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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I've got a cold. How are you?
J. Aughenbaugh: I'm doing fine. Thank you. Listeners, one of the reasons why I am doing fine is we get
to do another in the news where we attempt to answer the question. Can the president legally do
something?
N. Rodgers: Can he do that? We get that a lot. We get that from students a lot. We're like, can he do
that? I'm like, I don't know. Let's ask Aughie. That's usually my response. Although occasionally my
response is, no. No. you can't do that.
J. Aughenbaugh: Some things are so obvious. You don't have to be a constitutional law geek to go ahead
and say, No, they can't do that.
N. Rodgers: I've only read the Constitution a few times. Aughie sleeps with it under his pillow. So like, he
has a whole different relationship with the Constitution than I do. But even I can say in certain instances,
no, no, he can't do that. But this one is a little iffy. Because can Donald Trump or can any president
rename a cabinet level department? In this instance, Donald Trump is talking about renaming the
Defense Department to be the War Department, which just for historians, yes, we know that it used to
be called the War Department, and we are going to get to you in a moment with that. But can he
rename the Defense department?
J. Aughenbaugh: The short answer, according to most scholars, is no.
N. Rodgers: Isn't it actually technically no but?
J. Aughenbaugh: There is a no, and then there is a but. But first of all, listeners, particularly those who
have more recently joined the ranks of our laurel listeners, Nia and I want to make you aware of the fact
that in Season 11, we did an entire series about cabinet level departments of the United States federal
government, and Episodes 3 and 4 were about the War Department and how in 1949 Congress passed
legislation that would effectively change the Department of War to the Department of what Nia?
N. Rodgers: The Department of Defense. Actually, it wasn't that. It wasn't actually called that, I don't
think, at the very beginning, was it? It was called the National Military Establishment.
J. Aughenbaugh: Yes.
N. Rodgers: Which doesn't really have the same ring, I'm going to say that the Department of War or the
Department of Defense had. But side note for listeners, George Washington was the one who came up
with the Department of War because, guess what? He had just fought one, and he was like, You know
what we need. We need a Department of War. That was like 178-
J. Aughenbaugh: 1789. The Congress agreed in part because the country at the time felt fairly certain
that they would be fighting additional wars.
N. Rodgers: This wasn't over.
J. Aughenbaugh: Well, just to maintain their independence.
N. Rodgers: This Revolution thing wasn't over in their minds.
J. Aughenbaugh: Even if Great Britain made no attempt to reacquire the former colonies.
N. Rodgers: France might go.
J. Aughenbaugh: There would be other colonial powers like France. Spain was on the decline, but, hey,
last hurrah, they could go ahead.
N. Rodgers: Don't argue with the Dutch.
J. Aughenbaugh: The Dutch Or the Portuguese. At that time, the idea that you needed to have a
standalone executive branch department that would focus on protecting the United States didn't seem
to be all that surprising. The name was retained for 150 years.
N. Rodgers: Can we mention who the first secretary was?
J. Aughenbaugh: Henry Knox.
N. Rodgers: Why is Knox important? Fort Knox. Fort Knox which is where we keep our gold in the United
States.
J. Aughenbaugh: Yes. Again, the United States fought wars against Great Britain, Spain, Mexico, the
Philippines. Heck, the Civil War.
N. Rodgers: Each other.
J. Aughenbaugh: Each other, another war. Let's not forget Native Americans. The various wars that we
fought against Native Americans. So, in 1917, we entered World War I. World War 2. So, the idea that,
you know, hey, we need to have a Department of War, I mean, Nia's heard this joke from me off
recording. For a nation that keeps on saying that we want peace, a good chunk of our history has been
about fighting wars.
N. Rodgers: Absolutely. At least when Aughie and I were being taught history in school was taught in
terms of wars.
J. Aughenbaugh: Wars.
N. Rodgers: The Revolutionary War happened, and then this war happened, and then this war and the
the civil war, and then in our history, there's nothing until World War I and then World War II, and then
there's nothing until Korea. Yes, things happened historically in those interim periods. But when we
were coming up, that's not how they taught it. They taught it from war to war to war.
J. Aughenbaugh: The first time I was exposed to that, if you will, pedagogy, that methodology was
middle school. It was replicated in high school. Heck one of my earliest college history classes that
focused on American history, and they broke it up into two courses. Both courses went ahead and said,
Okay, the wars until the Civil War and then the wars after the Civil War. I'm like, Wow, Hey, you know,
there's something that's undercutting this claim that we're a nation of peace, but that's neither here nor
there. The focus of this episode, is what happened in 1947. So the president in 1947, Truman, he signed
the National Security Act that year. At that time, the United States was the only nuclear power in the
world. The Cold War was just beginning. The 1947 National Security Act was the law that merged the
Navy and war departments and a newly independent Air Force into, as Nia, what you mentioned a few
moments ago, the National military establishment very unwieldy and there would be a civilian secretary
who would also oversee the joint chiefs of staff. Again, the joint chiefs for our non American listeners
basically are comprised of the heads of the various military branches.
N. Rodgers: Yeah.
J. Aughenbaugh: Yes.
N. Rodgers: That chair was James Forrestal?
J. Aughenbaugh: Yes. Yes.
N. Rodgers: Served for a couple of years and then went, Oh, man, this is for the birds.
J. Aughenbaugh: As I recall, this was the culmination of a very long career in the US federal government.
Two years later.
N. Rodgers: I think it wasn't his point, he was supposed to just shepherd in the change.
J. Aughenbaugh: As we discussed in our series about cabinet level departments, most of those cabinet
level departments at various times had individuals picked as secretaries, whose purpose was to go
ahead and be a manager. To lead the organization into something it was becoming.
N. Rodgers: Right, a stabilizing force.
J. Aughenbaugh: Force though would fall into that category. Two years later, in 1949, after Truman got
re-elected as president, Congress amended the National Security Act and renamed the NMI, the
National Military, NME, National Military Establishment, and it became the Defense Department. The
Defense Department, as Nia pointed out, led the United States in the fighting of wars in Korea, Vietnam,
Afghanistan, the first Persian Gulf War, the second war in Iraq, in part, according to historians and
scholars, the name change in 49 reflected the department's expanded duties. We're not only fighting
wars, we're fighting a cold war, which in many ways, was about ideas.
N. Rodgers: Right. It was also about national security. It came not war out there, but protecting the
homeland, basically.
J. Aughenbaugh: Because the assumption was that at some point in time, a communist nation, whether
it was the Soviet Union and then eventually the China would bring the attack to the United States.
N. Rodgers: I mean, Cuba was literally 190 miles [inaudible] .
J. Aughenbaugh: It's 90 mile.
N. Rodgers: I was going to say it's less than 100 miles away.
J. Aughenbaugh: 90 miles away from, you know, Key West. I mean, come on now. So the new name
reflected this emphasis on avoiding war. How do you provide national security without going to war? At
the time, and again, we live in 21st century world and in 21st century America you hear this expression
all the time, political correctness, wokeness. When the Department of Defense was created, there was
no political correctness. It just reflected an agreement among Truman and leaders in Congress that a
Department of War no longer accurately captured the United States changing role in global politics.
N. Rodgers: Right. You're hard pressed to call yourself a leader if you lead with war instead of defense.
J. Aughenbaugh: Defense. That's right. So as this episode began, we went ahead and said, Hey, we're
going to take a look at the Trump administration wanting to change the name of the Department of
Defense. The announcement was made on September 5 of this year. At the time of recording this
episode two weeks ago, he announced it on Friday, which I thought was rather interesting. But
nevertheless.
N. Rodgers: Friday news dump.
J. Aughenbaugh: Friday news dump. Now, technically, legally, can a president unilaterally change a
name of an executive branch department that was created in law by Congress? The answer is no.
Because Congress has the authority to create and name bureaucratic agencies. That's clearly established
in Article 1 of the US Constitution.
N. Rodgers: If they wanted to create a department of Waka Waka waka.
J. Aughenbaugh: Yes.
J. Aughenbaugh: They could do that and put Fozzie Bear as the chair of it and and that's they're allowed
to do that. That's joy of being in Congress. You can name stuff.
J. Aughenbaugh: On one day, I hope to convince a majority of both Houses of Congress to go ahead and
declare coffee as the nectar of the gods and have an entire department that is designed to go ahead.
N. Rodgers: The Department of Coffee acquisition.
J. Aughenbaugh: Yes. Congress could name it exactly that way. The Department of Coffee Acquisition. It
would appeal to me on so many levels because, again, it would be rooted in the Commerce Clause,
which means I would get to go ahead and annoy you for countless number of future years of this
podcast.
N. Rodgers: When I'm president.
J. Aughenbaugh: Yes.
N. Rodgers: When I'm president. Okay. I know I've made a lot of promises, but I will get you a coffee. It
might only be a bureau. Sorry.
J. Aughenbaugh: It would be a bureau within the Department of Commerce. Fine, fair enough.
N. Rodgers: But the Bureau of Coffee Acquisition, run by John Aughie.
J. Aughenbaugh: Now, the butt in all of this is a president can announce a name change and then go to
whom to ratify the name change?
N. Rodgers: Well, he'd have to ask Congress to say, Hey, don't you think we ought to call it the
Department of War? Don't you think we ought to call it the Department of Lego building or whatever.
J. Aughenbaugh: This is the but in Nia's comment earlier in the podcast listeners. This is the but.
N. Rodgers: No, but.
J. Aughenbaugh: But could Trump turn to the Republican control Congress and say, Don't you all agree
with me that Department of Defense is woke. It doesn't reflect the fact that the United States is going to
be offensive and not defensive.
N. Rodgers: In a previous episode, you may have heard us discuss that there was no justification given
for a previous action by the president that we were asking, could he do that?
J. Aughenbaugh: Yes.
N. Rodgers: In this instance, the justification given was, wouldn't you like to use the name under which
there was so much winning of wars?
J. Aughenbaugh: Yes.
N. Rodgers: Because that makes us sound stronger.
J. Aughenbaugh: Yes.
N. Rodgers: I think that's what his justification was. Let's hearken back to a time when we won wars and
didn't lose them. Because he somehow is equating after 47, and in fairness to Donald Trump after 47,
our winning of wars is a lot more murky because did we win Korea? Did we win Vietnam? Did we win
Afghanistan? Did we win Iraq? Those are murkier questions than did we win World War 2 which is pretty
clear. It's pretty clear that the allies defeated the axis powers. So I understand where Donald Trump is
coming from. But also, I don't think the name is what made wars easier to win versus not easier. I think
what's happened is modern warfare makes wars harder to win because it is harder to be clear on what
winning actually means.
J. Aughenbaugh: What is the objective? How do we know that we've won?
N. Rodgers: What's the assessment here? Like, it's harder to assess.
J. Aughenbaugh: Wars are taking longer, not shorter.
N. Rodgers: When you start declaring wars on ideas like poverty and drugs and terrorism.
J. Aughenbaugh: Terrorism.
N. Rodgers: How do you ever know if you've won that war?
J. Aughenbaugh: It gets really muddy.
N. Rodgers: I don't think renaming it's going to change the overall functioning of whether you can tell if
you've won or not.
J. Aughenbaugh: Nia, I agree with you. I understand the correlation. I'm not entirely sure there is a
causation.
N. Rodgers: He has made the fatal mistake that many undergraduates make when they connect to ideas
as causally related and you're like, no, they may be correlationally related.
J. Aughenbaugh: Yes, they may have happened at the same time, but one phenomenon did not
necessarily cause or change the other one. They just occurred.
N. Rodgers: Ice cream does not make people murderous. Murders go up in the summer, ice cream
consumption goes up in the summer, but that doesn't mean that eating ice cream makes you murder
people.
J. Aughenbaugh: That's right.
N. Rodgers: Those two may be correlatingly related, but not caused causally related.
J. Aughenbaugh: That's right.
N. Rodgers: I think he's falling into that fallacy of the causation. If we just rename it the Department of
War, we can start winning again. I'm like but can we? How are we going to know we're winning? He also
likes to have things have names that he thinks sound good.
J. Aughenbaugh: Yes.
N. Rodgers: One of the reasons that he wants the Gulf of Mexico to be renamed the Gulf of America is
because he thinks it sounds better.
J. Aughenbaugh: "It has a beautiful ring."
N. Rodgers: You're like, Okay.
J. Aughenbaugh: In there, the president has more clear cut power to order changes to geographical
names as they are used in the United States.
N. Rodgers: Mount Denali versus Mount McKinley.
J. Aughenbaugh: Because, again, unless Congress has passed a law that goes ahead and clearly says in all
documents, the body of water [inaudible]
N. Rodgers: Between Mexico and Texas shall be called.
J. Aughenbaugh: The Gulf of America. The president can go ahead and do that.
N. Rodgers: Not answering the question of the president should do that. Should you call something
McKinley or Denali. That is a larger question for us to wrestle with as people. The other thing is, if you
call a geographic name something that other people don't call it, then what will happen is popular
colloquial references will take hold. You could change the name of the Gulf of Mexico to the Gulf of
America but if no one calls it that. That's, like me saying, I have a middle name. I may have a middle
name, but if nobody ever calls me the middle name, does it really matter that I have middle name?
J. Aughenbaugh: For the longest time, Nia, to your point about names, for the longest time, once I got
to grade school, people would go ahead and say, John, and I would not respond. Why? Because nobody
called me John. Everybody called me Aughie. I was just like, Who is this John person that they are
referencing because it didn't matter. Even though legally, on the birth certificate and every other
government document, my first name is John. But in terms of everyday usage, and if I had to venture a
guess, there's a whole bunch of people, for instance, who live in Shreveport, Louisiana, who don't go
ahead and say, it's the Gulf of America or the Gulf of Mexico. They just call it what? The Gulf. It's D-A
Gulf. Not the it's Da Gulf. It's like if you're a resident of Chicago, you don't refer to the Chicago Bears
football team as the Bears, you refer to them as Da Bears. Again, a president can go ahead and proclaim
that and probably get away with it because, again, it's not necessarily in a legal document that has
created something.
N. Rodgers: But if I got a letter from the Department of War, or the War Department, I would feel a little
more alarmed. I'd be like, Wait. What? We have asked the question previously of can somebody do
something? In this instance, it's pretty clearly no, except or but he could go to Congress, and they would
probably rubber stamp this particular change. This Congress probably would not argue they would put it
in an appropriations bill. It would I would go through as, okay, we're going to call it the War Department,
and then all of the merchandise that gets sold by the Department of Defense would have to be changed
to say War Department, and Pete Hegseth would get to be the Secretary of War instead of the Secretary
of Defense. Whatever. That's fine. Can this particular action happen? It can, but you still have to run
through Congress as you don't get to just unilaterally, poof, I'm going to change this thing that Congress
has declared. It would be one thing if Congress said a department to be named later, and then you could
just name it whatever you want to name it. If Congress didn't give it a name when it created the
department, if it just said, Bob's your uncle department and then they put in a parentheses. We will put
in a real name at some other time.
J. Aughenbaugh: Or Congress, which is what we've seen since the 1930s and the New Deal, could go
ahead and create a new executive branch department and say, we're delegating the naming of it to the
president. Just like we've delegated all of our authority about immigration, etc.
N. Rodgers: They can hand that over to the president.
J. Aughenbaugh: Sure. But in this particular instance, and what I think will likely happen is what you just
described, Nia. Congress will get around to doing a spending bill for the current Department of Defense,
and there will be language near the end that says, I know here by the way, the Department of Defense is
the Department of War. Even those Republican members of Congress who are like, I don't like the name
change or I really don't care about the name change, we'll go along with it because they want the
appropriations for the Department of Defense or Department of War that benefits their district or their
state.
N. Rodgers: The Democrats in Congress will also go along with it for the very same reason. If you think
about both of the senators from Virginia, they are both Democrats, but an enormous amount of the
Virginia economy depends on the military.
J. Aughenbaugh: Yes.
N. Rodgers: They are not going to fuss up, they may fuss. They may say, You should take that out of
there. But in the end, they will vote for it because that money coming into the state is a very important
factor for Virginia, and it's true of a lot of states. It's also true of California. Another democratic state.
That's the way to do it is to just slow roll it.
J. Aughenbaugh: When he went ahead and announced it, Nia, you know this. I reported this, I was
getting two or three emails a day from current and former students. Can the president do this? I'm just
like, no. But then, again, Yes.
N. Rodgers: Yes. Maybe that should be one of our, is it no? Is it yes or is it kind of?
J. Aughenbaugh: Yes. But nevertheless, listeners, I hope you enjoyed this episode because again, on one
hand, this is the clearest example that a president does not have the authority to just unilaterally
rename an executive branch department, but there is a constitutional process in which it could happen
and it will more than likely happen because of what we know currently, that it doesn't matter if the
Congress is controlled by Republicans or Democrats. If their party controls the president, increasingly,
Congress has no backbone.
N. Rodgers: All they are is a rubber stamp. They're like, whatever you want.
J. Aughenbaugh: The Congress of the 19th century or the first couple decades of this century is a distant
memory.
N. Rodgers: These are very passive. Individuals for the most part.
J. Aughenbaugh: It's just remarkable to me the fact that nobody of substance in Congress has gone
ahead and said, No, you can't do that. Yes, it's inconsequential. But no, you can't do that. Just somebody
go ahead and remind us that Congress has institutional power that they can go ahead and say,.
N. Rodgers: For something.
J. Aughenbaugh: For something. Even if it's inconsequential, about a name.
N. Rodgers: The other part of this, to me, which I, before we wrap up, I want to mention is sometimes
Donald Trump and it's not just him, other presidents do this, too, get out over their skis. They say
something ahead of time if they just would be patient. If he had just put this in an appropriation bill, it
wouldn't have been a thing. Nobody would be saying, Hey, could you even do that? If he just said, Yeah,
by the way, we're going to change the name in the bottom of the appropriation bill. But Donald Trump
gets excited about stuff, and he's not the only president. Again, I'm saying Biden did this. Obama did
this. Bush did this. This is a thing. Clinton was notorious for doing this. Getting way out ahead of, and
we're going to do this, and we're going to do this. We don't need to show our whole hand. Sometimes
it's okay to actually hold your cards closer to your chest. Sometimes it's okay not to tell people that
you're sitting on two kings. You know what I mean?
J. Aughenbaugh: Put your cards down on the table and let everybody else bet.
N. Rodgers: He struggles with that, 'cause it comes to his mind and he wants it to come out of his
mouth.
J. Aughenbaugh: What really distinguishes Trump is that even when he gets blowback, he doubles
down. He triples down. He goes ahead and says, No, no, no.
N. Rodgers: That's going to be the best name ever. It's going to be the namiest name that has ever
named. You're like, What are you talking about?
J. Aughenbaugh: Because other presidents would be counseled by their advisors to, Mr. President, shut
up, or Madam President, shut up.
N. Rodgers: Let's the process work.
J. Aughenbaugh: But Trump's like, No. This is going to be the most significant name change in the
history of executive branch departments.
N. Rodgers: It really isn't.
J. Aughenbaugh: I'm like, One, how do you measure that in two. At this point I'm in all kinds of confused
and people are like, Can you do that? I'm like, I don't know how we measure this.
N. Rodgers: The best of the best of everything and you're like, not everything is superlative. Some things
don't have to be superlative. They can just be the way they are. Can I briefly mention I love the idea of
the White House having a ballroom. I love that idea of state dinners being held in a big, gorgeous room. I
love the idea of us having almost a Versailles, a place where we can show off American awesomeness.
I'm okay with that, but it's not going to be the best ballroom that's ever been built in the entire history
of ballroom. It's just not. You know what I mean? It's okay for it to just be awesome on its own without
having to say it is the superlativest of all things. Maybe we could just say, it's really awesome to have a
ballroom, and good for him that he's funding it without using government dollars. I'm like, go Trump, I'm
happy for him. That's great. I hope that I eventually get to see it one day. I doubt I'll ever get invited to a
ball, but maybe I could see it on a tour or something. I think that would be lovely. It's going to be the
best. I'm like, Let's calm down. You're right. How are we assessing that it's the best ballroom ever?
J. Aughenbaugh: I just always thought it was cool that previous White Houses presidents had bowling
alleys and home movie theaters 'cause for me, I'm just like, Man, I would really like to have that.
N. Rodgers: That's the house I want to live in. But some people would also like a ballroom.
J. Aughenbaugh: Ballroom, that's fine. But again, I'm just like, how do we assess or measure this?
Anyways, listeners, hopefully, we provided some valuable, if you will, knowledge, in regards to the
naming or renaming of executive branch departments. I got to conclude with this. Say what you will
about the president, you can love him. You can hate him, whatever the case may be. He is like a gift to
constitutional law scholars.
N. Rodgers: You guys end comedians.
J. Aughenbaugh: We have a relevance now that we probably could have never envisioned.
N. Rodgers: That's true. You guys are making the news way more than you usually would. Not to be ugly,
but this is your moment. You constitutional scholars, this is your moment.
J. Aughenbaugh: All those Saturday mornings in various libraries where I was looking stuff up in the
United States Code.
N. Rodgers: Memorizing the portions of the Constitution.
J. Aughenbaugh: Reading treatises about how to interpret it. This is the ultimate payoff.
N. Rodgers: All you had to do was wait 30 years.
J. Aughenbaugh: Nia, you've heard me say this. It's like being a Constitutional law scholar in the 1930s
when FDR was basically saying about 100 years of constitutional law doctrine about the Commerce
Clause and the 10th Amendment, I'm going to challenge all of that.
N. Rodgers: I imagine it's like being an economist during a depression or a recession. Everybody's like,
how do we bring this to an end? How do we manage this? How did we get here?
J. Aughenbaugh: Can this phenomenon and that phenomenon exist at the same time? This is where, as
an economist, you're like, all those years.
N. Rodgers: Everybody just thought I was a goober.
J. Aughenbaugh: Reams of data, and my eyes were squinting and I got headaches. Here's my payoff.
N. Rodgers: That's right. Oh, my goodness. He is the gift that keeps giving.
J. Aughenbaugh: Yes.
N. Rodgers: Thank you, Aughie.