Not highlighted on your map, but it is building number 30. It is very easy. Battlefield tours this afternoon i know your schedule says that we will depart at 2 15. Dont worry, we will likely hold the buses until 2 30. Keep that in mind. Also note that we are loading the buses behind us, a little different from previous years. You will not be able to miss it. We have seven charter coaches waiting for you back there at 2 30. You will return to campus around 5 30. Anyone who is a participant in one of the diamonds, there are about 40 of you, we will be directing you to dinner from a slightly different doorway. You will see stuff, we will grab you, and they lead you to the dining hall. Keep that in mind. I believe that is everything for me. Enjoy your lunch. Thank you for the attention. We will come back to Gettysburg College for more of the conference on the end of the civil war at 1 00 eastern. During the lunch break, we will hear a discussion called how president s interpreted the constitution. Then, we will come back to the conference for a discussion of the medical crisis. American history tv, harold bru ff. He examines and contrast how president s interpreted the constitution while in office. This is hosted by the National Constitutional center. This event is about 50 minutes. It is my great pleasure to introduce harold bruff. You are in luck because these are scholars are as good as they come. Harold bruff served on the law faculties of Arizona State university, university of texas, and Gw Law School where he left the year before i came. We just missed each other. Im so glad, we have you in person. It is so great to welcome you. He has been a senior attorney in the u. S. Department of justice. You know the olc that provides constitutional advice to the president , the most important constitutional body in the Justice Department. He testified before congress and he is here today to discuss his new book untrodden ground how president s interpret the constitution. And as our moderator, it is a thrill to welcome my old friend peter spiro. He is the Charles Weiner chair in International Law at temple universitys Beasley School of law. He was rusk professor at the university of georgia law school. He is a former law clerk to david souter. He specializes in International Immigration and constitutional law and is the author of beyond citizenship, american identity after globalization. Join me in welcoming harold bruff and peter spiro. [applause] peter thanks, jeff, very much for that gracious introduction. It is really a thrill to have jeff here doing so many wonderful things at the National Constitution center. It really is a huge asset to philadelphia. Thanks also to all of you for coming today. It is really a delight and a pleasure to engage mry old friend hal bruff in a conversation about his very excellent book, which is a real tour de force. I should mention before i forget that hal will be doing a book signing downstairs after our conversation, but hal and i go way back. He was a mentor to me when i was starting out studying the things he is one of the real leaders in constitutional law. In the field. So, we are going to have a conversation. Then ill prompt hal with some questions, and then we will take some questions from the audience. And so, looking forward to a really terrific hour with you. So, the first question for hal really is, for you, is why you wrote this book. The conventional understanding of constitutional law is that its responsibility of the courts to tell us what the law is. What room is there to talk about president s and their interpretation of the constitution . Hal thank you all for coming. No audience, no talk, no book sales. Jeff was talking about the Supreme Court. Its enough of that, ok . We are not going to talk about the Supreme Court in this hour. If you have a system of three separated branches, each of them will interpret the constitution for itself every day. I knew that for years working on these issues. What struck me about executive interpretation as i want to look is no matter how many lawyers there were advising president s the way president s interpret the constitution is very personal to them. If flows out of their personality, the events of the day, and it proceeds from their overall view of the constitution and works down from that towards particular issues. So, what really matters in president ial interpretation of the constitution is the president himself or herself. And thats what drives it. The book is about that. Peter so the book goes through the full horizon of American History and how each of the president s approached constitutional interpretation. What role does personality play in constitutional interpretation, and you give us and can you give us some examples . Is there a difference between being a good president and being a good president constitutionally speaking, or are the two coextensive . Hal i think there is a great deal of overlap between being a good president and being a good president ial constitutional interpreter. Largely because when you reach this level, the boundary between politics and law becomes indistinct. What the greatest president s have done is to reconstitute american politics. With it, they hauled our views of the constitution along. Jefferson did that, jackson, lincoln, fdr, reagan. So, president ial Political Action is eventually constitutional change. That means the one to have been effective at the one have been effective at the other. And those who have not been effective as president s have typically had low impact on constitutional law. Some from time to time. But not as much. Peter so, is there a difference between long politics . So, the line is not as distinct as you have with judicial institutions, but are there some things where the president s are clearly engaging in constitutional interpretation an d other areas where it is just politics and how3 do the two sort of intersect . Hal the boundaries a pretty clear. Some things are daily politics is some things are technical constitutional interpretation. What president s do is they look at the constitution. Is they are very interested in what the president s their predecessors have done. Those are the only people ever sat in that seat. What the Supreme Court has said. They want to fit themselves into the tradition. This means that when president s interpret the constitution for lawyers in the room, it is like generation of the common law. That is customs starts to build, precedent starts to build. Pretty soon we start thinking, this is no longer just a custom. It is constitutional law. An example wellknown to peter is that early president s started the precedent of deciding who is the correct governmental foreign power. There is nothing in the constitution on this. So, when we recognize a new government after a revolution, that is a president ial action because George Washington started doing that, and president s have occupied that constitutional ground. Peter you have other examples some of them are historically prominent, i guess, when it comes to issues such as war power and other National Security questions. Others are nonobvious, but very interesting demonstrations of the role president s play in constitutional interpretation. So, issues relating to president ial succession, veto power, the power to appoint and remove executive branch officials. These are fascinating samples, even though they are not the headliners. Hal let me mention a couple of them. President ial succession. When the first president ial to die in office did, William Henry harrison, john tyler came in and took the oath of office. The question was was he acting president or was he president . If you are acting anything, you do not have much power. So tyler said, the constitution does not say, so i am the president. He took the oath, he made congress and the executive branch believe him. And now he insisted basically. Now everybody thinks of the president dies, the next person is president right then. You have to take the oath. So, that is a precedent that stuck. What was the second one . Peter veto power. Hal the early president s, the founding generation that you see all around this national park, thought the veto should be used only for statuestes that were on constitutional. Andy jackson said i will veto anything i do not like. The vetoed the bill to reconstitute the national bank. Here is the conjunction of long politics. He was democratizing the country. And having a president ial field veto that could stop congress for political reasons was a real empowerment of the president. That view is the one we have today. The president can veto a bill for any reason he or she cares to. So there again, it is simply a change in practice that is hardened into constitutional law. Peter then with respect to the appointment and removal of executive branch officials, i know that the founding there was a question about whether the attorney general was going to be really on the president s side or whether she was going to occupy some sort of intermediate space between the presidency and the legislative branch. Hal and George Washington decided how that should be done. The statute creating the attorney general is the one that created the Supreme Court. It simply said there should be appointed an attorney general. It did not say who would do it. Washington said that would be me. He appointed his personal attorney. Many president s have done that. The attorney general moved close to the president , because of this practice. The attorney general has been at the president s side ever sense. This mean the president ge ts sympathetic legal advice from somebodyts who could have been a semiautonomous judge within the executive branch sort of thing. You know what wouldve happened . President s would have found somebody else to ask. Peter on some of these things from our perspective, it looks like that is the way it has to be. I guess the press the president seems to line up with what makes sense. It did not necessarily have to end up that way. Are there precedents, are there episodes in which president s have tried to establish precedents that did not stick . Are there some practices that had to be circumvented to other practices . Hal the most famous example ever of a practice that did not stick was the Court Packing attempt by fdr. There is one that demonstrates one of the real chekcs cks on president ial interpretation. He thought he could transform the Supreme Court in short order. Both parties rose up against it. The people do not like it, either. Subsequent president s have not thought that was a road they could go down. Earlier president s have added one here or there. It was a practice that ended with fdrs mistakes. Overreaching is the thing to be avoided there. Peter so, just taking the proposition on its face that president s can engage in constitutional interpretation does raise the question of what does constrain them in the way t hey interpret the constitution. It is not just something they can do unilaterally. So, what are some of the mechanisms by which they are brought in to check . Hal it is really a question of anticipated reaction. That is, president s will have referred interpretations referred interpretations they would like to run with. If they have any sense, they are thinking carefully about what the reactions will be in congress, in the courts, if it is the kind of issue the courts will take on, among the people. And its that political construct that also constrains constitutional development. And i think in a way that is very good news because the whole system is moving along in this precedential way, and it is a way we update our constitution. We cannot really amend it with any ease. It takes 3 4 of the states. That is one reason why the Supreme Court is so active. You cannot change the text ever. You need some sort of bipartisan thing like should 18yearolds vote . Peter that points to your rejection to originalist approach is to the constitution. There are many who believe that all we need to get our constitutional answers is the text of the constitution itself and implicitly exquisitely reject that method of interpretation. Maybe you can elaborate on it. Hal although, after this talk i am going to go down and get among the statutes of the framers and see if peter the peter the oracle. Hal sometimes i think i can hear them anyway. But one of things that both madison and hamilton said in the federalist papers is to see how this new construct is going to work, we have to work it for a while. We have to run the machine. Then we will know how it works out. So, they thought we would have to adapt to this thing they had built, that they could only imperfectly predict. And generally teaching constitutional law, i do not like original sin because i do not think we can go back. And i will tell you, my book demonstrates beyond all doubt, that president s are not originalists. They, when they can will cite, the framers and so on. They are very interested in the predecessors in office. They are interested in what its become. They use mostly strategically things that were said at the time. Lincoln did a lot of this. Reach right past this to the declaration of independence. Lincoln did that because they were such defects in the original constitution which he was having a war over. He wanted to go back to the founding values of liberty and equality. President s who reconstruct american politics and affect the constitution very often reach way back to what they sell to the people as original values. Ronald reagan is probably the most recent president who has done that effectively. Again, they look back to basic values but not technical originalists. Peter so, theres a kind of moral perspective that comes into play . Or is it a story of continuity and legitimation that president s turn to in basically selling what they are doing today . Or it just a fine with they are doing today . Hal yes. I think that Teddy Roosevelts bully pupllpit notion undersells it. I do not think the moral dimension of the office can ever be separated from it in terms of effectiveness and of constitutional development. I think of both lincoln with his greatness of bringing the country to a new birht ofth of freedom, and to the president s before and after who lacked any kind of moral vision because they both saw the country as it had been in 1840 and wanted in many ways to head there. So, vision for the United States looks back for basics values and forward to what the country is supposed to be. That is what is affected. That plus pragmatism on means. To be effective as a president has to be willing to find a way through. Peter we can name some names. Best president s from this perspective . Maybe those who were some that were more flawed in examples on how their interpretation of the constitution did not fly or was misdirected . Hal as i researched this book what i wanted to do was to look back at the history. I did that. It took a liong time. Instead of imposing a theory on history. As i went along, some people surprised me. I had revered lincoln. This only deepened because i saw fact hungering us. President s who lose touch with those become far less effective. A great difficulty george w. Bush had was he was not as interested in the facts on the ground in say the middle east as he should have been. Fact hungriness matters a lot. Rigidity and means. Woodrow wilson lost a lot of effectiveness because he just did not have the kind of subtlety about working his program through that lincoln had superbly, that a Ronald Reagan did well. So, it is along these kinds of lines that they develop. I wound up liking wilson a good bit less. I wound up admiring Lyndon Johnson for histamine stick side his domestic side. He brought the civil rights bill through, knowing it would impact his party. He thought it was the right thing to do. His tragedy in vietnam wrecked his reputation but there is a side of it that should be alive. Peter so, lincoln, he may have been very careful with the facts but he was also, of course somebody who could put expository eloquence to work. I found very interesting a phrase that you use that he used with respect to this kind of practice, precedential, this continuity to the founders. The mystic chords of memory, which i thought very powerful. Encapsulation of what you are talking about here. At the same time, you also have a label for this interpretation by the president s of departmental is him. I wonder if you could sort of elaborate on those two strands and what they reflect. Hal departmentalism is a term i would never use in the book unless everyone else was using it. All it means is the phenomenon that each of the three branches interprets the constitution in its own way reflecting its function. The courts are different from the executive branch. Departmentalism, each of the three branches looks at it different. So i thread that through because im looking at one of these threads. The mystic chords of memory is intrinsic to the way the executive branch does it because you have a string of single individuals at the apex who can try to relate in as systematic fashion as the politics allowed to everything that has gone before. What strikes me very much reading about all the president s, everybody down to barack obama is like this, they are forever talking about what their predecessors have done. They are deeply interested in their legacy, and they tried to connect it up to the grander figures of the past. Nobody is looking to be the next buchanan. [laughter] some of them are really mystic because they are in avlues and visions for the country and values. Peter maybe bringing the story closer to the present day, how would you compare the personalities, the styles of of george w. Bush and barack obama in terms of their, their approach to constitutional interpretation, and which of t heir predecessors to they most resemble in their constitutional style . Hal how are they like and who are they like and unlike . Start with barack obama. I think the highest compliment i can give him, the one he would like most, is i do consider them to be fact hungry like lincoln. This was a problem for George W Bush who was much more valuebased. Both of them have had difficulties that come from parts of the package that are not there. For barack obama, someone that read the book, said to me, it looks to me practically as though maybe he is a bit too much of a. Professor so, i said, that is exactly right. That is the problem. He is too much a of a professor. He is explaining things the way i might. Not the way Ronald Reagan would. For obama, he is not have an overarching vision as a reconstructed president. Modern politics have made that difficult in ways we all know. He reminds me a little bit of george h. W. Bush in a sense, he has run a competent presidency but without the vision overlay that you would want if you really want readch. For george w. Bush, he wanted to be Ronald Reagan with his values. I do not think his vision sold as well as reagans had. He reminds me a little bit of Woodrow Wilson in the downside way, who was i think a little bit too rigid, especially in the early years. He loosened up and got better in a lot of ways in his second term. But these guys, you can see amalgams of their predecessors. It is never an exact fit. They will have a little bit of this one or that one. I invite readers to make their own Club Sandwiches out of these guys. [laughter] peter of course, one thing that both of them faced but now particularly president obama is a context in which there is fullout political gridlock, in which there is very little cooperation of any description between the executive and legislative branches. How does that effect this exercise in constitutional interpretation from the perspective of the presidency . Hal what is has done, i think for anybody who might be in the white house right now, i think this will be true in january 2017, because i think the redblue split is going to continue, and the sender does not seem to be anywhere to be seen. What it means is they will have to do a lot of going it alone. And the way barack obama is doing that is very likely the way that mitt romney would be doing it if he had been elected instead. Domestic side. Obama is issuing executive orders in what i call the twilight zone, areas where a statute does not clearly say he may act or not. The immigration one is a good example. It is in an area where there is some authority. You have to decide whom to deport. There are undocumented people in 11 million the country and there is money to deport 400,000 every year. Do the math. Figure out who youre going to deport. Obama said we were going to keep the student and send the felons and we will tell people they can stay a while. This in the twilight zone. The statutes did not say clearly yes or no. It is in the courts. I think obama should prevail. Notice, what he cannot do is simply go to congress and say, ok, ready now. Lets do an immigration statute. He harkens me back, it looks like he got bitten by teddy roosevelt, because tr was completely blocked on his conservation agenda, so what he did was issue executive orders in areas were statutes gave him just enough authority to do things like preserving the grand canyon. It is not something he has a right to keep them out of. They can insist on participation. They are doing it, but i like buy in with congress on any major foreignpolicy initiative. That points to another important check on president ial overreaches that congress has the tools to check the president , in particular episodes at particular practices, but it has to step to the plate and do something, otherwise, does it tend to be a question of congressional acquiescence to particular policies . Yes and the hard part is knowing, when you have acquiescence that you think is genuine. The best current example. The whole set of current commander in chief initiatives. Commander in chief initiatives. In the middle east, fighting isis and so on. These are matters that are being done under the authority of two things. The authorization of force following 9 11. The other is the 2003 authorization against iraq. Isis, for example, might be kissing cousins to al qaeda, but that is as close as they are. We need renewed authority on that. Obama has asked for that in congress is thinking it over in the most extended way and showing no movement. I think that they need to get aboard and set a limit for things, but that is difficult for them. And many cases like that they would simply acquiesce in a way that doesnt make them feel very good about them or help the president much either. Foreign affairs has historically been an area with a lot of president ial interpretation because the courts have been very reticent in stepping in with their own constitutional views. Has that gotten better, or worse . Are there things about our current global context that tend to enable president s and maybe even create conditions in which president s can engage in a type of constitutional adventurism . I think that this is very much a feature of the gridlock problem. That congressional oversight is not nearly as effective as it has been over the generations, where congress would engage or provide Statutory Authority or withdraw some. Now, it is mostly a finding tool. Funding tool. On the adventurism, we have more the war by machines. Drones, cyber warfare, all of these sorts of things that we have not thought through. Obama has been experimenting. George w. Bush experimented before hand. And, for me at least, the real concern is this. It is difficult for congress to check the president. In the Foreign Affairs, it is difficult for the courts to check him. For me, the real concern is this. I am concerned about whether the presidency is out of control of the president s themselves. That is, we have a giant secret, National Security bureaucracy. Part of it is privatized. Part of it is cia, nsa. The president struggles to hold command of it and there are signs every now and again that it is slipping away. I think for one set of hands to hold fast control of this is a challenge for our time. And so, you and end the book on a hopeful note. Why should we be hopeful, given these conditions on the ground that seem to dilute the checks we see in history that you describe . We are all weve got. [laughter] ok. And the president is what we have got. The system is working along in what seems to me an acceptably fair way most of the time the checks work, not only all that always all that well but we look at the whole course of things and the machine is working along. As we start to enter into the electoral season, is there a way that we can put your lens to work in assessing candidates for the presidency . To what extent does the office make the person rather than the other way around . The office will change the next president , fairly immediately. Very importantly. If you look at the last five to 10 electoral campaigns, compare them to what then were the issues of the presidency in question, the disjoint is going to be fairly considerable. What i look for are those questions of personal character that i am hoping for. A vision of the country that is clearly communicated that it looks as though the majority of the people will endorse, those political skills to make that move along and i am a lot more interested in that than a position on a minor policy question. It is those questions of character and value that have mattered the whole time. It always should matter. It is the genius of the american modern political system to obscure all that from us. [laughter] at least if you live in colorado where there will be attack ads from here to the election because we are a purple state. We have to work through that. As best we can. Great. We have some excellent questions here from the audience. Maybe we can move to them. First up, we have a question president ial interpretation always tends to enhance president ial and federal power. Should congress and the courts do more active controlling of this tendency . There is an interesting trend in the Supreme Court to try to control president ial interpretation, including in the sphere of Foreign Affairs. Even though you have president s that go all the way back to the Washington Administration where it has been generally understood that this is the president s power, that question is now presented before the court. How would the court use that historical precedent in reaching its determination, and should it Police History in that sense . Very good question. For the court, let me start with the front of the question. President s certainly has an incentive to aggrandize and increase their power. This is self interested interpretation. The nature of the constraints of the job make president s want to reach as much power as they can because they are so where are the constraints they see around them. So they tend to be pushing forward. The court, as we mentioned, is pushing back. For federalism questions, most president s will not be unduly sensitive to that. Although occasional ones are jefferson, jackson, reagan and so on. It will happen but you need someone with a certain conservative mind cast to do that. The Supreme Court has been active in that realm. Pretty much more against congress than the executive. The jerusalem case mentioned is where they may wield president ial power a little, but most of the courts granting federalism has been through the regional statutes. I am pretty sure they will keep doing that. A very interesting case from last years term of the spring court in which the court addressed the question that before the decision had pretty much addressed only through practice, that is the recess appointments. And the courts made very interesting use of history in that decision. It is a 54 decision that demonstrates you can get anywhere you want to get with history. [laughter] you can make a good historical case for either side. The one thing that it does, is to make it almost impossible for recess appointments to happen a anytime in the immediate future. It is one of those cases where the practice can go on for centuries. Without the courts ever touching it. Finally the case at just the right posture to come through. A question on bill clinton. You skipped over bill clinton. Anything to say about his approach . He is an interesting soul now isnt he . It took him a long time to learn. Mice have had on the start of his my subhead on the start of his presidency was in over his head. He lost a big election two years in, much as obama did. Clinton is such a natural politician that he learned the leverage of power. His constitutional interpretations were in Foreign Policy. Im thinking of kosovo and things like that. Most of these democratic president s have been quite aggressive in projection of American Power. In part for humanitarian interests, which is kind of new. For the most part president s have rejected American Power to protect american citizens and american interests. In helping people like former yugoslavia is not something we have done a great deal of. That was an interesting move. I think it was ford. He turns out to have developed along those lines. So, on that point, it is the case that both president clinton and president obama have been very aggressive in interpreting the war powers resolution to create exceptions. In both cases they were faced with Ongoing Military Operations that lasted for longer than 60 days without express congressional approval, so they then should have terminated those operations. President obama, more recently with libya and president clinton with kosovo. Any thoughts on that . Does that show that there are limits on how congress can check president s in the context of war power and National Security . I think if i had finished writing the book last week instead of late 2013, i might have modified some of the things i said about war powers. Basically, the war powers Resolution Says if the president is using the troops in hostilities, he has 60 days to get it done, get the troops out or get authorization. The book says that his is constitutional. It is a deadline that congress can do. It has worked a lot of the time until bill clinton went over the period and congress rumbled and grumbled and eventually gave authorization late. Bill clinton went over the period in libya. Nothing happened. Now with isis, he is reaching way back to those earlier authorizations i mentioned to find an authority hook. To put it in lbjs terms, it is getting thinner than grandmas nightgown. [laughter] the authority is very weak. But congress, which has been asked, has not been willing to step up and do something. It puts the president s in a bad position. At the same time, the public doesnt seem very agitated. You speak of political ratification, in effect, by the electorate. How does that play into these kinds of questions . A sense that the public seems to acquiesce to the action . If you ask me the greatest change to the text of the original constitution, it is to grab a great deal of the war power away from what the framers thought was a congressional center of gravity. The commander in chief power has come to dominate it in many ways. That accreted slowly. A lot of it came through the late 19th century adventures in latin america and other places. And i think americans have become used to the idea that the president will move the troops and do more like activity warlike activities without immediate preauthorization from congress. William howard taft may have put it best. He said, i can send in the marines by myself, but it Takes Congress to send in the army. What he meant was, i can do a military strike, but if i want to occupy somebody, congress has to do it. There is a practical, legal line there somewhere. Nobody is sure where it is. It has moved way toward the presidency in modern years. You can almost draw a line between real war, which requires congressional approval and for which president s have almost always secured approval, korea being the exception, as opposed to these other smaller scale operations, of which there are hundreds by some counts. Does that line work pretty well by way of identifying the line in the precedent itself . As i finished the manuscript, i thought it was working pretty well. The difference between a strike and a war that needs authorization lies in the scale and expected response and so on, korea is the outlier. That is a precedent that failed. Harry didnt ask for authorization because he did not want to constrain future president s. The lesson that has come down, is that was a big mistake for him. He would have done much better had he got congress on board. Dwight eisenhower came in and said he was over the line. It was unconstitutional. He had to go to congress. Occasionally they take a step that has to be stepped back from. When we did the two gulf wars, there were prior authorizations. Both times, dick cheney said, we dont need it. We have a very informed audience today. We have two questions that any student of Foreign Relations law would pair together. One is, is the truman u. S. Steel case an example of overreach of president s in interpreting the constitution . And another question, can you comment on the United States versus Curtiss Wright export operation and its influence on the law and Foreign Policy in relation to president ial power . These are two favorite opinions. Indeed. In 1952, there is a steel strike. Harry truman issues an executive order that seizes the steel mills and puts them under government control. The injunction is successful and harry has to give back the steel. The case is nothing but good for the way the government works. Because those of us who work in the Justice Department know, the point of the steel seizure case is that when a president contravenes a statute, the courts will stop him. I think it was correctly decided. So the steel seizure principle is, you can stretch Statutory Authority, but dont defy it. That is very important in the executive branch on a daytoday basis. Yes sir, you can go here. No sir, dont go there. For example, the immigration order that obama issued left out a category that he had been considering because congress thought there was not authority and i think that was right. Curtiss wright is the favorite hymn of the executive branch when it comes to extremist assertions of power. Because the Supreme Court, in deciding a case that wasnt important, said a lot of things about how the president is the sole organ of the nation in Foreign Policy, and has exclusive power. Suggesting that congress could not control the president. It has nothing to do with the decision of the case. It is really stupid, in terms of how the country can work well. You dont need the president running rampant. If Congress Tries to control him, they ordinarily should be able to do so. It is hard enough to do that anyway. Curtiss wright is like a scoundrel in Foreign Affairs dialogue. The old line is Curtiss Wright so i am right. Which plays out in the litigation. All president s will cite the case because it serves their interests. It is not curtiss wrong. [laughter] while some have been disappointed with president obama, because while it seems that he has put the Bush Administration interpretations to work, maybe a few words about the continuities between the two administrations. With respect to some of these. It was very interesting in 2009, my book section is titled plus la change. The old french proverb. The more things change, the more they stay the same. It shows something you see all the time, which is that president s who want to get an office are much more likely to be continuous than discontinuous with what president s have done if the actions were, as the new president perceives, in the general interest of the United States. Obama wanted to close guantanamo. Which had a terrible odor by then anyway. He did constrain further some of the interrogation techniques that the Bush Administration had already itself started to limit. A lot of it stayed the same. The terrorists remained held over the years, because it was in the interest of the United States to do that. The other thing is, there was a question among many democrats, as obama came in, will they be prosecuting all kinds of people who did harsh things during the terrorist years . Obama said, lets move on. He was being very typical. He was much more interested in what he wanted to do, than in making new enemies by prosecuting what had gone before. That is the way most of them are most of the time. This becomes a way of identifying what the law is, as it has evolved through president ial interpretation. You may have excesses of one administration, and something that comes closer to the mean in subsequent administrations. Has that become another kind of check . The check of subsequent interpretation and practice . Yes and as you know many have commented on this. The bushobama situation. Right after 9 11, we had a strong response that things needed to be sorted out. By the second bush and administration, we were much calmer about things. Then you have kind of a new baseline. You are getting a precedent that is settling over time. That is normal as well. You are somebody who served in the office of Legal Counsel. Maybe a few words from you about how this use of how president ial interpretation is put to work in an everyday kind of way. The office of Legal Counsel does legal opinions to the president on things like the immigration executive order and so on. The iranian executive agreement has been lawyered up. What you do there is you combine normal lawyer sources lets throw in Curtiss Wright. We are done with that and can move on to actual things. You look at the statutory pattern and you ask where is authority and where is it denied and where is the path through. Youre very interested, as the president will be, in what prior president s have done. What you really like is Something Like what the current president is proposing has been done before by president s of both parties, then you are pretty happy. It doesnt look like a partisan move of some kind, it is just a president ial practice. Youre trying to hook it to the history as much as you can. So you end up with an opinion that looks like a judicial decision citing historical president s and prior president ial interpretations on most in the way that the Supreme Court would site its own president precedent . Exactly. If any of you have seen, youll notice that. During the bush of ministration one that caused a lot of trouble, the memos were not balanced. They did not look what to see did not look to see what the arguments were against what the president wanted to do. The president s final in those situations and he or she must be well advised, including where the perils are. You can try this, but here are the arguments against it. There are ways to steer president by saying, well, you can do this, Richard Nixon tried it. [laughter] it didnt work very well. You will be understood on the other end of the megaphone. [laughter] along the lines of an earlier observation, president s are reaching back. President bush did that with his post9 11 actions inciting in citing lincoln and what he did so it is a demonstration of this natural tendency to cite the greats and it also shows how history becomes a part of this picture and something that the president s look to and it constrains them today. It constrains them and it comforts them. Bush read Something Like 16 biographies of lincoln, he said at one point. Obama has read a lot of this stuff. They do this because it lets them reach back for inspiration and gives them a sense for this terrible pressure that they are under that has been shared by these other people and they got through it somehow, maybe i can, too. I think there is that. Great. Well, i thought i would close with a quotation that struck me as powerful from the book and to remind everybody that copies of the book will be available for signing downstairs after the session. But, so, this is in the context of how assessment of president polk and wondering why he doesnt fare better in the view of history and he has this to say. Great president s are revered for placing a moral stamp on the nation. Maximizing their contribution as head of state. This achievement expands the overall legal powers of the presidency by increasing the peoples regard for the office and their willingness to accept broad residential claims of power. There is a lot to unpack and i recommend the book, and thank you. [applause] thank all of you for coming. [captions Copyright National cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [indistinct chatter] we are back now to our live coverage at Gettysburg College in pennsylvania for a conference on the end of the civil war. Jim downs will discuss the medical crisis of emancipation. This is live coverage on American History tv, on cspan3. [indistinct chatter]