Transcripts For CSPAN2 Book Discussion On Emergency Presidential Power 20140215

The National Constitution center as you know is the only institution in the country chartered by congress to disseminate information about the u. S. Constitution on a nonpartisan basis. Those of you that have been to the townhall should be able to recite that Mission Statement with me in unison, and im so proud of the superb programs weve been having over the past couple weeks to fulfill that mission. Just last night an introduction with the university of pennsylvania we had a future panel about the nsa surveillance with peter from the Intelligence Commission and Charlie Savage and anita allen from the university of pennsylvania. March 5 we are going to have our First Partnership with the intelligence squared, a great series where alan hirsch of its of Harvard Law School full of the date whether the president has the Constitutional Authority to target and kill american citizens abroad which is a topic we will be talking about today into Zeke Emmanuel vice provost and my crewmates in philadelphia, welcome to discuss his definitive book on the future of health care reform. I hope to see you at many townhall programs we have coming up. I am especially excited about todays program. Its a great pleasure to welcome you to this program which is presented in conjunction with one book, one philadelphia celebration of the yellow birds. It is a memoir by a veteran of his time in the military and at the National Constitution center we decided to focus on the constitutional dimensions of executive power. I cannot imagine a more timely book than the one we are going to be just the same on the drafting of the constitution by chris is the most precise introduction to this most vexing of all topics that could be imagined. It combines thoughtful commentary that events both sides of these issues with primary sources so you can read the excerpts from the opinion that Robert Jackson conference on the youngstown steel case which achieves a kind of constitutional poetry and at the same time you get professor edelsons for descendents of the position about the importance of the president seeking congressional support which we are going to be discussing extensively today. Let me introduce professor edelson who is an assistant professor in the department in American University before joining the Faculty Practice that employment discrimination law and was the director of the Human Rights Campaign and its a great book was published in the fall and is available in the museum stores. As the professor is responding, we have the world expert on president ial authority and the congress for role in constraining it. I have learned from the fisher many years who is viewed as the master of the field and hes a scholar in residence at the constitution. He worked for four decades at the library of congress as a senior specialist at separation of powers and constitutional law and hes testified before congress more than 50 times on issues such as for power, state privilege and so forth and has written more than 470 scholarly articles and several books. We have invited them separately to the forward on this great book so he wouldnt have to do any extra homework. It was excellent luck. So thank you so much for joining us. I want to jump right in and starting at the time of president obama you described a clash between the two views of executive office and ones you called very clearly the executive unilateral that the president is unconstrained on Foreign Affairs and the other you dont name so i will ask you to come up with a name of the constitutional constraint it says the president really needs congressional support. On the roots of that historic clash. It is a good way to define it. Thank you. So there has been a debate that goes back about the washington presidency when the constitution was being drafted. I think it reflects the completing the use of the constitution themselves. The article confederation failed because it wasnt Strong Enough and that there was no executive branch the constitution learned from experience and they thought this was a failure they have gone too far into the word reluctance to create a monarch in the United States that they also realized we needed somebody that can be somebody in the executive branch and they wanted to make sure the president would have enough of authority including during wartime. We are not creating the king said there has been a debate that has gone on with the constitution was drafted into the way that i look at it is you have to satisfy both of these competing impulses and get the president enough power to deal with emergencies to provide for National Security along with congress but at the same time how do you set limit . Thats a great description. Give us a sense of the historic clashes that shape that debate to issue a neutrality proclamation on his own, and then give us the strongest case for the robust view of the executive power taken by those who say that the president essentially can act without congressional approval. Approval. Approval. The president would need to repel attacks on the congress is not in session so he had a defense of capacity in all of the framers understood the decision to take the country from the state of peace to the state of war was 100 with congress and not only was that the framers viewed, that was the pattern from 1789 to 1950 and for the declaration of war or authorization it was trumans decision against north korea without coming to congress and in the Authority Council just a balance with what chris said on the other side i think that the white eisenhower understood that wasnt just a political mistake and i think it is a sound one the country is safe when the elected branches act safely and that sends a message to the weakest decisions in the any prt goes flying off by himself. Both of you make the point that seem to change for president truman who is now thought of as successful in Foreign Affairs and to push the envelope both in terms of declaring war and inserting the power to seize the steel mills without the approval to position the court rejected. Give us the greatest hits of the unilateralism throughout history. President lincoln did make some bold assertions insult the congressional approval retrospectively. I was living in new york on september 11 i was scared about what happened and i wanted to make sure things would be protected in the United States but i also realize realized its importance are we going to maintain a Constitutional Government and i heard arguments being made for actions like surveillance, torture, complete president ial force which isnt what the constitution provides for and the presiden president d with these actions and people defended would say when kim took unilateral action himself. That is true in recognizing the limits on its power he recognized the rule of law when he took unilateral actions including suspending habeas corpus between philadelphia and washington, ordering a blockade of the south. Im asking the congress to take action to decide what you want. You recognize that some people argue that lincoln was acting based on prerogative to set aside the law or there is a book called constitutional dictatorship where the president can just do what he or she wants. When kim didnt believe that. He was acting in congress placed during a real emergency in the civil war and he went to congress to ask for their approval and so blame game is slated by the people who need broad president ial power that they are missing an important piece which is lincoln recognized he couldnt do what he wanted without congress approval. There were limits of the power. He needed to place the sections in the rule of law. As he did he set all of the laws that wanted to go the union, says in hue is criticized as you say by the chief justice in the case. I was giving as a present to date a copy of the opinion that says printed under the authority of the chief justice, lincoln ignored him and he had to print the thing on his own and was going around washington handing it off to anyone who would Pay Attention because lincoln that he did go to congress and get respect for the rules. This was a personal crusade. He came from a family that believed that the south had the right to secede. He didnt believe in war but they were political rivals. The reason he Gave Authority to the commanding general to suspend habeas corpus was a tangible problem. Washington was in danger of being cut off and virginia secede from the union. There was a lot of sympathy in the south end o and the legislae considered sustaining as well. He needed the troops to get off from the north to washington. They had to get off the train and go to another one and they were met by the processes and a small but who attacked the troops and lincoln said i cant have this canhave this i need to be able to get through and he ordered. John was taken into custody and he managed to get a lawyer for the habeas corpus with the chief justice, his opponent of lincoln, and the opinion basically said the president has no emergency power. Its incredible to read because if you read his opinion you wouldnt know the civil war was going on. He says if this guy was dangerous go through the ordinary court if you can pass the process. It wasnt clear that maryland was a sympathetic place. It wasnt an ordinary situation. So when the decision was coming down, he said i think the president cannot do this alone and needs to get approval from congress but i cannot force them to do this and lincoln didnt follow. It was in his message to congress he made two arguments. First he said the famous wine and i to ignore all of the law but one if hes taking into account he says there was a civil war going on and if they were being ignored him i supposed to enforce this one it wasnt to suspend habeas corpus. Hes saying i have the ability to set aside the law to suspend habeas corpus even if i knew i wouldnt be able to. He sends a message though i do not think that was the case. He makes an interesting argument may be the power to suspend habeas corpus is shared to the president and congress. Whats important about that is he speaking a constitutional argument saying there is an idea arthur listen sure has written about this on the prerogative during an emergency in the executive party they set aside the law i dont think thats what he was doing. The congress ultimately passed the act and 63 and is it your right there is a rebellion going on. As a congressman he passed a resolutiothe resolution and thet comes up with this idea claiming the troops can cross into american territory and lincoln says show me the spot where they cross the border but as the president even if he didnt constitutionalize this provocative for the president to do whatever he wants in emergency was he more pragmatic about the need to take that had very action that may have been a legal . You are correct he says it has been shed on american soil. I dont know where the boundary is. They later tried to find out what the boundary was. So that was the case where the president lied to the country to go to war and i think lincoln was correct. As chris said on the civil war in the 8051 speech, lincoln expressed publicly the deepest understanding of the constitution we have ever had as a president , and that is he told congress, as chris mentioned, but then he said i dont think i asked presidenam as president we constitutional competencies, so he is saying i used article one powers. That is about as honest and straightforward as you can get as a president so that is the greatest crisis that we have ever had in our history. Into thand as the case may seem shocking for the decision for the president to ignore the fact is the person who was in the position to hold the union union together was when ken. It wasnt the chief justice and in fact the chief justice on the decision had to help bring on the civil war so im very sympathetic on what he did and also his attorney general didnt say that when kim could do it. He said whatever president lincoln had was of a restrictive nature and the only branch of government that could do it was congress so during that time they took the constitution seriously. So when kim is the model of the constitutionalist as president. He doesnt say that he can do whatever he liked to get he acknowledges the gaps in his authority but is careful after the fact end justifies them to seek congressional authorizati authorization. Let us contrast with a president whos had transformed the nature of power and that is harry truman. Tell us about trumans decision to issue an executive order. They are much in the news as president obama said hes going to use them more vigorously truman issued an executive order to seize the steel mills and keep them open because the National Security required it. The Supreme Court repudiated him and the famous opinion by Justice Jackson which you quote he identified three categories of power so tell us about those categories are. This goes to the point that you made before about president ial power served to act with congress. Justice jackson makes this point that the essential point is a good one. They happened in the news recently and it is an opportunity to say a little bit about them. An executive order isnt magic its because it doesnt automatically make it okay. There has to be some justification to come from either Constitutional Authority or statutory. President s cant do whatever they want and truman is a good example. Pursuant to the un authorization which cannot trump the constitution so it was an illegitimate war. Truman saw that there was going to be a strike in april of 1952 and truman said i cannot allow this to happen. It will hinder the effort and he issued an executive order offering the secretary of commerce to take control of the steel mills to make sure that it could be produced on the war effort. The steel factories didnt like this and said the president doesnt have the authority to do this and the congress would have the power to take control of the private property for the public purpose as long as they were compensated but the president they argued it could not. The Truman Administration they made a remarkable argument and what they said was we believe president ial emergency power needs during an emergency the president can do whatever he wants to be at hes not constrained by the court. The only limits on the power that a lawyer from the department acknowledged our elections and impeachment. They were taken aback by this and rejected that argument. Members of the public sent letters to the president saying are you saying they dont have the power to limit the president and truman had a statement about this position. He said i think the courts can weigh in but i hope they will accept my position that the president can do whatever he wants. Although three justices did. The court said the president is limited by the constitution and the most important in the case is the most influential one. Justice jackson in little bit under study. I dont think theres been a biography but in his background he was the attorney general in the Roosevelt Administration at the beginning of world war ii he took the lead up to the prosecutor of the war trial and in this decision he said he had been an advisor and acknowledged advisors have to find out what they can do to raise particle questions. He said interpreting the draft is like trying to interpret dreams but he didnt believe that. He said we do know some of the things the drafters intended and one thing is not to create a king into jackson said recent experience tells us we should be careful of dictators and what he said was emergency power once it is accepted can be dangerous. Hitler came to power during a state of emergency he asked the president of the german public to create emergency power on a temporary basis and it lasted indefinitely so jackson said lets be very careful about this. When presiden president claimedy power in a very big term that placed the president above the law and makes the president more like a cane nor dictator and there has to be limits to power and the jacksons of the president are best when president s take action, they should seek congressional approval whenever possible. That doesnt necessarily mean we will always be okay. He dissented in the case a few w years earlier with a Congress Approved executive order that led to the internment of japaneseamericans but he said in order to keep the government under the law to make sure the president isnt under the law should seek approval of the cases that would put the president on the strongest footing and that is when the president is at the weakest power. It is worth quoting on the language the most beautiful writer in the 20th century. Its constitutional poetry and he has three categories we should know within relative to the current debate so here are the executive powers. When a president acts pursuant to be congress has authority is at its maximum. When the president acts in absence of a denial he can only rely upon the independent power but there is a zone of twilight in which they may have come Current Authority and the congress hasnt spoken so the courts are not sure and in the third category whether they take the measures incompatible to be expressed through with congress the power is at the lowest end. So the courts are not going to be for at all and those categories defined the current debate. Take us up to the Bush Administration and the fact after the iran contra, the congressional minority including the congressman dick cheney issued a report repudiating jackson into the fact they had rejected youngstown and the president isnt bound by congress or the courts in exercising executive power and president bush and his lawyers resurrected the theory in defending the right to try suspected terrorists without authorization to engage in wiretapping and so forth and in a scholarly way as possible what the unitary executive theory was during the Bush Administration and the claims in the court. I was on the committee on the house side for seven months i was the chief researcher and wrote a lot of reports and we heard during that time in testimony on iran contra people testified that the president has plenary independent power in Foreign Affairs. I want to Say Something about the case where the theory was shot down in the following fashion that when there is a district court, the attorney for the Justice Department said that the courts may not check president ial actions and said that the president has Inherent Authority and he said about 20 times during his testimony. And after a couple times if not, the district judge asked his attorney if tomorrow president truman ordered you arrested and executed what you have any access to the courts. And that isnt the question that he anticipated so he said there might be some statutory remedies. Can you think of anything and he said he fifth amendment you cannot take life and liberty without the process of the law so by that time the time i gote court to general argued he didnt use inherent one time. There is a difference between an implied power, all three branches have implied powers that are not restricted to everything he can for the Supreme Court to say that but its wrong on that in many things so you have implied powers you have to look at express power and a jaw from it. It is something freefloating that isnt tethered by the constitution or any check and Balance System and the attorneys today doing the reviews will use inflight inherent as a changeable. In flight, consistent with the constitution, inherent power is in the domestic bringing you up to the bush years we have never had a unitary executive at any time. The notion that the president is then in charge of everybody in the executive branch we have never had that model. And the attorney generals starting in 1823 said that if congress assigns a duty to an individual executive branch thats not a political duty and the president cannot control it and they would ask attorneys general can i tell him what to do and the attorneys say you may not. Its been given to that person by congress and so long as that person is carrying out they made the same distinction assigned by congress so we have never had such a system that is totally fabricated and is also totally impractical the notion a president can go into an agency doing some work now thats out. So nevertheless when the concept gets out they have a life of its own and its like dracula you think youve always got it. It is a preposterous notion. We have shown that the president isnt income troll of everybody in the executive branch. Is that regardless of a substantive matter the unitary executive theory didnt do very well the Supreme Court rejected the administration of claim it could detain american citizens without access to lawyers and they could try them without congressional approval an into e administrations lawyers questioned the idea that people could be wiretapped without an appropriate warrant. On the other hand the congress basically gave him everything he wanted so he wouldnt have been more pragmatic to ask for the approval to begin with. If you believe it is necessary, john was a lawyer in the office of th Legal Counsel n the department of justice and his view was congressional approval if it is welcomed but not necessary. He wrote this memo after the september 11 attack she said when it comes to using military force these are for the president alone to make. President alone to make. The logic which we talked about and described quite well is that the congress and the court cannocourtscannot be strained ie Congress Passes a law on what the president defined as executive power they can set it aside so the logic of the theory is due not be for. It is contrary to the case you are talking about. If you have to maybe you will seek congressional approval if you have to if the court issues a decision, but whenever possible, the lawyers in the Bush Administration would try to argue that they preserve the power after jeff mentioned several cases the Supreme Court rejected the idea that the president has the absolute plenary inherent power to simply set aside the law. When the court did this on the one case the Bush Administrations responds was they misread the opinion or changed it and said we are glad the court has recognized the power in this area. The court had not done so. They said the state of war isnt a trick for the presiden check d the checks and balances apply but the Bush Administration because this was driving whenever possible would simply do what they wanted and although there are arguments being made their word limit placed by the court or within the Bush Administration jack was the head of the office of Legal Counsel and when he found out about the Surveillance Program in violation of the criminal law he and several other people whos the head of the fbi. We cannot authorize this. And they were a to get the administration to make some changes. [inaudible] it is like something out of the movie the godfather where marlon brando, hes laying in a hospitahospital and his son gete to make sure that hes okay. He gets there and realizes and grabs another guy he tries to make sure they can scare off the mobsters trying to come his father and he is able to succeed. Fortunately there is no killing going on but there is a similar theme John Ashcroft is thick with pancreatitis and hes in the hospital in washington, d. C. The Bush Administration had been thwarted by the acting attorney general with ashcroft hospitalized he was acting in his play place and he said you t continue this program. The Bush Administration decided the white House Counsel Alberto Gonzales went to ashcrofts hospital bed, they called first and his wife said he cannot see people. Hes in bad shape. They went anyway and they wanted ashcroft to me the sign and as they understood he was incapacitated. They found out about this i thid raced over there and they got their first just like al pacino and they spoke to ashcroft and told him what was comin coming h describes this moment ashcroft was in bad shape and he pulls himself up from the hospital bed and says, some of this is still classified, but ashcroft says this program cannot be reauthorized and in any event im not the attorney general, this man is. Goldsmith thinks he is going to die so it is a standoff and no one knew about this at the time outside the administration if there is a tension in the administration so there are moments like that but one concern i have is was it effective even after this whole standoff the administration did go ahead with this and confirmed on the same course for the next year and a half until it was made publicly and several decisions have a limit with what the president could do. None of it shut down so in some ways there are reasons for the power but other ways im concerned. What brings us to the Obamas Administration . Some of you are filling out the question cards and for those of you that havent we will still collect a few and ask your questions in just a moment. President obama from a former professor comes into office and promises to close guantanamo but as chris describes in the book, not only has guantanamo not closed, but the president takes a more aggressive position on the question of state secrets and the inability of sports to review who is on the list of targeted assassination ban even president bush had. I wan wanted to characterize president obamas vision of power. Im just curious what was the reaction to his pledge to give his executive orders more in the state of the union and is it not a big deal to say that hes going to raise the minimum wage by executive order . When obama ran for the presidency he made it very clear that he was rejecting the theory of the joint administration particularly on the inherent powers. And i think it is true that obama has never used the word in here and that hes talking the same thing. Now just say quickly what george w. Bush did after 9 11 he signed a military order creating military commissions saying that he had the inherent power to do that. And i failed three amicus briefs against the Justice Department because the Justice Department said of course the president has that and it goes back to 1780. How is your sense of history are you going to get cover out of 1780 . There is a trial of a british spy brought before the tribunal and executed. In 1780 there is only one branch of government there is no separate executive branch, totally crazy arguments coming out of the Justice Department and the Supreme Court held you have no inherent power. You have to go to congress for that. So now we have obama coming in teaching constitutional law and the second day in office he signs an executive order to close guantanamo. There should have been some adults in the room to say dont do that. A check with members of congress because once he did that by the great majority of democrats and republicans passed legislation to stop this. So you cant get out and say i can do this by executive order. He makes the claim if the Congress Wont act, i will end its confusing because one thing that he says he is going to do is tell the private contractors to increase the minimum wage. And i think the record probably is that he is not acting on any inherent president ial power. There was a statute passed giving the President Authority that he knows in the state of the Union Address he wants to see if the Congress Wont act i will. Im going to use the Statutory Authority given to me by congress. So i think i dont care who the president is they are on a stronger ground when they talk straight. I think you build up public trust, congressional trust and Confidence Index of the notion that you can be rhetorical and run around the block at different times and then you look for evidence in the not there. You can do through the rhetoric but when you get in the oval office, you have to have some judgments about how your power can be supported working with congress to. If you dont get into this claim i could act unilaterally with the plenary power and nobody can stop the. It backfired on truman and many people. So not enough adults in the administration to know okay we are in power now how can we best use it. You obviously dont the state of the union an union and the bt seems to support the thesis when the president acts in the face of opposition hes at his lowest. Are there other examples from the Bush Administration or the Obama Administration or earlier wherwith the president using executive authority to try to achieve things domestically in the space of congressional opposition . Yes executive orders go all the way back to washington. President s do this all the time. But the key is it has to be rooted in some either constitutional or Statutory Authority. One example of the same statute that we mentioned from 1949 gives the president somehow or though it isnt a very well defined over a federal contractor. We have the authority to increase the efficiency of federal contracting and the economy into the president used that on the basis and president johnson had an executive order 11246 that sets up the action and affordable contracting sub something that has been done but as lou suggests, when a president does this it isnt the last word. If the congress didnt agree with that decision to require action by the federal contractors, they could take action if the court is also waiting obviously. If the congress doesnt like what president obama is suggesting on the return minimum wage they can take action there, too. So it sounds like something that is final but that isnt correct and unless he be leaving this executive that the president can do with the president wants but if you believe they operate in a constitutional system, the president has to identify action and as he points out has to take into account what is Congress Going to do with the president issues in order that the congress doesnt agree with, the president says it will close in Congress Said we arent going to authorize the transfer prisoners to the United States purpose. Its not what it sounds like it was more of a plan to move guantanamo to the United States but if a president wants to take action its important to keep in mind what will the congress do and how can i justify this. One problem you and i were talking about before it is important president obama in the state of the Union Address he was trying to send a message im going to do certain things i will do it alone and work on congress he didnt make it clear how he justifies the authority to a debate could raise the minimum wage and its important to do that. Its other areas they havent been as clear as they should be on the targeted killing list i think you mentioned before. There is going to be a debate about that here. It would be useful for president obama to say here is my i think this is justified. If you were advising president obama about the dangers of executive orders to override what would the best historical example be a president who got him into trouble with facts go back to George Washington and the issue of neutrality proclamation. Not only issues telling everyone there is a war between france and england but then they decided they will prosecute people who violated their proclamation and one of the great things we say they go to the Supreme Court and so forth you have to go in prosecuting someone to have the journalists willing to go along and they said no you are not the king. Maybe the king could do a proclamation and thats the law. But not here. If you want to have a policy with criminal offenses, you need a statute. You need to go to congress and washington got the message and said youre correct in that year later he told congress maybe you can do Something Better and that became the neutrality act so that is a great example thinking he could act in a lot of really take the criminal law. An ordinary journalist told him and instructed him on what the constitution means here in the United States. We have a lot of questions that we do need to talk about president obamas rather robust assertion of the state secret. There are two relevant cases and essentially as you put it they have extended to say that they cannot challenge whether he is on the list of people targeted to be killed because to reveal whether he is on the list would be a state secret immunizing the secret process or any kind of judicial review. The state secret privilege was created by the Supreme Court in the case into what the court said in that case created a dangerous precedent and said that there is a state secret privilege and when the executive asserts it and claims during litigation this classified information we cannot reveal it would undermine the National Security, the court should accept the claim even without the underlining document. It doesnt necessarily have to dismiss the case but it shouldnt require them to take over. In that case the government had made a claim there had been a plane crash and a number of people died including civilians and the military and they filed a lawsuit in pennsylvania and wanted to find out what had happened. They wanted to see the accident report from the witnesses added the government said National Security information. We cant turn it over. The court kind of created it for them and that the court said state secret privilege applies. The case bid to settle but for a lot less money. Decades later it turned out the information was not state secret. It simply showed the government had been negligent. The danger is that its sort of like trumans position that the court didnt have the power to oversee the president. Its kind of an overly deferential when the executive makes a claim of state secret without reviewing the documents which they could do to look at documents without making them available and the court could see is that Sensitive Information or not. The obama and the Bush Administration did this as well which essentially close out the cases. He was a u. S. Citizen and became associated with al qaeda in the Arabian Peninsula as a propaganda because he spoke english as valuable and the government said we think that hes more than just a propagandist we think that hes involved in Planning Operations in the United States but they didnt prove that. They said weve made a determination within the executive branch. He was killed in a drone strike and his 16yearold son weeks later and it still wasnt clear how that happened. The relatives brought a lawsuit claiming this was unconstitutional to kill a citizen without due process and the response first of all was they suggested this in documents that have been released that they have the power to do this on their own but the more immediate concern is fo that cas like this cannot go ahead because it would reveal state secrets. If that position wins it would mean it isnt even decided on the merits. The practice of taking people where they are tortured and there was extraordinary claims. Was dismissed based on the state secret argument. Lots of great questions. What is obamas action on leadership say about his view on executive power and will it have an impact on Foreign Policy . Two years or three years before in libya, president obama goes to the Security Council and get a resolution and claims that it is sufficient authority and obama said this will be a matter of days and it turned out to be seven months and obama said we are there to protect civilians than the mission came along and suddenly we were there to side with the militia and to do a regime change. Obama was inaccurate on what happened in libya so then what he threatened he used military force in this area to send the missiles into damascus. The secretary said sending the missiles in would be unbelievably small. I think if any came into philadelphia or new york city or dc we would say it is an act of war. It was nothing to do with defensive war so was extraordinary they are hearing from constituents and the constituents are not as active as they used to be on the activities may be because of the volunteer army but it was amazing 90, 95 of constituents are telling their members do not support military action in syria, and obama who claimed i have the Constitutional Authority to do this set lets go to the congress for authority. He might have gotten a close vote in the senate. I dont think theres a chance of him getting any support in the house so that was quite a remarkable debate over the scope of president ial power and then as you know he found a way to work to get chemical weapons away from syria that was a close call and obama has never backed away from his claim that he could use military force against other countries under some sort of article commander in chief power it is imaginary on his part. I will say he comes to congress to get Statutory Authority for congress and iraq. So i think that serious was a Great National debate. The constitution doesnt belong just into three branches. This is a popular government in the bear was this strong word from the American Public dont do this. May bmaybe that indicates regardless what the president said with his public opposition into the chance to assert the authority this is on the National Constitution center up to the moment technologically into the question is how can we clarify facts to make it difficult especially because in the context of the war on terror what does that mean . And i think what is problematic and dangerous about that is very as an argument to be made for the president having power during the crisis when there is an emergency and there isnt an opportunity like with lincoln. If you have an ongoing emergency and its the president needs to enhance the power its not an emergency anymore that is just the normal state of affairs and that is dangerous for the constitutional system and the nation as a whole. We are in a constant state of war but it affects some people much more than others. It is a direct and immediate and ongoing thing but for the rest of us it is something that we know about and hear about and i think that is a problem for the country because when the confederation failed it was because there wasnt a Strong Enough country into the constitution created a nation and its difficult if you have only a small part of the country fighting the war that doesnt seem to have an ending point so in clarifying this there can be debates about this and should be. People need to raise these issues if they care about them and there should be questions asked what does it mean to be at work. The authorization for the military force which the congress did pass an authorization after september 11 authorizing the use of military force against al qaeda. When the war in afghanistan and, the president will not have congressional authorization le left. Does this mean that there will be operations going on . Congress should ask these questions and consider how they want to set the terms of president ial power. Can the president continue to act or will there be limits . Does it make sense for the nation to continue the military efforts in definitely . Its a very fascinating. President always seemed to say i have a right to go to war. He said he was asked is this war and he said no and the reporter said is that a Un Police Action fax and then when he was bombing iraq repeatedly coming up some universities on student asked the secretary of state Madeleine Albright how can president clinton go to a war without congressional support and she said you have to be careful with your words. Its military operations. As of this advancing on words is interesting. They seem to know that its for the congress and we will call it anything we want to to make sure it is cold war. Eventually the Truman Administration dean acheson says we know its war. The question is can a president break out of this and any president that rea that would wt for quick think its not a great idea to make these a lot of the assertions because im going to get beaten back by the congress and yet as you described it as thetheykeep asserting the powert on the face of approval. Can you imagine a future president learning the lessons . This is something they got right in the federalist papers they would say you wouldnt need the government, to make sure the government was limited in its power. President tend to want to seek as much power as they can get. This isnt a perfect analogy but i described the president s like a great white shark. The shark will attack and if you go into what her with a wetsuit and surfboard shark might think you were a seal and attack you. The difference is a person whos president cawhosepresident can s and make decisions but what i mean by that is i think the point of having checks and balances and setting limits on power is that the American People have to make sure they are limited and i wouldnt expect the president to do that by themselves so i dont necessarily relwhy dontnecessat they do they recognize when there are constraints on their powers. When obama is thinking about going to the war in syria he said you cant do that. The hope is that the congress does, what the press does to set the limits of the president ial power and if they see that there is a downside or that there will be consequences if they go too far to expand the power to far then they will change how they act in syria is a hopeful time for that