Redefining the Executive Power

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S2: Taking an intention or instruction that you had been handed and executing it. That’s it. Dictionaries and context and debates and pamphlets hearing and poems. That’s how they talk about executive power.

S3: Hi and welcome back to Amazon. Slate’s podcast about the courts and the law and the Constitution and the Supreme Court. I’m Dahlia Lithwick and I cover those things for Slate. This show is part of our summertime series introducing you to all sorts of people in the world of the law and the courts who are doing and writing interesting things that maybe haven’t crossed your transom yet. And this week we wanted to continue what started as a little boomlet at the end of last spring of exploring presidential powers.

S4: We’ve talked a little bit on various shows this year about Article 2 specifically the Take Care Clause and then the faithful execution clauses and it’s all by way of thinking about whether anything in the founding documents demands any kind of behaviors or compliance by the president.

S5: I think we all agree that presidential powers keep growing and expanding. Whether that was the Bush administration wiretapping interrogation claims or the Obama era policies on drone strikes and we probably also all agree that Donald Trump has taken these arguments to the next level with really sweeping claims about a border emergency or executive privilege. So our guest today comes with a pretty radical new reading of those executive powers and the constraints on them and his LA view article from earlier this year rocked a lot of people back on their heels with his pretty radical claims about the meaning of three little words possibly two little words the executive power and what the Framers intended the words the executive power to mean Julian Davis Mortenson is a professor of law at the University of Michigan where he specializes in constitutional and international law. His research focuses on the process of establishing constitutional structure usually from a historical perspective and his article that’s called Article two vests executive power not the royal prerogative is in the Columbia Law Review this year. It was a years in the making enterprise and challenges the conventional wisdom on executive authority in really profound and big new ways. Julian Mortenson welcome to Atticus.

S6: I am thrilled to be here and to have the chance to to talk about this with you and share some of it with your audience. As you noted mind your writing and work for a very long time so it’s an honor to be here.

S4: Oh thank you. I want to start just being musician difficult with you and locating your research amidst this what I’m describing this boomlet of a.

S7: Love Affair With constraining presidential powers. And we’ve covered a bunch this year on the show we talk to Ian Basson who is trying to give real teeth to the obligation to take care and then to Jed Sugarman and Andrew Kant about their thinking and research around the faithful execution clauses. It looks a little bit like these are liberals who don’t like this president and they just want to use their formidable brains to kneecap Donald Trump. Now I know you started this project a very long time ago and maybe that’s your answer is as I started this project thinking about George Bush and about Obama but is this just a movement to use deep scholarship to take this President’s powers away.

S6: It’s hard to say that the president wouldn’t affect what people are interested in it’s hard to say that people’s sense of overreach might not motivate certainly the products they choose and maybe also how they pursue those projects and certainly there is like and in fact both sides phenomenon where when the office holder changes the criticisms flip flop. That said I feel like I can say confidently about myself that for me it was very much President Bush the second President Bush and President Obama whose in my view overreach and a particular overreaching arguments grounded in the constitution as opposed to in statutory text motivated my interest in sort of kicked off a sequence of questions that just kept going further the further I look. So this is for me a longstanding project and I think it certainly has relevant to this presidency as it probably will go on to do because it hasn’t. At the end of the day the claims I’m challenging haven’t the end of the day been partisan claims. There’ve been claims made by presidents of both parties. And so for me this is actually not at all about Donald Trump and there’s sort of a flurry on Twitter when I first posted the piece that I very significantly discounted in my own mind because I think there are as you say people who will read anything about that Donald Trump is bad but that’s not that’s not where I’m coming from.

S4: Okay. And can you just describe briefly your path to Article 2 and this question of how power is allocated between the three branches. How did that become interesting to you. I know it’s like you said it’s been a long time.

S6: The topic that first kicked off my interest really was the emergence of news about the second Bush’s wiretapping program and not just the wiretapping program but the claims that the wiretapping program weren’t and couldn’t be restricted by Congress right. That he’s the president he gets to conduct national security policy. He gets to conduct the pursuit of warfare wiretapping and then as it turned out torture exactly are things that are for him to make the call on it’s the president’s call the buck stops here and not just so there’s a certain David hate of the whole project. I’ll come to that but that’s so just rubbed up against like I feel like everything I learned as a kid and everything that it felt to me like law school had taught me about the rule of law. I’m not claiming great intellectual insights here but like it was the sort of thing that just rubbed me really really wrong and really bothered me and the more I looked at it and explored the arguments the more bother I got. That’s sort of the genesis of the project. I mean in some respects like layers of an onion you just go deeper and deeper on a question and you see where the arguments are proceeding from and just turns out to be like a radical in the sense of a root a root issue in the Constitution and behind a lot of the things we’ve been talking about.

S4: And I want to be clear because I now have mentioned the Take Care Clause and I’ve mentioned the oath you’re building on that not building because I think you predated it but you’re certainly going way further than they are. You’re not saying look the president has an affirmative duty to either be a fiduciary to the people the way the Sugarman Lee piece does and you’re not saying he has an affirmative duty to take care you’re you’re going very far in saying actually no.

S7: The Framers meant to very much constrain the president to being an executive that he executes. And so this is a pretty far reaching I think view of things and I and I wonder if maybe you could start by just defining a few terms for us because I think that in your piece you write about the vesting clause you write about royal residual. Help us understand the language the lexicon that you start from.

S6: I’ll go maybe even one step further back. And I don’t want to get too technical or too esoteric but I don’t think this is so esoteric because I think that many people certainly many lawyers and legal informed types are very familiar with the idea that ours is a government of limited powers. Right. That’s sort of a thing that you say about the government a true thing that you say about the national government. And it references a really important idea that lawyers are most familiar with in the context of congressional power. This is that idea the idea that for a federal actor to do anything pursuant to constitutional grant that actor has to point to some grant of authority in the Constitution and that’s often contrasted and rightly so to what people call the police power which isn’t limited to as you know like police officers but like police in the sense of policy a wide ranging general jurisdiction to set any rules you want to within your jurisdiction the federal often doesn’t have that it’s got a new right and powers. And so we argue about whether the Commerce Clause which is wetlands we argue about right whether the treaty power allows us to criminalize the act of putting poisonous goo on a doorknob and rightly so that’s at the at the heart of a lot of these debates. It is a taken for granted principle generally speaking about how the Constitution works. And we seem to forget about it. The discourse seems to forget about it when it comes to the president and what I mean by that is certainly there are discussions about whether some particular chunk of text in Article 2 of the Constitution. That’s the article that gives the president his powers relates to something the president wants to do but over and over and over again there will be much more open ended handwaving gestures too. He’s the president he’s the executive. They can’t make him do that. They can’t stop him doing that because he is the executive and he does occupy this particular sort of gap filling foreign policy oriented national security oriented like needful things role in our system. And so if you want to sort of situate I think you’re just right to sort of start with the architecture I said create the architecture claim it starts off by and again I’m not calling this is a blinding insight like taking the same idea of enumerated powers and kind of taking it seriously when it comes to the president. So what does it mean when you apply that to the president. Well I think at this point maybe it’s useful to contrast three articles and three clauses of the Constitution. Right. And again now we’re a little bit back in ninth grade civics third grade history class. The first sentence of Article 1 vests legislative powers or references the vesting of legislative powers in Congress the first sentence of Article three references the vesting of judicial powers in the Supreme Court and eventually lower courts as well. And then the first notice of Article 2 just my project vests the executive power in the president in the intuition has long been both explicitly but more often kind of inchoate Lee to say the legislative power is a power to enact laws. So what that conveys is the power to enact laws and things related to the powers that are to enact laws that relate to the subject matter grants later in Article 1. Right. So legislative power power to enact laws. Executive power kind of the other stuff that the government has to do. And we could talk about the boundaries of how people seek to flesh that out but essentially it interprets this initial kind of stage setting grant for the president in contrast to the legislative power in the following way. We define legislative power as the power to make things that are called laws. We define executive power as the kind of powers an executive has. And from that starting point comes like a startlingly large amount of separation of powers law. The further I go into this project the more I think maybe ambitiously but the more I think it has very significant implications across just about the entirety of separation of powers laws.

S4: Wow that’s a lot. I mean so. So essentially like if I were to summarize what you’re saying Julian you’re saying we think of the legislative power grant that’s given to the Congress as really cabinet and all the other stuff that doesn’t go to the judiciary.

S7: We just have just all acceded to this principle that that’s all the president’s power. That’s essentially what you’re saying and that we’ve all so internalized that that it’s in the way we talk and think about what we start from the proposition and that’s where you talk about this residual power right. It’s everything else because we don’t know where everything else goes. It goes to the executive. Why am I saying that right.

S6: In every respect I think that’s that’s exactly right. I don’t think that for those listeners who are familiar with the famous Morrison case involving the independent counsel I don’t think that you can do better for a concise statement of the point of view that I’m sort of tilting against than Justice Scalia’s celebrated dissent and in my view very wrongly celebrated historically speaking. But his celebrated dissent where he says more or less how else could you define executive power meaning like the executive power vertical to how else could you define executive power except with reference to what all executives everywhere have always done right. So in other words he’s saying and the word I use for it in the papers I’m writings like the maternity or the make a relationship he’s saying to understand what the executive power means you look at what institutions that are executive can do and assume that everything that an institution that is executive does absent good is to the contrary is executive and that’s just completely wrong. And there’s a much simpler actually understanding that like from my perspective just obviously permeates the founding discussions but that’s the that’s the error I suppose that I’m I’m seeking to dislodge historically speaking and I think that I want to stop you now and talk about medicines bookshelf because you’re that’s your work.

S4: I mean your work has been.

S5: I was in the Atlantic in June you described you know just massive amounts of sources revolutionary and founding errors sorry sources and all the what you had to pore over in order to bolster this claim that you’re making which is no we’ve all been getting it wrong.

S7: Can you just take a step back and tell us what medicine’s bookshelf is to you.

S8: It’s fascinating because it both is and isn’t a metaphor right like we actually don’t know the full contents of what was on Madison’s bookshelf specifically but we have a lot of lists of what was in people’s possession in their libraries. And the one really great resource that was initially tipped to by Josh chief who also writes in this space was Madison’s book list where he actually sort of writes up a list of books that the Library of Congress or the to b Library of Congress is supposed to buy and you can you can look at citation counts have been really interesting studies by both political scientist and historians to see like quantitatively who and what is getting cited the most. So we sort of know what they’re reading. We know the books that are on their bookshelf and what’s meant by it is that body of to be sure. Often like internally disputatious but that body of literature political theory political philosophy religious texts poems poems and some of them are wonderful. But writing about the things that they would have that they would have that they would have had and that in fact we know they did have and if they did reference and I just I just did a lot of reading over a long period of time.

S4: And so this brings us to the central claim which is nobody intended for the executive to be monarch. Nobody expected all these residual powers to flow to the president. How do you know that.

S6: The simplest answer is they said so over and over again. And that claim isn’t in the first piece of Madison’s bookshelf piece although there is no single piece that’s been posted that shows this evidence. But the simplest answer is they said it over and over again both explicitly and like unmistakably implicitly the slightly more complex answer is that you can’t coherently describe the use of the word executive like across any number of publications that they are reading without rejecting that interpretation of executive and the slightly more complex answer and leave it for Alaska. I’m not generally a big fan of like just take the dictionary definition and plug it in. There’s a good answer but like there are zero definitions in I forget the number but it’s you know dozens and dozens of dictionaries that are reviewed. There are zero definitions in the dictionaries that even culturally support this residual understanding of executive power.

S9: They all have a very different very distinctive and like frankly in a world where history is so often like a story about contestation. Not to want to fight that they contested all kinds of stuff like an absolutely uncontested sort of and this is the sort of naive you know almost like trivially obvious point like is just a vocabulary point it’s how they talked about a certain function of government and that function of government was taking an intention or instruction that you had been handed and executing that’s it. That’s not more complicated than that. The repercussions in implications are enormous but that’s the usage in dictionaries in in context in debates and pamphlet hearing and poems. That’s how they talk about executive power.

S4: And so what stands to reason and I guess this is what you’re proving is that that means to the extent that there’s residual power lying around it goes to the Congress right. It goes to the legislative branch or is there just residual power of monarchs it’s floating in the ether unclaimed by any of the three branches.

S9: I would pick Dor the last or whatever door floating in the ether residual power. No no no. That that wasn’t allocated floating out in the ether in the sense that nobody got it. There’s all kinds of questions about how to interpret the boundaries of particular grants of power. Does the Commerce Clause literally mean only regulating commercial transactions or does it also mean the ability to stop a stick of dynamite being put next to a factory because that’s gonna destroy a train station to right. We can talk about the boundaries of individual clauses and this research really doesn’t speak to lots of that. I’m happy to hazard speculation and so too right does the power to receive ambassadors that the president have in its kind of penumbra and emanation. Does it include some form of diplomatic authority. Probably right. Like I’m not taking a position on that but structurally speaking there is no reason to assume that everything the king could do. Somebody in the federal government could do in fact we know for a fact. I mean and to be clear it’s because the fact part is because it’s prohibited. We know for a fact that something that the king can do the president and nobody can do establish a church or rather run it Run run a national church like that the thing that other parts of the document prescribe. And it goes to the real architectural point which is there’s no reason to expect that you have to answer the question of where the residual is. Rather you take everything on a clause by clause basis or maybe as an aggregation of clauses if you want to think about structural implications and so forth I’m certain that opposed to that but you’re working from the text up rather than saying what does the government need to do and then where will I put that thing. Could it’s possible maybe improbable but it’s possible that some of the things the government needs to do might not expressly be in the Constitution and they had an answer for that. What was the answer. Two answers one is that there’s some improper clause. Yeah right. So the necessary proper clause most famously allows Congress to do things that are necessary and proper whatever exactly that means these days necessary improper to effect you getting it other powers but a less well-known part of that clause. I mean it’s not obscure to constitutional types but it’s not the thing you focus on in first year. Common law allows Congress also to enact laws that are necessary and proper to the evacuation of the powers of the other branches. And so if it’s useful for the president in being able to run the administrative branch and to execute the law to remove officers property most tendentious issue that you could like Congress can extend the power to remove officers to the president pursuant to the necessary proper clause. And so answer what is necessary proper clause like if you think about the things that people point to as being missing from the explicit text of the Constitution. They’re all trivially correctable to some other power or some other entity by the necessary proper clause. The second is people in the late 18th century were a lot less for better for worse. This part I have no other way down. Yeah but this is my emerging sense they appear to have been less horrified by the idea that government officials might sometimes act outside of the law and they had relatively well-established process for handling that which was you do it. You take the risk and then either the legislature enacted indemnity for you or they don’t. Then you can see this kind of thing happening over and over again often with very um and it’s interesting to me not at all surprising very gendered metaphor metaphors right like the the officer made the choice in a manly way right. I mean that’s sort of it really is sort of like the courage of the Republican masculinity as sort of the thing that they lean into and they say and we think that under the circumstances it’s understandable but it’s forgiveness it’s forgiveness and legal sense indemnity for an extra legal action rather than the actor saying hey I can do this you can’t do anything about it.

S4: So it starts from the proposition that this is pretty fluid and we’re working it out. And if you overstep you get checked but it’s not. There are these immutable buckets and all power is allocated in advance into the immutable buckets. Yes that’s right. So I have to ask you this metaphysical question because you have you started by saying the framers come to this from a point of disputation they are rejecting monarchy and yet we’ve kind of built a monarchy in this country and then we say well you know there’s nothing we can do about the border wall because the president has virtually unlimited powers right. S.F. There’s still seizures. Well there’s nothing we can do about foreign affairs because the president has virtually limitless powers and I guess I wonder just as a matter question Julian is it simply the case that human beings abhor the kind of well I don’t want is a vacuum but the kind of diffusion of power that you’re describing in that we almost inevitably worked our way back into a monarchy tradition.

S9: I think there’s a lot of power in that analysis. I’m not sure I sign onto it. Ness I don’t disagree with it I’m not sure that I think that explains all of it. I will say that there is a strong flavor of anxiety both in the scholarly writings and in sort of the more polemical middle level public discourse around the idea of the president really needing to do something that the president wouldn’t be able to do. And I think that kind of maybe sometimes consciously. But I suspect especially in the scholars case less less consciously working backwards from that intuition drives some of the analysis. I should also say this is a really important point is one point on which I think some of the people who are all about this project in terms of hearing something that restrains the president if we don’t like the president now and so forth may not fully appreciate which is that this has important consequences for how to interpret statutes. But this really has almost nothing to do with what Congress can authorize the president to do. Again you have to ask the predicate question Is there some basis in Article 1 that is to say in the article that grants congressional power. Is there some basis in Article 1 for Congress to enact a statute letting the president set tariffs or build a wall or a fence or whatever the particular statute uses and that can be relevant. This theory or as I see it frankly this understanding from the founding is actually quite consistent with extremely robust and perhaps extremely unwise delegations to presidents who might take the powers they’ve been delegated and use them poorly unwisely or even like undo the constitutional order. And so in that respect like the theory as such I guess is agnostic on how much power the president should have and one of the things that I think really shouldn’t be missed is just how powerful a power this is. Some folks think I mean having counsel at Harvard is a person I like to cite you for this please. He’s so good and so interesting and so authoritative in this area. He he and sort of picking up on the Youngstown case that you’ve described talks about the mere executive power or on a pass through understanding of executive power. How on imposing it is and anybody would would roll their eyes if somebody thought that’s all the president can do it sort of the shades of the dissent in Youngstown talking about the messenger boy theory of the executive branch and that’s true. You can give instructions that are unbelievably specific and precise and give somebody no discretion at all or you can say I mean I just finished reading a thing. It’s in the military context but it makes the point. You can say to George Washington hey we hear that letters are coming in that have anti patriot propaganda from England take care of those period that’s it.

S8: And then Washington is then there they’re after empowered to go out and you know essentially take care of those as we were by any means necessary or to be more realistic by any means that within his judgment made sense. It’s not that this theory leads to a weak president it emphatically doesn’t. In a world where we have statutes to authorize any number of things but from a constitutional perspective. It’s a radically different theory that at least potentially and demonstrably sometimes in our history in fact has resulted in legislative checking of the president. Before we go any further Julian can you just explain for listeners the Youngstown Steel seizures case and the kind of tripartite system that came out of that the Youngstown case is a case in the 1950s one of maybe the most important cases in the field of executive presidential power doctrinally it involves what’s effectively master the takeover of steel or refinery by the federal government during the Korean War. In the face of a labor strike and the fear is the labor strike cuts off production of necessary material and so on and so forth so a highly plausible like actual boots on the ground national security situation in which the president does a thing and among other things relies on his possession of the executive power to claim that he is both statutorily maybe and especially constitutionally entitled to do this all right so that’s a big picture background. The most important thing in that case is not so much the majority’s opinion as the two concurring opinions. The majority opinion we drive by to quickly actually because it comes back to that enumeration point that I made at the beginning. It’s really good in that it emphasizes the need to find something in the Constitution to pin this to right and we sort of are also sophisticated now that we all roll our eyes at class bound interpretive ism and what have you. Okay fair enough but like actually on that the majority is really good. But historically speaking the two most important things that come out are a pair of opinions that are simpatico with one another and kind of get blended by later decisions. One is Justice Jackson like what my favorite justices of all time. Who says we have to think about presidential power differently in three different zones. Zone 1 is no more complicated than saying the president can point to a statute that says you get to do this. Zone 3 is in the simplest case a statute that says you can’t do this in Zone 2 right there in the middle is if there is neither authorization nor prohibition and there’s more to say about it. Bottom line his proposal and he’s here not actually innovating but synthesizing strands that clearly predate him by quite a bit improperly so is that when you’re in zone 1 and the president you’re on great ground from a separation of powers perspective when you’re in zone 3 and you’re the president you’re on terrible ground from a separation of powers perspective and when you’re in zone 2 I often do a fake question. My students in class were I’ll say So what’s the test in Zone 2 in the sentence that comes after his mention of Zone 2 is something like You look to the contemporary imponderables to resolve the question right. That’s a very hard edged test of contemporary imponderables. But so the first part of this concurring legacy that’s really important is dividing the world between those actions that are authorized those actions that don’t have authorization and those actions that are prohibited and suggesting we ought to think differently about these things. The second piece of it and in some ways this maybe relates most to it. You and I have been discussing is comes from Justice Frankfurter although Jackson is clearly on board with Frankfurt his position here where he says look like these terms aren’t self defining. There’s lots of instances in constitutional law where we look to evolving political practice over time to flesh out the contours of an ambiguous word. And we should be all the more eager to do that he says with separation of powers questions and with questions of presidential power are just a few of them so they’re hard there. I think they’re not nearly as hard as you thought they were actually but as he understands the term of the time they’re hard to complicated. And so what we should do is we should look to an evolving sort of political practice especially of the federal president and the federal congress where if you can show that the president has done a thing in the past without authorization and that Congress has either said Hey that was great or has said nothing has acquiesced to what the president did. And you can accumulate enough of those instances of the president doing that kind of thing. Then we treat that political practice as emphatically a non originalist argument he says. We look to the actual political practice of the national political branches and the sort of the ebb and flow and tug between them over what the president gets to do and we will add powers to the president’s list if we can show the president doing that thing often enough and can show always combined with that Congress acquiescing to it. And so that’s the role of the Youngstown case and it involves what turns out to be if you’re doing it right like an immensely hard historical analysis over like wildly disparate periods it’s really hard to do but that’s what Youngstown is about it’s about seeing as I think of it today it’s most importantly about saying we pay close attention to what the political branches have done in deciding what the president can do today.

S4: And I guess I have to ask about the ticking time bomb which you kind of cited but that’s always at least in the Bush era. That was always the example they used to justify torture to justify virtually boundless executive power was you just want one guy there making you can’t workshop this you know organ failure question weed you just got one person’s gotta do it and you’re telling us I think that there was no quarter given to the ticking time bomb or whatever the exigent mail interception question was that that the framers had no interest in having the Decider be the executive so I think the framers and the founders had or would have had two answers at least maybe they’re more but at least two answers and the first is to circle back again on this idea of a process after the founding Jefferson in his presidency.

S10: Lincoln this idea of violating the law not claiming that you’re doing so as a matter of right but claiming that you do sort of preserve some sufficiently high value that the political process is willing to forgive you. I think the founders were demonstrably certainly come to political practice in England and also in the U.S. demonstrably more comfortable with that than we are. So that’s the first answer. I think that they would have said well surely he would do the thing that was necessary and then take his licks for it and then take a look forward. OK and the second thing to say is look as a realistic matter man the president is authorized to do an awful lot. You know these hypotheticals hypotheticals because the hypothetical right the president is authorized to do spectacularly large amounts of stuff and in any event the actual scenario in which there’s a ticking time bomb. And the president doesn’t have authority to do the thing that will actually make a difference is a the founders say bite the bullet and be so so factually improbable that using that to drive our intuitions about the entire constitutional apparatus is just getting things backwards.

S4: And same answer on foreign and diplomatic affairs and I’m thinking of seven top ski I think we covered that on this show. You know that Obama making claims like I don’t have to answer to Congress about recognizing Jerusalem as the capital of Israel. I am without limits in my authority a delegated authority to make decisions about foreign affairs. And same answer that the framers just did not intend for Barack Obama to be the sole arbiter of where we recognize capitals.

S9: Correct. Or to put it differently. They’re quite clear. And one of the places you see the dynamic they expect is in some of the debates back and forth in the Washington administration now in the first decade of the republic under the Constitution that is where the most pro executive arguments from Alexander Hamilton contemplate the president taking action to recognize somebody or to recognize obligations or treaty which implicated recognition questions. And then he specifies that Congress can later go back and revisit that decision. And he acknowledges that the political power to take action in the first instance pursuant to some entitlement has real political salience. But even the most and he’s inventing stuff from my perspective when he’s making these arguments but even the most aggressive theorist lawyering is hardest at trying to support Washington’s neutrality proclamation in the first decade of the Republic even he in his incorrect theory by the way. But even he recognizes the Congress will have a second look and final say on the issues that are in play.

S4: So your claim begins and ends with the proposition that there are people out there making these men Nurkic claims and you’ve given a couple examples and I think maybe John Yoo and the torture memo is is one of the examples that comes to mind. I think the current attorney general Bill Barr making claims about you know the executive presidency right falls within that scope. But I’m curious when did these claims start getting made. Did it. Is this something that started with Washington or is it simply the case Julian that presidents have really good lawyers who come out the chute arguing for limitless powers and Congress doesn’t have good lawyers to answer back.

S6: The argument has been around at least since Hamilton writes on behalf of Washington’s authority to deliver the neutrality proclamation in the first decade of the republic and as far as I can tell and now I’m straying from my confidence in tracing the lineage of the argument. That’s the first time it’s raised. There is no hint not a single whiff of that claim at any point up to and including the moment of ratification.

S10: It’s definitely not like a contested thread that some people thought and Miguel didn’t and who knows it is like it is it is it is invented out of whole cloth by somebody somewhere and at the moment it looks to me like it’s Hamilton and gosh like I was a good lawyer and so it’s plausible that it was him. But I don’t I’m not making a strong historical statement on that. It’s possible he’s drawing on other people because that’s always possible. But Hamilton makes the argument and is confronted and strongly well disagreed with by Madison among others. And then the references that I’m familiar with over the course of kind of the next 20 or 30 years are consistent with my thesis. Right. And so it surfaces there I don’t yet know how strong a legacy it left whether it was just like a loaded gun on the shelf and somebody came back and saw that you know 70 years later a century later and pulled it back out. So it’s actually one of the questions that I want to pursue and investigate more it’s comparatively lower priority at the moment but I want investigate more exactly that question of how an understanding that was so startlingly consistent was retold and respond so as to become something like almost the opposite of what the actual understanding what you described earlier. But I want you to go back and tell me how he did it.

S4: Justice Scalia’s famous dissent in Morrison vs. Olson that’s the special counsel case and you describe it as I think you’re generous in your language just like a series of mistakes and bad calls. Can you just walk me through the process of how he takes exactly the opposite meaning and imports it into one of the most celebrated dissents about executive power that we we reference again constantly we take it as you know this is a given. Can you just walk me through his process of how he upends the conventional wisdom that you’re describing.

S9: Yeah I mean I think it’s fair to say that there are two moves it’s a long opinion and there’s there’s some interesting good stuff in because he was an interesting thinker and so I’m not gonna capture all of his argument as you well know but I think it boils down to in this respect to arguments the first argument is and he starts off with a quotation from I think the Massachusetts State Constitution at at the founding which says that there are three powers they must be kept separate rights have been a very affirmative strong explicit state constitutional statement of the separation of powers and then he says essentially in this first sentence of Article 2 the president has the executive power and that’s the line that everybody remembers from the case not some of the executive power but all of the executive power exactly. And so the first mistake is like that’s just that’s just completely wrong and actually wrong in a way that he should’ve known about because like the federal papers say. But that’s not right. I mean one of the vulnerabilities that the federalists said that is to say the supporters of the constitution that people who like the Constitution who wanted a more centralized government who advocated a forceful central executive authority one of the problems they had was people’s ability to invoke separation of powers nostrums I guess Montesquieu in particular and things like the Massachusetts Constitution saying the powers must be kept separate. The critics say hey the powers are supposed to be kept separate. The latest best Awesomest political theory tells us that if you don’t separate the powers we’re headed towards tyranny here. There are ways in which the powers are mixed and commingled and there’s lots of ways in which that is in fact true by their standard. But one of the ways they emphasize in this respect was to talk about the Senate’s possession of the power of appointment which is on many accounts plausibly entailed within the executive power not necessarily some disagree but plausibly entailed. And so here as in the other ways that their contemporaries were criticizing the non separation of powers in the Constitution the federal response was actually not to deny it but to say yep that’s right. And actually we have new political science that has now enabled by our experience as revolutionaries and as people who are able to shake off the fetters of the past and modest you’ve got a lot right. But in this respect it turns out the freedom really carefully kind of wink wink he actually didn’t get this right. It’s been really carefully to understand that really he just means there can’t be one branch that has all the powers but some nixing among them is OK coming back to the main point. So Justice Scalia’s first really big error is to say that the executive power means all of the executive power and therefore anything that’s understood to be executive has to be with the president. And that’s like just definitely not true. So that’s the first thing. The second big thing is is what I mentioned earlier. But if there’s the second step in the argument right. Having said that all of the executive power is in the president. He then says how else do we know what is executive except with reference to what institutions known as the executive have been able to do always and everywhere.

S8: And that’s also plainly wrong and it brings us back to why this is so architecturally Central. There was a conceptual schema that like whacked up the world of government powers and either did or didn’t allocate and depending on the choices that any given constitution made.

S9: But it wasn’t the one I started by describing in which legislative power means the power to pass laws and you know forget judicial for the moment executive power means like all the other stuff that a government that sort ought to do that the executive usually does. That’s not it. It’s way simpler than that legislative power is the power to issue instructions that command or authorize.

S11: That’s it.

S8: Executive power is the power to take instructions that come from some authoritative font of legislative power. He doesn’t have to be Congress by the way. But certainly Congress and put them in play or make them a reality. It’s a really thin power. It’s an incredibly important powerful power and as I said Congress could choose to give tons of stuff to the president but Justice Scalia is just simply radically incorrect to say that we reason our way towards what executive power is. With reference to like an inductive analysis of lots of different executives and looking what most of them that’s just wrong. That’s just historically wrong. He’s just wrong about that. It’s much simpler than that. They talked about complete government as involving two and sometimes three steps legislation an execution or sometimes legislation adjudication in execution. You will a thing you bring thing to being you have a thought your hand goes out and does it. It’s just all over what they wrote and it’s all that is meant.

S6: I have yet to see any evidence that anything else could possibly be meant by the vesting clause Article 1 The vesting clause of Article 2 and the best in closing Article 3 then the standard reference to the standard trope of a complete or perfect government and that’s in historical context what they are worried about at the time that we could talk about more but that’s the ways in which from my perspective Justice Scalia just messes it up really really badly in a way that really misleads a lot of people starting with the devil not limited to lawsuits.

S4: And the thing that you’re saying that I want to just catch because it’s important is the way that this becomes a one way ratchet. I mean it leads invariably to the next person who’s analyzing doing the thing that you’re saying. Scalia did which is say like look it’s this almost perfect circle where you say the bigger we know the the bigger the argument for limitless executive power gets the more self-fulfilling that becomes down the road. That’s the thing you’re trying to push back against now is I think this claim that we heard particularly around the declaration of emergency at the border you know which had been right specifically not authorized by the Congress Congress had said we are not giving you this money so you can imagine you know what. What your notions of executive what that does to have in that. And then the almost totality of the discourse around that was well the president just has limitless power to do this to declare an emergency. So what you’re trying to say is this isn’t sort of static that this as it builds and grows over time becomes more and more actually true for sure and that connects to a really important methodological point.

S10: One of the reasons that I’ve been so it’s weird to feel so intense and focused and even stressed about trying to get stuff out about something that is you know 200 odd years ago. But like there’s a risk that some sufficiently authoritative actor will say and then be deferred to by the other authoritative actors. This in a way that is unmistakable can’t be understood any other way. And then that gets baked in in a more permanent way than it is right now and how we understand what we do and I mean especially the Supreme Court because never said this never said anything like this. And I have some anxieties about what might be said and so in the sense of the stakes here.

S8: That’s part of the story and building on your point about a one way ratchet. A second feature of how we do presidential power makes express reference to historical practice. Right. This piece Mike comfort zone is history my comfort zone is saying the way it seems to me a thing was understood in historical context taking into account the secondary literature and the primary sources like that’s where I’m comfortable. And so this is really a historical piece about a really important question with a historical piece. But not everybody agrees. And I include myself in this group that the original understanding should settle everything. Lots of people think that evolving understandings of one kind or another ought to and maybe especially in the realm of presidential power and this is where the one way ratchet from becomes right and it’s a great way a great way to put it.

S10: When one president does a thing that attributes to the executive power more than just the power to execute the next president can refer back to that and maybe do something a little more aggressive and a little more aggressive and little more aggressive than it’s like the opposite of a pearl. And I’m gesturing in the air now where it’s like you’re layering on error on error rather than pretty things on pretty things. And the result is you end up in a place very different for you’re started precisely because of the ratchet aspect of being able to now refer back to the last person who did it. And taking a little further write on it.

S4: And that’s Obama building on Bush. I mean that’s that’s not a Republican or Democratic preposition.

S9: I would say one thought I gonna go for some credit here with the conservative listeners. I’m not sure what I think about the Trump Wall. I do think that it’s a statutory question. I think that there is. It’s laughable to think that there would be a basis for it in certainly in the executive power of the Constitution and boy I can’t figure how you’d squeeze it in anywhere else. I actually think it’s a tricky question. As a matter of statutory analysis because there are some really broad statutes as a matter of the best way to understand Youngstown and the Frankfort customer tradition analysis and young tell you you’re familiar with and like what Pelosi said vs. what McConnell said. I actually think that the answer is a little tricky. I think probably the administration has the worst of the argument the statutory construction piece. But here’s me again shamelessly trolling for credit but like I actually wouldn’t take the position that that was obviously an excess of authority was clearly guess what Congress wanted or was willing to approve but I’m not actually sure I have a definitive position on whether I’m convinced or not convinced by the administration.

S7: No I mean I and I think I start from the proposition that the National Emergencies Act imply oddly says exactly the thing that you point out which is that that’s an act that purports to constrain the president and then puts no constraints on him. So I think it starts from the presumption that you’re pushing back on which is look the president just gets to declare all the national emergencies but we’ll try to cabin that somewhat. I mean it seems that the statute itself does this sort of head feint you’re describing where it purports to take away but it actually gives over more for some of the structural reasons that you’ve described. I actually I agree with you as a statutory matter the act is what it is but I think it builds on exactly this presumption that you’re fighting against straight the European your point about the the it’s perverse or not it is certainly interesting preventing you from the drafters perspective.

S8: It’s a it’s a terrific point about how act a series of them that were brought into being in order to constrain presidential power and of getting flipped by clever lawyers and maybe less than fully scrupulous administrations and saying actually the statute that was supposed to constrain my use of for example emergencies. I’m actually going to look for every way in which allegedly ratifies and maybe even further authorizes things that it’s not at all clear that the original drafters of the statute now intended to empower that is to say statutes really intend to constrain war powers act as example of this are now spun as recognizing at least implicitly some aspects of presidential constitutional authority which boy I mean I just think that’s I think that’s not a fair reading of the statute.

S4: Last question you are making some pretty big and radical claims here. I’m wondering what the pushback has been particularly among originalists who have rooted their work for a long time in the sorts of you know Scalia Morrison dissent that you’re talking about. Have you been just flayed over over this. This work you’re doing.

S12: No. And in fact I would say I haven’t gotten any pushback at all and it’s been long enough now that I haven’t gotten any responses where engagement. That I am starting to scratch my head a little bit. And if anybody is listening and you have thoughts boy I’d really like to hear from you.

S10: And I’ll say that as decorous as I can I would like to think that where claims like these are being made and they run so hard against like foundational principles that have been relied on by lots of folks over a long period of time there’ll be some engagement with them even if disagreeable and I try to be respectful in how I approach these questions. And this paper’s been in a lot of folks hands for a long time and I haven’t heard anything at one level like maybe that’s a suggestion that there’s not something.

S8: Obviously wrong with it but apparently pardon me is like people sandbagging. Am I missing something I’m not missing anything so I would love to hear it. I just haven’t I haven’t heard people pushback on this I haven’t I I look forward to it. And I mean it. I look forward to actually having conversation about this so people speak to it and we talk about it. Because it’s not there because I’m excited to build the research forum. The tricky part is gonna be like what flows from this for things like control over the administration for things like non delegation doctrine. I have views but a lot of the second order questions around what flows for a constitutional construction of this conveyance of executive power I don’t think are as 100 percent definite as the thing that I’ve been showing so far and the questions are super interesting and so I am. Maybe naively hoping for more engagement and I’m eager for engagement and I’m looking forward to engagement and I’m pretty pleased to have the chance to do that here with you.

S4: It makes me think a little bit and this is dating back to my my history as a lit major Jillian. But this notion of belated ness that you making actual claims about what history actually said in a world in which we’ve all moved on because we just agree that the executive power has no limits and it’s not just residual it’s that it is expands and contracts with his or her whim. I think we might live in that world now and in which case these are really good interesting originalist claims but that’s might very very depressing take on. I hope I’m wrong but I’m just remembering that word relatedness. Now that we’ve all just lived in this lane for so long that your lane is like troubling and weird to us. I don’t know. That’s a kind of a dispiriting note to end on but it doesn’t often happen on the show that people invite abuse. So Julian has now asked for it and I could talk to you about this for seven more years and when your next installation is ready to to bandy about I hope you’ll come back. But for right now Julian Davis Mortensen is a professor of law at the University of Michigan where he specializes in constitutional and international law. His article article to vest executive power not the royal prerogative is right there. I will put up the SSR n on the page in Columbia Law Review. It really was years and years seven years in the making. Eight many years. A lot of years seven years three presidents in the making and Julian it’s been just amazing to have you. Thank you for coming.

S6: Thank you so much for having me. It’s a real pleasure to be here.

S3: And that is a wrap for this episode of Amicus. Thank you so much as always for listening. If you want to get in touch our email is Amicus at Slate dot com. We love your mail and you can always find us at Facebook dot com slash Amicus podcast. Today’s show was produced by Sara Berninger. Gabriel Roth is editorial director of Slate podcast and June Thomas is senior managing producer of Slate podcast and we will be back with you with another episode of Tamika’s two short weeks.