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Minnesota Law Now is a new podcast from the University of Minnesota Law School that brings together some of today’s most insightful legal scholars in conversation about law, policy, current events, and the ideas that shape our world.
[music]
Hi, I'm William McGeveran,
Dean of the University
of Minnesota Law School
and William S. Pattee,
Professor of Law.
Welcome to our new podcast,
Minnesota Law Now.
Welcome to the inaugural
episode of Minnesota Law Now.
It's a new podcast
from the University
of Minnesota Law School,
where we'll be asking members
of our distinguished faculty
to sit down in conversation.
We're going to discuss
some of the most urgent
legal and social issues of our time.
I'm William McGeveran.
I'm the Dean of the Law School
and the William S. Pattee
Professor of Law.
Few topics in American law
feel more urgent
or more contested than the scope
of presidential power today.
From executive orders,
emergency declarations
to immigration enforcement,
national security,
limits imposed
by Congress and the courts,
the presidency, of course,
sits at the center
of some of the most consequential
legal debates of our time.
Presidents sign executive orders,
they declare emergencies,
they direct agencies,
they shape national policy overnight.
How much of that power
is constitutional?
Where are those limits?
Today, we're talking about
the law of presidential power,
what a president can do alone,
what Congress and the courts
do when they step in,
and how crises,
whether national security
threats or political gridlock,
test the system.
I'm joined by two of my extraordinary
Minnesota Law colleagues,
Professor Nick Bednar,
Class of 2016 from Minnesota Law,
who studies administrative agencies
and executive control,
and Professor Alan Rozenshtein,
an expert in constitutional
and national security law.
Nick, Alan, thank you both
so much for being here.
Thanks for having us.
Thanks for it.
I want to begin by asking
both of you, just broadly speaking,
what people are talking
about when they talk
about presidential
power in legal terms.
Where does it come from?
What does the term mean in law?
Nick, how would you answer that?
I think there are really two sources
of presidential power
that most people are thinking
about when we use that phrase.
The first is the Constitution itself.
Article 2 of the Constitution defines
the powers of the president and says
what the enumerated
powers of the president are.
Article 2 itself is pretty vague.
It has some specific powers,
but mostly it just describes
the executive power as being
vested in the president.
A lot of times when people
are talking about presidential power,
what they're actually talking
about is statutory authority
possessed by the executive branch
and what the executive branch
is able to do as a result
of the laws passed by Congress.
The Constitution
is the starting point,
but the statutes add so much more.
I want to begin
by talking about one place
where presidential power lives day
to day in the federal agencies
that actually carry out
the president's agenda.
Nick, so much
of the president's power
flows through those agencies.
How does control over that apparatus
of the administrative state
translate into political,
real-world authority?
The vast majority of laws
in the United States are implemented
by the executive
branch through the 2.8
million people
who work for that branch.
When we're talking
about presidential power,
what we're often talking
about is the president's ability
to direct the people
in those agencies.
We're talking about things as broad
as the Environmental Protection
Agency passing regulations
that might limit carbon
emissions for a new industry.
We're talking about things as simple
as the US Postal Service
choosing to deliver
mail down to the bottom
of the Grand Canyon.
The way that the president
is able to direct
and control the people
within the executive branch
and how they choose
to do their jobs shapes
a lot of presidential power
in what law actually looks
like for the United States
and how the public experiences it.
Sure.
I don't know how simple
it is to deliver mail
to the bottom of the Grand Canyon,
but I take your point.
[laughs]
First, get a donkey.
Fun fact, the bottom
of the Grand Canyon is the only place
where the US Postal
Service still uses donkeys.
It uses a mule train.
You weren't joking.
No.
That's how you get to the bottom
of the Grand Canyon.
They also use hovercrafts.
It takes a lot to get the mail
there on time, I guess.
What about when they say
it's an independent agency?
We've been seeing so much,
especially with the recent
litigation about
the Federal Reserve membership,
the Federal Trade Commission.
How does that fit into the picture?
How independent really
are they from the president?
Independent agencies,
there's a variation of degree
into how independent
these agencies are.
We can start with the agencies
that most people think
of that are controlled
pretty heavily by the president.
We can think of something like
the Department of State
or the Department of Justice.
These are headed
by a single presidential
appointee who exercises
hierarchical authority.
We then have some agencies
that are outside that traditional
cabinet structure,
and they have various
structures that make them
more or less independent
from the president.
For example, you brought up
the Federal Reserve.
Well, the Board of Governors
of the Federal Reserve is governed
by multiple members
who are appointed
from different parties
and who enjoy removal protections.
Often when we're talking
about independent agencies
in the legal context,
we're talking about
those agencies where their appointees
enjoy removal protections.
Now, how independent
are those appointees
actually from the president?
It's changing over time very rapidly.
The Supreme Court
has been very active
in curbing Congress's authority
to restrict removal
of these appointees.
There's a case before the US
Supreme Court right now,
Trump v. Slaughter, that'll decide
whether these removal protections
are constitutional for members
of the Federal Trade Commission.
Empirically, we know
from political science
that even before
these decisions, however,
presidents exercise quite a bit
of control over these agencies.
In terms of day-to-day policymaking,
they were usually able
to get what they wanted out
of these agencies
without too much difficulty.
Sure.
You mentioned how active
the Supreme Court
has been in that area
of removal power
in independent agencies.
They've been active
all over the place.
There's been shifts
in the non-delegation doctrine,
the abandonment of the Chevron case
that had deference.
Put together, how are all
those shifts changing
the balance of power
between Congress,
agencies, and president?
The Supreme Court
is operating under a theory
where what it wants to do is it wants
to incentivize Congress
to write clearer laws
that better guide
executive discretion.
One way to interpret these shifts
is the Supreme Court really trying
to restore power to Congress
to engage in lawmaking.
Now, for example,
take the Chevron case.
Chevron was this case
that was decided in 1984 that stood
for the proposition
that a federal court should defer
to an executive branch agency
about what the law means
so long as its interpretation
is reasonable
and the statute's ambiguous.
A lot of people think
this case provided agencies
with considerable policymaking
authority, and in fact, it did.
Recently, within the last two years,
the Supreme Court has gotten
rid of that doctrine and said,
"Actually, courts
are going to be the ones
to say what the best meaning
of the law is."
We've seen the court reclaim
some of its own authority
to decide what the law is and take
some of that policymaking
authority away
from the executive branch in hopes
that Congress will reclaim it.
Now, practically,
we don't wholly know yet
what the consequence
of this is going to be.
One potential result
is Congress actually chooses
to legislate more often
and more clearly.
Another potential
option is that courts
don't have the expertise
that executive agencies do,
and so they just continue
to defer to these agencies.
Sure.
I guess that's one of the many areas
we're going to be seeing how it plays
out over the next coming years.
It's going to keep you busy
as a scholar for years to come.
That's just in the ordinary
routine governance
that happens in the everyday
sense through agencies.
Then there's the issue of emergencies
of one kind or another, and that can
be an even greater stress
test for these
constitutional boundaries.
Alan, obviously, national security,
an area where you have expertise,
is often one of the places
that presidents will cite
to claim their strongest powers.
What is it about that domain
that gives so much
latitude and deference
to the president?
Sure.
There's a practical answer,
then there's a legal answer.
The practical answer
is just that national security
is both high stakes, it's very fast,
and it needs single command.
When you combine
all of those things together,
it's natural that the president,
the chief executive,
the commander-in-chief
is always going to have a lot
of powers there.
The legal answer
is that both the Constitution,
under at least some readings,
and in particular statute,
give the president a whole
host of emergency powers.
Let's just stick to the national
security context for a second.
The Article 2 makes the president
the commander-in-chief.
As Nick pointed out, Article 2
is unfortunately pretty vague
as to what all of that means.
One thing that's been
at least understood,
at least all the way
back to Abraham Lincoln
during the Civil War,
and you probably find
some of this stuff with even someone
like George Washington back
when he was dealing
with some domestic disturbances
at the beginning of the Republic,
is that, for example,
if the nation is attacked,
then the president
has an inherent ability,
without waiting
for congressional authorization,
without waiting
for Congress to declare war,
which is one of Congress's powers
in the Constitution,
to go and deal with that threat.
Various presidents have,
over American history,
made more or less
aggressive interpretations
of their inherent emergency
powers under Article 2.
These days, however,
when presidents cite
emergency powers,
they're not usually relying
on the Constitution alone.
Again, part of this
is for legal reasons.
There's a famous case from the Korean
War that everyone learns
in constitutional law
class called Youngstown,
which sets out this idea
that when the president
is acting against Congress,
he is acting at the "lowest
ebb" of his powers.
He doesn't always lose,
but he frequently loses.
[?] at all possible
the president would
like to act with Congress.
Congress has obliged.
Especially since World War II,
Congress has, in statute,
written a bunch
of emergency authorizations
that allow the president
to first declare
an emergency and then
to exercise powers
that the president wouldn't otherwise
have access to absent those powers.
For example, we've
heard about emergencies
in the context of tariffs, right?
Yes, absolutely.
For example, there's
a whole set of emergencies
regarding economic trade control.
There's this law called
the International Economic
Emergencies Powers Act,
IEEPA, which allows
the president during
national security emergencies,
to, for example,
restrict imports as well as impose
sanctions on various countries.
This and other
emergencies are almost,
by their definition,
meant to be somewhat temporary.
That's what makes it an emergency
and not the normal
course of business.
In fact, many of these
emergencies are temporary.
Some of them, however,
have lasted for quite some time.
Two in particular come to mind.
One is the authorization
for use of military force,
which is basically
the modern post-World War II
way that Congress declares war.
This was after 9/11
when Congress gave
the president the authority to go
after Al-Qaeda and associated forces.
It's basically the legal
authorization
for the wars in Afghanistan.
That authorization
is still in effect 25 years later,
or almost 25 years later,
and is still being
used by the president.
Then IEEPA, which
I mentioned earlier,
is also still being used.
For example, sanctions
against Iran go all the way back
to the Iran hostage crisis
during the Carter administration.
Just doing some quick math,
that's almost 50 years now.
That is an ongoing emergency.
What you see is that because
of a combination of,
I think, legitimate reasons
to give the president
some flexibility,
but then also the secular
increase in presidential power,
especially in the post-war period,
and the concomitant unwillingness
of Congress to take any of that,
really, power back,
you're seeing a president
that has more
and more and more power,
which certainly has a variety
of implications
that we can talk about.
Let's talk about
the checks that there are.
You've mentioned a few,
both of you have.
Congress has various tools.
You mentioned Youngstown and the ways
in which the court
can cause constraint.
Nick, you mentioned
the effect of the overruling
of Chevron being
a return to more power
of the court potentially.
What do you see as the most important
of those checks
and those actors out there?
There's Congress, there's the courts,
there's the agencies themselves.
Where are those checks
most likely to be working now?
Oh, gosh, they both laugh.
That's a bad sign.
Go ahead.
Where are they working, Nick?
Please tell us.
I said where they're
most likely to work.
As you look forward to saying who,
using what tools,
are causing constraint
on this expansion
of presidential authority,
where is it going to come from?
Just to tee it off as to why Alan
and I are both laughing,
the founders had this vision
of the Constitution that was very
much separation of powers.
Congress was going to check
the president,
the president was going
to check Congress,
the court was going
to check both of them.
We had this nice
schoolhouse rock triangle
of the way, the little triangle.
I have images of the movie Election
where Matthew Broderick is up
at the board year after year
drawing that triangle
for his high school civics classes.
I watched that movie
for the first time this week.
Oh, it's a good movie.
The reality of modern politics
is we really live
in a separation of parties system
as opposed to a separation
of power system.
It's hard to say exactly
who's going to provide
the check because it depends
on who controls
the institution at any given moment.
I think even though today
Congress is controlled
by a Republican majority
and we have a Republican president
in the White House,
that might lead you to believe
there are no checks,
we still see some checks,
but they're more often
informal soft power sources.
Examples of this are spending powers.
The president proposes a budget,
Congress can reduce
the size of that budget.
In order to pass the budget,
the parties often have
to negotiate with one another.
A good example
of this is when we came out
of the November shutdown,
one of the things that was agreed to,
to end the shutdown was a moratorium
on reducing the size
of the federal workforce.
That was in effect till January 31st.
It's been extended to February 13th.
We have these more informal,
infrequent checks that occur
through investigations
and appropriations
as opposed to what the founders
may have intended
with the separation of powers.
Alan, what about courts
as a part of that picture, though?
If we have separation of parties
and you've got a judicial
system alongside that,
where does that come in terms
of checking the executive authority?
Courts obviously have a role to play,
and they do frequently check
the president
as they have been doing,
I think, surprising amount of vigor,
at least at the lower court
levels in this administration.
There are, at least, two reasons
to be skeptical that courts
are going to be
particularly effective.
One is the political dimension.
Obviously, one of the third
rails of debate
in constitutional law
is the extent to which the courts,
in particular the Supreme Court,
is a political legal institution
or more of a political
super legislature.
If it's the latter,
then it's going to be subject
to a lot of the same
political pathologies
that Nick pointed out
takes place with Congress.
I tend to think that the answer
is usually somewhere
in between, but we should
not be super surprised
that in a court where six out
of the three justices
were appointed by members
of the president's party,
that the president
would do, let's say,
better with that court
than if the roles were reversed.
I don't think you need
to take a particularly cynical,
even partisan,
view of the court for this.
You can just say, "There's
a reason they were selected.
Such and such justice was selected
because his or her views
were concordant
with the views of the person
that appointed-"
People pick judges
that they think are good judges
based on what they think
is the right judging to do.
That's the point.
That's the reason.
That's, in some sense, a good thing
because it allows
some democratic check.
Again, in a situation
now where I think you can say
that all three branches
of government are,
in some way, controlled
by the Republican Party,
you're going to have less checking
than were that to be reversed.
The second reason is more
of an institutional reason,
which is that,
at least in some domains,
and here national security
is the big one, courts are just
not very well positioned
to check the presidency.
The way this is legally
expressed is with the idea
of what's called the political
question doctrine,
the idea that there are some issues
that are so outside
the court's competency
and where it would be such
a potential problem
for the courts to come
in and, for example,
start countermanding
the president's decisions,
whether it's to bomb this
or that country, that the courts say,
"We're not going to get
involved in those debates,
not because we think
the president is allowed to do this,
but because we're actually not
going to pass judgment on this.
This is just outside
of our jurisdiction."
There are all sorts
of debates about that.
If I may, though,
just go back to your question,
to challenge the premise
just a little bit.
I think, at the end of the day,
the most effective checks
to all of this is actually
not a legal check at all.
It's the political process.
Right.
I was going to ask
about that exact question.
Go ahead and answer that question.
Sure.
Elections have consequences,
and elections
should have consequences.
In a very narrowly and,
unfortunately,
somewhat bitterly
divided country like ours,
those consequences
will be quite substantial.
If you don't want
a president who goes
off the rails using emergency powers,
at the end of the day,
there's only so much
that the institutions can do.
They can shape that emergency
power exercise,
they can check it here or there,
but at some point,
the people have to,
through their electoral choices,
say, "We do like this,"
or, "We don't like this."
I think that's something
that law professors,
legal academics, are sometimes
somewhat uncomfortable
with because those are fundamentally
not legal answers.
Those are political answers and,
in some ways, outside
our zone of competence.
We're just umpires,
but at the end of the day,
the audience has to show up.
Right, and is, on some level,
at least indirectly,
choosing some of those umpires.
Absolutely.
Nick, so much of this is informal.
Norms, political control,
some of the soft
power you referred to,
some of the judicial
shaping that Alan referred to.
Is that typical of the way
that we've had constitutional
division of power,
separation of powers
throughout history here?
Are we in a time
when things are more informal,
more based on norms,
or is this the norm?
I think to some degree
it's the norm that presidents
have always had a fair
amount of discretion,
and the use of that discretion
has been governed
by some amount of norms
shared among people who held
the highest office about
how the government should run.
A good example
of this is we're seeing
a lot of shaking up
of the civil service.
The Trump administration
has been very active
in removing federal employees
and changing hiring policy,
and there's a lot of questions
about how legal that is.
A lot of the president's authority
to do this dates back
to civil service laws
that predate the modern civil service
and are still on the books.
The reason presidents
haven't thought to use
these laws in the way
the Trump administration
is doing so is simply
because presidents
had a general understanding
of norms that it was a good idea
to have a functioning
federal workforce.
You wanted people
who could implement your agenda.
Now, presidents pushed
at the boundaries of that.
The Reagan administration
was very active
in reducing the size
of certain agencies like EPA.
The Clinton administration had some
of the largest reductions
in force in history.
At the same time,
there was an understanding
that at the end of the day,
government still needed to function.
I think a lot of law
has been governed
by an understanding
of what these norms are,
and we've just played
within the boundaries we thought
were shaped by those norms.
We're seeing the limits of law
at this moment as those norms
start to erode.
I want to do a little
bit of a pivot here
and look towards the future.
We've talked a lot about
history and precedent.
We've talked a lot about
structure that's been in place
for decades and,
in some cases, centuries.
Let's look a little bit towards
the future and where these debates
about executive power might be going.
In particular, so many
things are happening.
We've referred to at least
a dozen different areas
where there's debate
and conflict and litigation
about some of the exercises
of presidential powers.
What are the areas
of presidential action
that you're looking
at the most that you think
are most important
for triggering these fights
and for potentially yielding
any important changes
in the balance of power
and separation of powers?
Go ahead, Nick.
There are three I think
are really big.
I, unfortunately, have spent
the last month reading every brief
that the Trump
administration has filed
in the district courts
defending presidential action,
which is not good
for one's mental health.
Why not?
Why is it not?
[chuckles]
You learn that creative
lawyering is sometimes very scary.
I think there are three
recurring themes
that I am seeing.
The first is related to something
known as unitary executive theory.
Unitary executive theory is the idea
that the president needs
control over all subordinates
within the executive branch
because the president
is the source of executive power.
Thinking about
what constitutional fights we want
to be looking at,
we want to be watching
how the Supreme Court decides
Trump v. Slaughter
and whether we see it
expanding the president's
ability to control-
That's the FTC case?
This is the FTC case.
Expanding the president's control
over these individuals
or whether it's going to draw
a line in the sand and say,
"This is where it stops."
Other one we want to be watching
is presidential
control over spending.
During the shutdown,
the Trump administration
really pushed the boundaries
of what was viewed as permissible
spending during the shutdown.
The Trump administration
has also made claims
that the president
has an inherent Article 2 authority
to engage in some degree
of impoundment,
that is, withholding
spending certain funds.
The impoundment is the money
that the Congress puts
in the Appropriations Act,
"Spend this," and then the president
wants to not spend that.
Right.
We saw a lot of this very early
on in the Trump administration
with pausing grants.
The third thing
is more in Alan's area,
but the scope of what the president
thinks the foreign affairs power is.
The president has argued
that foreign affairs
means he can end refugee admissions
to the United States,
that he can abolish whole agencies
like the US Agency
for International Development,
and even the Foreign Affairs power
is what is being used
in litigation to argue
that demolishing the East Wing
of the White House was permissible.
Foreign Affairs, okay.
It's creative lawyering [?].
You have to host
diplomats in the ballroom.
This is the argument.
That's the argument.
Exactly.
Alan, is that a good list?
Is there more to add to it?
No, I think that's a great list.
I'll answer, I think,
the question somewhat differently.
I'll say there are two things
that I'm thinking about,
neither which are focused
on the law necessarily
of executive power, though Nick did
a great job outlining
the major issues there.
The first is
what the next president will do.
This administration will run out
the clock and it will be what it is.
Fair enough.
Elections have consequences.
Yes, elections have consequences.
I think what will be
more important actually
for the long-term is not so much
what Trump does
for the rest of his term,
but what happens in 2028.
Obviously, if, let's say,
a Republican,
let's say it's J.D. Vance,
becomes president, I would expect
a lot of this to continue.
The really interesting
question to me is what happens
if a Democrat wins
in 2028 and it's President Newsom,
or President AOC, or Shapiro,
or Buttigieg, or whoever it is?
Will they use
it as an opportunity to say,
"Man, it was a rough four years.
We should really go back
to a more constrained,
internally checked presidency"?
or has this period
been so radicalizing
for the Democrats
that they'll say, "We're done.
We're done unilaterally disarming.
We get no credit
for this when we do it.
It just limits our policy space
when the Republicans take control"?
If that's the case,
and it's an understandable reaction,
though probably not one that's
best for the long-term health
of the American
democratic experiment,
then that raises real concerns about
whether the separation
of powers can endure.
That's a political answer.
The other thing that I'm interested
in on a somewhat longer timescale
is the technological question
of what the president can do.
When I'm not sitting executive power,
I study technology regulation,
and in particular, AI.
One thing that's been interesting
over the last six months
is thinking how
those two things converge,
because one thing that we're seeing
is the rapid acceleration
of these AI systems,
ChatGPT, Gemini, Claude,
that we're all using.
They're not just
useful for chatting with.
They can, themselves,
be very effective agents
in running complex organizations.
At the end of the day, and I remember
this when I was a junior
policy attorney
in the Department of Justice
before coming to Minnesota,
fundamentally what the government
does is it takes Word documents
and turns them
into other Word documents
and then sends them
around through email.
You can think of it that way.
Now, obviously, that's
an extremely reductive way
of thinking about it,
but that is a lot
of what the executive branch does.
You imagine a world
in which the president
has access to these tools,
these agents that are tuned
on the president's preferences,
that are very smart, very effective,
and that can operate
at all levels of the bureaucracy.
Suddenly, these really
interesting legal debates
that Nick and I might have about
what's the appropriate scope
of the removal power, in some sense,
we can actually finally test
the reality of those because
now this question
of even under the most
muscular version
of the unitary executive theory,
how could a president really ever run
a 2.8 million person bureaucracy?
Now, the president actually can.
Executive power by bot.
Exactly.
In a world where you can
actually effectuate that,
what does executive power look like?
I think it looks a lot stronger.
I don't really see,
for the next 5, 10, 15 years,
any real diminution
in executive power.
I think that raises
real concerns about, at least,
the current state
of our constitutional experiment.
While we're talking about the future,
we're almost out of time together,
but I want to give you each a magic
wand, a legal magic wand,
and ask you what's
the one change or reform
or structural alteration or amendment
to the Constitution or new
doctrine from the court,
what's the one thing
that you would most like to see
in this area
of executive power occur?
Nick?
I'd enact a constitutional amendment
that separates
the administrative state
and basically codifies
Congress's ability
to delegate power to it and ensures
protection of the employees
who implement the law.
Does that make them another branch
or just a better regulated part
of the executive branch
by the legislature?
I think you could do it either way.
People have proposed it either way.
I think at the end of the day,
you're going to need
an administrative state
headed by someone.
It makes sense that
it's headed by the president,
but that state needs more protections
than it has right now.
Alan, what's your one magical change?
I think it's pretty clear
that we should be
a parliamentary system.
That's a big magical change.
I was going to say what Nick said.
Back it up.
I was going to say what Nick said,
and then he took it from me.
You have people in some
parliamentary democracies
in Europe constantly
saying that they think
that they should be more
Americanized in some ways.
I think they are incorrect.
[?] Nick.
There is a reason
why whenever American political
scientists or whenever America,
for example, engages
in nation-building,
it does not suggest
strong presidential systems,
because those just tend to,
over time, box out
the legislature and aggregate
more and more power
to the presidency.
It was an interesting experiment.
You're using the past tense, Alan.
[laughter]
I have to say, this last year,
I have lost my chill,
for lack of a better way
of describing it,
but I think we'd probably do better
with a parliamentary system.
Since we're not going
to do that, yes,
I think that the court
really lightening up
on the unitary executive theory
and recognizing that there is such
a thing as internal
separation of powers,
that bureaucratic resistance
and inertia and slack,
these are not necessarily bugs.
They are sometimes
features of the system.
That would be particularly helpful.
Again, just going back
to the previous point about
what happens in a world
of technologically-mediated
presidential power.
I think that just raises the stakes.
When the president now has an army
of agents that can do all this,
you need even more independence
within the bureaucracy.
Great.
I have one last question.
What would the founders think
of where we're at right now, Nick?
I think the founders
would enter this room and look
at the television and be like,
"What the hell is that?"
[laughter]
Fair point.
They'd probably be drawn
by your glasses too.
No, in seriousness,
would they consider
this what they might
have expected to happen?
I think there's going
to be disagreement
among legal scholars as to whether
the system we have is moving towards
more of what the founders intended.
I think if you zoom out
and you look at the last year
and how presidential
power has been used,
you don't see a system
of separation of powers.
I think you see a system
where power has been consolidated
within the president,
and the president no longer feels
constrained by the systems
that the founders put in place.
We can think, just very briefly,
to Judge Schiltz's order in-
Here in Minnesota, the order
about the previous quarters
that had not been obeyed
by the administration.
Right.
Judge Schiltz finds
that there are 74 cases
in the month of January alone
where Immigration
and Customs Enforcement
hasn't complied
with executive orders.
That suggests something's breaking-
I'm sorry, with judicial
orders, right?
With judicial orders, yes.
That suggests something's not
constraining the president
where the founders would have thought
that constraint was [?]
Sure.
All right, Alan,
you get the last word.
Do you have a sense that that's
what the founders would think?
I don't think they'd be happy about
what they're seeing.
I think there's two things
in particular.
One, to Nick's point
earlier in the conversation
about how instead
of a separation of power system,
we're in a separation
of party system, I think
this is one thing
that they'd be horrified by.
I think one thing that's notable
about the founders
is that they did not predict
how quickly the American system
would fracture on this party basis.
The other thing I think is,
they would be pretty
horrified by, frankly,
just the lack of civic virtue
in the executive branch.
One thing that's really notable,
and I think goes a long way
to explaining why Article 2
is as sketchy as it is,
is because in some sense,
it's always hardest
to articulate what exactly
the president can do.
In some sense, it's the most vague
set of authorities,
and it's hardest to predict.
Right.
It's all the rest of the stuff.
Exactly.
The reason that Article 2
was left so vague,
and there are actually statements
from some of the framers
at the Constitutional Convention,
was, we all know
that George Washington
is going to be the first president.
We actually don't have to worry
so much about Article 2,
because he'll figure it out,
and we trust him.
He is our Cincinnatus.
He is our great Roman-like statesman.
We've come a long way
from George Washington, and I suspect
that if the framers
saw the sorts of people
that are now often being
elevated to high office,
they would have a lot of skepticism
that our system can endure
because even more
than they were lawyers
and political scientists,
these were moral philosophers,
and they took this idea of,
you need morality
and virtue very seriously,
and that's something that sadly
we have less of today
than I think we need.
[music]
Nick and Alan, thanks
for adding so much context
and richness to this topic,
which, of course,
is permeating every aspect
of public life today.
If you want to explore
these issues further,
you can learn more about our faculty
and courses at Minnesota Law.
Thanks so much for listening.