Take it from there trying to field as many of your questions as possible and you can submit those questions through the event page or over twitter or facebook or youtube using the cato events. First our first guest is our author, he is the james munro distinguished professor at the university of virginia as well as a senior fellow for the study of the presidency and hes one of the nations leading constitutional scholars especially with regard to president ial powers in 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 youre probably aware of has seen the executive branch from the inside during a high profile, extremely tense tenure in the Bush Administration office of Legal Counsel during an early. On the war on terror, jack is one of our most thoughtful commentators on the modern presidency in venues like the atlantic on the blog and books like the terror presidency and power in constraint. His latest book also highly recommended is in half a shadow, also the subject for one of the last in person Public Events that we had at cato in early march before the lockdown, jack, thank you for coming back so soon if only virtually. I am also a great admirer of your previous book imperial from the beginning but if you will forgive me for saying so, i think its one of the most this leading the title 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 interworkings from congressional demand for information. When i initially read it i said to myself 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 more a book about what the office, the next step, what the office has become in the vast gulf between comparatively modest office and what the office has become now, and institution with fullspectrum dominance over American Life and law, in telling the story of how he got here, you point to a somewhat counterintuitive corporate, the notion of a living constitution which is something that i think we tend to associate with activist judges and leftleaning scholars, we are also getting people who oppose these features of the socalled imperial presidency, so tell us a story of the new book, why is a living presidency, what is its relationship with the living constitution and how did we get here to the situation that you call a fun house mirror version of the original presidency and can we ever go back . I am absolutely delighted to be with you here today and of course the audience, my connection to cato goes back decades when i was a summer intern in washington and i had the occasion to come to the institutions events including events on farm subsidies and thankfully we finally taken care of the problem, im especially glad to be with you to folks because both the you folks are experts on the modern presidency as well and you have superb books and i recommend them to the audience, there is jeans book, the cult of the presidency and jean max and intermittent intervention max and mine fits in the same genre. I got the book over my solar, operators are standing by, you should definitely get it, i have four points that i want to make today because i want to be brief, the first point, why do progressives favor a living constitution, one that changes with the time but simultaneously lament a living changeable presidency proved we see this phenomenon all the time and liberals and progressives fighting what the founders would say about the modern presidency, we saw this recently with respect to impeachment in progressive siding, james mattis and Alexander Hamilton about what a high crime and misdemeanor is, thats a perfectly fine argument if youre an originalist but a little puzzling if you are not in as jean points out, progressives believe that modern times call for modern updated constitution, with respect to the presidency and i basically use the title living presidency to provoke progressives to make them think of what i think is a contradiction between their professed admiration for a change in constitution, but the 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 rollover Constitutional Rights in the creation and expansion of them changes over time, my second point i want to bring today, living constitutionalism systematically favors the presidency as an institution, it turns out you going to have constitutional change of the informal variety rather than through article five, the presidency is institution best poised to deliver that change, today we expect our president s to articulate constitutional visions, we expect them to be prolife or prochoice or proor antigun or pro orientated affirmative action, proor antiall sorts of things including proor antishut down with respect to covid19. They gratify our desire, they express constitutional vision, they articulate them, defend them and they appoint justices and judges that will carry on the legacy long after they are gone, when we think about the momentous changes in constitutional why law, the new deal we think about the justices but they were agents of franklin roosevelt, not in the sense that he was looking over the shoulder but he picked people have the same constitutional vision that he had of unchecked federal legislative power, my thesis, if your living constitutionalist, your systematically favoring the president in terms of influencing the informal constitutional change and i argue in the book, there is no Single Person who has greater influence over the shape of constitutional law than the presidency. Not even Anthony Kennedy had as much influence as the president can possibly yield, my third point, the balance of political forces, systematically favors the presidency when it comes to constitutional disputes or statutory disputes for that matter, as president s grasp for additional authority, typically to implement their policies or their policy agenda, agendas that are often favored by copartisan, they can relight upon Popular Support by their allies in the public, americans like you and me, if we favor a law and the president diverts funds to build that wall, we are going to find ourselves defending the president s actions in defending their legality with regard to what we really think of our heart of hearts that those actions are legal and if this is especially true when the action is in service of a partisan agenda that the president s copartisan share in congress which is supposed to check the president is not only divided bipartisanship of what i mentioned but its also divided by camberley and that tends to intervene congress because Congress Finds itself trying to stop a unitary executive when it riveted by factions, parties and personality and by two chambers in the presidency is like in a sitting duck aircraft that use moves slowly and ponderous. In that situation the presidency will typically when in my final point, nothing is about the presidency, if you can acquire the power to wage war which is basically to declare it, the presidency over time can acquire legislative authority from express congressional delegations but also through doctrine like the chevron doctrine but creative interpretive interpretations of statute, the president can essentially in some respects bypass the senate check on the treaty power, there is nothing that the president cannot do with respect the metes and bounds of article two, anything that you think is a fundamental feature of article two need not be because with the passage of time in 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 that there is some sort of signal feature of the president today that everyone agrees on but that can be undone in a year or two or perhaps ten years, nothing of article two including the oath, if we can reimagine article two and various ways and we have as a nation, why cant we reimagine or reunderstand the article to president ial oath which reads very specific but its contents can drift over time and be given new meaning by new generations. I will and with those four points, i do in the book with a hopeful note of a bakers dozens of reforms that congress can enact if it wanted to check the presidency, i argue this is the perfect time to do that, why, because we dont know who the next president is going to be a behind the bill of ignorance, members of Congress Might be willing to oppose the current president because theyre worried about what joe biden or Bernie Sanders or one over might do, it tries to end on a hopeful note but again to get the full thrust, you will have to buy the book. Thank you so much. I should say please send those questions and either on the event page moreover twitter, Youtuber Facebook with a cato events. Read a lot of books on president ial powers and this is one of, theres few people more expert, probably no one were expert on the presidency in the original understanding of the constraint on the presidency. I love the book, i learned a lot from it by my boo job is not to praise the book but raise questions and i have four points as well in response to these points that do not match up completely but they do a little bit. The first point, site is right that the arc of president ial power has gone steadily up over time and gone steadily up because president s are in a better initiative, interpret laws and interpret constraints and expand their powers and there is no doubt that i think he is right, the executive branch is ultimately the most consequential interpreter of the constitution when it comes to executive power because it has auto interpretation power and interpret its own powers, it can act on that but the other two branches on the defensive. Here is the undoubted growth of the executive to a place where its completely different than the framers expected but by all three branches of the government. But its been enabled because of that as well. The second point in the book, whether we like it or not, we live under a regime of informal constitutional and legal change that the text of the federal Constitution International law may not change that often. The meanings can and do. This is an accurate statement in the wavy executive power has gone over the centuries, but i want to emphasize this isnt a recent phenomenon. This is the way constitutional interpretation and change happened from the beginning. Critical of executive agreements in the book these are substitutes basically at the statutory authorization to make executive agreements and make executive agreements in the treaty power i think it seems pretty obvious they thought they would have to go through the senate process and two thirds but the first was 1792 that authorized the post office to make agreements for postal mail. Another example is George Washington in 1793 very broad conception of executive power in the european war and claiming the ability to prosecute those who violated the statute even without congressional legislation there was a famous debate between madison and hamilton and that the debate is who knows who one. Everybody has a different view but from the beginning the president was making contest of interpretations of his own power to expand executive power. The third point, i wanted to get out of it is used with a claim. This is accurate for the most part. Most of the 20th century from the beginning of the progressive era throughout the new deal throughout the 50s and marvelous this tease it was progressives and it was progressive thinkers that favored a strong heroic presidency and conservative thinkers who believed in the presidency that was by congress and an intrinsically but i would say the last 40 years has been conservatives there is a range of opinion that is interesting in itself that have embraced broad views in the name. This got going in the 80s aed is fairly its too long of a story to go but it was conservatives rediscovered unitary executive is an understanding as a matter of the original understanding and a very important intervention is when john you mawrote his article explaining s an original matter based on original materials could use military force without congressional authorization. As both bushes under the original is thinking that embraced the executive power to set aside statutory restrictions especially more power but not limited to that. And conservatives it is fair to say who were pushing the doctrine. I think its a mixed story whether it is progressivism that has been the font of the growing executive. If you look at the administration, the power were wielding delegations very aggressively and using the power to enforce or not enforce statutes but the signal position and the administratioin the admh executive principle, the executive power of the is disregarding statutes under the name o of the article too and tt was primarily based on the original understanding so i dont think this is a onesided story. I also commend the attorney generals speech that was grounded in the principal whose famous speech in the last fall which on the basis of the principles contemplated a broader robust executive. My last point is talking about reform. Theres been at the lunch menu of the reforms he proposes and then the three that he thinks are not on the original grounds but to consider in light of executive aggrandize meant. And this raises a larger point and then i will stop. The first thing is some of these proposals suffer from what eric poster calls the outside problem and we can get rid of that. What they basically mean is the reason we got in th into super n right now in terms of massive executive power is the congress has for a variety of reasons become incapable of governing and theyve given away the story and openended delegations across every conceivable topic and the president has been happy to receive those into so there are mechanisms in the pressures that inform why congress has done that so the question once we get to the reform era will we have a congress that proposes to stop delegating executive power and how are we going to have a congress that is going to suggest basically cut the military budget by 75 for the president uses without congressional authorization. Some of the reforms are realistic and some are not based on the premises of the book about congressional abdication of power. The last point is im not even sure are coming and im wondering what side about this, if he got every single one of the reforms set aside as congress stopped delegating power, that would certainly cut back. I question whether given the complexity, congress could actually do that, that we could go back to the old model where they reinforce the law to the extent that ever was the model. But i think with every other reform proposed, even if they were implemented i dont think that it would cut back the executive. Sometimes thicker or thinner margins of the reason we have the powerful presidency some days i like it and some days i dont. The reason we have such a powerful presidency is because our government and our society has grown more complex and they havent been able to deal with those and its not just in the United States with a free country in the world with executive power and it is executive power. I am not sure if the reforms cut back certainly not to 1789. I dont go in think before 1980. This is a truly extraordinary book and i recommend it very highly. I had a couple of questions of my own but that is a lot so why dont we go over the response to those four points. I want to thank you for your comments and certainly agree with the last comment as far as the comments i agree with the first and the fourth he is right that its going to be hard to overcome its tendencies in a book written by a scholar its typically not the way Congress Reforms that solve. Iitself. It takes a mashup of introspection and some cataclysmic event before congress can reform itself. Maybe that is the Trump Administration and its not the book per se. There were disputes about the president ial power in the early years of the administration there were all kinds of years. But from my perspective those were marginal disputes. There was no claim the president could wage war, and i dont think 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, jacks third comment about progressives versus originalists as a sort of modern presidency, i think that hes right there or people who are originalists who think they created a rather strong presidency. I am one of them but i think that it was meant to be limited as well. And my point is the modern presidency is transgressing a lot of those limits. I do briefly talk about whether originalists are faithful when they defend the idea that president can wage a war without congressional authorization that jack is right that most is aimed at progressives and president ial change occurred before the theory of the constitution took root i just think that its an excellent rant to the change. Let me pick up on a couple of those points, particularly number three. The growth of the power has been like many things, a bipartisan mistake with a progressive being more responsible in the early part of the 20th century into the last 40 years of conservatives giving them a run for their money. One thing that occurred to me as i was reading the book was what specifically, why would a living constitutionalist say about the theory, for example a living constitutionalist by definition would have no foundational objection to the constitutional change and the is that right saying that the constitution can, should, and whether we like it or not does involve mean that you are in different that all change is sort of legitimate. The fact of the constitution certainly empowers and puts the executive branch and the vast position to force the end of formal change but you have a couple of flails in the book. One of them is Bruce Ackerman and another is David Strauss. Couldnt they say by their criteria these changes are not legitimate. He has a constitutional moment theory where its like a new deal following the civil rights revolution typically followed and ratified by the historic election. Couldnt ackerman say truman had a war in korea without any congressional authorization was nothing like that. He wasnt vindicated, he left the office deeply unpopular. Maybe David Strauss would say that its mostly focused on charges and commonlaw constitutionalism and mostly incremental and the president launching the war wasnt what i meant at all. So i kind of wonder if you could expand on that and within a related question. Usually you say that there are sort of fair weather living constitutionalist but prepare to original islam when it gets the political results that they wanted there are also fair whether originalists much easi easier. You dont mention any of them by name. It applies different rules for instance some imagine that the founders created a presidency and a Plenary Authority and it seems that a masterpiece of understatement the Federalist Society is not a monolith as its been caricatured. But it seems to be the dominant view is something more like if you look at the panels they have on executive panel with more like john yoo. In my method or my argument as they respond to the question i think its fair and you and jack are pointing out this original is some more. I was thinking in that section and that basically is a section to respond to him. Perhaps more should have been done. I have views on the president ial powers are quite broad what officials involved in that. I think more could have been done. With respect to how the living constitutionalist might respond to a while they are a brilliant, i think that he would say it doesnt need all his criteria for legitimate change, and i think i try to respond to this in the book and my basic point is there are lots of people who believe in the amendments. The professor has a particular theory that have a lot of steps and he is free to say that they do not satisfy the steps. But most dont have such a highly structured or complicated theory they cant rely on the sixth step. You have to do the hard work so if you look at his work overtime, he is finding constitutional amendments over time. That is to say he isnt saying that ive discovered all of the law and article fivnon articled bits of the universe. Hes saying i studied this area and burned they are now constitutional or i studied this area and i think that the area of 1964 is largely constitutional in some respects. So, he is universe of informal constitutional amendments in the criteria is changing over time. 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. Much of his description of the change is a claim that it was even before such informal amendments. So if you look at the discussion of the 17th amendment, he writes as if the idea of the popular elections was before the formal text was enacted so i dont think that he can say no aspects of the living president s or constitutional because they are not judged again. Hby then. He has a role to play for the people to play. Its not just a judge driven. If it is then obviously he is able to get that as a defense thabut i dont think that that s his theory. Thanks for the question. I have another question on trump. It was inevitable when we were getting ready for this i asked everybody of trump had done anything shocking and horrible. You have a description of seems to me perfectly accurate is the way the presidency has amassed power. But it occurred to me as i was reading it that trump hasnt exactly followed in this patte pattern. With regards to the pandemic if you had told me that we were going to suffer and events that would kill many more people than 9 11 and a few more economic damage than the 2008 financial crisis, i would say that there would be a massive accumulation of president ial power, president ial power tends to grow in crisis. And despite these theories of executive power that come out of the coronavirus briefings, total authority over the states and of that sort of thing, where the rubber meets the road you all us dont wanalwaysdont want to usd restrained because it is a virtue that is operating here but i think that you would have expected a tizzy a concentration of power. How do you account for about and whathat andwhat do you think isn from there and with trump and covid19 and perhaps the presidency in general. Guest with respect to trump and covid19, the calling card was going to be the economy and given that she doesnt want to flood the executive power to order shutdowns of states because that would make it harder for him to get reelected so i think that he is furbearing claiming or using executive power principally because he doesnt see that it will help him electorally it but its a d situation where choosing not to do something increases the chances that the state governors or legislatures will keep their economy is going. Its still a bridge too far for the president to claim that he can force the states to allow private businesses to conduct the business so in other words hes not ablhe is not able to fy who will tell him mr. President , youre 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 sees the. In terms of the presidency more generally, this isnt a book about the trump presidency. I didnt want to focus on him, i thought it would be the sorting of the sort of more general thesis of the book. I view it as more of the same. I dont view it as more different or kind. Sometimes prone to making exaggerating claims but that is keeping with his sort of tension for posting. But in terms of the actual claims being made i think you can find similar claims made across the prior two or three administrations. They may be in service of different political and thicker at the same sort of claims. Spending money or reallocating money with respect to the ball has its parallels with respect to propping up obamacare and subsidizing insurance companies. The attacks have their parallel with respect to the war in bolivia. You can go on and on. I think different people complain about different president s. Now its democrats complaining about trump but the sort of actions i do not think are fundamentally different. I just want to say one thing about trump if i could. Following up, i think that trump has been bombastic and his claims about executive power. Hes exercised his powers does not unlawfully. The characteristic access i dont think that he has been as aggressive and unimaginative expanding and manipulating the delegated power as president obama. Hes not engaged in disregarding statues with elaborate and aggressive theories president bush did. He is not followed through on the things he said he would do on the campaign trail so in some sense hes a menacing figure, and i do think that he is for many reasons aimed primarily doing things that are not at the edge of the power there are things that were constrained so that Emergency Powers that is in line with this. My question is executive cover has been growing since the beginning. It took a sharp turn upwards and its been rising ever since and as we discussed this has been a reaction to changes and making it more complex. What is your view you contribute it to the living constitutionalism but its kind of been going on since the beginning so does that mean as a theory it is aligned by history in the way that it should be interpreted or is there a way as you know theyve been trying to reconcile to you think there is a version that can accommodate change through practice . Guest i dont think that hes been as aggressive as some of his critics suggested that its a good thing people are pushed back on claims of executive power because if you dont push back, its an open door if you can push it open him to do almost anything you want so there is a value in people perhaps exaggerating claims that the scope of president ial claims. With respect to the thoughtful question. The scope of the improper claws into the Commerce Clause and how there was a dormant clause there were legal questions. Then the message is horrible and by the end of the process people the message is very different for the original of them was a failure from the beginning so the fact that hamilton and madison disagreed about the president s neutrality proclamation doesnt toomey suggest that its a failure because i dont think that it suggests there are definitive answers to all questions were that there wont be reasonable disagreement or that there wont be reasonable disagreement. I happen to think hamilton was right. People who disagree about the original meaning. I think that there is a fundamental shift in the 20th century where people are openly contemplating the idea that sure the text remains the same, but the meaning not change over time. And once you do that, i think that it is entirely open to ones imagination as to what those words mean. In favor of the constitution at the same time, he argued they should never pursue the policy ends and he seemed to think that 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 never acquire authority to. Conservative president s have wrapped themselves in the founders to make arguments so it isnt an originalist argument and its being used in service of an extensive presidency. But i still do believe that that can at least be evaluated and maybe it will be hard to evaluate, but the claim that it can and ought to change over time i think once you say that you are physically liberating every Single Branch to acquire power and as ive argued the presidency is best situated to do that more so than the other institutions. Its harder for congress to articulate the congressional power because it is hard for them to pass a statute much less an opinion defending the statute and the courts as everyone knows, they opine only in the context of the cases. A. In the constitution it can be treated as if it were right on the grounds of the part of the original understanding of the constitution that is to say if you get something wrong long enough we ought to continue following it. I dont think theres a lot in favor of that. Madison doesnt himself say this. What he says is i think the early practices can liquidate into a solid understanding of the constitution that contemplates liquidation. They are going to be understood as an originalist understanding of the constitution and i think thats a bridge too far. Lets consider this a lightning round one of them you had touched on at least in your recent remarks it disputes the president ial power to act the power of the outset and i will add to that i originalist on, we have seen the arguments on the right, notably chinese contributed to expanding president ial powers that the left is selectively originalist and it may mean that we should band and a return of the semantic double down on both of those questions that were on the main website. Guest to take up the question, i think that is a wonderful response. What i would say is only the theory of the fixed meaning has hope of possibly corralling the presidency. It doesnt have its own amendment by normal means and so if you try to contain the presidency, original is on provides a formula for the meaning of the constitution can and should change over time making it quite possible for the president to change for the office that he is sworn to faithfully execute effectively as they argue in the book renders it meaningless. So it holds the promise of containing the presidency in the way that the constitution does not. Its very similar to jacks question. The existence of the reasonable disputes about the friend is does nothing to call into question the idea that original though some souls or answers to questions and the president start a war. John yoo has written an article otherwise, but he doesnt have anyone from the founding actually adopting this approach. In the face of the quotes from madison, hamilton, George Washington, Thomas Jefferson the understood the need to declare it so there are difficult questions with respect to the power like difficult questions to the scope of legislative power. The. The do you think that congress can ever place the removal limitations on executive officers to rein in executive power in the necessary and proper clause . That is a great question. Ive written about it but not in this book. It doesnt discuss the removal of authority at all. What is the horizontal effect of the clause in the necessary and proper clause and if you think the congress can put a restraint on the president , i think that you have to ask what else can congress do to the president and or the courts. My view of executive power is about the power to execute the law that i believe means the president can control the execution by executive officers and personnel. But to analyze analyze it, can congress say to the clerk of the court you will have the protection and you can enter any judgment you want about who won the case without regards to what the judge actually wants and if you can do that then you can deal with respect of the president. This doesnt seem like an obvious good comparison, but the judges decide the meaning of the law is the chief executive i think that its deeply problematic to regard congress as having the authority to impose for cause restrictions on the removal of executive officers. Having said that, the Supreme Court doesnt think that im right and theyve endorsed all kinds of protections. But theyve done so in a rather muddled way. They never explained why it would be constitutional but not for the department of commerce. Maybe the court will enlighten us in the months to come. Host question from sam to the cato site, would it be part of the problem at least one favorite of congress is almost always predisposed to the ability to give basically built upon lincolns point and the basic point is a bicameral institution divided by a partisanship and into two chambers cant stand up to the president or finds them more difficult and i ask the reader to think about how would the congresss ability to check be different, and i think the answer visit would be easier. It wouldnt be easy necessarily because it would be a portal institution with the members pulling in Different Directions but it would be easier if we had a Continental Congress as compared to a Bicameral Congress with two chambers that is absolutely right. A question from peter why have they seen so much power not only military power, but things like trade. Congress has gotten along with it but why basically the problem of delegation and why does it happen. The congress doesnt want to be responsible for these earth shattering decisions to send troops overseas and that explains the congressional residents to weigh in on the war they dont want to find out that its a Great Success over three days later and they dont want to criticize the president because it would often be construed as criticizing the troops. Troops. Why are you criticizing 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 that its to give flexibility with respect to trade in the era when they thought the president was generally predisposed to more free trade. Trump is the first that we have had in decades, and they gave this authority and they found out that this president doesnt have that sort of policy preference but im not sure that even i know the reason why. I think that is about all the time that we have. I want to thank you for participating and recommend that everybody go out and get a copy of the limited presidency. There is a link on the events page about which george will says with this book that explains how we arrived at todays need for the executive. I also want to apologize to anyone out there who didnt get their question addressed a. But please participate in the future and the video recordings will be available on the webpage tomorrow for anybody that wants to watch. Thanks again to all of you for tuning in. The brad meltzer with artifacts associated with the revolutionary wa war general ina thriller. He speaks at barnes and noble in virginia. [applause]
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