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