Especially with regard to president ial powers and the author of an equally excellent previous book, imperial from the beginning the constitution of the original executive. Jack goldsmith is the henry l. Shaddock professor of law at harvard and someone who, as youre probably aware, has seen the executive branch from the inside during a high profile, extremely tense tenure in the bush Administrations Office of Legal Counsel during a key early period in the war on terror. Jack is one of our most thoughtful commentators on the modern presidency in venues like the atlantic and books like the terror Prime Minister city and presidency and power and constraint. His latest book is in hoffas shadow, one of the last inperson events we had at cato back in early march before the lockdown so, jack, thanks for coming back so soon if only virtually. Sai, im also a great add meurer of your admirer of your previous book, imperial from the beginning, but if youll forgive me for saying so, i think its one of the most disleadingly titled books in recent memory. It makes a convincing case that the original design the framers had for the presidency, that office had very little in the way of Emergency Powers or independent war powers and no rightful claim to an executive privilege that could shield its inner workings from congressional demands for information. And, you know, when i initially read it, i said to myself if thats an imperial presidency, ill take it. In your new book, you cover and expand some of those themes, but the living presidency is, seems to me, really more a book about what the office its the next step. Its a book about a what the office has become and the vast gulf between a comparatively modest office and what the office, you know, has become now, an institution with near full spectrum dominance over American Life and law. And in telling the stories of how he got here, you point to a somewhat counterintuitive culprit, the notion of a living constitution which is something that i think we tend to associate with activist judges and leftleaning scholars. Were also in the main people who oppose the key features of the socalled imperial presidency. So tell us the story of the new book, what is the living presidency, whats its relationship with the living constitution, and how did we get here to this situation that you call a funhouse mirror version of the original presidency. And can we ever go back . Well, gene, i am absolutely delighted to be with you here today and jack and, of course, the audience. My connection to cato goes back decades when i was a summer intern in washington. I had the occasion to come to some of the institutions events, the students events institutes events including events on farm sub su eties subsidies. Thankfully, weve taken care of that problem. Im especially glad to be with you two folks. You both have superb books and, you know, i recommend them to the audience. Genes book, the cult of the presidency, and gene just mentioned jacks book, the terror presidency. And my book kind of fits within the same genre. I, you know, and ive got the book over my shoulder here, operates are standing by operators are standing by, you should definitely get it. [laughter] i have sort of four points i want to make today, because i want to be brief. The first point is why do progressives favor a living constitution, one that changes with the time. But simultaneously disfavor, excoriate, lament a living, changeable, mutable presidency. And i think we we see this phenomena all the time, we see liberals, progressives fighting what the founders would say about the modern Prime Minister city. We presidency. We saw James Madison and Alexander Hamilton about what a high crime and misdemeanor is. And thats a perfectly fine argument if youre an originalist, but its a little puzzling if youre not. And as gene points out, a lot of progressives believe that modern times call for a modern, updated constitution save with respect to the presidency. And i basically, you know, use the title living presidency to to voc progressives, to take them think about the difference between their profess admiration for a changed constitution but their soft spot for the founders presidency. What is wrong with an imperial presidency that grows over time if you can have an Imperial Congress whose legislative powers can change over time or an imperial judiciary whose role over Constitutional Rights and the creation and expansion of them changes over time. My second point that i want to bring told is living constitutionalism systematically favors the presidency as an institution. Why it turns out if youre going to have constitutional change of the informal variety rather than through article v, the Prime Minister city is the best poised to presidency is the best poised to deliver that. Today we expect our president s to articulate constitutional visions, we expect them to be prolife or prochoice, pro or antigun, pro or antiaffirmative action, you know, pro or anti all sorts of things including pro or antishutdowns with respect to covid19. Well, they gratify our desires, right . They express constitutional vision, they articulate them, they defend them. And then, guess what . They appoint justices and judges that will carry on that legacy long after theyre gone. And so when we think about one of the momentous changes in constitutional law, the new deal, we often think about the justices. But they were really just agents of franklin roosevelt. Not in the sense that he was looking over their shoulder, but he pucked people that had picked people that had the same constitutional vision that he had of unchecked power. If you are a living constitutional u. S. , you are system mat clue favoring the president in terms of influencing that informal constitutional change. And i argue in the book theres no Single Person who has greater influence over the shape of constitutional law, the future shape of constitutional law than the presidency, right . Not even Anthony Kennedy had as much influence as a president can possibly wield. My third point is that the balance of Political Forces systematically favors the presidency when it comes to constitutional disputes or statutory disputes, for that matter. As prime prime prime president sr authority to advance their agenda, agendas often favored by copartisans, they can rely upon a bedrock of Popular Support by their allies in the public, americans like you and me. If the president if we favor a law and the president , you know,ty eventers funds to build that wall, we are going to find ourselves defending the president s actions and their legality would want regard to whether those actions are legal. This is especially true when the action is in service of a partisan agenda that the president s copartisans share. And congress, you know, which is supposed to check the president , is not only divided by partisanship of the sort i just mentioned, but its also divided bicamerally, right . And that tends to enervate congress because Congress Finds itself trying to stop a, you know, a unitary executive when its riven by factions, party, personalities and by two chambers. And so in the book i say the presidency is like a fieger jet, and the fighter jet, and the congress is like a sitting duck our craft carrier that moves slowly and is very ponderous. In that situation the presidencys typically going to win. And my final point is nothing is sacrosanct about the presidency. If you can if the presidency over time can acquire the power to wage war, which is basically the power to declare it, if the presidency over time can acquire legislative authority from express congressional delegations but also through doctrines like the chevron doctrine but also through creative, interpretive legal interpretations of statutes and then, finally, if the president is can essentially in some respects bypass the senate ifs check on the treaty power, there is nothing that the president cant do with respect to bounds of article ii. Anything that you think is a fundamental feature of article ii need not, because with the passage of time and the accretion of propresident ial practices, what was once thought to be obvious will no longer be with, you know, with the accretion of these practices. So you may think theres some sort of signal feature of president s today that everyone agrees on, but that can be undone in a a year or two. Or perhaps ten years. And so, you know, nothing is sacrosanct about article ii including the oath, right . Because if we can with reimagine article ii in various ways, and we have as a nation, why cant we reimagine or reunderstand article, the article ii president ial oath which reads, its very specific but, you know, it can drift over time and can be given new meaning by new generations. So ill end with those four points. You know, i do end the book with a hopeful note, with a bakers dozen of reforms that congress could enact if it wanted to check the presidency. And i argue that this is the perfect time to do that. Why . Because we dont know who the next president s going to be, and behind that veil of ignorance, members of Congress Might be willing to oppose the current president because theyre worried about what a joe biden or a bernie sanders, whoever, might do. So it tries to end on a hopeful note. But, again, you know, to get the full thrust of it, youll have to buy that book. Thank you so much. Over to you, jack. I should say, please do send those questions in on, either on the event page or over twitter, youtube or facebook with the hashtag cay toe events. Cato events. Ready . Yep. So thank you very much. Its a real honor for me to be here today to talk about sais great new book. I read a lot of books on president ial power, and this is one of the best. There are few people more expert, probably no one more expert on the history of the presidency and the legal constraints on the presidency and the original understanding of the legal constraints on the presidency. I love the book, i learned a lot from it, but my job not to praise the book, but to raise some questions. And i have four points as well to, in response to sais points. They dont match up completely, but they do a little bit. The first point is sai is right that the arc of president ial power has gone steadily up over time, and its gone steadily up over time because president s are in a better position to take the initiative, interpret laws and interpret constraints and expand their powers. And theres no doubt that i think hes right, that the courts excuse me, that the executive branch is ultimately the most consequential interpreter of the constitution when it comes to executive power because it has the autointerpretation power, it can interpret its own powers, it can act on that and put the other two branches on the offensive. I just want to say though, and sai acknowledges this in husband book but i think his book but i think its important to understand, congress has gone along with every step of it. Everything he talks about in the book, the rise of war powers, the rise of the administrative state, almost all of it, 95 of it, i would say, congress has gone along with, congress has appropriated for an ever larger and larger military which is what enables the president to use his military powers broadly. Congress is the one that created the administrative state. So this has been a and the courts have basically accepted it. Occasionally they push back, but ultimately over the arc of history theyre pushing back at the margins, and theyre basically accepting the growth of president ial power. So what were talking about here is the undoubted growth of executive to a place where its completely different than what the framers expected, but its been acquiesced by all three branches of the government. Thats the first point. Its been enabled because of that as well. The second point i want to sai says in the book whether we like it or not, we live under a regime of informal constitutional and legal change. Though the text of our federal constitution and our National Laws may not change that often, their meanings and do. Can and do. And i believe this is an accurate statement of the way executive power has gone over the centuries, but i want to emphasize that this is not a recent phenomenon. This is the way that constitutional interpretation and change happened from the very beginning. Sai is critical of congressional executive agreements in the book. These are substitutes for the treaty power. Basically, its a statutory authorization for the president to make executive agreements which makes it easier to make executive agreements in the treaty power. I think it seems pretty obvious that the framers thought that International Agreements would have to go through the senate process, the twothirds. But the first congressional executive agreement was 1792, an agreement that authorized the post office to make International Agreements for International Postal mail. Another example is George Washington in the neutrality proclamation in 1793 asserted very broad, a very broad conception of, implicitly, very broad conception of executive power in declaring neutrality in the european war and in claiming an ability to prosecute those who violated the statute even without congressional legislation. There was a famous debate between madison and hamilton, and the debate is who knows who won. Everybody has a different view. But the point is from the very beginning the president was making very contested interpretations of his own powers to expand executive power. This has been my first two points are this has been going on since the beginning, and ultimately congress and the courts have acquiesced into it. The third point is i just want to take a little bit of issue with sais claim that tying the rise of executive power to a progressive view of the constitution and living constitutionalism. I think this is accurate for the most part. I think for most of the 20th century from the beginning of the progressive era throughout the new deal, throughout the 50s and more or less the 60 it was, it was progressives and it was progressive thinkers who favored the strong Prime Minister city, the he row you can presidency. And heroic presidency s. And it was thinkers in that period who believed in a constrained presidency, constrained by congress and intrinsically constrained. But i would say in the last 40 years it has been conservatives who and, again, theres a range of opinion within the academy, but thats interesting within u. S. But conservative government within itself. But conservative governments who are embraced very broad executive power in the name of originalism. This got going when in the 80s primarily its too long a story to tell, but it got going in the 80s primarily when conservatives rediscovered unitary executive as a function of the original understanding, and they embraced a robust conception of executive power as a matter of the original understanding. A very important intervention in this debate was when john yu wrote his famous article in the 1960s explaining the Prime Minister as an original matter based on original materials could use military force without congressional authorization. It was both Bush Administrations, bush i and ii, who under the guise of original thinking embraced extremely broad conceptions of executive power to set aside statutory reductions, especially more powers but not limited to that. And it was conservatives, i think its fair to say, who were in the guise of Justice Scalia but others who were really pushing the chevron doctrine, which sai criticizes. So i think its a mixed story about whether testing progressivism or originalism in the last 30 or 40 years that has, that has really been the font of the growing executive. And ill say that, you know, if you look at the Obama Administration, the main sins on the executive power of the Obama Administration were wield the executive power, wielding delegations very aggressively and using the take care power to force or not enforce statutes. But the signal, the signal position of the Bush Administration wielding executive principle, the central executive power principle as theyre known for is disregarding statutes under the name of article ii. And that was primarily based on the original understanding. So i dont think this is a onesided story about originalisming versus progressivism. I also commend attorney general barrs speech, his famous speech at the Federalist Society last fall which, on the basis of originalist principles contemplated a very broad, robust executive. My last point is talking about reform, and sai has an excellent menu of 13 reforms that he proposes and then, i think, 3 reforms which he news arent constitutional on originalist grounds, but he nonetheless urges congress to consider in light of executive aggrandizement. And i just have two things to say about this, and it raises a larger point, and then ill stop. The first thing is some of these proposals suffer from what eric posener called the insideoutside problem. And we can get rid of that jargon. What they basically mean is that the reason we got in the soup were in right now in terms of massive executive power is that congress has, for a variety of structural and selfinterested reasons, become incapable of governing. Theyve given away the store. Theyve given, massively opened the delegations across every conceivable topic, and the president s been very happy to receive those. So there are mechanisms and pressures behind that that inform why congress has done that. So the question is once we get to the reform era, how are we going to have a congress, that as sai proposes, basically stops delegating executive power . How are we going to have a congress that is going to, as sai suggests, basically cut the military budget by 75 fundamental president uses force without congressional authorization. I think some of the reforms are realistic, i think some of the reforms are not realistic based on the premise of the book. And the last point is im not even sure if we and im wondering, i wonder what sai thinks about this if he got every single one of his reforms set aside, if congress stopped delegating power, that would certainly cut back on the executive. I question whether in a modern, in our modern government given the complexity of it that congress could actually do that, that we could actually go back to the old model where congress legislates clearly and narrowly, and the president just enforces the law. To the extent that ever was the model. But i e just think with every other reform sai propose ifs even if they were implemented, i actually dont think it would cut back the executive very much. Its basically whittling away at the margins. Sometimes thicker margins, sometimes thinner margins, but the reason that we have such a powerful presidency for better or worse and some days i like it, some days i dont, it depends on the context the reason we have such a powerful president sisi is because our government and our society have grown more complex, and congress has not been arable to deal with these able to deal with those. Theres been a massive until division of executive power. So im not sure, and im just not sure the reforms would really cut back, certainly not to 1789. I dont even think to before 1937. So ill stop there. Let me say those are critical comment, but this is a truly extraordinary book, and i really recommend it very, very highly. Thanks, jack. I had a couple questions of my own, but i think thats a a lot to i chew on, so why dont we go over to sai for his response to any of those four points. Sai, youre not on. Im sorry. I want to thank jack for his excellent comments and, certainly, agree with the last comment that you should buy the book. [laughter] as far as his four principled comments, i agree with the first and the fourth. I think hes right that its going to be hard for congress to overcome its tendencies, and a book written by a scholar is typically not the way that Congress Reforms itself. It takes some sort of measure of introspection and maybe some cataclysmic event for congress to reform itself. Maybe thats the Trump Administration and, you know, its not the book, per se. I also agree that there were disputes about president ial power in the early years of the washington administration. There were all kinds of disputes, and i talk about those in the imperial from the beginning. But from my perspective, those were marginal disputes. They werent about there was no claim that the president would wage war. And i dont think that the Postal Convention comes close to whats happened with respect to the treaty power today in terms of the erosion of the senate check. And then, you know, jacks third comment about progressives versus originalists as sort of the progenitors of the modern Prime Minister city, i think jacks absolutely right that there are people who are originally arists who think that the founders created a rather strong presidency is. Im one of them. But i think the presidency was meant to be limited as well, and my point is that the modern presidency is transgressing lots of those limits. So in the book i do briefly talk about whether originalists are faithful to originalism when they defend the idea that the president can wage war without congressional authorization. And i argue not, but jacks absolutely right, most of my ire is, is aimed at progressives and the theory of the living constitution. And finally, jack is right that president ial change occurred before the theory of a living constitution took root. I just think that the theorys an accelerant to that change. Well, let me puck up on a couple pick up on a couple of those points, particularly jacks point three. I agree that the growth of president ial power has been, you know, like many horrible things, a bipartisan mistake and with the progressives being more responsible in the early part of the 20th century and the last 40 years with conservatives giving them a run for their money. One thing that occurred to me though as i was reading the book was what specifically, what would a living constitutionalist say about this theory . For example, is sai, you write that a loving constitutionalist by living constitutional u. S. By definition can have no foundational objection to informal constitutional change. And, you know, is that right . Saying that the constitution can, should and whether we like it or not does evolve doesnt mean youre indifferent to, you know, that all change is sort of legitimate. It may the fact of a malleable constitution certainly empowers and puts the executive branch in the best position to force informal extraconstitutional change, but you have a couple of foils sort of in the book, living constitutionalists. One of them, its bruce ackerman. Another is David Strauss. And you couldnt they say that by their criteria these changes arent legitimate . You know, ackerman has this constitutional moments theory where sweeping changes like the new deal, you know, or the civil rights revolution are typically followed and ratified by a historic election. Couldnt ackerman say, well, truman and, you know, truman launching a war in korea without any congressional authorization was nothing like that, you know . He wasnt vindicated in election. He left office deeply unpopular. Maybe David Strauss would say, you know, no, my theory is that its mostly focused on judges and common law constitutionalism is an evolutionary, mostly incremental judicialdriven process, and the president , you know, launching a war is not really wasnt what i meant at all. So i kind of wonder if you could expand a little on that. And then a related question, yeah, you say that there are, that theres sort of fair weather living constitutionalists who repower to originalism when it gets the political results that they want, and there are also fair weather originalists. Youre really much easier on the fair weather originalists. [laughter] you know, you dont mention really any of them by name. And, oh, theres one passaging that stuck out for me in that section. When it comes to the presidency, it sometimes seems that originalists apply different rules. For instance, some originalists imagine that the founders created a presidency meant to enjoy almost Plenary Authority over foreign affairs. And its sort of like a masterpiece of understatement. [laughter] the Federalist Society is not a monolith, you know, certainly as its been caricatured. But it seems to me the dominant view is something much more like if you look at the paddles they have on executive power, its something much more like john with yu. So i john yu. So i guess the two questions; would a living constitutionalist buy this theory, or would they say, you know, no, in my method, in my argument, you cant really hang this on me, and why so easy on the fair weather originalists. So let me, leapt me these are great questions, gene. Let me First Respond to the last question about fair weather originalism, and i think its fair. Maybe i should have discussed originalism more, in particular originalists like john yu. I was thinking of john in that section, and that basically is a section thats designed in part to respond to him. And, of course, all the claims about war power are responses to his originalist scholarship that jack referenced earlier. So perhaps more should have been done there. I have been on these originalist panels on the Federalist Society, and i have views on president ial power that are sometimes quite broad. It depends on the question. I believe the president can direct law execution and fire federal officials who are involved in that, and thats an aggressive reading of the vesting clause of article ii. So, but i ground that on the original understanding or at least my understanding of that understanding. I hope that im right but, obviously, others can claim that im wrong. So i think more could have been done there. With respect to the, how living constitutionalists might respond, i think that youre right that professor ackerman who, you know, both professor ackerman and professor strauss are brilliant. I think professor ackerman would say it doesnt meet all his criteria for legitimate change. And i think, you know, i tried to respond to this in the book. My basic point is there are lots of people who believe in nonarticle v amendments. Professor ackerman has a particular theory that has a lot of steps, and hes free to say that these changes dont satisfy the steps. But most living constitutionalists dont have such a highly structured or complicated theory of constitutional change. And for them, they cant rely on ackermans sixstep theory. And then having said that, its not possible to say in advance that these changes to the presidency havent satisfied ackermans steps, right . Because you actually have to do the inquiry. You have to do the hard work that ackerman purports to do. So if you look at ackermans work over time, he is finding constitutional amendments over time. That is to say he hasnt, hes not saying i e have discovered all the nonarticle v amendments and this is the universe. What hes saying is i study this area, and i learned that congressionalexecutive agreements are now constitutional. Or ive studied this area, and i think the Civil Rights Act of 1964 is quasiconstitutional in some respects. So his, his universe of informal constitutional amendments that satisfy his criteria is is changing over time. David strauss, his book on the living constitution is a wonderful book. I dont think he had as detailed criteria for when we are to recognize a change in the living constitution. And much of his changes, much of his description of constitutional change is a claim that the constitution changed even before certain formal amendments. And so if you look at his discussion of the 17th amendment, he writes as if the idea of popular elections was partly constitutionalized even before the formal text was enacted. So i dont think that he can say that, you know, no aspects of the living presidency are constitutional because theyre not judgedriven. I think he has a role for congress to play, a role for the people to play. Its not just a judgedriven theory of constitutional change. If it is, you know, then obviously hes able to use that as a defense, but i dont think thats his theory. Thanks for that question, gene. Sure. Well, i have another question on trump. You know, it was inevitable that we talk about him, you know . In getting ready for this, i asked everybody if trump had done anything shocking and horrible in the last half an hour that we needed to be current on. [laughter] and i dont know if any of us checked, but you have a description which seems to me perfectly accurate as to the way that the president i has aa massed Prime Minister city has amassed power presidency has amassed power. But it occurred to me, you know, as i was reading it that trump is not exactly has not exactly followed in this pattern, you know . With regard to the pandemic, you know, if you had told me that we were going to suffer an event that would kill many more people than 9 11 and do more economic damage than the 2008 financial crew crisis, id have said there will be a massive accumulation of president ial power. President ial power tends to grow in crisis. And despite the sort of unhinged, crank theories of executive power that come out of the coronavirus briefings, you know, total authority over the states and that sort of thing, the where the rubber meets the road the actual use of executive power with respect to the pandemic has been fatherly restrained fairly restrained. You almost dont want to use the word restrained because its not as though theres some kind of deep constitutional scruple or virtue that is operating here. But i think you would have expected to see a much more significant concentration of power. And, sai, i think, in fact, you wrote a couple of columns about this. How do you, how do you account for that, and what do you think is going on there with trump and covid19 and perhaps with the Trump Presidency in general. So with respect to trump and covid19, my sense is the president s calling card was going to be the e economy, and he was going to run on the economy. And given that, he doesnt want to flex executive power to order shutdowns of states because that would make it harder for him to get reelected. And so i think hes forbearing claiming or actually using executive power principal my because he doesnt see itll help him electorally, right . So its a weird situation where can choosing not to do something increases the chances that the state governors or the state legislatures will keep their economies going. Its still a bridge too far for the president to claim that he can force states to allow private businesses to conduct business, right . So in other words, hes not able to find anybody who will tell him, mr. President , you not only have the authority to shut down the economy, you have the authority to force it back open. If someone were telling him this, i think it is possible that he might try to sort of seize that authority. In terms of a Trump Presidency more generally, this is, you know, this isnt a book about the Trump Presidency. I didnt want to focus on him. I thought that would be distorting of the sort of more general thesis of the book. I kind of view the Trump Presidency as sort of more of the same. I dont view it as fundamentally different in kind. The president , you know, is sometimes prone to making exaggerated claims about his president ial authority, but thats just in keeping with his, you know, sort of penchant for boasting. But in terms of the actual claims being made, i think you can find similar claims being made across the prior two or three administrations. Theyre just they may be in service of different political ends or different policy ends, but theyre the same sorts of claims, right . So spending money or reallocating money with respect to the wall has its parallels with respect to propping up obamacare and subsidizing insurance companies. The attacks on syria have their parallel with respect to the war in libya. And so you can go on and on. I think, obviously, different people complained about different president s, right . Republicans complained about obama, and now its, you know, democrats complaining about trump. But the sort of actions, i dont think, are fundamentally different. Jack . Yeah. I just want to say one thing about trump, if i could, and then ill have a question for sai. Actually, following up on what sai said, i think trump has been bombastic on his claims of executive power. Hes exercised his hard executive powers like the pardon power and firing power very aggressively but not unlawfully. But the characteristic excesses of his predecessors arent his. I actually dont think he has been as aggressive and imaginative in expanding and manipulating delegated power as president obama was. He has not engaged in disregarding statutes we lab rate and with i lab rah rate and aggressive theories that president bush did. Hes not followed through on the threatening things he said he would do, a lot of the threatening things he said he would do on the campaign trail. In some sense trump this menacing figure, and i do think he is a menacing figure for many reasons. Primarily, doing things that arent at the edges of executive power, theyre things that president s didnt do because norms constrained them from doing. So i think in some sense, and the emergency power stuff is in line with this, hes been a somewhat more modest president. My question for sai is, this is a i dont know what the answer to this is. You know, executive power has been growing tedly since the beginning steadily since the beginning. It took a sharp turn upwards in the civil war, it took a really sharp turn upwards after, during the new deal in world war ii, and its been kind of rising steadily ever since. And as we discussed, you know, this has been in reaction to changes and making society be more complex. Congress and the courts have gone along with it. I guess my question is what is the status, what is your view on originalist compared to this growth . You attribute it to living constitutionalism. But its kind of been going on since the beginning. And so does that mean that originalism is, as a theory, allied by constitutional history . That originalism is a normative theory about the way the constitution should be interpreted but allied by our history . Or is there a way as you know, scholars have been trying to reconcile a version of originalism with constitutional liquidation through practice. Do you think theres a version of originalism that can accommodate change through practice . Well, first, you know, just to ping off jacks comment about trump, i think jacks largely right that i dont think trump has been as a aggressive as some of his critics have suggested. But, you know, its a good thing in a way that people are, you know, push back on claims of executive power because if you dont push back, its an open door, right . You can just push the door open and do almost anything you want. So theres a value in people perhaps exaggerating claims of exaggerating the scope of president ial claims. With respect to jacks thoughtful question, i think, i think for the First Century there were obviously disputes about the constitutions meaning awe cross many different questions, right . Across many different questions, right . The bank, the removal power, the scope of the necessary and proper clause, the scope of the Commerce Clause and whether there was a dormant Commerce Clause. There are all kinds of legal questions. Expect answers no those questions sometimes to those questions sometimes drifted over time. I think thats going to happen in any system. Youre not always going to be able to stay true to the original meaning even if you think thats what youre trying to do. Its inevitable. Its like the game of telephone, right . Youre conveying a message to someone, and the message gets garbled in the transmission and by the end of the process, ten people later, the message is very different. I dont take the views about the scope of president ial or congressional power as signaling that originalism was a failure from the beginning. So the fact that hamilton and madison disagreed about the president s neutrality proclamation in 1793 doesnt, to me, suggest that originalism is a failure because i dont think originalism was a theory that suggests that there are definitive answers to all questions or that there wont be reasonable disagreement, or that there wont be unreasonable disagreement. I happen to think that hamilton was right, i happen to think that madison was wrong. Theres a telling quote from that years a later about his argument that suggest that hamilton himself did not believe he was right when he wrote as hell bid yous. And you can go on to other questions, and i think in some of those questions theres going to be reasonable people who disagree an the original meaning. I think theres a fundamental shift in the 20th century where people are openly contemplating the idea that, sure, the text remains the same, but the meaning ought to change over time. Once you do that, i think its entirely open to ones imagination as to what those words mean and what we can have them mean. And i give the example in the book of Woodrow Wilson who was definitely in favor of what he called the evolving darwinian constitution. But at the same time, he argued that the president should never pervert statutes to pursue policy ends. And he seemed to think it was immoral. And i point out that once you say that the meaning of the constitution can change over time, why would it be the case that the president would, could never acquire authority to pervert statutes . Right . Through ingenious interpretation withs. So i basically claim that wilson was insufficiently wilsonian in his, you know, embrace of living constitutionalism. Which is by sort of, my more basic claim with respect to progressives more generally. Finish so, you know, i do think that, you know, originalists can be wrong about the original constitution, and i think that jacks right that prime presideg some conservative president s have wrapped themselves in the mantel of the founders to make arguments about the original presidency or that are wrong. And so now, of course, is an originalist argument, and its being used in service of an expansive Prime Minister presidency. But i still do believe that argument can at least be evaluated, and maybe itll be hard to evaluate sometimes, maybe itll be less hard to evaluate. But, you know, the claim that the constitutions meaning can and ought to change over time, think once you say that, youre basically liberating every Single Branch to acquire power including the president. And as ive argued, the presidencys best situated to do that more so than the other institutions. Its harolder for congress to harder for congress to articulate congressional power because its hard for them to pass a statute, much less an opinion defending the statute. And the court, you know, as everyone knows, they opine episodically e and fitfully only in the context of real cases. So i think its true that there are all kinds of constitutional disputes early on, but i dont think thats a failure of originalism. In terms, finally, in terms of will bodes or theory, i am dubious of you know, i think will is a tremendous scholar. Im a little dubious of a theory, an originalist theory which says of the constitution, the constitution has an original meaning, but if people get it wrong, the wrongness itself can be treated as if it were right on grounds that thats part of the original understanding of the constitution. That is to say, if you get something wrong long enough, we a ought to continue following it. I dont really think theres a lot in favor of that. Madison doesnt himself say this. What he says is i think that early practices can liquidate into a solid understanding of the constitution, but will contemplates liquidation and then reliquidation, right . As the practices change, its possible to read madison as saying that the new practices are themselves going to be understood as an originalist understanding of the constitution. And i think thats a bridge too far. I dont know if thats a proper reading of madison. I want to get to as many questions as possible in the remaining ten or so minutes, and i want to apologize to the audience out there, this is kind of my fault. I was scrolling up for new questions instead of scrolling down, and to my surprise, i saw a bunch of questions, many more than i thought. So lets consider this a lightning round, if we can. [laughter] now ill give you, sai, im going to give you two here, i think at least one of them you have touched on at least in your most recent remarks. This is from jack, if im pronouncing that right. It disputes about the extent of president ial power going on since the beginning or 1793 as jack says, does that not destroy the idea that there was a coherent, consensus view of the nature and extent of executive power at the outset . And ill add to that one by samuel moyne, why originalism . Weve seen original arguments on the right, notably john yus, contribute to expanding president ial powers. That the left is selectively and strategically originalist may mean we should abandon originalism, not double down. Both of those questions, i take from the main web site. Sure. So to take up professor moynes question, i think thats a wonderful response. I think what i would say is that only a theory of fixed meaning has hope of possibly corralling the presidency. That is to say originalism, i think, properly understood as applied to our constitution contemplates that the meaning of the constitution sticks and that the constitution doesnt have the seeds of its own amendment by informal means. So i think if youre trying to contain the presidency, originalism provides a formula whereas once you start with the premise of the meaning of the constitution and should change over time, youre, of course, making it quite possible for the president to change the office that he is sworn to he has sworn to fatefully execute. Which, effect live i, renders effectively, renders the oath clause meaningless. I think it contains the presidency in a way that the living constitution does not. Jack is an old friend, i think his question is very similar to jacks. I think the existence of reasonable disputes about the fringes of executive power does nothing to call into question the beyond all doubt that originalism the idea that originalism solves or answers certain questions. Can the president start a war . I think the originalist answer is clearly, no. John yu has written a very long article arguing otherwise, but he doesnt have anyone from the founding actually adopting his approach. In the face of quotes from madison, hamilton, the apostle of executive power, George Washington, henry knox, thomas jefferson, theres just no one at the founding who thought that the president could start a war because they understood that would mean to declare it. So there are difficult questions with respect to the scope of president ial power just like there are difficult questions with the scope of legislative power. There are easy questions, i think, from the original u. S. Point of view. The existence of hard questions, i dont think, makes originalism fatally unattractive, ill put it that way. I have one from patrick for either jack or sai. With regard to remuscle power removal power, do you think congress can ever permissively place or cause removal limitations on executive offices . It seems that that would be a way to rein in executive power with a textual hook in the necessary and proper clause. That [inaudible conversations] [laughter] sai. Thats a great question. I, you know, ive written about this but not in this book. It really doesnt discuss Removal Authority at all. I think the basic question is what is the horizontal effect of the sweeping clause, namely the necessary and proper clause. And if you think that congress can put a removal restraint on the president , i think you have to ask what else can congress do to the president and or the courts. And my basic view of executive power is fundamentally about the power of execute the law which i believe means the president can control the execution of law by subordinate executive officers and personnel. And id analogize it to giving for cause protection to the clerk of the courts. Can congress say to the clerk of the court, youre going to have for cause protection, and you can enter any judgments you want about who won this case without regard to what the judge actually wants. And if you think you can do that, then i think you can likewise do it with respect to the president. Now, this doesnt seem like an obvious comparator or an obviously good comparison, but judges decide the meaning of the law when they decide cases, and my view is the president decides the meaning of the law as the chief executive of the executive branch. So i think its deeply problematic to regard congress as having the authority to impose for cause restrictions on the removal of executive officers. Now, having said that, the Supreme Court doesnt think that im right. The Supreme Court has, obviously, endorsed all kinds of for cause protections. But theyve done so in a rather muddled way. Theyve never really explained why it would be constitutional for independent prosecutors but not constitutional for the department of commerce. Maybe the court will enlighten us in, you know, in the months to come. Question from sam, again, from the cato site. Could the fact that both houses of congress are rarely control by the opposing party be part of the problem in i. E. , at least one chamber of commerce if is almost of is almost always predisposed toward not hamstringing the president s ability to accomplish his agenda. I think you talk about some of this in the book, sai, the end ration of parties not powers. Well, sams absolutely right. I have a section in the book called houses divided, and it basically builds upon lincolns point about a house divided cannot stand. And the basic point is that a chamber, you know, a bicameral institution divided by partisanship and divided into two chambers cant stand up to the president. Or finds it more difficult. And i ask the reader to think about, well, what would it you know, how would congress ability to check the president be different if it were unicameral. I think the answer is it would be easier. It wouldnt be easy, necessarily, because it would still be a plural institution, but it would be far easier if we had a unicameral as compared to a Bicameral Congress with two chambers. Thats absolutely right. Yes. Question question from peter out in beaverton, oregon. Why has congress ceded so much power to the president , not only military, but things like trade. Congress has gone along with it, jack says, but why does it happen . Basically the problem with delegation. Well, i think with respect to war powers, the typical story that i agree with is that the congress doesnt want to be responsible for these earthshattering decisions to send american troops overseas and potentially die in a foreign land. And that explains congressional reticence to weigh in on wars. You know, they dont want to criticize the president and find out that the war a Great Success or that the wars over three days later. And they dont want to criticize the president because itll often be construed as criticizing the troops. Why are you criticizing this military operation when our boys and girls are overseas. With respect to trade, i dont have a story, i dont know enough about the legislative history for trade authority to figure that out. But i suspect its to give the president flexibility with respect to trade in an era where they thought the president was generally predisposed to more free trade, right . Trump is the first sort of antifree trade president weve had in decades, and thaw gave this authority they gave this authority in the context where they thought the the president would be more willing to lower tariffs than to raise them. They found out this president doesnt have that sort of policy preference. But im not sure i know the reason why. Okay. I think thats about all the time we have. I wanted to, i want to thank sai for, and jack for participating. I want to recommend that everybody go out and get a copy of the living presidency. There is a link on the cato page, on the event page to get this book which, about which george will says, with this exexquiz italy times book with this exquisitely timed book [inaudible] i also want to apologize to anyone out there who didnt get their question address thed. We had a lot of them roll in and werent able to get to all of them. But please participate in the future. And the video recording of this event will be available on the cato web page tomorrow for anybody who wants to watch. Thanks again to jack and is sai, and and sai, and thanks to all of you for tuning in. Here are some of the current best selling nonfiction books according to the Washington Post. Topping the list is the memoir, untamed. Followed by the splendid and the vile, eric larsons study of winston churchill. After that, working toward building a new ec e wit bl society in how to be an antiracist. Then in between the world and me, Tanehisi Coates looks at the state of black america. And wrapping up our look at some of the best selling nonfiction books according to the Washington Post is is me and White Supremacy by good ancestor pod host leyla saad. Most of these authors have appeared on booktv, and you can watch them online at booktv. Org. Available for rewatching following the broadcast. We will have time for your questions. Using the apps of questions button on crowd test. We cannot guarantee we will get to every submission but we will get to any as possible