat down with Julian Davis Mortensen to discuss the executive power, the conventional understanding of the executive's authority, and more.
- [03:35]
Benjamin Wittes
I'm Benjamin Wittes, and this is the lawfare Podcast. Julian Mortenson is a professor of law at the University of Michigan, and he is also the author of a remarkable new article entitled Article 2 vests executive power, not the Royal Prerogative. The article is forthcoming in the Columbia Law Review and is available online at the SSRN website. I don't usually talk about law review articles on the lawfare podcast, but I'm making an exception this time because I found this article completely fascinating. Julian has been working on it for years, literally as long as I've known him, and it is about the history of exactly three words in the Constitution. To be precise, it's about the first three words of Article 2, the executive power. On a conventional understanding of these three words has rested huge claims about presidential power. Julian argues in this article that this conventional understanding is wrong, wrong. Not a little bit wrong, not mostly wrong, but completely wrong as a matter of history, and he tries to supplant it with a new understanding that he argues is actually a very old understanding of what those words mean. It's a fascinating discussion. It's one I think you will want to stick with to the end. It delivers a bit of a punch and it's the Lawfare Podcast. Episode 408 Julian Mortensen on the Executive Power I want to start with a question about the history of this project. You've been working on researching the history of the Constitution's vesting clause for about as long as I've known you, I think, which is not a short time at this point. So how long have you been working on this project and how did you get interested in it?
- [05:34]
Mary Ford
I think that's right, and it's interesting to reflect on the paths that the research arc itself has taken. I always feel about this particular project, and maybe this is just the norm as you move forward in academia. I didn't really go looking for found me in some sense. I was asked to write a review which you and I have discussed along the way of sort of the accumulated works of John Yoo in the context of his work for and the positions of especially the first term George W. Bush administration. And in the course of doing that work, I think the question that I found hardest when I stepped back and tried to put together the pieces that I was thinking through historically was if in essence there wasn't a historical basis for the strong claim by the Bush administration that there are lots of circumstances where if a foreign affairs question or a national security question is sufficiently important, the President can simply ignore a statute, if there's not evidence for that, then what do we do about the problem of unanticipated events and anticipated circumstances and gaps in the statutes and sort of very broadly speaking, the emergency powers problem? And I sort of, this is now, as you said a long time ago, but I ended that piece with sort of a grace note observation about that being a challenging implication of historical research, if you took the history seriously, is how to handle real emergency. So the next step was to try to engage with that question. And I mean, as you know, there's a tradition, and it's really more of a political theory tradition than a legal tradition per se, of what's called the. And people will talk about as the Lockean prerogative or the Jeffersonian prerogative or the Lincolnian prerogative, which basically amounts to a non law grounded right, if that's even the right term by the President to simply ignore the law in sufficiently dire circumstances. And what that the direness varies depending on the theorist perspective. But I then turned to a project that explored that, and it really wasn't a project about law. It was a project of a way of exploring, a way of talking about law breaking. And in this roundabout way, I'm coming to why this project launched. And that's because the political theory phrase prerogative is the same word, literally the same word as a long standing and still regularly used British legal term, which is to say crown prerogative. And that is essentially a basket of powers that the crown holds largely, but not only in the foreign affairs and national security realm, and which is deployed with as much, you know, unselfconscious, everybody understands what this means kind of diction as words like negligence are right. It's sort of just an absolutely standard legal phrase. And here's the thing, when I started to encounter those sort of false hits for the purpose of the political theory project, it was really, really hard to miss the fact that the way they were talking about this crown prerogative was like exactly the way that what I'm calling now residuum theorists talk about the Constitution's vesting of the executive power, that is to say, is a basket of authorities that the chief magistrate ought to have because they're really useful in running a country and especially with respect to foreign affairs and national security powers.
- [09:13]
Benjamin Wittes
So when did you discover that coincidence of meaning and decide to spend time researching the meaning of the phrase the executive power in the Constitution? How long ago was that?
- [09:31]
Mary Ford
I would say seven years ago. And it emerged, I think I'm counting, right. Because I know it's less than a decade and a good bit more than five years. It emerged alongside this political theory project. And it wasn't obscure sources, which at the beginning made me constantly think, I must be missing something here. I must be missing something here. Right. It's Blackstone and Locke and kind of major 18th century politicians, major 18th century legal treatise writers using this word prerogative to refer to the basket of powers. And I wouldn't say occupied all of my time in the first couple years of that cycle, but it occupied increasing amounts of time.
- [10:13]
Benjamin Wittes
Okay, so you have spent. I just want to pinpoint this. You have spent seven years studying the question of the meaning of three words in the Constitution, Is that right? I mean, that's right. Right.
- [10:28]
Mary Ford
I mean, I've done other things, too. Yes, that's right. I have spent seven years on this project. It's dominated everything else I've done.
- [10:34]
Benjamin Wittes
And this, this article, which is now out on SSRN and is scheduled for publication, is the result of seven years of research on the meaning of the phrase the executive power in the Constitution.
- [10:51]
Mary Ford
Yes. I mean, this is not a narrow topic and we'll discuss why. But in some ways it's even more narrow than that, because this article was supposed to be part one of a single article, taking into account all possible sources of meaning for talking about what the vesting clause of the U.S. constitution included. And so I'm not sure that I can prorate the amount of work over that period of time focusing only on this basket of political theory, legal treatise, politician sources, before you get to the founding. But it was going to be part one of a single article. And, and you.
- [11:26]
Benjamin Wittes
And you've lopped it off after seven years as its own thing.
- [11:31]
Mary Ford
Yes.
- [11:31]
Benjamin Wittes
Okay. So I don't mean to make fun of you about the eccentricity of that, because I actually, the reason we're having this conversation is that I think this is a super important and super interesting article. But I did want to start with that because this subject, which seems both very old in the sense that this is an article about 18th century Lexical meaning and also seems incredibly narrow. Right. It's a. An article about three words actually is critically important in this subject is critically important in the entire debate that we have over presidential power and separation of powers. And so I want, just as simply as you can, explain to me why people care about this question and what actually turns on this question. Why people should care.
- [12:31]
Mary Ford
Great. Well, I can't stop myself from starting with. I'm not sure if it's technically a meta comment, but a comment one step away from the substance of the thing, which is people care about history for different reasons. And I suspect that you're not particularly interested in rehashing conversations about the legitimacy of originalism and so forth. But it's worth noting that the more committed you are to being constrained by the decisions of the drafters of text, the larger, or I guess the more forceful the consequences of this research are. That's not the only reason to care. There's also a rhetoric of constitutional legitimation. I mean, I'm thinking of David Posen, among others, has done really interesting work on this score, trying to reduce some of these intuitive observations to empirical assessment, where if you're invoking constitutional history and original meaning, that has a particular normative oomph today. So maybe we just bracket the question of whether history should matter, except that it does matter, and talk about why this answer changes things. Does that sound fair?
- [13:37]
Benjamin Wittes
Well, but I want to. I mean, I actually think, if I can put words in your mouth, that there's a particular reason that this research very deeply matters, almost irrespective of your view of history, which is that, in fact, presidents have claimed, including in the example that you started with, which is the early Bush administration, presidents have claimed the authority to disregard acts of Congress that impede what they consider the executive power, which a lot of theoreticians equate with the prerogative power. And they assert the authority based on a certain historical understanding of these three words. They assert the authority to do that unless there's some specific constitutional language that takes it away from them. And you are saying as an original matter, as a historical matter, they are wrong.
- [14:40]
Mary Ford
I literally couldn't put it better than that. And I can go on to explain why, in the text of the constitutional language, this dominant reading of the executive power clause as being something like the royal prerogative is so significant.
- [15:02]
Benjamin Wittes
Well, let's start by saying, all right, this is an argument about a specific clause of the Constitution. And what I think we've just agreed on is that a whole lot turns on it, right? Can the president ignore a torture statute if it gets in the way of his ability to interrogate people after 9, 11. Right. What are some other examples that turn on this question?
- [15:29]
Mary Ford
Well, one of the places that it has come up most expressly in the Supreme Court was a case where the Obama administration didn't want to essentially be compelled to do something that looked like entering into the Israel recognition issue by a statute that required printing passports. Certain ways. There's a claim in that case that this line of logic leads the President to be able to simply ignore what Congress requires. And so we see this argument surfacing in, I mean, frankly, more important issues with respect to things like wiretapping. There's a very particular set of modalities created for when foreign affairs, national security wiretapping can take place. The President and his advisors, in good faith, let's say, believe that those restrictions are too restraining. And they therefore claim, among other things, that this constitutionalized power to protect the nation, among many other things, simply can't be taken away by a wiretapping restriction, can't be taken away by a War Powers resolution restriction on the use of hostilities, can't be taken away by, you know, statutes instantiating war crimes, international war crimes prohibitions as a matter of domestic constitutional law. And so, across a range of really significant controversies, this tool is available to administrations that have used it with varying degrees of force, to be sure, as a way of saying, we don't have to do what Congress says we have to do, or we get to do the thing that Congress told us we can't do.
- [17:17]
Benjamin Wittes
Right. So in other words, if I can once again put words in your mouth, this is the tectonic plates of a great deal of the controversy we have had over executive versus legislative authority over the last 15 years, 18 years.
- [17:37]
Mary Ford
I think that's exactly right.
- [17:38]
Benjamin Wittes
It's the San Andreas Fault. Right. Before we get to characterizing the nature of the tectonic arrangement, this is what lies beneath the warrantless wiretapping dispute, the interrogation debates, the Israel recognition. The list of things you just identified is really like, that's the front page of the newspaper over a lot of years, 100%. All right, let's talk about the San Andreas Fault. What is the vesting clause?
- [18:10]
Mary Ford
The vesting clause is the first sentence of the second article of the Constitution. Big picture. The Constitution starts with three articles. One, essentially creating and defining the powers of Congress, Two, creating and defining the powers of the office of the President, and three, creating and defining the powers of the jurisdiction of the judiciary. So the very first sentence of the constitutional chapter on the President says, and I may as well quote it, the executive power shall be vested in. In a President of the United States of America.
- [18:59]
Benjamin Wittes
All right, this is beautiful. So it's a simple sentence. It's a very elegant sentence. It's a sentence that seems to have pretty obvious meaning. We know what shall be vested in means. We know what the President of the United States means because the rest of the article tells you how he's elected, tells you what oath of office he's going to swear, and actually enumerates a bunch of his powers. And so there's this little phrase up in front of it, the executive power, which sounds big and grand and tell us historically how it has been understood by a long line of people who have wanted to understand it in a big and grand way. What's the orthodox understanding of the phrase the executive power?
- [19:52]
Mary Ford
In many ways, it's driven by a fundamental feature of the rest of Article 2, which is that, as you've rightly noted, Article 2 enumerates various authorities of the President, but there just aren't very many of them. There's some really important process authorities. It's really spare, extremely spare, sparse text. If you. At one point I counted the words up. I don't remember what the result was, but I think it's either most of the words or close to most of the words of Article 2 say nothing about power. They're talking only about the selection process.
- [20:29]
Benjamin Wittes
Right. They spent a lot of time on the Electoral College and the mode of selection and then just kind of dashed off. And by the way, he can receive ambassadors and he's commander in Chief.
- [20:40]
Mary Ford
Exactly. And so when you combine how few, as we say, specific clauses there are in Article 2 of the Constitution with the very important responsibilities that exist, and forget the president for the moment that exist with respect to running the country as to foreign affairs, as to national security, as to military affairs, you get what is sometimes described, and I'll drop a footnote to say I think this is overstated, but it's sometimes described as a gap, a foreign affairs gap. Right. President can make treaties, who gets to terminate them. Congress can declare war. Well, what if not all hostilities are war? You know, bombing Syria in response to human rights violations. How about negotiations over an agreement before you get there? What about removing officers? Right. There's a whole range of things that are, I mean, there's no way of getting around it. Really important to the running of a country that aren't spoken to by the text of the Constitution. Or at least. And I'm going to drop another footnote, I think this is Wrong, but that appear not to be provided for by the text of the Constitution. So what's left? And I'll stop the long wind up now. What's Left in Article 2 is this reference to the executive power, which if, if you're looking for a basket to drop some powers in and know nothing else other than the words you're reading on the page could possibly be read as a basket to drop needful powers in that aren't otherwise specified.
- [22:10]
Benjamin Wittes
And the theory that you attack in this article, which is that that body of residual powers is actually vast and broad and encompasses all, essentially all of foreign policy and all of national security. It has a long lineage and it has a lot of acceptance. So you mentioned John Yoo at the outset. He's kind of the most famous or infamous exemplar of this thesis. But it's much more widely accepted, at least in some form, than John Yoo, who accepts this thesis. And how widely accepted is it?
- [22:52]
Mary Ford
There are serious historians who have challenged it. Chief among them leaping to my mind are Martin Flaherty and Curt Bradley. With that said, I don't think it's anything close to an overstatement to say that it dominates among ideological conservatives. And the standard ideological liberal response to the claim has not been, again with the exception to a substantial extent of work by Bradley and Flaherty, has not been to contest the historical proposition, but rather to argue that actually the historical evidence is complicated because history is always hard one and two to say. And in any event, should we really be guided or bound by what people who've been dead for 200 years think? So I think it's fair to say that it has been asserted by prominent politicians, including, including presidents, and it has been defended by a whole array of legal scholars, typically originalist in orientation. And the dissenters mostly focus on references to history being indeterminate and on sort of functional concerns or legitimacy concerns about history being determinative.
- [24:10]
Benjamin Wittes
And you think it's wrong?
- [24:11]
Mary Ford
Yes, I think it's wrong. I think it's definitely wrong. And to me, the biggest puzzle now, and I don't have an answer for you yet because it's an obvious question, is how it emerged. I mean, Hamilton clearly plays a role, but it is so at odds with literally everything I've seen in a close review of way more material than is in this paper, that I'm left baffled as to how it emerged. I think that story will likely be an interesting story in its own right, although I'm not in a position to tell it yet.
- [24:39]
Benjamin Wittes
So you on A scale. There's a lot of ways for a theory to be wrong in the world and for a big theory to be wrong, you know, like there's a little bit wrong all the way on the scale to total bullshit wrong. Where does this fall?
- [24:56]
Mary Ford
It's about as wrong as it could be. I will avoid the particulars of your characterization, but I think it is. I am subjectively left with no doubt about this, which of course that and 25 cents will get you a cup of coffee. But if you ask me how certain I am that the vesting clause thesis that we've been describing is wrong, I am completely confident that it's wrong. And this is the first step in showing that, or trying to show that.
- [25:24]
Benjamin Wittes
I should say so just to bring the listener along with us. What we have now asserted, or what you have now asserted is that a orthodox understanding, historical understanding of the meaning of a critical phrase of the Constitution that underlies a huge amount of separation of powers news over the last 15 years, and basically a lot of national security and foreign affairs confrontations between the executive and legislative branch, that orthodox understanding is about as wrong as it can be historically. Is that fair?
- [26:05]
Mary Ford
Yes.
- [26:07]
Benjamin Wittes
So I want to read you a brief account from page 19 of your article of the research that underlies it. It says this article relies on more than a thousand contemporaneous published texts by hundreds of commentators with a research methodology that involved reviewing every instance of the word root exec and reading most of the texts cover to cover, with the topic of presidential power squarely in mind. That immersion in the evidence enables a distinctive feature of this project, the confidence with which this article can not only refute the residuum thesis, but can also offer an affirmative replacement thesis that is both historically and theoretically coherent and that cannot be caricatured as so much carping about a thicket of contestation and uncertainty. So what you're trying to do here, as I read the article, is sweep the off the table, basically a lot of years of a lot of people's understanding of the executive power and replace it with your own. Is that fair?
- [27:18]
Mary Ford
Yes.
- [27:20]
Benjamin Wittes
All right. So let's talk about the thesis you're sweeping off of the table and then talk about what you're replacing it with. What is the traditional vesting clause thesis? I mean, you've already sort of stated it a little bit, but what is the thesis that you're arguing with here?
- [27:37]
Mary Ford
The traditional thesis describes or understands the reference to executive power as being a reference to, to restate it, powers typically held by an executive. So the work that the adjective executive is doing there is a sort of metonymy. Right. Those political organs known as executives do lots of things. All of the things that an executive does is therefore part of the executive power. And the principal referent for this is the king. Because of Anglo American legal tradition, that was the dominant place to look. At least the traditional thesis goes, when you're trying to ask what powers are naturally or essentially or traditionally associated with that person who holds the chief magistracy of a sovereign state.
- [28:36]
Benjamin Wittes
In other words, in the traditional view, anything that the king was allowed to do in the foreign policy space or the national security space that the Constitution doesn't prevent the President from doing, the President inherits.
- [28:55]
Mary Ford
Correct.
- [28:56]
Benjamin Wittes
And I think an important component of that is that the President inherits that and Congress cannot take it away from him. Right.
- [29:07]
Mary Ford
I think that's the logical implication. And I think that has been the perspective typically advanced by many vesting clause theorists. There are some and some important ones who suggest that the grant of the executive power is more provisional than we've described so far. Sort of a default state of affairs with respect to this one single power of the President, where if Congress decides along the way that it wants to stop the President from doing something related to foreign affairs, it can do that. But until such time as Congress chooses to reallocate or to intervene or to change what the rules are, the President is entitled, again, except as otherwise prohibited by the Constitution, the President is entitled, roughly speaking, to do what the king could do. And that's a really sharp divergence in, I would say, a debate within the school or the camp that adopts the thesis that I'm contesting. Some think we wouldn't imagine that Congress could take away the veto of the President. We wouldn't think that Congress could take away the Commander in chief power. How in the world could Congress possibly take away, absent a really good argument about overlapping authorities, how in the world could Congress possibly take away the President's executive power? I actually think that's the most, I mean, by a good measure, the most logical implication of the thesis. But I think to some extent uncomfortable with the implications in a good faith way, not only in terms of today, but in terms of how that is so at odds with a lot of what we know about the Founding. There's also some very thoughtful writers in this school who say, well, actually this particular clause, the Executive power clause, is the, and I think it's fair to say, unique example of a presidential power that Congress can actually take away in part or actually even in whole.
- [31:13]
Benjamin Wittes
So if I can summarize two distinct versions of this thesis. One is the President got all the residual powers of the King to the extent the Constitution didn't take them away and give them to somebody else or preclude them altogether. And Congress can't touch those powers. That's the sort of John Yoo torture memo thesis. Right. And then.
- [31:38]
Mary Ford
Exactly.
- [31:39]
Benjamin Wittes
On the other hand, you have the softer version. The President got all those powers, but if Congress wants to regulate them or limit them, as long as it's acting within its own constitutional powers, it gets to do that.
- [31:54]
Mary Ford
Yes, exactly.
- [31:55]
Benjamin Wittes
But you think these theses are both equally wrong. Yeah, because the whole premise is wrong.
- [32:02]
Mary Ford
Right. It doesn't even get off the ground to asking whether Congress could take away the powers that are included with respect to foreign affairs, etc. Because there are no such Right now.
- [32:13]
Benjamin Wittes
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- [34:39]
Julian Mortensen
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- [36:24]
Benjamin Wittes
This is Car Tracks with Turtle Wax. Your car says a lot about you. So if we asked your car what it would say about you, what would it say? Listen, you dropped one of those tiny cheeseburgers under the seat like last week.
- [36:38]
Mary Ford
And now we're both dry heaving the stench.
- [36:41]
Benjamin Wittes
Do us a favor, grab some Turtle Wax and let's get to work. This has been Car Tracks with Turtle Wax. You are how you car. All right, so let's talk about like we've just spent, you know, half an hour talking about what the executive power does not mean. Let's talk about the world according to Julian Mortensen. What does the words, the three words, seven years you've been spending it on this. What do the words the executive power, executive power in the Constitution mean?
- [37:20]
Mary Ford
Pardon me while I take a break to question my priorities. No, I know you're not saying that, or at least I hope you're not.
- [37:26]
Benjamin Wittes
No, I'm not.
- [37:28]
Mary Ford
In the same way as there is a rough semantic logic to saying one way to read the executive power is the powers held by an executive. There is, and at least on my first reading, and even more plausible semantic logic that says the executive power is the power to execute. The executive power is the power in a governance context to execute the laws and projects of an exercise of the legislative power. So there is nothing to the executive power other than the authority to do that which is instructed or authorized by a prior moment of legislation. Speaking roughly.
- [38:12]
Benjamin Wittes
All right, let's unpack that, because I think the careless listener is going to think you just said that the executive power is the power to execute laws, which sounds so obvious that if that were all you were saying, would be like a bad punchline. But I think what you're saying there is that the executive power is a power that, unlike the prerogative power, is not inherited from some prior body of executives. It's entirely derivative of other constitutional or other legislative power. Is that fair?
- [38:54]
Mary Ford
Absolutely right. And it is. I'm coming around to the view that far from being an afterthought, it may have been the single most important clause in the Constitution. And we can talk about the historical background that fleshes that claim out a bit. And of course everybody thinks what they work on is the most important thing. But this is no mealy mouthed power. It is utterly Central to how 18th century lawyers, 18th century political philosophers, and most relevantly the founding generation, both experts and non experts, talked about what it was to govern. First you formulate an idea, then you do the idea. And there is a maybe deceptive, maybe just not that deceptive simplicity to the sequential, or as you put it, derivative relationship between legislating and executing. But that it is simple, I think should not confuse the listener, as you rightly point out, into thinking that it doesn't sound like a very big deal in constitutional context. It was a very big deal.
- [39:57]
Benjamin Wittes
All right, so I want to flesh out why it's a big deal here and first, let's start by distinguishing between, you alluded to this before, between the executive power and the prerogative power. In the conventional vesting clause thesis. The understanding is that the executive power embeds the prerogative power. If the king has the power to round people up, then the president has the power to round people up, except as limited by habeas corpus. Right. And later the Fifth Amendment. But your argument is that these are separate. So walk us through the separation. What is the part of the prerogative power that is part of the executive power, and what's the part of the prerogative power?
- [40:44]
Mary Ford
That's not one way to think about how they talked about this would be. And of course, you and I can't do this right now. But just to open probably the era's most famous treatise, certainly one of the two or three most famous, on law and specifically on the constitutional law of England and its first volume, Blackstone, what it meant to use the phrase prerogative was nothing more conceptually complicated than to refer to a list of stuff the king or the Crown could do. And it is a long, lengthy list, including some really important authorities, like, for example, the power to be commander in chief, the power to make appointments, the power to make treaties, and some ones that don't map onto our understanding of governance at all. The power to be the. Or the authority, I should say the entitlement to be the head of the church, and then some frankly goofy ones. I mean, symbolically, they make sense. But it's hard for me to keep a straight face as I describe the king's prerogative entitlement to all sturgeon and whales that wash up on the coasts of the island, the Emerald Isle, because they are royal beasts. And, you know, from the profound and really important down to the less profound, let's say it's literally a list of stuff, and it doesn't vary that much from one commentator to the next. And to close the loop on your question, references to the executive power, and this isn't a close call, it's like right there on the face of these lists. The executive power is one of these powers. It is a subset of prerogative, and it is described sometimes as sort of the jewel of the king's authority. It is the king's. It is the essence of the king's identity to be the life of the law, to be the. His justices are the mouths that speak the law, and his arm is the executive authority that enforces the law. And so to step way back and Summarize, and then I'll stop. It's a big, long list of stuff he can do. It includes a lot of the stuff the President can do. And as one of those things, it includes as a subset of authority, the executive power, which is the power to do those things that Parliament told them to do.
- [43:04]
Benjamin Wittes
All right, so this is great because this actually really disaggregates these in an elegant way. The prerogative power. Long list of stuff the King gets to do. He gets to be the head of the church. He gets all the whales and sturgeon that wash up, and he gets to have the executive power. The President only gets the executive power, and it is limited to the power to execute the laws that other entities have passed.
- [43:32]
Mary Ford
I think that's right.
- [43:33]
Benjamin Wittes
He doesn't get any whales.
- [43:36]
Mary Ford
I think the answer is no. I might even make the point. I'm not sure if it's more forceful or not, but just extend the point. The President unequivocally gets more of the prerogative than just the executive power. The executive power is one of the. The prerogatives or one element of prerogative. One element of prerogative that he gets. He gets other ones. He's the Commander in Chief. He can make appointments, he can make treaties. Right. It's not quite like they ran down the list of Blackstone in order and circled some and X'd out others. But the effect is not, and it would be overstating my thesis to say the President gets no other powers of prerogative. That's not true. The President does get other powers of prerogative, but only like the executive power, where they're expressly enumerated in the text of the Constitution.
- [44:30]
Benjamin Wittes
So in other words, you are actually turning the presumptions of the traditional vesting clause thesis on its head. The traditional thesis says the President gets all the powers of the King unless they are specifically taken away from him in the Constitution. And you're saying the President gets none of the powers of the king unless they are specifically given to him by the Constitution.
- [44:57]
Mary Ford
Exactly.
- [44:59]
Benjamin Wittes
All right, so let's talk about the real world implications of this with reference to some issues that are on the table right now. The President keeps talking about withdrawing from NATO. The Constitution gives the President the power to make treaties, but as you pointed out, does not give him explicitly the power to withdraw from treaties. Congress, in the traditional vesting clause understanding, could probably not take that power away from him. Couldn't say to him, Mr. President, you cannot withdraw from NAFTA. Or NATO or the Korean American Free Trade Agreement. But as I understand the Julian Mortensen vesting clause, Congress, assuming it, could pass over his veto a law that says the President may not withdraw from NATO could prevent the President from withdrawing from NATO.
- [45:53]
Mary Ford
That's exactly right.
- [45:54]
Benjamin Wittes
No question in your mind that Congress can say the President, notwithstanding the Commander in Chief power, cannot authorize the torture of a detainee, cannot override the torture statute to authorize behavior that it would forbid.
- [46:14]
Mary Ford
If this account is right, that's not even a close call. No. The authorities simply cannot provide the basis to ignore a statutory ban on torture. No.
- [46:26]
Benjamin Wittes
How about ambassadors? The Constitution gives the President the right to the authority to receive ambassadors and ministers. It does not give him explicitly the authority to expel them, though we've always thought of that as an inherent presidential authority. Is it an inherent presidential authority or is it just that Congress has never bothered to say, no, you can't throw out the British Ambassador because we actually have a special relationship and we like the British and we like the Germans. Even though you don't like Angela Merkel. Mr. President.
- [46:57]
Mary Ford
I'm going to give the worst law professor answer of all time, which is that it depends. And it even depends for me, because I'm quite sure I don't have a fully fleshed out view on the historical understanding of the received ambassador's clause. And here's why I'm hedging. There's layers here, right? I'm confident about the historical claim of this clause. I am much less committed to to the mechanically textualist view, either on the grounds of original understanding or as like how it makes sense to interpret a Constitution today. I'm much less committed to the rigidly textualist review that, for example, because the Constitution refers to receiving ambassadors but doesn't use the word expelling, it's inconceivable that in some sort of penumbral sense the receive ambassadors power would authorize expulsion as well, and maybe even indefeasibly so.
- [47:54]
Benjamin Wittes
If I have the power to receive you on the Lawfare podcast, I presumably have the power to just within the four corners of that power to kick you off the Lawfare podcast.
- [48:05]
Mary Ford
That seems facially plausible. It seems 100% plausible here, but facially plausible, Right?
- [48:10]
Benjamin Wittes
That's not a question of prerogative power versus executive power. That's simply an interpretive exercise with respect to the boundaries of the power to receive ambassadors.
- [48:21]
Mary Ford
Exactly. And there will be hard questions around that. Not so many. Because, as I said, there aren't so many other powers, but where you have a textually expressed power that's in the neighborhood of something the President wants to do. I mean, you're going to need to have some careful thinking about, as you put it, the boundaries of what that express power is. That's not a question of the vesting clause. That's a question of the receive ambassador clause or the make treaties clause and so forth.
- [48:49]
Benjamin Wittes
So finally, one of the other elements of the vesting clause is that it routinely influences statutory interpretation. And actually, presidents are really aggressive about insisting that it should. Right. Like the signing statements issue, where Presidents sign a law and say, I'll interpret this in a fashion consistent with the President's authority to the vesting of the executive power in the President and his authority to do X, Y, and z. And the result of that is often to sort of neuter the substance of the congressional enactment. So if we adopt a Mortensonian understanding of the vesting clause, how does it affect statutory interpretation?
- [49:40]
Mary Ford
There's an easy answer, and there's a remaining harder question. The easy answer is that it wipes off the table completely any claim that, for example, you should construe the War Powers Resolution narrowly or the, you know, the restrictions on torture or the restrictions on that have existed, well, still do exist on wiretapping. It wipes off the table the view that that language of those statutes and how we read what Congress was prohibiting and requiring should be construed narrowly because otherwise it would be unconstitutional vis a vis the Executive Power Clause or the vesting clause. It takes that argument away entirely. You can't say the canon of constitutional avoidance, which is to say the need to interpret statutes so as not to violate the Constitution or come close to doing so. The canon of constitutional avoidance requires us to adopt the more generous reading of this statute that facilitates rather than interferes with the President's executive power. That's gone. I'm certainly not going to claim, because I don't need to, that there won't still be all kinds of presumptions that cut in the President's favor when it comes to interpreting those kinds of statutes. And perhaps quite appropriately. Right. It seems entirely plausible that you would end up with a commonsensical legislative expectation that you'd want to let the President have some zone of discretion, if there's really a zone of discretion in some textual language. But that wouldn't be a constitutional claim, and Congress could alter it by being specific enough.
- [51:15]
Benjamin Wittes
So how has this been received? I mean, a lot of your colleagues in the academy are prominent theoreticians of this thesis that you purport to sweep off the table and replace with something, an emperor that has some clothes, not to mention some prerogative. And I'm just curious, how has the paper been received and what pushback are you getting? Or have lots of people come to you and said, my God, you're right.
- [51:46]
Mary Ford
I would characterize all the feedback I've gotten so far as being in that last category, including offline from. And again, the axes of identity and preference are so complicated, it's just completely wrong to talk about conservatives versus liberals. But stipulating that, including from people who, as I think about where they stand, are squarely in the, quote, conservative originalist camp, some of whom have previously either adopted or certainly been open to embracing the vesting clause thesis. I haven't yet heard back in any detail from some folks I'm really eager to hear more from who've worked in this extensively and will see problems maybe that I'm not seeing. And maybe we'll look at all these questions with eyes that are missing some bias that I have. So I can't claim that everybody said that this is right, but so far the gist of the resistance that I've encountered, and it's a really important caveat to all this, is that this article doesn't talk. I mean, this is some stray citations, but this article doesn't purport to talk about what the Founders actually did. This article makes a claim about the standard, utterly uncontested meaning of a phrase. And it's like Deep Logic is a matter of 18th century governance theory. It would take an awful big showing to say everything I've just shown, like they just chucked that in 1787. That would be surprising. But it has been rightly pointed out. And I mean, again, like I said, this is part one or was supposed to be part one of an article. It has been rightly pointed out that this is the preface or the foundation for a conversation. And I embraced that. That's right. That's my responsibility is to explain and detail what the Founders did, right? What happened when they were drafting the document in Philadelphia, what happened when they argued about it over the course of years during the ratification process. And also how did they talk about it once it was part of the Constitution in the early Republic? All that stuff is to come. And I have done basically all of the work to state with a substantial amount of confidence that the materials from the Founding, the ratific, the drafting, the framing, they amply and more than amply confirm Everything I've said to you, I'm writing a blank check to that effect. But I feel quite confident that that check is going to cash and it's going to hold up.
- [54:10]
Benjamin Wittes
Finally, one last question. As a judicial matter, the meaning of the vesting clause shows up in a variety of cases, including, I suppose, most famously the steel seizure case. But it is not, at least, as I understand it, a matter on which the Supreme Court has ever pronounced itself clearly right.
- [54:34]
Mary Ford
That's exactly right. And it's one reason that in a very bizarre way, this work over the span of some years has had a strange air of urgency, because, as you'll recall, when Zivitovsky was being decided, this argument was very much on the table. And so it has been very important over a very long period of time that hasn't been so urgent at the end of the day to sort of get this argument out there so the Court doesn't, as a majority, like, just get it wrong. Because of course, precedent is sticky and we are still in that world, which is to say the world in which there is no Supreme Court majority that has adopted this incorrect view of the vesting clause. It's still sort of an undecided question as a matter of what the Supreme Court as a whole has said.
- [55:18]
Benjamin Wittes
But that means just to bring the whole thing around, that means that what you've done here is it's a very rare thing in the legal academy, which is you've taken on the meaning of a critical phrase in the Constitution, which is, while not a matter of first impression before the Supreme Court by any means an undecided matter as to its meaning in US Law, on which a huge amount is at stake. And you have purported to sweep a conventional understanding off the table and replace it with a different one in time for a first adjudication on the merits of the question by the highest court in the land whenever they choose to do that. That strikes me as a remarkably important undertaking, assuming particularly that you're right, that's.
- [56:14]
Mary Ford
How I've experienced it. It's been very easy to be highly motivated for this project. It helps that it's intrinsically interesting in ways that might be unexpected before you start diving into their debates. But I have experienced this as sort of the most urgent project of my, well, the most urgent scholarly project of my professional life.
- [56:34]
Benjamin Wittes
With that, we're going to leave it there. We will look forward to parts two and three of this project and hope you will come back on the podcast when you are done with them. However, many years from now, that might be.
- [56:47]
Mary Ford
I would be delighted. That'd be great.
- [56:51]
Benjamin Wittes
The Lawfare Podcast is produced in cooperation with the Brookings Institution. If you haven't done so already, get on it and take a second to share the Lawfare Podcast on social media and give us a rating and review wherever you found us. Also, you're not wearing enough Lawfare swag and I want you to fix that. So go to the lawfair store thelawfairstore.com it's easy to remember you're not going to forget it. Buy the Lawfair swag and wear it everywhere you go. Also, go make a contribution to Lawfare on our support page. Make it a monthly contribution. The podcast is edited by Jen Patya Howell, our audio engineer. This episode was Michaela Fogel, who managed to make Julian sound fabulous by phone from Michigan. Our music, which always sounds fabulous, is performed by Sophia Yan. And as always, thanks for listening.
- [57:47]
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