Deep Dive Episode 145 – The True Extent of Executive Power
On October 20, 2020, the Federalist Society’s Georgetown Law Student Chapter and the Regulatory Transparency Project hosted John Yoo and Saikrishna Prakash for an online discussion on the extent of executive power.
In his new book, “Defender in Chief,” Yoo argues that President Trump – despite his populism – has become more often the defender rather than the opponent of the original Constitution. In “The Living Presidency,” Prakash counters that Trump, like many modern presidents, has violated the Constitution’s grant of executive power.
Jack Derwin: October 20, 2020, The Federalist Society’s Georgetown Law student chapter hosted John C. Yoo and Saikrishna B. Prakash for discussion on the extent of executive power. The following is a recording of that event.
Courtney Stone Mirski: Hi, everyone. I’m Courtney Stone Mirski, co-director of events for the Georgetown Law Chapter of The Federalist Society, and I’m pleased to welcome you to today’s event. First, a word about The Federalist Society. The Federalist Society is a national non-profit with three guiding principles: first, that the state exists to preserve freedom; second, that the separation of governmental powers is central to our Constitution; and third, that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.
Today we are doubly privileged, first to have Professors Yoo and Prakash with us to debate the true extent of executive power and to have Dean Reuter moderating that debate. Mr. Reuter is the General Counsel, Vice President, and Director of Practice Groups at The Federalist Society. And he’ll start us off by introducing our panelists.
Dean Reuter: Thank you so much, Courtney, and my thanks as well to Molly and all the officers of the Georgetown chapter, members of the Georgetown chapter. Welcome. Really good to be with you today. This is an ongoing discussion between these two excellent panelists that we’ve hosted a number of times before. So even the fact that we’ve done this a few times before, I’m always excited to get back to these topics because they’re so topical and so timely.
What we’re going to do is hear opening remarks from each of our panelists, first from Professor John Yoo from Berkeley. He’s the author of Defender in Chief. And then, we’ll get some opening remarks and thoughts from Sai Prakash, Professor at UVA, author of The Living Presidency. I’ve got both of these books. They’re both terrific. I recommend them both highly. They’re both available in bookstores near you if you can get to a bookstore in Washington but also online at every outlet you can think of.
Ultimately, we’ll be looking to questions from you in the audience. We’re going to use the Q&A function. I assume everybody knows how that works. So think of those questions. Feel free to type them in whenever you’d like. And after our opening remarks and little back and forth, we’ll get to those questions. But we’re going to wrap up after 60 minutes. So without further, Professor John Yoo.
John C. Yoo: Thank you. Thanks to the Georgetown Federalist Society for inviting us and thanks to Dean. The central headquarters mothership has sent the big cheese out to participate in our panel. That’s great. And it’s great to be here with Sai.
I just remember I think I was last at the Georgetown Federalist Society three years ago when you had the student symposium in the first year of the Trump administration. And now, we’re here having an event what might be the end of the Trump administration or at least the end of the first term. And it’s a good way to, I think, take stock of what’s happened.
Also, I think three years ago people were still — I think the student symposium was in March, if I remember. And people were still going “Did he really win? Really, he won?” People still couldn’t believe he’d won. I think there’s still people who four years, three years later are still saying “Did he really win? I can’t believe he won.”
And three years ago I would have said I was not a supporter of President Trump. I was somewhat worried about how he would approach the Constitution because he’s a campaign — and came to Washington as a populist, as an outsider who was going to unsettle, overthrow the status quo. And usually the status quo in Washington is represented by the Constitution and the practices and traditions that formed around it.
But I think now, looking at the end of the first term, I think what we see is that President Trump’s political and even personal disruptiveness have driven his opponents so crazy that they’re the ones now contemplating radical constitutional change and that Trump, for the most part, over the last three and a half years, four years has actually been left of field to rely on traditional constitutional arguments and the practices of his predecessors and that, in fact, in the end — and that’s why I named the book Defender in Chief — he’s become this very unexpected, unlikely defender of just sort of the regular constitutional order, defending it against people who want to radically change it.
I’ll give you some examples. I think one good example is the process we just finished on Monday night with the appointment of Amy Coney Barrett to the Supreme Court, someone I think Sai and I have both known for over 20 years. We all clerked for the same judge.
President Trump didn’t do anything strange or unusually by nominating someone to fill a vacancy, even a vacancy that occurred in his last year. Every president has done so. It’s really a question for the Senate to decide should they move forward to confirm or hold no hearings or even reject Judge Barrett. Every time that the President or Senate are controlled by the same party, all in I think except one case — that of Abe Fortas — the Senate actually did move ahead to vote on that nominee. And it’s only when the parties have been different between the President and Congress — the Senate, I’m sorry, where a majority have not been voted on or confirmed.
So it wasn’t any great expansion of presidential power for Trump to nominate Amy Coney Barrett and for the Senate to go ahead and confirm her. In fact, if we had had what used to be called, when I worked in the Senate, the Biden rule — which was you didn’t move people forward in the last year of a presidency. And even before that it was called the Thurmond rule — we would have missed out on having, for example, Chief Justice John Marshall on the Supreme Court. He was nominated and confirmed after Thomas Jefferson had won the election of 1800 or justices like Louis Brandeis or Benjamin Cardozo, commonly, I think, and rightly thought to be some of the greatest judges in American history, also not confirmed in the last year of a presidency.
What’s the response been? The response hasn’t been “Oh, if Democrats take the presidency and Senate, they will confirm justices too in the last year.” Instead it’s been “Let’s fundamentally change the nature of the Supreme Court. Let’s expand it by two-thirds. Let’s manipulate the size of the Court until it starts reaching the results that the elected branches want,” which I think would undermine the rule of law, probably just destroy the notion of federal judicial independence and really change the way our constitutional system works, even though I would concede and admit right up front that it’s Congress’ power under the Constitution to set the size of the Court. There’s nothing magic about the number nine. But at the same time, ever since 1869, we’ve kept the Court the same size so that we don’t undermine the ability of the courts to be more neutral and impartial and separate from politics.
That dynamic has continued to cross many other issues. It’s not Trump; it’s his opponents who are now proposing to abolish the electoral college, either through a constitutional amendment or through some kind of compact amongst the states to throw all their electoral votes to the popular winner, which would change the way we have picked presidents for 230 years. It’s not Trump; it’s his opponents who are proposing to resuscitate the independent counsel, make it permanent and thereby return the idea of using prosecutions and the criminal law to resolve political and policy disputes.
It’s not Trump; it’s his opponents who want to nationalize through this Green New Deal the entire energy sector, the transportation sector and housing sectors in our country. If you look at it, it’s Trump’s opponents who are really demanding fundamental constitutional change. And it’s Trump who’s been more, I think, along the lines of defending the regular order or, in fact, trying to return us back to the original 18th century Constitution because the way he’s used the Constitution is mostly to defend attacks on his legitimacy.
Take the two major constitutional controversies of his presidency, the Russian collusion investigation and the impeachment crisis. In the Russian collusion investigation, he, Trump, fired Jim Comey, the head of the FBI. Under the 18th century Constitution, that was fully and well within his powers. The President is the only constitutional officer who is given the responsibility to take care that the laws are faithfully executed. He must have the ability to remove anybody in the Executive Branch who works on law enforcement because they are all his or her assistants in performing that constitutional duty. He or she needs to be able to remove them in order to direct them.
But if you had read the newspapers in Washington where you all are, you would have thought that the President had committed some great sin against the constitutional order by removing someone as professional as Jim Comey and then to continue fighting against the special counsel — against the gold standard, I think, of federal prosecutors, Bob Mueller. That vision is what I think of as a 20th century progressive Constitution, the idea that the Executive Branch is fragmented, that policy questions are too important to be left to mere politicians.
And so we have to create professional independent experts who will decide questions. And those questions are so important, they’re such experts that they have to be kept away from the dirty world of politics. You can see that in the discussion of how great Comey was or how great Mueller was and how offensive it was for Trump to try to control or respond to them.
Same thing happened with the other great crisis, impeachment. Again, you have this independent bureaucracy, the Foreign Service, which thinks that it knows how to define what’s in the national interest, that it knows how diplomacy should be conducted, not the person that the voters actually elected, Donald Trump, who, yes, is unorthodox, disruptive in his constitutional views and his foreign policy views on how to conduct diplomacy. But under our original Constitution, that is the person who controls foreign policy through the executive power and who we elect and through our election and reelection, or not, of him place accountability on the exercise of foreign policy.
Now, I could go on. Sai clearly wants to get in here. He’s coughing. I don’t think he has COVID, but I’m glad he’s isolated there in his little office in Virginia, safe — keeping him safe from the rest of us.
Let me just close by saying to the point where Sai and I disagree is mostly going to be in foreign policy, particularly in war powers. Here, I think the President can conduct hostilities without a declaration of war from Congress. And I think it illustrates what the Founders really thought about how the separation of powers would be observed, not through coming with a laundry list like we do with Article I for Congress, coming with a laundry list for Article II and say, “Oh, these are the only presidential powers that exist and no farther.”
Instead, I think, A) the Founders thought the executive power would be more undefined, that it would have to be able to expand if necessary to confront challenges and emergencies. That’s the very nature of the executive power is that it’s there because you can’t write down antecedent principles and rules to handle things you don’t know are coming in the future, to handle new circumstances and new emergencies. And so I think that it’s still originalist in the sense that this is what the Founders thought about the Executive.
And the second point is the Founders thought that rather than subject the Executive Branch to the same kind of laundry list limitations enforced by courts that we see with the legislative power — instead they expected the presidency and Congress to constantly fight. They expected the limits to be set by that dynamic of the President and Congress continuously struggling. You may remember the Federalist Papers talk about ambition must be made to counteract ambition. By that, they meant that the Executive Branch and the Congress pursue their self-interest. And by doing so they would check each other.
So when it comes to war powers, the President is the commander in chief. He has at his disposal the large armed forces that Congress has created. But Congress has the funding power, and Congress has the power to raise and set the size of the military. It can always check the President if it really wants to by using those powers.
So in closing, I would say that instead what you see a lot of complaints and criticisms of President Trump in war or in things like the border wall or in things like the travel ban, Congress has really given the President large amounts of authority. It doesn’t want the accountability and responsibility to make these tough decisions. They like to get reelected and then just criticize the Executive Branch.
So what would be better than to let the President use the resources provided by Congress? Don’t interfere with them at all. Don’t use the constitutional powers readily at hand to stop the agencies or to stop the President and instead just sit back and claim everything he’s doing is unconstitutional. That’s the easiest way to be politically not responsible but not have to be accountable. And I think that’s really what’s going on behind a lot of the criticisms that are masquerading as constitutional critiques of President Trump. So thanks very much for bearing with me. I look forward to Sai and to Dean’s questions and then questions from all of you.
Dean Reuter: Professor Prakash, please go right ahead. You’ve got ten minutes to make fun of Professor Yoo.
Saikrishna B. Prakash: Well, it’s great to be here with John. John and I clerked for Justice Thomas together. And we had great fun. And we’ve been co-authors several times. And we agree on a lot about President Trump and about executive power, but we do have some disagreements.
It’s great to be with the folks at Georgetown. I don’t know what a Hoya is. Maybe it’s a bulldog because that seems to be your mascot. But, you know, you got a great basketball team. I don’t know if you still do. But that’s what I remember — Patrick Ewing and John Thompson. So it’s wonderful to be with you folks again. I’ve been there a couple of times. I’m sorry that I can’t be there in person today.
These are the two books. John’s book Defender in Chief got the photogenic President there for your reading pleasure. And it’s about President Trump. And then my book, Living Presidency, is not about President Trump. It’s about what the presidency has become. And I think to have a better sense of what the presidency has become you need to know what the presidency was at the Founding.
At the Founding, the presidency was super powerful, more powerful than any executive at the time. He had a pardon power that most state executives lack, could make treaties. Most state executives could not — could appoint to all offices. Most executives could not. Had control over the entire bureaucracy — the executive bureaucracy through the Vesting Clause, could both supervise those officers and fire them, and early presidents did both quite frequently. They were chief executives.
The President had a share in legislation, not only through making recommendations but by being able to veto legislation. This combination yields a super strong executive, far more powerful than any existed in America at the time. And they knew this, and that’s why a lot of people looked at the President and said, “This looks like a monarch.”
But there were limits, right, to what the President could do. He could make treaties but only with the advice and consent of the Senate. That means he had to get two-thirds of the Senate to agree, which is rather difficult. He couldn’t wage war because to wage war was to declare it. As John said, he and I disagree about this. In the 18th century, the power to wage war was subsumed in the power to declare it.
And if you started a war, you were said to have declared it. And in fact, most wars were not declared with a piece of paper. They were declared with an invasion or a naval bombardment or firing canons. And in fact, people at the time said the strongest declaration is the commencement of hostilities. And as the British Prime Minister said in the 18th century, “Of late, most wars have been declared from the mouths of canons, and our next war will be declared from the mouth of a canon.”
So they had this sort of non-formalistic view of what a declaration of war is because in the 18th century most wars weren’t declared with pieces of paper. When you grant that authority to Congress and give the President but a check on his exercise, the implication — the negative implication is the President can’t declare war on his own. I think John and I agree as to that point. The question is what does it mean to declare war? And on that point, we disagree.
So I told you about treaties. I told you about wars. What about law execution? The President, as you know, has a duty to take care that the laws are faithfully executed. He participates in their making through recommendations, and he participates in their making through the Presentment Clause. But once made, he’s got to execute them.
And then finally, the President had this duty to preserve, protect, and defend the Constitution. He couldn’t violate the Constitution. He couldn’t try to change it through surreptitious means. If we come to our century, these features of the original executive are either shattered or brittle and almost broken.
So with respect to war powers, we know that the modern presidents wage war without congressional authorization. Korea is the biggest example, but the most recent one is, of course, Libya where President Obama took us to war against Libya. For months on end we fought a war there. No congressional authorization for that. But there are a bunch of other wars, Kosovo and others where we were participants, where we bombed or killed the enemy that didn’t have congressional authorization.
That doesn’t describe our war in Iraq. It doesn’t describe our war in Afghanistan. In those situations, Congress actually authorized the use of military force.
What about the treaty power? Again, the treaty power is a shadow of its former self. We don’t make treaties anymore pursuant to Article II. Why? Because there are easier ways of doing so. We’ve created practical bypasses of the Treaties Clause. What do I mean by that? Well, think of NAFTA, think of the USMCA. These are treaties in the constitutional sense, but they don’t receive the consent of super majoritarian consent. Instead, the President just submits them to Congress to be approved through ordinary legislation.
This may seem like it has sort of a democratic stamp on it — democratic imprimatur. But the Constitution doesn’t permit the President to make treaties with the majority vote of both chambers. He’s got to get the vote of two-thirds of Senate. And that threshold was set precisely to protect state rights and make it more difficult to make treaties.
When you make it possible for the President to make treaties outside of that process, you’re basically violating the rights of the states to be exercised by their senators. And you’re certainly violating the rights of the Senate to participate — in this case the rights of the minority. Essentially, a majority of the Senate is willing to run roughshod over the rights of the minority with respect to treaties. So you don’t see any treaties made anymore. Or more precise, you don’t see them being made pursuant to Article II because there’s a far easier means of making them.
And I should add that presidents sometimes make treaties through sole executive agreements. They make agreements that would have been treaties in the past on their own authority. There is some constitutional authority to make international agreements without the participation of the Senate. But they dealt with typically minor and temporary matters and not matters of grand import. The diversion of such matters into the sole executive agreement process is itself another bypass of the Treaty Clause.
Two more things I’ll mention for what’s changed, the President’s relationship to law execution is fundamentally different today than it was in the past. Presidents execute most laws without comment or criticism. They don’t care about the vast corpus of federal law. But when a federal statute is inconvenient, inconsistent with the President’s agenda or stands in the way of sound policy or a deeply felt need, the President will find a way around it.
So think of the automobile bailout during the Bush and Obama administration. There was no authorization for an automobile bailout. There was no appropriation for an automobile bailout. They did both because they both thought it was necessary to bailout the automobile companies. Maybe they were right.
There were a lot of companies that depend upon the automobile companies. It’s not just the people who work for those companies that depend on them. It’s all the part suppliers, mom and pop stores, bars and restaurant that serve people in the communities that are also reliant upon GM and Chrysler.
So there’s a good argument to be made. Libertarians won’t like it, but there’s an argument to be made that this was a good idea. But it was illegal. There was no authorization and no appropriation to do this. And no one thinks, as a general matter, that the President can just dip into the Treasury and do things he thinks are useful or necessary even. But he did it. Again, it’s illegal.
Another example of this is the Obamacare subsidies to insurance companies. The Obamacare Act authorized subsidies but didn’t appropriate. The Obama administration went to Congress and said “Give us some money so we can make sure that premiums for Obamacare insur-ees are low. We can make that possible if we subsidize these insurance companies.” Republicans said, “We won’t do that. Why? Because we hate your act.” Right? That’s been the Republican mantra for seven or eight years now, ten years now.
The Obama administration said, “Well, you know what? We know we went to you for an appropriation, but it turns out we didn’t need to because the ACA not only authorizes, it appropriates.” This was an uncommonly silly argument. The Obama administration had just gone to Congress to ask for money. To then turn around and say that this statute already granted the money was absurd. And a federal district court held as much. But this is the sort of thing that happens when a president believes that he just has to be able to do whatever he believes is necessary to shore up his signature piece of legislation.
And the final thing I’ll mention is the wall. President Trump got a billion and a half dollars for his wall in 2019 after Nancy Pelosi took over. He wanted more, could not get more in negotiations with Speaker Pelosi. His lawyers hit upon the expedient of transferring funds after declaring an emergency.
So he declares an emergency, transfers funds from the Defense Department to the creation of a wall. So there is statutory authority to transfer funds in an emergency, but it’s hard to argue that there’s really an emergency when you are transferring the funds the very same day that Congress gave you a billion and a half dollars. Instead, what it looks like is you just aren’t satisfied with the amount. Right?
There’s nothing that happens from the moment he signs the bill to the moment he signs the emergency declaration that suggests there’s an emergency. And it’s true that the statute doesn’t define an emergency, but it beggars belief to think that this is an emergency. And I think that it’s a mistake to think that an emergency is whatever presidents say is an emergency. If they don’t really believe there’s an emergency, they’ve got a problem.
Now, in defense of the President I will say he’s not the only one to have declared a faux emergency. There are dozens of emergencies that we are currently under now. You won’t even recognize most of them because they’ve been around for 20 or 30 years where presidents declare emergencies over and over again to avail themselves of statutory authority. And oftentimes, these things are totally uncontroversial, so no one cares. This happened to be one of those instances where it wasn’t uncontroversial.
I think all these faux declarations are problematic. I don’t think the President can create a common law of emergency where he expands the ordinary meaning of emergency to avail himself of statutory authority. And you can see this across statutes. Sometimes statutes say the President can do certain things if he thinks it’s useful. And other times they say he can do certain things if there’s an emergency. And it’s a mistake to read these two sets of statutes as if they require the same finding. A finding of necessity or usefulness is different than a finding of emergency.
And then the final change I’ll mention is the President’s relationship to constitutional change is far different today than it was at the Founding. Presidents, I think, believe — and their lawyers certainly say this — that presidents can change the Constitution through practice. They can repeatedly do something over and over again. It puts a gloss on the Constitution, gloss on the executive power, gloss on the commander in chief power. And this thereby expands presidential power.
Well, this isn’t preserving, protecting, and defending the Constitution. This is amending the Constitution through practice. And it’s a revolutionary conception of what presidents can make of their office because it basically says if you do something over and over again, you have changed the office. And Frankfurter tried to limit this with a bunch of constraints, but no one pays any attention to these constraints. So if you’ve read Youngstown, go back and look at it. He has a bunch of constraints, but in practice these don’t matter in the sense that participants in sort of change in the Executive Branch don’t actually apply to those factors.
So we’ve seen these, to my mind, revolutionary changes where fundamental provisions of Article II are understood in radically different ways. Why have we come to this point? Let me just mention a few reasons.
One is the rise of parties and the rise of presidents as party chieftains. Presidents today can get away with more because they have a party behind them that will support anything the President does in advancement of the party’s agenda. Right? Almost anything the President does to advance the cause of low taxes, whatever else the Republican Party stands for, will be approved by the Republican Party.
And the same’s going to be true for a Democratic president, be he Obama or be he Biden. If Biden does something to advance abortion rights, it doesn’t matter the legality. All that matters is that he’s advancing this cherished idea. And Democrats are going to be primed — they’re going to be straining to defend this no matter what because it advances their agenda.
Well, when you have this phenomenon of party support without regard to legality in the service of a party agenda, you’ve weakened the separation of powers because half the country favors this particular innovation and half of Congress favors the innovation. And that weakens the check on the Executive. The question isn’t what can the presidency do, but the question is do I like the change? If I like the change, of course I’m going to support it.
Another change that I’ll mention — I’ve got a bunch of others in the book. But the one other change I’ll mention is the rise of a living Constitution, the rise of a theory that the Constitution’s meaning should change over time without any change in its text, the living Constitution. You have professors who probably love this idea about how the Commerce Clause’s meaning can change over time to respond to the reality of the modern economy and modern needs — how rights can change over time to expand in certain areas and contract in other areas.
We don’t like this Contracts Clause. Let’s get rid of it. We like substantive due process. We like the idea of substantive due process. Let’s let it mushroom to cover all kinds of rights that we love. Well, if you have that conception of rights, the role of the federal judiciary and the role of Congress, of course the presidency is going to have the same conception of itself. You can’t have a living Congress and a living Court and a living set of rights without a living presidency.
So I call my book The Living Presidency because I wanted to draw a contrast between Arthur Schlesinger’s Imperial Presidency and the living Constitution. Which one is it? Do you favor a changing Constitution, or do you oppose it? And if you favor it elsewhere, how can you oppose it here? What is it about the presidency that renders the Founders’ vision of it uniquely good in a way that would not be true for Congress or rights? So again, I encourage you to go out and buy these books. Operators are standing by. And I anxiously await your wonderful questions. Thanks so much.
Dean Reuter: So thank you both. I certainly appreciate it. If you’re in the audience, we’re using the Q&A function, or some people are using the chat function to pose questions. And that’s just fine. We’ll get to those questions.
I did have a question I was going to ask, and I’m going to combine it with one of the audience member questions. And it really goes to the administrative state. And that is how has the administrative state — has it enhanced executive power? Is it a net gain for the President?
And as you think about that, I wonder about just sort of du jour verses de facto control that the President gets to exercise over the administrative state. And I’m thinking back to the IRS scandal during the Obama administration when IRS said, “Well, there are –” I think he called the IRS an independent agency, though they are not. And yet, when it came to net neutrality, the FCC Chairman Wheeler was headed in this direction. And Obama gave a speech and said, “No, we ought to go in this direction.” And that’s where they went.
So is it a net gain? And to make this question more current, Casey Doulin (sp) — I hope I’m pronouncing that right — says, “Today Dr. Fauci endorsed a national mask mandate. Would that be an appropriate use of executive power?” And furthermore, I’d add to that can the President exercise control over those people? I’m sure you think, John, they can be fired. But can they be told in advance not to call for a national mandate. Who is this guy Dr. Fauci? John Yoo.
John C. Yoo: So I think that the administrative state is a good example of the political dynamic like I was mentioning with war where the President is receiving all these powers from Congress. Congress doesn’t want to take responsibility for making the hard choices about how air should be cleaned or how much clean water there should be. Let’s have the Executive do it but at the same time, make it difficult for the President to actually perform those functions by trying to, as you mentioned, Dean, create agencies where the President can’t remove the officials or try to place those commissions more under the thumb of Congress’ real political control rather than the President’s.
So I think the answer to that is the President’s removal power. I think the Constitution, as you just suggested, Dean, doesn’t actually contain a provision that gives a president the right to order subordinate Executive Branch officials to do anything. So where does it come from? It has to come, I think, from the power to remove.
I think this is a problem for Sai’s theory in part because Sai is a great champion of the power to — I think Sai’s probably the leading scholar on how to fire people. You would think he would have Trump on the cover of his book because he and Trump are like that when it comes to firing people. But where’s that come from in the Constitution?
You have to have a vision of some kind of unenumerated executive powers in order to even give that power — the power of removal to the President, which is, I think, the only way to control this vast bureaucracy because otherwise, Dean, I think you’re right. It would be a huge constitutional albatross around the President’s neck otherwise, which was until Taft’s opinion in Myers — although set back in Morrison, the current Court seems to be chipping away slowly at Morrison v. Olson. But if Congress could delegate vast authority to the Executive Branch but then at the same time protect all those officials from removal, it would effectively make the President politically responsible for all of these decisions from the administrative state without giving him or her actually the ability to control it.
It would be the worst possible situation. It would be ideal for Congress because then Congress could influence those agencies, not have to take any political responsibility for their decisions but still get their way on policy anyway. So I think that the key has got to be this power of removal. It seems strange to many people that the few major Supreme Court cases about presidential power are primarily about firing. But it’s because firing is actually the key to controlling the administrative state.
So I think Trump has actually done very well on this. Trump has fired Jim Comey I thought was an important — he’s gone through numerous cabinet officials and White House staff. He’s been criticized in the Washington Post recently for trying to extend the right to fire further down into the civil service. And I think the Washington Post and the civil service, it’s a great example, this 20th century progressive Constitution. They think they’re beyond politics. Whether one thinks or agrees with Trump’s policies or not, I think it’s an entirely healthy thing for the President to try to extend the right to fire deeper and deeper into the bureaucracy.
Saikrishna B. Prakash: I agree with much of what John says. I guess what I’d say is it’s a question of what you mean by enumeration. The Constitution doesn’t say Congress can regulate navigation. It does say they can regulate commerce. And Marshall in Gibbons says navigation is part of commerce. So in a way it is enumerated, just not in a way that might be obvious to many people. It was obvious to him, and it was obvious to people of that era. He says as much in the opinion.
And I’d say the same thing about removal and direction. It’s part of the Vesting Clause. It’s part of what it means to have executive power. So it’s enumerated in one sense and unenumerated in another. It’s not — this isn’t some claim that the President gets penumbral authorities. The claim is that the executive power has a bunch of facets or features. And one of them is the power to direct. One of them is the power to remove.
And that’s exactly what Madison and Hamilton and Washington thought. And that’s why they participated in the decision of 1789 the way they did, and that’s why Washington fired a bunch of people in his administration even though there was no specific — I’ll say this. There’s no specific or precise language about removal there in the Constitution, even though the statutes didn’t authorize it.
So John and I agree about that. To go back to the principle question, what about the administrative state and its effect on presidential power? I think the administrative state is essentially a net plus for presidential power even though there are these restrictions on removal. I think all these removal restrictions are unconstitutional. But their effect isn’t what people suppose.
To go back to what Dean was saying, presidents eventually get control of all of the administrative agencies. The restrictions on removal just operate as a lag. They force a lag. That is to say you come into office. You might face an independent agency that’s 3-2 opposite of your party. But eventually one of those three leaves, and then it becomes 3-2 in favor of your party. And your partisans dominate the commission.
So I think Neil Devins has written — this removal restriction doesn’t prevent presidential control. It just staggers it. Instead of having four asynchronous years with the presidency, it’s like the President comes into office in 2016. By 2017 or ’18 he gains control of the independent commissions. And that control extends into 2021 or perhaps 2025 —
Dean Reuter: But Sai — I’m sorry, Sai. What about the idea of you have five commissioners but you’ve got 25,000 career staff who might be disposed in one direction or another? Or you have an agency head with 25 politicals and 50,000 employees? Does the President really exercise control in those circumstances?
Saikrishna B. Prakash: Well, I agree with the thrust of your question, Dean. To the extent that there are people below the heads of these departments or the heads of these commissions who are making decisions that the President believes he can’t fire or bypass, that is a problem. But I kind of have John’s view.
The President should be pushing the matter and not accepting the conventional wisdom that all these people are untouchable. They certainly get demoted, and they certainly get pushed around in the sense they get pushed to other positions. There were several people who participated in the impeachment process — let’s put it that way. I think they complained that they were demoted. They were retaliated against. But I think that’s perfectly appropriate.
So I do agree that there is this sort of deep state that principally thwarts the actions of Republicans because the state tends to be more progressive in its nature. And I think the presidents ought to push back on that. The problem is presidents have limit attention spans. They can’t monitor every bureaucrat and figure out whether they’re doing something wrong. It’s really more of a function for the department heads to do that.
But my point is, yeah, these things are totally unconstitutional. But they’re a net gain because the President gets all this legislative power. The President through his appointees to the FCC decides about spectrum rights. The President through his appointees to other agencies that issue regulations essentially gets to control all kinds of things. IRA’s reviewing all these regulations from the Executive Branch agencies. And I think as you suggest there is some coordination between the so-called independent agencies and the White House.
Going back as far as Clinton, there was a claim that Al Gore’s man was the chair of the FCC. And they totally coordinated everything. And I think that’s true that — I think it was Reed Hundt. I think he was a former Al Gore aide who was the chairman of the FCC.
So these agencies aren’t as independent as we’re told they are. They’re not really using any expertise of the sort that they have that’s unique to them. They’re political appointees. The heads of these agencies are not Einsteins. They’re smart people, but they’re smart people just like all the people on this call. They don’t have any particular expertise that couldn’t be found had anybody else been appointed to head these agencies, whether they’re answerable to the President or not.
Dean Reuter: Okay. An audience question: could Congress actively pass legislation — through legislation a prohibition on the uses of force in a particular area abroad? For example, could Congress write a law saying the President could not use force in Yemen under any circumstance? And a subpart of that question is can Congress take nuclear weapons off the table completely or under certain circumstances?
John C. Yoo: I don’t think so. I think Sai must agree with those. I don’t. I think Congress can effectively achieve that end as it had at the end of Vietnam where Congress just said no funds can be used for military conflict in southeast Asia. Congress brought the war of 1848 to an end by forbidding any further funding for U.S. military forces in Mexico. Congress knows how to end wars if it wants to. If it wanted to end deployments in Iraq and Syria and Afghanistan, it could bring them to a halt within days. All they’ve got to do is cut funds off.
I think, however, what the Founders did not want is Congress interfering with the President’s decisions on what are the right moves to protect the national security. So I don’t think Congress can decide on weapons that can be used or not used. Congress doesn’t have to build the weapon systems. But once it decides to build them, they’ve already made their choice.
I don’t think Congress in World War II could have passed a law saying you shall attack Japan first and not invade occupied France. I think those are all within the commander in chief power. Why then doesn’t Congress suddenly because of the Declare War Clause have the right to decide when that force has to be used in the first place?
I think the constitutional text leads otherwise. If you look at Article I, Section 10 it says, “No states shall without the consent of Congress engage in war.” And then it says, “unless actually invaded or threatened with attack.” If the Founders really had in mind this idea that to declare war is not a legal term but in fact this colloquial term about starting hostilities, why didn’t they just copy that language? They didn’t. They chose “declare war.” I think that was because Congress has control of the legal consequences of hostilities, but they weren’t given the sole control to decide when to start the hostilities.
Saikrishna B. Prakash: So I disagree with my good friend John. I think that John wants to say that the check on war making is fiscal. Congress cannot provide the army. The Congress cannot provide the weapons, or Congress can cut off the money for an ongoing war. But what they can’t do is say you can’t use force in a particular arena. And apparently, he thinks they can’t say that after the war has started.
And it’s a little curious to me because, if you can say that you can’t expend money for the war, why can’t you say you can’t expend money in Yemen? And if you can say you can’t expend money in Yemen, why can’t you say something that’s essentially the functional equivalent, which is you can’t wage war in Yemen? I don’t know what it is about using — tying it to funds that makes it fundamentally different.
And if we go back in our nation’s history, look up the Quasi-War when you have a chance. Look at the statutes that Congress passed. They’re very specific about who you could attack and where you could attack them. And they were signed by John Adams. They were signed at a time where George Washington was still alive. George Washington was actually made commander in chief of the army by John Adams.
No one at the time says these statutes are unconstitutional. But under John’s view, they have to be because A) the Congress can’t tell John Adams he can’t attack France, B) they can’t tell him that he can only attack France in particular ways. So these statutes, I think, are inconsistent with the notion that the President has a free hand in terms of fighting a war because they’re doing the exact opposite.
Dean Reuter: What about that, John? Can Congress say, “You can use air attacks or missile attacks. No boots on the ground”?
John C. Yoo: No, I think laws that do try to interfere with the choice of strategy or tactics are unconstitutional. Even if you were to set aside the debate of the Declare War Clause, I still think they’re unconstitutional. And I don’t think Sai’s right to say that, well, anything you can do with the funding power. Therefore, you must be able to pass a sort of prohibitive or affirmative statute about it.
I think the spending power is just different, just like other powers in the Constitution are different. They all don’t have to work in parallel with each other. And so the thing about the funding power is that it’s a perfect check on executive power.
So Dean, if the Congress doesn’t want to fund intervention in Yemen, all they have to do is nothing. The funding power, to be used effectively is just don’t pass any funding. So whenever Congress is passing these funding bills, it’s already affirmatively making these choices. If they want to stop any war or any tactic, just don’t give the Defense Department any money at all. Or they could just choose to give it to the things they agree with.
It’s a very easy power to use rather than actually — and this is why it’s different than a prohibitory statute. Rather than having to affirmatively pass a statute, get it over the President’s veto saying, “Do not wage war in Yemen,” the funding power’s actually much broader and easier to use.
Dean Reuter: You agree with that, Professor Prakash?
Saikrishna B. Prakash: I think John’s absolutely right that the funding power exists as a check on the waging of war. And John’s right about how Congress has used it. John, I think, reads our Constitution as the British system, that the President — what I’d say is he thinks the President can start a war. And then the check is the parliamentary check on the fisc. And I think that is a check that’s implicit in the Constitution, and we kind of know this because we look at Article I. And it’s says no army appropriation beyond two years. And that’s precisely because they don’t want Congress to pass a permanent appropriation for the army, thereby giving a blank check to the Executive.
But I don’t think it follows that that’s the only check. And then there’s a political question. There’s a political dimension, Dean, which is how easy is it for Congress to stop a war? And I think the answer is it’s easy in theory, difficult in fact. So Congress repelled the Gulf of Tonkin resolution before they cut off funds. And it took a while to get around to cutting off funds for that war. And whenever they talk about cutting off funds, people are able to say, “My gosh, you’re going to leave our troops defenseless in the field.”
So one way to think about this is is it easier to take back the keys, or is it easier not to give the keys in the first instance? And if you give someone the car keys, it’s much harder to get them back home than it is to keep them at home if you never gave them the keys. So I agree with what John said as a matter of theory. I think he’s right, but I don’t think it’s the only check on Executive war making.
Dean Reuter: John, do you want to respond to that, or should we head in a different direction?
John C. Yoo: I think the way Sai’s reading the Constitution, which is consistent with the way the critics of the Vietnam War read the Constitution — I think they make this mistake about how war powers are supposed to work or national security powers in general, which is this idea that the big problem is to prevent the President from waging wars when he shouldn’t. That the chances of mistake are higher when the President can go first, when he’s going to make an affirmative error.
There’s another kind of mistake that the Founders worried about, which is the problem of not acting, failing to wage war when you should have. That’s a problem we’ve had in much greater form in the 20th century and the 21st century than we did in the 18th century. But this was very much on the minds of the Founders. If you read the Federalist Papers, they are constantly worried about the instability of North America, the many security threats on the borders. We’re just accustomed to living today in a world where we have no serious threats on our borders or in the continent.
But if you read — the Founders, they’re very aware that they are a very small nation on the Eastern Seaboard surrounded by the British and the French and the Spanish. And they talk about how the Constitution has to be designed to enable quicker, faster action. Hamilton describes the executive power as a power to act with energy and speed and decisiveness. I don’t think they would have wanted to design a system that is so biased in favor of inactivity where there’s so many checks on the ability of the country to take on a national security threat of the kind I think that Sai’s describing and the Vietnam War critics described.
Dean Reuter: Let’s pivot a little bit, sticking with an audience question here. What are your views on the constitutionality of potential future legislation by Congress to pack the courts? Obviously, the regulation of courts falls within Congress’ enumerated powers, but there isn’t a viable argument that such power to regulate courts is not absolute. Accordingly, where Congress’ underlying purpose is not to regulate the courts so as to promote the functioning of the judiciary but to affect individual outcomes of cases before the Court, would such legislation violate separation of powers principles? Do Congress’ motives matter here in packing the Court?
John C. Yoo: Sai, why don’t you — I already had my say.
Saikrishna B. Prakash: I think this is a great question. I think John and I are both of the view that Congress can expand the size of the Supreme Court and shrink the size of the Supreme Court. In terms of the motives, it’s a curious question because I don’t think that is going to matter.
Let’s suppose the President appoints someone because he or she thinks that they’re going to preserve Roe v. Wade or overturn Roe v. Wade. I don’t think that the President has done something wrong. And I don’t think that the person so appointed has done anything wrong. So we might think that it’s wrong to do this — I’m sorry. We might think that it’s wrong in some sort of moral sense, but I don’t think that it’s a violation of separation of powers for members of Congress to have the wrong motive in packing the Court.
So I think it’s constitutional to pack the Court. And then I’d say I think it’s a bad idea because it’s not a stable outcome. You cannot expect to pack the Court and not expect the response. Of course the other side’s going to pack the Court as soon as they have a chance.
That’s what we’ve seen in states where states have packed the court. There’s a cycle of packing that eventually fizzles out because both sides see that it’s not going to get them any permanent advantage. And then they give up the tools. So if they want to pack the courts, they’ll get a temporary benefit. And then it’ll be eliminated through another packing of the Court.
And I’d say the best way to pack the Court is to win elections. If they win the election — if Biden wins, then Harris wins and then whoever else wins — Bernie Sanders when he’s 100 —they’re going to have all the justices. So they will have packed the Court in the way that the Constitution sort of makes it crystal clear is totally legitimate and in a way that’s consistent with the past practices of the last 100 years.
John C. Yoo: I want to just add one thing about the packing of the Court is I agree with Sai about what’s going to happen is, once you pack the Court, it’s going to create this escalatory spiral where each side is just going to keep adding judges whenever they get in power. It just seems to me that the Democratic party used to be — which is proposing this right now. I might add these are all ideas that people who used to be opposed to Roe v. Wade and busing used to think of — if you just don’t remember far back. But if you look at Robert Bork’s book before he passed away, Slouching to Gomorrah, he has all of these in there because he’s upset about the Court for deciding Roe v. Wade.
So it’s interesting to me the polarity of support for these has switched now from the far right to the left. But the Democratic Party used to be the one that thought of the role of the courts in this sort of caroling products footnote for idea of protecting discrete and insular minorities from the majority. If you go ahead and start this spiral that Sai’s, I think, rightly worried about, you will remove the only institution left that’s going to be there to protect minority rights.
Now, right now, a lot of my liberal friends, they don’t like the idea that the Court’s protecting the rights of religious minorities. But that’s not the only thing that’s going to change if the courts just become this kind of adjunct to the administrative state. Every four years you just change all the people, or you just make it bigger and bigger so it does what you want. Who’s going to stand up for rights of free speech after that or the rights of criminal defendants after that? Nobody.
I think that the Democratic friends in their short-term unhappiness with Trump — again, this is the theme of my book — are considering the longer term constitutional changes which would do a lot of harm to our constitutional system and seem to me contradictory about the principles that the Democratic Party says it stands for. On the other hand, I want to say that if the Court gets really big, me and Sai are available to serve. So I do have some self-interest here.
Dean Reuter: We have five minutes left. But we’ve got a question from Molly Hogan, which I’ll summarize here. Do any areas of Biden’s platform — candidate Biden’s platform strike you as executive overreach and ripe for overreach claims? And does President Trump’s exercise or perceived exercise of executive power matter as people analyze that going forward?
John C. Yoo: Sai and I have a disagreement about this, but I believe the platform calls — and I thought I saw Vice President Biden say that he was going to bring back the DACA and DAPA programs. I don’t think he realizes that they’re still in existence and that the Court enjoined President Trump’s efforts to terminate them.
I do think it is an unconstitutional use of the executive power to say, basically, “I don’t like the immigration laws. I’m not going to apply them to eight million cases.” I do think there’s a prosecutorial discretion where the Executive gets to choose where to put resources. But I don’t think he can basically say, “That law, the resources are going to be zero,” not because they’re difficult cases or the return to the national interest is too law but just “I disagree with the policy that Congress has set.” I think that does go too far.
Saikrishna B. Prakash: John’s right about our disagreement of DACA and DAPA. Although, I think DAPA is still enjoined by a federal court order. That was never lifted. It was like some district court somewhere enjoined it. And it stood because I think — I thought because the Court split 4-4.
Put that aside, I don’t know what Biden’s platform is. He’s not running on a platform. He’s just running on “I’m not Trump.” So I can’t speak to what his platform is. You could imagine that it’s just whatever the left of the Democratic Party wants. But I’m not sure I can really comment on that.
About the Republicans being compromised because they didn’t stand up to President Trump, what I’d say, Molly, is every party doesn’t stand up to their own president. Democrats could try to stand up to Trump even though they were supine before Obama. Republicans, you can rest assured will try to stand up to Biden even if they were puppy dogs for this President.
So there’s no consistency on this question of executive power. You become an executive power hawk when you’re out of power. That is to say you, like, hawkishly watch the Executive and complain all the time. And you’re a dove when your partisan’s in power. So this won’t stop them from squawking. And they’ll have success based in part on what the public thinks about the overreach but also what their base thinks about the overreach.
The best thing that could happen to the Republican Party and Congress is Biden wins because we’re probably going to have a flip in the House upon that happening. That’s what’s happened the past several presidencies. Obama takes over. The Republicans have this thumping victory across the whole nation. And Trump takes over and Republicans lose control of the House and almost lose control of the Senate.
Dean Reuter: Very good. Well, we’re just about out of time. Let me just make one more endorsement of these two fine books, Defender in Chief by John Yoo and The Living Presidency by Sai Prakash. I recommend them both strongly. With that, I will turn things back over to Courtney to wrap up. Courtney?
Courtney Stone Mirski: All right. Well, thank you all for coming. That was really informative. Learned a lot about executive power that they didn’t teach in Com. Law I. So really, really enlightening. Thank you. And we’re really happy we got a chance to host you today, so thanks again for coming to Georgetown. And I hope everyone has a great rest of their day.
James Monroe Distinguished Professor of Law
University of Virginia
Emanuel S. Heller Professor of Law; Co-Faculty Director, Korea Law Center; and Director, Public Law & Policy Program
UC Berkeley School of Law
Federalist Society’s Georgetown Student Chapter