The study of the presidency and he is one of the nations leading constitutional scholars 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 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 moderate presidency impinges like the atlantic on the law flare law, and books like the terror presidency, and power in constraint. His latest book also highly recommended is also the subject for one of the last in person Public Events we had at cato back in early march for the lockdown. So jack, thanks for coming back so soon, if only virtually. Saikrishna im also a great admirer of your previous book imperial from the beginning, but if you will forgive me for saying so, its one of those misleadingly titled books in recent memory. It makes a convincing case that the original design that the framers had for the presidency, the 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. When i initially read it i said to myself if thats an imperial presidency, i will take it. In your new book you cover and expand some of those themes but the living presidency seems to be really more a book about what the office, its the next step, a book about with the office has become and the vast gulf between a comparatively modest office in with the office has become now, an institution with near fullspectrum dominance over American Life and law. In telling the story of how we got here, you point to a somewhat counterintuitive culprit, the notion of a living constitution which is something that a think we tend to associate with activists judges and leftleaning scholars. People who oppose key features of the socalled imperial presidency. Tell us the story of the new book. What is the living presidency, what is its relationship with the living constitution, and how did we get here to this situation that you call a fun house mirror version of the original presidency . And can we ever go back . Gene, maps will be delighted to be with you here today, jack, and, of course, the audience. My connection to cato goes back decades when it was a summer intern in washington. I had the occasion to come to some of the institutions events including events on farm subsidies. Thankfully were finally taken care of that problem. Im especially glad to be with you to folks because both of you folks are experts on the modern presidency as well. You both have superb books and i recommend them to the audience. Genes book, the call of presley and she just mention jacks book, the terror presidency. My book thats within the same genre. Ive got the book of my shoulder here, ill bridge are standing by. Should definitely get it. I have sort of four points want to to make because i want to be brief. The first is why do progressives favor a living constitution, when the changes with the time . But simultaneously this favor, excoriate, lament a living changeable mutable presidency. I think we see this phenomena all the target we see liberals or progressives siding with the founders would say about the modern presidency. We saw this most recently with respect to impeachment. Progressive siding James Madison and Alexander Hamilton about what a high crime and misdemeanor is. Thats a perfectly fine argument if your eye and originals but its a little puzzling if you are not. Asking points out a lot of progressives believe that modern times as gene calls for a modern updated constitution. Save with respect to the presidency. I basically use the title the living presidency to provoke a progressives to make them think about what i think is a contradiction between their professed admiration for a change constitution, but their soft spot for the founders presidency, you know, 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 control of Constitutional Rights and the integration expansion of them changes over time. My second point of what to bring today is living constitutionalism systematically favors the presidency as an institution. Why . A a transit if youre going to constitutional change of the informal friday rather than article v the presidency is institution best poised to deliver that change. Today we expect our president s to articulate constitutional visions. We expect him to be prolife or prochoice, proor antigun, pro proor antiaffirmative action, you know, proor antiall sorts of things including proor inefficient is with respect to covid19. They gratify our desires. They express constitutional visions. In particular them, defend them and guess what, they appoint justices and judges that will carry on that legacy long after they are gone. Seven think about one of the momentous changes in constitutional come the new deal, we often think about the justices but they were really just agents of Franklin Roosevelt not been since he was looking over their shoulder but he picked people that had the same constitutional vision that he had of unchecked federal legislative power. My thesis is if youre a living constitutionalist your systematic favoring the president in terms of influencing that inform constitutional change and 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 president. Not even Anthony Kennedy had this much influence as a president can possibly wield. My third point is the balance of Political Forces systematically favors the presidency when it comes to constitutional disputes or statutory dispute for that matter. As presidency grasp for Additional Authority typically to implement their policies or agenda, agendas that are 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 come if we favor a wall and the president diverts funds to build that wall were going to find her self defending the president s action and defending the legality without regard to whether we really think in our heart of hearts that those actions are legal. This is especially true when the action is in service of a partisan agenda that president s call partisanship. Congress which is supposed to check the president is not only divided by partisanship of the sort i just mention but also divided by kimberly, and that tends to innovate congress because Congress Finds itself trying to stop a unitary executive when it is riven by factions, party, personnel and by two chambers. In the book i see the presley is like a fighter jet in the congress is like a sitting duck aircraft carried that moves slowly and that is very ponderous. In the situation the presidency typically is going to win. My final point is nothing is sacrosanct about the presidency. If the presidency over time can acquire the power to wage war to visit with the power to declare it, if the presidency over time can acquire legislative authority from express congressional delegations but also through doctrines of the chevron doctrine but also through creative interpretation legal interposition statures. Finally if the president can essentially bypass the senate check on the treaty power, theres nothing the president can do with respect and metes and bounds of article ii. Anything that you think is a fundamental feature of article ii b not be 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 the accretion of these practices. You may think there some sort of signal feature of the president today that everyone agrees on but that can be undone in the year or two or perhaps ten years. Nothing is sacrosanct about article to including the oath. If we can reimagine article ii in various ways, and we have as a nation, why cant we reimagine or we understand the article to president ial oath which reads is very specific but its contents can drift over time and can be given new meaning by new generations. I will end with those four points. I do end the book with a hopeful note with a bakers dozen of reforms that covers could enact if you wanted to the presidency and argue this is the perfect time to do that. Why . Because we dont know who the next president is going to be and behind that veil of ignorance members of Congress Might be willing to oppose the current president because they are worried about what if joe biden or Bernie Sanders or whoever might do. It tries to end unhelpful note but again to get the full force of it you will have to buy that book. Thank you so much. Over to you, jack. I should say please do send those questions in either on the events page or over twitter, youtube, facebook with the catoevents. Ready . Thank you very much. Its a real honor for me to be a today to talk about this great new book. I read a lot of books on president ial power in this is one of the best. There are few people expert, probably no one no one more expert on the presidency and the original understanding of the legal constraints on the presidency. I love the book. I learned a lot but my job is not to praise the book but to recent questions and i have four points as well. In response to sais points. They dont match up completely but they do a little bit. The first is sai is right that the ark of president ial power has gone steadily up over time and is constantly up overtime because president s are in a better position to take the initiative, and tropopause and interpret constraints and expand their powers. There is no doubt, i think hes right, that the executive branch is ultimately the most consequential interpreter of the constitution when it comes executive power because it has the auto interpretation power, they can interpret its own powers, a connect on that and put the other two ranges on the defensive. I just want to say though, and sai acknowledges us in. But its important to understand congress and the courts have 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 i would say, congress has got along with, congress has appropriate for an ever larger and larger military which is what enables the president uses military powers broadly. Congress created the Administrative State. This has been and the courts are basically accepted it. Occasionally they push back but ultimately over the arc of history there pushing back at the margin and basically accepting the growth of president ial power. 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 acquiescence all three branches. Thats a first point i wanted to make. But it is enabled because of that as well. The second 101, sai says in the book whether we like it or not we live under a regime of informal constitutional and legal change, our National Laws may not change that often, their meanings can and do. I believe this is an accurate statement of the way executive power has gone over the centuries, but i want to emphasize 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 authorization for the president to make executive agreements which makes it easier to make executive agreements in the treaty power. It seems obvious the framers thought International Agreements would have to go go to the sene process with twothirds of 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 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 that the european war, and in climbing and ability to prosecute those who violated the statute even without congressional legislation. There was a famous debate between madison and hamilton and the debate, who knows who one . Everybody has a different view but the view is the present was making contested interpretations of his own powers to expand executive power. My first two points are this is 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 time the rise of executive power to a progressive view of the constitution of living constitutionalism. 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, about the 50s and more or less the 60s, it was progressives and it was progressive thinkers who favored the strong presidency, the heroic presidency and it was conservative thinkers who believe in in a constrained presidency, a presidency that was restrained by congress and intrinsically constrained. In the last 40 years it has been conservatives, and again theres a a range of opinion within the academy but thats interesting in itself, but conservative governments that have embraced very broad views of executive power in the name of originalists. This got going when, in the 80s primarily, to long story to tell but it got going in the 80s primarily when conservatives rediscovered unitary executive as a function of the original understanding in the embraced a robust conception of executive power as a matter of the original understanding. I very important intervention in this debate was when john yoo wrote his famous article in the 1960s explaining the president as an original matter based on original materials could use military force without congressional authorization. It was both bush administrations who under the guise of original thinking embraced extremely broad conceptions of executive power to set aside statutory restrictions especially in war powers but not limited to that. And it was conservatives i think its fair to say who were in the guise of Justice Scalia and others who are pushing the chevron doctrine which i criticize. I i think its a mix story about whether its progressivism or originalism the last 30 or 40 years that has really been the growing executive. I will say if you look at the Obama Administration, the main sins on executive power of the Obama Administration were wielding executive power, wielding delegation very aggressively using the daycare power to enforce or not enforce statutes. But the signals position of the bush of administration wielding executive principle, essential executive power principle theyre known for is this according statute under the name of article two. That was by based on original understanding. I dont think this is a onesided story about originalism first of progressivism. I also commend our attorney general barrs speech which is grant in original principles, his anus speech at the Federalist Society last fall which on the basis original principles is a very broad robust executive. My last point is talking about reform, and sai as has an excet menu of 13 reforms that he proposes and then i think three reforms which he thinks are not constitutional on originalist grounds but he nonetheless urges congress to consider the light of 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 others call the inside outside problem, and we can get rid of that jargon. With a basically mean is that the reason we got in super in right now terms of massive executive power is that congress has for for a variety of instructional and self interested reasons, in cable and covering. It given away the store, massively open it to delegations goes every conceivable topic and the present is happy to see those. 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 going to have congress that basically stops delegating executive power . How are we going to have a congress that is going to basically cut the military budget by 75 if the president uses force without congressional authorization . Some of the reforms are realistic. I think some of the reforms are not realistic based on premises of the book about congressional abdication of power. The last point is im not even sure, and im wondering what sai thinks about this, if he could every single one of his reforms, set aside the delegation problem, has Congress Stop delegating power . That would certainly come back on the executive. I question whether in our modern government given the complexity of it that Congress Actually do that, that we could go back to the old model where congress legislates clearly and nearly and the president just enforces the law. To the extent that ever was the model. I just think with every other reform sai proposes even if they were implemented i dont think it would cut back executive very much. Its basically whittling away at the margins come sometimes thicker margins, sometimes thinner margins but the reason that such powerful presidency for better or worse and some days i like it and some days i dont, depends on the context, the reason we have such a powerful presidency is because our government and our society have grown more complex and the structures and congress have not been able to deal with those and its not just in the united states, its in every country in the world with massive growth in executive power. Im not sure and it just not sure the reforms have cut back not to 1789, i dont even think before 1937. I will stop there. Those are critical comments that this is a truly extraordinary book and i recommend it very, very highly. Thanks, jack. I had a couple questions of a moan but i think thats a lot to chew on to why dont we go over to sai for his response to any of those four points. My apologies. I want to thank jack was excellent comments and certainly agree with the last comment that you should buy the book. As far as his four principal comets go i agree with the first in the fourth. I think hes right that is going to be hard for congress to overcome its tendencies in a ina book written by a scholar is typically not the way the Congress Reforms itself. It takes some sort of measure of introspection may be some cataclysmic event for congress to reform itself. Maybe thats the Trump Administration and its not the book per se. I also agree that were disputes about president ial power in the early years of the washington administration, all kinds of disputes and a talk about those in the imperial from the beginning but from my perspective those are marginal disputes. They were not about, there was no the president could not wage war. The Postal Convention doesnt come close to what happened with respect to the treaty power today in terms of the erosion of the senate check. Jacks third comment about progressives versus originalists as sort of the modern presidency, i think jack is right that there are people who are originalists think the founders created a rather strong president. I am one of them but i think the presidency was meant to be limited as well, and my point is the modern presidency is transgressing lots of its limits. 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 jack is right, most of my ire is aimed at progresses in the three of the constitution and finally jack is right that president ial change occurred before the three of the living constitution to quit. I just think that there is an accelerant to that change. Let me pick up on a couple of those points, particularly jacks. 3. 3. I agree the growth of president ial power has been like many horrible things, bipartisan and with the progresses being more responsible, the only part of the 20th century and the last 40 years with conservatives giving them a run for the money. One thing that occurred to me though as i was reading the book was more specifically what would a living constitutional say about this theory . You write that a living constitutionalist by definition can have no foundational objection to informal constitutional change, and is that right . Saying that the constitution can, should, and whether we like it or not does evolve doesnt mean you are in different, you know, that all change is sort of legitimate. The fact of an malleable constitution certainly empowers and put 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 constitutional is one of them, is bruce ackerman, another is David Strauss. Couldnt they say that by their criteria these changes are not legitimate . Ackerman has this constitutional moments theory where something changes like the new deal, or the civil rights revolution are typically followed and ratified by a historian election. Couldnt ackerman say, truman launching a war in korea without any congressional authorization was nothing like that. He wasnt vindicated in election. He left office deeply unpopular. Maybe David Strauss would say no, my theory is its mostly focused on judges and, law constitutionalism is an evolutionary, mostly incremental judicial driven process, and the president launching a war is not really come wasnt what i meant at all. I kind of wonder if you could stand a little on that, ive been a related question and then a related question. You say that there sort of fairweather living constitutionalist when he gets in the political results that they want and there are also fairweather originalists. You really are much easier on the fair weather originalists. You dont mention any of them by name. Theres one passage that stuck out to me in that section. When it comes to the presidency, it sometimes seems originalists apply different rules. For instance, some originalists imagine that the founders create a president meant to enjoy and it seems sort of like a masterpiece of understatement. The Federalist Society is not a monolith, certainly as it has been caricatured. It seems to be the dominant view is something much more, if you look at the paddles they have on executive power is something much more like john you. So i guess of the two questions, with a living constitutional by the spirit with a say no, in my method or in my argument you can really hang this on me. And why so easy on the fairweather originalists . So let me, these are great questions. Let me First Respond to the last question about fairweather originalism. Its here there and you think d jack maybe i shouldve discussed originalism more, in particular originalists like john yoo. I was thinking of john in that section and that basically is a section that is designed in part to respond to him. Of course all the claims about what our our responses to his originalists called a jack reference. Perhaps more shouldve been done there. I been on these original powers on the Federalist Society and i have views on president ial power that are sometimes quite broad. It depends on the question and italy the president can direct law execution and fire federal officials were involved in that and thats an aggressive reading of the clause of article ii. I ground that on the original understand release my understanding of that and hope i am right but obviously of this can claim that i am wrong. More could have been done there. With respect to a living constitutionalist might respond, i think youre right that professor ackerman and professor strauss are brilliant with a professor ackerman would say it doesnt meet all the criteria for legitimate change. I tried respond to this in the book and my basic point is there are lots of people who believe in nonarticle v amendments. Professor ackman has a particular theory that has a lot of steps. He is free to say these changes dont satisfy those steps. The most living constitutionalist dont have such a highly structured or complicated theory of constitutional change. And for them they cant rely on ackerman said next step theory. Having said that, its not possible to say in advance that these changes to the presidency havent satisfied ackerman steps. You have to do the inquiry, the hard work that ackerman purports to do. If you look at ackerman to work overtime he is fighting constitutional amendments over time. That is to say, he is not saying i have discovered all the nonarticle v amendments and this is the university of what he is saying is i i studied ths area and ive learned that executivecongressional agreement on a constitutional are i studied this and and i tk the Civil Rights Act of 1964 is quasiconstitutional in some respects. His universe of informal constitutional amendments that satisfy his criteria is changing over time. David strauss, his book on the living constitution is a wonderful book. I dont think he has detailed criteria for when we are to recognize the change in the living constitution. Much of his description of constitutional change is a claim that the constitution changed even before certain formal amendments. If you look at his discussion of the 17th amendment he writes as it the idea of popular elections was partly constitutional even before the formal text was enacted. I dont think you can say that no aspects of the living presidency or constitutional because theyre not judge driven. I think as a role for congress to play a role for the people to play. Its not just a judge driven theory of constitutional change. It is then obviously he is able to use as the defense by the dont think thats his theory. Thanks for that question. Well, i have another question on trump. It was inevitable that we talk about him. Were 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 brought up to speed on. Unless any of us checked but you have a description which seems to mean perfectly accurate as the way the presidency has amassed power but it occurred to me as i was reading it that trump has not exactly followed in this pattern. With regard to the pandemic, 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 crisis, i wouldve said there will be a massive accumulation of president ial power. President ial power tends to go in crisis and despite the unhinged crank series of executive power that is, at the coronavirus breaking, total authority over the states and that sort of thing, where the rubber meets the road, the actual use of executive power with respect to the pandemic has been fairly restrained. He almost dont want to use the word restrained because its not as though there some kind of deep constitutional scruple or virtue that is operating here. But it think you would have expected ex ante to see a much more significant concentration of power and sai i think you wrote a couple of columns about this. How do you account for that what you think is going on there, and with trumpian covid19 and perhaps the Trump Presidency in general . With respect to trump and covid19, my sense is the president s calling card was going to be the economy and he was going to run on the economy. Given that, he does want to flex executive power to order shutdowns of states because that would make it harder for him to get reelected. I think he is forbearing claiming or using executive power principally because he doesnt see that it will help them electorally. Its a weird situation where choosing not to do something increases the chances that the state governors or the state legislators 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. In other words, hes unable to find anybody who will tell him, mr. President , you know only have the authority to shut down the economy. You have the authority to force the back open. If someone were telling in this, i think it is possible that he might try to sort of sees that authority. In terms of the Trump Presidency more generally, this is a book about the Trump Presidency. I didnt want to focus on them. I thought that would be distorting of the more general pieces of the book. I do the Trump Presidency as sort of more of the same. I dont view it as fundamentally different in kind. The president is sometimes prone to making exaggerated claims about his president ial authority but thats just in keeping with this sort of pension for boasting. In terms of the actual claims being made i think you can find similar claims being made penchant across the porch with three administrations. They may be in service of different political ends or different policy ends but thats the same sorts of claims. Spending money or reallocating money with respect to the wall has 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. You can go on and on. Different people complained about different president s, republicans complained about obama and now its democrats complaining about trump but the actions i dont think our fundamentally different. The. Jack . I just want to see one thing about trump if they could and i will have a question for sai. Following up on what sai said i think trump has been bombastic and claims of executive power. Hes exercise his hard executive powers like the pardon power and the firing power very aggressively but not unlawfully. But the character excesses of his immediate predecessors are not his. I dont think he is been as aggressive and imaginative and expanding the manipulating delegated power as president obama was. He is not engaged in disregarding statues with elaborate and aggressive theories of president bush did. Hes not follow through on the threatening things he said he would do, on the campaign trail. In some sense trump is is really menacing figure and it you think he is a menacing figure buddy primarily is doing things that are not at the edges of executive power. There are things president s didnt give because norms constrain them. In some sense and the emergency power stuff is in line with this. My question for sai is, i dont know what the answer to this is. Executive power has been a growing steadily since the beginning, he took a a sharp tn opportunist of war, took a really sharp turn upwards after, during the new deal in world war ii and it is been rising steadily ever since. As we discussed, this is been in reaction to changes in making society being more complex. Congress and the courts have gone along with it. My question is what is your view on originalism compared to this growth . You attribute it to living constitutionalism but its been going on since the beginning. So does that mean originalism as a theory allied by constitutional history that originalism is a normative theory about the way the constitution should be interpreted but it is allied by all of her 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 . First, just to paying off jacks, about trump. I think jack is larger by that i dont think trump has been as aggressive as some of his critics have suggested. But its a good thing in a way that people push back on claims of executive power because if you dont push back its an open door. It just push the door open and do almost anything you want. Theres a value in people perhaps exaggerating claims, exaggerating it at the scope of president ial claims. With respect to jacks thoughtful question, i think for the First Century there were obviously disputes about the constitutions mean across many different questions, the bank, the removal power, the scope of a necessary and proper clause. The scope of the Commerce Clause is whether the was all kinds of legal questions, and the answers sometimes drifted over time. You are not going to always be able to stay true to the original meaning, even if you think thats what youre trying to do. Its just inevitable. Its like the game of telephone. Youre conveying a message to someone and then the message gets garbled and the transmission by the end of the process ten people later the message is very different. I dont take disputes 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 medicine disagreed about the president neutrality proclamation in 1793 doesnt to me suggest originalism is a a failure because i dont think originalism was a theory that suggests there are defended answers to all questions or that the will not be reasonable disagreement whether will not be unreasonable to screen scrapping to think hamilton was right. I have to think madison was wrong and is a telling quote from madison years later about his arguments that suggests hamilton himself did not believe he was right when he wrote. You can go on to other questions and think in some of those questions are just going to be reasonable people disagree reasonably about the original meaning. Theres a fundamental shift in the 20th century where people are openly contemplating the idea that sure, the text remains at the same but the meaning to change over time. What you do that it entirely open to ones imagination as to what those words mean and what we can have the mean. I give example in the book of Woodrow Wilson who was in favor of what he called the darwinian constitution. But at the same time he argued the president should never pervert statutes to pursue policy in. He seemed to think it was immoral and i point out that once you save the meaning of the constitution can change over time, why would it be the case the president could never quite authority to pervert statutes to ingenious interpretation . I basically kind that wilson was insufficiently wilsonian in his embrace of living constitutionalism which is a more basic claim with respect to progresses more generally. I do think that originalism can be wrong about the original constitution and i think jack is right that president s come some conservative president s have wrapped themselves in the mantle of the founders to make arguments about the original presidency that are wrong. And so that of course is an original argument and is being used in service of an extensive presidency. But i still do believe that that argument can at least be evaluated and maybe it will be hard to evaluate sometimes, maybe it will be less hard to evaluate but they claim at the constitutions mean can and ought to change over time i think what you say that you basically liberating every Single Branch to acquire power including the president. As ive argued, the presidency is best situated to do that. More so than the other institution. Its harder for congress to articulate a theory of congressional power because its hard for them to pass the statute much less an opinion defending the statute. The course as a windows, they opine episodically and fitfully on in the context of real cases. Its true there all kinds of constitutional dispute early on but it dont think thats a field of originalism. In terms of of the threes im dubious, i think is a tremendous scholar. Im a a little dubious of a thy of an originalism theory which says, of the constitution, the constitution has an original meaning by the people get it wrong, the wrongness itself can be treated as if it were right on grounds thats part of the original understanding of the constitution, that is his say, if you get something wrong long enough we ought to continue following. I dont think theres a lot in favor of that. Madison doesnt himself say this. What he says is i think that early practices to liquidate and do a solid understanding of the constitution but will contemplates liquidation event as a practice changes its possible to read madison as saying the new practices are themselves going to be understood at and an original understanding of the constitution. Thats a bridge too far. I dont know if thats a proper reading of madison. I want to get to ask many questions as possible in the remaining ten or so minutes and want to apologize to the audience out there. This is 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. Lets consider this a lightning round, if we can. Ill give you two here, at least one of them you have touched on at least in your most recent remarks. This is from jack, disputes about the extent of president ial power has been going on since at least 1793, as jack says. Does that not destroy the idea there was a coherent consensus due to the nature and extent of executive power at the outset . Another one by samuel. Why originalism . Weve seen original arguments on the right contribute to expand the president ial powers, that the left is selectively and strategically originalism may mean we should abandon originalism, not double down. Both of those questions i think from the main website. Sure. So to take up the question, its a wonderful response. What i would say is that only after a fixed meaning has hope of possibly corralling the presidency. That is to say, originalism probably understood as applied our constitution contemplates the meaning of the constitution is fake and the constitution itself doesnt have its own amendment by informal means. If you are trying to contain the presidency, originalism provides a formula were as once you start with the premise of the meaning of the constitution cant and should change over time, you of course are making it quite possible for the president to change to the office that he is sworn to faithfully execute which effective effectively asn the book renders the oath of clause meaningless. I think originalism holds the promise of containing the presidency in a way the living constitution does not. I think the existence of reasonable disputes about the fringes of executive power does nothing to call into question the idea that originalism solves her answers certain questions. Can the president start a war . I think the originalist and is purely no. John yoo has written an article arguing otherwise when he doesnt have anyone from the founding actual adopting his approach. In the face of quotes from madison, hamilton, George Washington, henry knox, thomas jefferson, theres just no one at the founding who thought the president could start a war because it understood that would mean to declare it. The 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 from the originals point of view. I have one from patrick for either jack or sai. With regard to removal power do you think congress can never permissibly place removal limitations on executive officers . It seems that would be a way to rein in executive power with the necessary and proper clause. Great question. I have written about this but not in this book. It doesnt discuss Removal Authority at all. I think the basic question is, what is the horizontal effect of the sweeping clause, the necessary and proper clause . If you think congress to put a renewable restraint on the president , i think you have to ask what else can congress to to the president and or the courts. My basic view of executive power is fundamentally about the power to execute the law which i believe means the president can control the execution of law by subordinate executive officers and personnel. I would analogize it to giving clause to the clerk of court. Can congress say to the clerk of the court you have protection and you can enter in judgment you want about who won this case without regard to what the judge actually wants . If you think you can do that then you can like wasted with respect to the president. This doesnt seem like an obvious good comparison but judges decide the meaning of the law when they decide cases in my view is the president decides the meaning of the law as a chief executive of executive branch. Its deeply problematic to regard congress is having the authority to impose for cause restrictions on the removal of executive officers. Having said that, the Supreme Court doesnt think i am right and the Supreme Court has endorsed all kinds of for cause protections but have done so in a rather muddled way. Theyve never explained why it would be constitutional for independent prosecutors but not constitutional for the department of commerce. Maybe the court will enlighten us in the months ahead. Question from sam again from the cato site. Could the fact that both houses of congress are really controlled by the opposing parties be part of the problem . At least one chamber of commerce is almost always predispose towards not hamstring president s ability to accomplish his agenda. I think you talked about some of this in the book, sai, the separation of parties, not powers. Well, sam is actually right. I have a section of the book called houses divided. The basic point is that a chamber, a bicameral institution divided bipartisanship and divided into two chambers cant stand up to the present war finds it more difficult. Ask the reader to think about how would Congress Check the present if it were unicameral . It would be easier. It wouldnt be easy necessary because there would be a plural institution with different members pulling in Different Directions but it would be far easier if we had a unicameral Continental Congress as compared to a Bicameral Congress with two chambers. Thats absolutely right. Question from peter out in beaverton oregon. Why has caucus seated so much more to the president . Not only military power but things like trade. Congress has gone along with it, as jack says, the wife hasnt . Basically the problem of delegation and why does it happen . I think with respect war powers the typical story that i agree with is congress as want to be responsible for these earth shattering decisions to send american troops overseas and potentially die in a foreign land. That explains congressional reticence to weigh in on wars. They do want to criticize the president and find that the war is a Great Success or the war is over three days later. That it want to criticize the te president because will 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 story. I dont know enough about the legislative history for trade authority to figure that out, and i suspect its to give the president flexibility with respect to trade. In an era with the thought the president was generally predisposed to more free trade. Trump is the first antifreetrade president weve had in decades, and they gave this authority in the contents without the president would be more willing to lower Tariff Barriers rather than to raise them and develop that 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, i want to thank sai 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 events page to get this book, about which george will says with this exquisitely timed book, he explains how we arrived to retake the executive alliance. I also want to apologize to anyone out there who didnt get their question addressed. We had a lot of them role in and were not 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 webpage tomorrow for anybody who wants to watch. Thanks again to jack and sai, thanks to all of you for tuning in. During this years bay area book festival congresswoman barbara lee of california discussed Voter Suppression with carol anderson. Heres a portion of that talk. The victory all that rained down on obama, the obstruction, the hatred was intense, and you see this policy wide as these republican legislatures and governors are then going after those folks in this community. So just like the mississippi plan, if this one doesnt get him, this one will. Thats right. So weve got the way that gerrymandering works, the way that you will have as you described in black and brown precincts where they will have fewer operational Voting Machines and fewer poll workers so you have lines that will stretch for hours, whereas basically in White Communities get in and get out. And what we know from working class communities, which again demographically, like voters most often are, brown voters most often are, is that what you dont have is the combination of time and money. So when you have to stand in line for five, seven hours to vote, you have lost a day of pay. Okay. Thats a poll tax. To watch the rest of this Program Visit our website booktv. Org. Welcome to the commonwealth club, and george hammond, chair of todays event and im happy to welcome back a. J. Baime. We had him her