On this Presidents’ Day edition of We the People, political historian Julian Zelizer of Princeton and constitutional law professor Eric Posner of the University of Chicago Law School join host Jeffrey Rosen to debate the question: Is the presidency too powerful? Starting with the Founding Fathers’ vision for the presidency, they trace the evolution of presidential power through the Progressive Era presidencies of Teddy Roosevelt, William Howard Taft, and Woodrow Wilson, the move to restrain presidential power in the 1970s during LBJ’s and Richard Nixon’s presidencies, and the uptick in exercises of unilateral presidential power by modern presidents like George W. Bush, Barack Obama, and Donald Trump. Finally, they share their thoughts on presidential emergency powers and President Trump’s recent declaration of a national emergency to fund construction of the border wall.
FULL PODCAST
PARTICIPANTS
Eric Posner is Kirkland & Ellis Distinguished Service Professor of Law and Arthur and Esther Kane Research Chair at the University of Chicago Law School. He is the author of The Executive Unbound: After the Madisonian Republic which he co-wrote with Adrian Vermuele, and many other works on constitutional and international law and financial regulation.
Julian Zelizer is Malcolm Stevenson Forbes, Class of 1941 Professor of History and Public Affairs at Princeton University. He is the author of many books on American political history including books on Presidents Carter, Reagan, and Johnson, and most recently, the book Fault Lines: A History of the United States Since 1974 which he co-wrote with Kevin Kruse. He is also a CNN political analyst.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
Additional Resources
- “Executive Authority Is a Powerful Tool to Use with Caution” by Eric Posner in The New York Times (Jan. 2016)
- “Have We Had Enough of the Imperial Presidency Yet?” by Julian Zelizer and Kevin Kruse in The New York Times (Jan. 2019)
This episode was engineered by Dave Stotz and produced by Jackie McDermott. Research was provided by Lana Ulrich, Jackie McDermott, Ben Roebuck, and Madison Poulter.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen president and CEO of the national Constitution Center and welcome to We the People a weekly show of constitutional debate. The national Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. On today's episode we have a special Presidents Day debate on the central question: Is the presidency too powerful? We'll trace the historical evolution of presidential power and the Constitution from the founding today and explore some of the current debates that are transfixing the nation involving presidential power and joining us to do that are two of America's leading scholars of the presidency and the Constitution, Friends of the Constitution Center and of the We the People podcast and I'm so excited to learn from both of them. Eric Posner is Kirkland and Ellis distinguished service professor of Law and Arthur and Esther Cane research chair at the University of Chicago Law School. He's the author of many books and I want to recommend to you the executive "Unbound After the Madisonian Republic" to cast light on today's topic. He co-wrote it with Adrian Vermeule and he's also written many other works on constitutional international law and financial regulation. Eric thank you so much for joining.
Eric Posner: [00:01:09] My pleasure.
Rosen: [00:01:10] And Julian Zelizer is Malcolm Stevenson Forbes Class of 1941 professor of history and public affairs at Princeton University. He too is the author of many books on American political history including books on the Carter, Reagan, and Johnson presidencies. And he's the author most recently of "Fault Lines: A History of the United States Since 1974," which he co-wrote with Kevin Kruse. Julian. It's great to have you with us.
Julian Zelizer: [00:01:36] Thanks for having me.
Rosen: [00:01:38] Eric let's start with the founding. What was the founders conception of the presidency under the Constitution? Why did they believe that Congress rather than the president would be the most dangerous branch? And how did they expect the president to behave?
Posner: [00:01:55] Well, it's you know, it's not entirely clear what they thought. They were different people. They said different things. They thought different things. They changed their minds later on. But I think a simple way of thinking about it was that there were two basic notions of the presidency. On the one hand you could think they some of them thought of the president is kind of like almost a clerk, you know, he was the executive, he would execute the laws and of course, he was very important and he would be Commander in Chief during war but really policymaking would be done by Congress and then the executive would just follow through on whatever policies Congress chose and enacted in law. At the other extreme though, many of them thought of the president as well the president was officially, the executive branch was officially a co-equal branch with Congress and the president would have policymaking authority. His ability to veto laws, for example, could potentially give him policymaking authority. I think people understood he would have a lot of influence over foreign relations, which would give him policymaking authority. Now, you mentioned that Congress- that the founders were worried about Congress and they were worried about Congress because of their experience with the state legislatures in many of the states which had in their view acted irresponsibly. And so part of the idea was to have the president of the executive branch put a constraint on Congress. And of course, there are other constraints put on Congress as well. But you know, the bottom line was there was a lot of ambiguity about what the president- presidency would look like and I think a lot of them just assumed that George Washington would be the first president and they could trust him to kind of set the contours for the future of presidential power.
Rosen: [00:03:56] Thanks so much for that helpful distinction between those framers who believed in the president as a kind of clerk or a chief magistrate as President Taft put it and those who thought that the president had more policymaking power. Julian how was this debate represented in the Constitution? The Take Care Clause in Article II both grants and constrains presidential power, forbidding the president from breaching federal law, but empowering him to refuse to enforce laws that he thinks are unconstitutional, but describe your conception of the debate during the framing era about the presidency and how it was reflected in the Constitution?
Zelizer: [00:04:44] I think the debate itself is the evidence of the debate is the Constitution and this kind of separated divided fragmented power that's cooked into our system. So you do have a president, you do have one source of centralized power which was there at the founding despite the origins of our country and I think that's very relevant. I think the response to state legislatures is a really important part of the story, but you can see there were many checks built in from the start. So in terms of the power of the purse, it was very important that it was not vested in the executive branch. It was placed really in the hands of the House of Representatives, which was the most popular, directly elected institution that we had. The power to declare war was given to the president- [I mean] to Congress, and the same way in which the president did have the ability to circumvent or check legislation, Congress still had the primary role as the policy-making institution and it had the power of impeachment which was a last resort, but powerful resort for the removal of the president. And so I think the ambiguity and kind of tensions over executive power are very much reflected in how the Constitution is constructed, in some of the rules we had from day one that continue today that don't give the president that power that they often crave in moments of crisis or in moments of ordinary legislating.
Rosen: [00:06:22] Well, the question we want to dig into on the podcast is has the Presidency usurped the Congress's Constitutional power over the purse and the power to declare war over the course of the 20th century and it- fast-forwarding to 1912, We the People listeners know about the significance of that election in pitting perhaps our last constitutionalist president, Taft, who said the president could only do what the Constitution explicitly allowed, against two Imperial presidents, Roosevelt and Wilson, who claimed that the president could do anything that the Constitution didn't forbid; that's speaking broadly, but Eric is 1912 an important turning point and would you describe Theodore Roosevelt and Woodrow Wilson as the presidents who most changed presidential power in the 20th century? And in what ways did they change it?
Posner: [00:07:16] Right I mean the word usurp has a certain quality to it, which I might not agree with but basically the story is that the presidency was weak throughout most of the 19th century and then it became very powerful in the 20th century. I'd probably date it 1901 which is when Theodore Roosevelt first entered office after McKinley's assassination, but 1912 is fine if you want. It was not a sudden process. It was a gradual process. There were certainly some very powerful 19th century presidents including well George Washington and Andrew Jackson. Polk was, Lincoln, but those- they were- they were exceptional and what happens in the 20th century is that the powerful president becomes institutionalized and you know, this is a long and complicated story, but I'll just say very briefly what I think happened and I think this is more or less the conventional wisdom. The United States toward the end of the nineteenth and into the 20th century became a global power and it developed a national economy. So this earlier constitutional understanding which gave a lot of power to the states and more power to Congress than to the president had to give way so that a form of government could arise that would be adequate to these new tasks of regulating a national economy and of conducting foreign relations, and so a lot of power moved up from the states to the national government and then the issue that we're concerned with is how that power was then allocated between Congress and the presidency, and I want to return to this word usurp again. I- you know, I think it's not the right word to use because what really happened was that the presidents were given power. You know, they sometimes grabbed it. They sometimes were given it. Congress by statute gave an enormous amount of power to presidents over the course of the 20th century, well really starting in the 19th century, but the major changes were in the 20th century. And in other ways when presidents asserted power based on often a tendentious interpretation of the Constitution, congress and the courts would acquiesce. So it was not a usurpation. It was a gradual process in which as a general, in a general sense the political class and I think the public more generally accepted a shift of power from Congress to the president.
Rosen: [00:00:00] Julian do you agree that the story of presidential power is more of congressional surrender than presidential usurpation? Tell us about the significance of the Theodore Roosevelt presidency, 1901 or his run for office in 1912 under the banner of the president being a steward of the people and what in particular happened during the Roosevelt and Wilson presidencies that allowed both presidents to assert executive power in ways that Congress accepted?
Zelizer: [00:00:35] Yeah, I mean, I'm as a historian, I always end up saying it's a little of everything and that's how we tend to see these issues. So I think there is an element of usurped throughout the 20th century. There's part of- Teddy Roosevelt for example, who is president, really reimagined what the institution was and made it something that was much more visible to the public, an institution that was more visible than it had been for most of the 19th century, in part through his use of the press and media relations as a way to get his agenda out there, as a way to fight against his opponents in Congress, and he took a more assertive role for example in foreign policy. And you see the same with Woodrow Wilson so that early 20th century, there's part of these presidents simply making the institution more muscular and actually expanding the executive branch and it's apparatus. There's part of it that's given. I think Eric's correct on this. It's given in part by Americans who in the early 20th century are living in a more complex world with industrialization and urbanization and more tensions overseas, and there's a desire which will continue for more some kind of centralized source of authority. Congress never works very well and so as our problems became more complex, I think that was appealing. And certainly when Woodrow Wilson brings us into World War I that's a real turning point in that our role overseas will never revert to what it was in the 19th century and that will bring a series of policy problems that gives support to having more presidential power on national security. My final answer is Congress doesn't actually give everything away. Congress remains very influential throughout the 20th century, right, through this day, and really it's a matter of when they want to use their authority. Often Congress doesn't. They're happy to let the president handle problems, but there's other moments we've seen where congressional power flares up and I'll just kind of give one example people don't talk about. It's the end of the 1930s -Franklin Roosevelt is president, he's been re-elected in '36 and he's one of our most powerful presidents not just then but even to this day, but after the 1938 midterms, a coalition forms in Congress of Southern Democrats and Republicans who oppose a lot of where FDR wants to go on issues like race relations and other kinds of policy questions and they become a very powerful check against the president. FDR really has trouble getting a lot of his remaining domestic ambitions onto the table and presidents through Lyndon Johnson will continue to face a very powerful block in Congress that doesn't believe in imperial presidents and makes that clear and you've seen that in other kinds of flexing of congressional power. So I think all three are important to remember as we sort through what happened to the presidency in this era.
Rosen: [00:03:57] Thank you for putting on the table the importance of congressional pushback to executive action. And thanks for putting FDR on the table. Eric let's think about the FDR presidency as measured by the number of executive orders that he issued. So Franklin Roosevelt issued more executive orders than any other president in US history, 3728. That's up from you know, Washington had eight and in the 19th century was sort of in the 10 to 20 range, Lincoln at 48 was the biggest 19th century number, then the number soared under Theodore Roosevelt who issued more than a thousand executive orders and Wilson who issued a thousand eight hundred and then it goes back down and then Roosevelt is 3700. So the question is, how did Roosevelt transform the presidency through his use of executive orders ranging from temporarily removing US currency from the gold standard which the Supreme Court approved to the Japanese internment, and how is that significant in redefining the relation between the president and Congress?
Posner: [00:05:06] You have to be careful about executive orders. You know there are executive orders that are incredibly trivial about, I don't know the manicuring of the White House lawn and there are executive orders that are quite transformative. But I suppose as a very rough approximation that gives you a sense of how presidents were using their power. You should also understand that a lot of the executives, probably most of them, are- executive orders- are orders that implement authority that Congress has given the president to administer the national government. But what was going on at a very rough level- I mean there are two things. One is Roosevelt was in office during an economic emergency and a military emergency and in both cases the president had to act. Congress was too slow-moving, lacked expertise, and Congress gave the president authorities in some cases, and in other cases he acted based on this constitutional authority, but he had to act in order to address these two extraordinary problems. We're talking about Franklin Roosevelt here. So as the president is given more Authority by Congress - or if you want seizes authority - he has to govern and executive orders is one of the ways that the president governs. It's not the only way. Presidents often just issue memoranda or you know, say on the telephone or by tweet I suppose what they want their subordinates to do. But again, you know, the pattern of executive orders is just an illustration of the rise of presidential power over the 20th century.
Rosen: [00:01:41] J ulian what are your thoughts about the significance of the numbers of executive orders and, giving us a sense of shifting presidential power, to take the numbers further into the 20th century after the high under Roosevelt of 3,700, Truman was 907 and then things settled; Nixon 346, Carter 320, Reagan 381, and things have been- you know - Clinton 364, Bush 291, Obama 276 ,and President Trump only 96. So the numbers have been in the you know the 200-300 range recently. Eric distinguished between trivial and significant executive orders, but have we seen since Franklin Roosevelt an increase in rule by executive order and by efforts by presidents to achieve through executive order what they're unable to achieve from Congress and does that represent a change in presidential power or not?
Zelizer: [00:01:01] Yeah, I think it's significant. Not all executive orders are equal and it is important to remember some of the growth is a function of the president doing more stuff and some of that stuff, it's quicker to do that way and it's not necessarily really to even avoid Congress, but we have seen the president using this tactic on some pretty important measures. You see in the Reagan Administration for example, executive orders become very important in the deregulatory efforts of the administration and using executive orders and other comparable measures to try to weaken regulations that exist or to even try to weaken some of the key agencies is an important strategy for conservatives in the 1980s when they're having trouble getting support in Congress. And, the next time you really see this flare is under George W. Bush during the war on terror where executive orders become significant. It's not all irrelevant decisions- really important decisions in terms of counterintelligence tactics that can be used where executive action is a chief mechanism for the administration to move in areas where Congressional support doesn't exist. We saw it under the Obama Administration certainly with problems like immigration and climate change where frustration with the the Tea Party slash Freedom Caucus led the president in that direction. So I do think it's become an important element of 20th and 21st century presidential power and part of it is who's using it in terms of what you think of it. You know, liberals don't like executive power very much when a conservative or Republican's in office and and vice versa in terms of conservatives with Democrats, but there's a bigger institutional issue that has arisen and it's is this a legitimate form of policymaking when you are dealing with big consequential decisions? The president's still limited. They can only deal with existing programs and existing policies. But we saw with Reagan and Bush it really can move the needle in important ways. And I think it's understandable why people are not always comfortable with that given where we started our history.
Rosen: [00:03:37] Eric you had a piece in the New York Times in 2016: executive Authority is a powerful tool that should be used with caution. You said President Obama has followed in the footsteps of his predecessors in unilateral presidential actions in foreign relations from the decision to launch wars to treaty making but that's been the norm for much of the 20th century and you say the danger is that this can short-circuit deliberation and lead to tyranny and indulges ideological fantasies, and therefore, it should be used cautiously. So would you broadly say that the 20th century post-war presidents George W Bush, Obama, and Trump have been similar in their use of unilateral executive authority? Bush to spend the to create military tribunals and deny habeas corpus to detainees and Obama for the dreamers and so forth. Or are the presidents using the executive power differently? And if you're concerned about this unilateral executive action, what should be done about it?
Posner: [00:04:38] Right. I'm not I'm not shaking not terribly concerned about it. And I think this is where Julian and I disagree and I do want to return to something he said. I think Julian puts the point exactly correctly, which is this is an institutional matter and we need to abstract from whether we're Republicans who are unhappy with the Democratic president or Republicans who are happy with a Republican president, or democrats, you know, happy or unhappy with whoever is president. You have think in terms of the overall institutional development and whether the trajectory has been a good one or a bad one. Just to answer your question, it's very hard to distinguish presidents, I think, since Franklin Roosevelt, they haven't all face emergencies, so they haven't all had to use executive power to the extent that Roosevelt did, but they all have used executive power. And, you know, part of the paradox here is really have to. I mean Congress tells them to, Congress passes these laws like the Clean Air Act, which says, you know, we're concerned about pollution and then they give a lot of authority to the president to do something about it. So it's true, for example, that Reagan used his executive authority to deregulate but that was after Carter and Nixon and Johnson and others. Well Johnson, with respect to other laws, used their executive power to create the regulations in the first place. So again, we have to kind of abstract away from our political views and ask what's wrong with having the president regulate. So, you know, the usual view ,and I acknowledge these concerns in that op-ed and I have elsewhere, is that the president has too much power. He'll implement crazy policies. He'll benefit his supporters at the expense of other people. I mean, yes, there are all these risks of abuse. But as Julian pointed out earlier, there do remain quite significant constraints on the president including Congress itself and also the courts. So the question is, what's the benefit? Why did this long-term trend occur? And the real problem with Congress is one of gridlock. Congress knows this - it can't it can't regulate rapidly in response to either emergencies or even you know, slow-moving changes in technology or the economy that require action. Congress has not been able to address climate change. For example, the president President Obama did implement regulations to address climate change, which he was able to because of the Clean Air Act a statute enacted by Congress decades ago. It's true that Trump is cutting back on those regulations, but at least something's being done in progress has been made. Another example would be the financial crisis. Congress simply was unable to deal with the financial crisis. We saw this in the near catastrophic failure to enact the Emergency Economic Stabilization Act in the fall of 2008. The executive branch was the main actor and addressing the financial crisis because it had been given the authority to do so and it was able to move quickly to do so. And then the last sort of general example that I'll give - althought we can talk about more examples - is conduct of foreign relations. Congress - the senate in particular - have been extremely hostile to a strong foreign role for the United States going back really, you know the entire 20th century. But even after World War II, and most of the institutions that we think, you know with the benefit of hindsight have been good - International Trade institutions, military alliances like NATO - most of these things are either implemented by the president alone, or they were created at the behest of the president with Congress going along reluctantly, so this is really the issue. The issue is in a modern economy and a dangerous world how much authority should be allocated to Congress versus the presidency? My view is that the lesson of the 20th century is that while we can do get bad presidents, like right now, from time to time - generally speaking - the powerful presidency is necessary. I don't mean though an unlimited presidency. I do think that Congress should play a role in constraining the president and does. But you know that that is really the issue.
Rosen: [00:09:43] Thank you very much for that. That thoughtful answer is consistent with the distinction you make in the Executive uWbound between two systems of government the liberal legalism model - where Congress takes the lead in making policy - and in the presidential primacy model in which the executive takes the lead. And you think that the liberal legalism models the official story, but the presidential primacy model more accurately reflects how things work. Julian you wrote a very Illuminating piece in the New York Times with Kevin Kruse in 2019, have we had enough of the imperial presidency? And you note that Congress attempted after Watergate to restrain presidential power in the War Powers Act of 1973 and the National Emergency Act of 1976, which is the subject of the current wall dispute, as well as other reforms, but that what went wrong these attempts to restrain the presidency don't seem to have worked, and then you call on Congress now to put new limits on the presidency. Tell us what those post-watergate reforms were, why broadly they went wrong, and how you think the Congress could reassert itself?
Zelizer: [00:10:59] Yeah, in the 1970s you have real push back against presidential power and there were many proponents of a strong presidency like Arthur Schlessinger, who had been a court historian so to speak. He had worked in the Kennedy administration, had written about FDR, and he hadn't spent much of his career really writing about the virtues of presidential power - it being a more efficient and robust institution, and he famously writes a book in 1973 that I think captured the mood of many Americans in the middle of Richard Nixon's scandal in the end of the Vietnam War. And he wrote a book called the imperial presidency. And he says, he starts the book saying that he himself was wrong that he had - he was guilty of only imagining the best of what the presidency offered and not really seeing the dangers, and when Nixon resigns and 74 the mood of the country is very different and the mood in Congress is one where there's an effort to reclaim some of the power that had been lost. Already in 1973 Congress passed the War Powers Act which tried to reassert more of a role for congress when deploying troops overseas. In 1974 Congress passes budget reform legislation that tries to centralize the budget process and create a more equal setting for congress when dealing with mapping out how money will be spent. In 1978 Congress passes an ethics reform legislation that includes creating an independent counsel - a prosecutor who would be appointed to investigate executive branch corruption and would be pretty free of any kind of oversight or restraint when those investigations were triggered. So they were many reforms - and there were others - that were put into place trying to push back a little on this trend that we've been talking about in the podcast. And some of them, you know, had an effect: the independent prosecutor - very controversial - would be used very often right through the end of Bill Clinton's presidency, the budget reform remains the architecture of how we handle budget matters. But it's clear that presidents are very strong. I think President Trump is exposing just how much muscle they have even if someone's unpopular, even if someone is controversial. And part of the problem is partisanship, meaning what we're seeing at least right now is how partisan incentives and Congress will allow for a president to act in a very aggressive fashion and unconventional fashion, and as we're seeing with the National Emergency, in ways that many people feel are unconstitutional or contradict the intentions of the founders. And so we wrote that piece that some of what was happening in the 70s much of it which has fallen away since that time, it might be time to have some of that conversation. It doesn't mean creating a president that doesn't have power, but putting into place more restraints in the Constitution provides as is, to avoid an excessive use of the authority given to the person in the Oval Office.
Rosen: [00:14:39] Thanks for that. Eric let us hone in on the National Emergency Act of 1976. Presidents have declared national emergencies nearly five dozen times since the Act was passed in 1976. Never before has one been used after Congress rejected funding for a particular policy, and President Trump's Declaration of a national emergency is the first since 9/11 to authorize military action - most of the others have had to do with tariff policy and foreign policy. And the question I want to ask is not the wonky question of whether President Trump's Declaration of a National Emergency to build the wall technically violates the act of 76 because the arguments on that question are complicated as our previous podcast revealed, but if we step back that axe allowed Congress to disapprove the president's actions by concurrent resolution. The Supreme Court subsequently struck that down by saying that legislative vetoes are unconstitutional - you have to pass laws with bicameralism and presentment signed by the president. So that means that to disapprove of the president's action now you need a veto-proof majority in Congress. Does this broadly - not technically - represent a kind of delegation of congress's appropriation power to the president in ways that threaten constitutional values if not technically violate the constitution or not?
Posner: [00:16:10] You know, it's a tough question and you know, there's a lot going on there like the Supreme Court's decision on the legislative these at veto which makes it a complicated question to answer. You know, I think it's a little too early to tell. It's quite possible that the courts are going to block this. If the courts block it, then we would just say that the president tried something and it was it was blocked and all presidents do that. All presidents do things that they think are lawful or claim are lawful - then they're stopped by the courts. And so far at least, presidents acquiesce when courts block their actions, so, you know, I think it's a little early to tell. I think we should not overreact to what Trump is doing. I think actually I disagree with with Julian here about Trump. I think Trump is a weak president. I do think the presidency is powerful, but I don't think Trump has exploited the powers of the presidency very effectively. What he was able to accomplish in the last two years was the result of having Republican majority in both houses of Congress, and Trump, you know, largely followed a kind of a conventional Republican set of policies. It's in this area of immigration where you really differs from his own party as well as most of the public opinion and he's been thrashing around - he's been not very effective. He's been far less effective than Obama was in the area of immigration. Obama did some meaningful things to help some classes of undocumented aliens. Some of what Obama did was stopped by the courts as well, but not all of it. I don't think we can draw lessons from Trump's National Emergency declaration about the power of the presidency yet. All I can say I think in answer to your question is that the reason the Congress has given the president so much emergency authority over many decades, is that it realized that it - Congress - could not itself respond to emergencies . And the real problem here - is almost by definition it's hard to define - It's hard to say what an emergency is. They're always different. It's hard to know what authorities are appropriate if the emergency takes place. And so Congress has been almost forced to give very broad authority to the presidency so that the president could address emergencies - emergencies that in the 19th century would just not have been addressed at least not at the national level. That's I think the system we've had, I think it's a system we have to have. Now there are ways that Congress can assert itself and try to prevent the president from abusing this authority. This kind of procedural check that it had - that you mentioned - was one way; although that's been struck down by the court. It can still conduct oversight- you know, in the extreme it can still impeach the president. It can, in many ways, withdraw cooperation from presidents who abused their power by refusing to give the president something that it wants, so Congress does retain some authority, but I do think that these broad emergency powers are going to continue to be a part of our system.
Rosen: [00:20:02] Thanks for that. Julian, a version of the same question to you to tease that agreement or disagreement. Do you believe that Congress's delegation to the president of this emergency power combined with the Supreme Court's invalidation of the legislative veto represents in spirit, If not technically, an unconstitutional delegation of congressional authority to the president in ways that threatens the separation of powers? Or do you agree with Eric that it has to be this way, that Congress doesn't have the flexibility to respond to emergencies and because of the polarization -you note - it's unlikely to do so anyway, and therefore this is just a new balance that we're going to have to live with?
Zelizer: [00:20:43] Look, I come- I'm more of a congressperson and so first I just for me when I look back at the history of presidents, even with emergency powers, the record is often not so great. Whether you're talking about emergencies or you're talking about broader national security strategy - that is just presidents who have made massive mistakes. Speed often has a cost or excessive power has a cost. So you think of Lyndon Johnson and the escalation in 64 and 65 of Vietnam which was just really done for the wrong reasons. It was done with the wrong logic and the consequences were enormous. The weapons of mass destruction fiasco - and I think you can call it that - that was at root with with the war in Iraq, and the way in which that information was manipulated, and again the cost of a very long war. On those two examples, those are what what's on my mind. And, you know, part of why Congress keeps reasserting itself isn't simply an institutional back and forth- it's the realization at key moments of what goes wrong with presidents that there's a virtue of the kind of deliberate or bargaining dynamic that's required in Congress. And I think we're seeing a little bit of that debate play out today. I think in the last two years were in a situation where the Republican Congress until now has handed the president, or I think Eric's right that he has the - that Congress has given the president lots of leeway to do what the president wants to do. And for me, I guess I see it in not dire terms, but I do think the president not very competent and probably not getting the most out of the kinds of actions he is doing is still moving in some pretty aggressive ways. If you take his bully pulpit power, I don't think it's insignificant the kind of language, he's just unleashed on individuals and institutions without any kind of recourse. I do think you know without getting support for almost anything on Capitol Hill even when Republicans were in control he used his executive authority pretty effectively on deregulatory matters including with climate change. And I do think there's something different in terms of this invocation of National Security a () and that the crisis it's not there is no crisis and there's just not support for the idea. There's any kind of Border crisis. So whereas other examples such as Bush after 9/11 or even Carter after the Iran hostage crisis. There's something real there reacting to and you could dispute if emergency power was the best way to go. This is a political campaign message. That's all of a sudden turned into the basis of this use of power and. Added to that it's using the power to spend money after Congress Republican Congress didn't support it. Now a divided Congress doesn't support the use of money that he wants and he's using the power to spend money that way for me. That's a. Kind of National Emergency action by the president then we've seen and I think it could really set up a dangerous precedent. And I think that's partly why some Republicans are just as unsettled by this as Democrats are.
Rosen: [00:24:35] Eric, a response to those two points: first that the historic uses of emergency power in Wartime in particular in Vietnam and Iraq haven't turned out so well because of the madisonian virtues of slow decision in the dangers of speed and second that regardless of the technicalities here. The president really is invoking this power domestically to spend funds that Congress has refused to give them and that's dangerous, too.
Posner: [00:25:01] Right now I don't want to be in the position of defending Trump okay, just to be just to be clear about that. I don't like him. I don't support him in any way. I don't support this emergency declaration. But but let me let me try to respond more broadly. So first on the international side and we have to look at both sides of the Ledger and and we have to we have to you know, we don't want to just cherry pick. Particular interests Foreign Relations disasters, which Vietnam was want any Rock was another although I want to say parenthetically that Congress did authorize the war in Iraq now possibly possibly the administration was not honest with Congress, but it's not entirely clear what the world would look like. That was what that would be different. This is not a case that the president going to war. Without Congressional Authority Vietnam. There's also it also somewhat ambiguous, but there was basic Congressional support for the for the war. But but you know, the what really concerns me is not that it's World War II and it's the Cold War right? It's the the basic isolationist sentiment of Congress the Congress Congress. We have to remember that half of Congress is the Senate. And a good portion of the power in the Senate is possessed by rural States and these are states that are often isolationist. But in any event don't reflect, you know as a general matter Congress because of the way the Senate is structured does not reflect General American public opinion. It's a biased institution in that respect. The president as much better job the presidency of reflecting overall American public opinion, even though it is true that Trump and other presidents have won elections without the popular vote. Okay. So the my view is that an international relations the presidency has as a general matter acted more responsibly than Congress has going back to World War II. We're isolationist sentiment delayed American entry into the war and hampered Franklin Roosevelt's efforts to help the United Kingdom and so on and so forth. Okay, so that seems to me the debate and and and and I also think that in the general conduct of the Cold War. as a general matter. The president's did a reasonably good job and were frequently hampered by Congress reasonably good job in the in the sense of building International institutions that were helpful and beneficial in building a military alliances. There are a whole range of in treaties and so forth that the Senate refused to. Give its consent to the president said to work around largely sensible types of trees so that on the on the formulation side and the domestic side. well. You know it as I said, I'm not going to defend Trump but we have to we have to sort of think about what the alternative is. And I guess I'm just not clear, you know, what's on the table here. For example, you could take the position that the president that the Congress should simply withdraw all the emergency authorities that it has given to the presidency. And that's a possible position to take. I don't think it's right. I don't know whether Julian takes that position. I think another position would be well. It's okay for Congress to pass statutes to give the president emergency powers. But there should be more constraints. There should be more procedural constraints. There should be more rules. There should be limits on how the President should use the authority that he's given to that. He's given. But that is actually the system we have, you know, we could go, you know one by one through all of these statutes and have a debate about whether they're too broad or too narrow and I suspect you know, the Julian and I would agree in some cases and disagree on other cases, but but I think we have to at least for the time being resist the notion that there's just there's just too much emergency. You know a lot of these statutes do things like say just going back to 2008, you know, if there's a liquidity crisis the FDIC the FDIC, you know can extend Deposit Insurance beyond the 250 thousand dollar limit. I mean, that's an emergency Authority that's in the executive branch. I think it's very sensible. So because I don't think that if there's a liquidity crisis we can expect Congress to do that on its own. Quickly enough to to address the problem. Okay, then final point is you know, once you have these statutes in place, there's always the danger that the president will just violate them. So let's suppose there's supposed Trump announces. There's a liquidity crisis or bullies the FDIC and to claiming there's a liquidity crisis when in fact there isn't. And as a result of which I don't know he can raise deposit limits or get the FDIC to raise deposit limits which pleases his cronies in some way. Well, you know, that's just a legal and we have to trust the courts or Congress or the public to push back if the president violates these rules, but you know, he can violate whatever rules he wants. We don't have to, you know, when Truman ordered the military to see steel mills during the Korean War. You know, he was just breaking the rules and the courts blocked him the Supreme Court blocked him and and I would expect that that will happen in this case. If it doesn't happen, then then I'm be happy to have this debate about whether one or many of these emergency statute should be should be should be eliminated.
Rosen: [00:31:26]Well, it is time for closing arguments in this important debate. And the first one Julian is to you has the presidency become too powerful under the Constitution. And if so, what in particular can Congress do about it, especially in light of the polarization in Congress?
Zelizer: [00:00:20] Yeah, I I do come down on this side that Congress has that the presidency has become too powerful and that there is a need for a renewed look as we had in the 1970s on how to impose some restraints or some stronger checks on the presidency part of this can involved looking at the laws that give the president a certain amount of power so with with. National emergencies act for example, it's possible to think about is it good that the president now has the ability to veto a resolution that comes from the House and Senate revoking that revoking that emergency power which was meant originally to be a check from Congress when they thought it was being misused. I do think there's ways in which we could think about legislation that. Would protect investigations from the justice department as we're seeing today. So part of the conversation does have to include how do we put some brakes on what presidents have been able to do the power they have asserted in the last few decades? I also think part of the solution will come from fixing Congress. And so I think those conversations can't be separate. So when we talk about another world the Congressional reform world that talks about what do we have to do to try to? Create better gerrymandering or better districting systems or how do we reform campaign Finance to push back against some of the sources of polarization. Those are integral because if Congress is acting in a better fashion if there are more paths to negotiation and legislative compromise. That's the best push back for the arguments against increasing presidential power because some of the reasons it's legitimated would fall away and you know the Great Moments in history in terms of domestic policy come from when Congress is actually taking action whether you're talking about the New Deal or the Great Society as examples. Those are really momentous moments because in Congress you see the institution working and through negotiation and compromise and fighting coming up with real solutions to problems that have lasted for decades and so I think those are two. Kind of ways in which we need to think about some of what I believe President Trump has exposed simply in terms of the government. We've built it's not all because of him at all. I think he just exploit saw some of the opportunities that we've given presidents and it's time to do a little push back.
Rosen: [00:03:22] E ric last word is to you: has the presidency become too powerful under the Constitution and, if not, should Americans live with the current state of affairs or are any constitutional or legislative reforms advisable?
Posner: [00:00:19] I do agree with Julian about a number of reforms that would make a lot of sense. I would love to bring back the independent counsel who was an official who had kind of independence of independent authority to investigate the president and other people in the executive branch. I do think that there are procedural reforms that Congress could make that would provide stronger oversight over the presidency. I do very much agree with him that one of the problems is that Congress is in many ways broken and you know, if you can fix Congress you wouldn't need as powerful president. I'm fairly skeptical though about fixing Congress, which is one of the reasons why I do think we need a powerful presidency but I think level we fundamentally disagree and I guess the way I'll put this is to go back to the New Deal which Julian celebrated as a time where Congress, you know, really played a significant role in addressing an economic emergency, and you see the thing is is that the significant role that Congress play was one of setting up administrative government under the authority of the president. That was the great thing that it did during the New Deal. We did of course have administrative government before but this this was really the inflection point in our history when we started moving away from what one would call you know broadly a parliamentary or Congressional system - one where you have a large body of people deliberating and creating policy - to one in which you have bureaucrats who do that under the loose authority of the president. And I do think that this type of bureaucratic centralized administrative government is is necessary. I think it's necessary both for regulation if we care about the environment and financial stability and you know other elements of domestic life and it's and it's important if we care about security. The challenge of course is that an administrative government is it may be less responsive to public opinion then parliamentary or Congressional government. I'm not actually sure that that's true. It's really hard to know. You obviously need significant Democratic checks on it - and we do - it may be that we need stronger Democratic checks, then we have but I don't think the solution is to return to a system where Congress plays the primary role in setting policy. I think the world that we live in is one in which the kind of deliberative body represented by Congress plays the general oversight rule, can step in when the president abuses his power, but will always be to some extent subordinate to the administrative system.
Rosen: [00:03:40] Thank you so much Eric Posner and Julian Zelizer for an illuminating deep and important discussion about the proper balance of the Constitutional Powers of the presidency and Congress. You have taught us that there are legitimate debates about what that balance should be, that the balance has been changing over a long period of time and that our listeners have a duty to educate themselves about both the history and the details of the Constitutional arguments in the cases that are on the horizon in order to decide for themselves what they think the Constitution requires. Eric, Julian thank you so much for joining.
Zelizer: [00:04:19] Thank you. Thanks for having us.
Posner: [00:04:21] Yes. Thank you very much Jeff.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen president and CEO of the national Constitution Center and welcome to We the People a weekly show of constitutional debate. The national Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. On today's episode we have a special Presidents Day debate on the central question: Is the presidency too powerful? We'll trace the historical evolution of presidential power and the Constitution from the founding today and explore some of the current debates that are transfixing the nation involving presidential power and joining us to do that are two of America's leading scholars of the presidency and the Constitution, Friends of the Constitution Center and of the We the People podcast and I'm so excited to learn from both of them. Eric Posner is Kirkland and Ellis distinguished service professor of Law and Arthur and Esther Cane research chair at the University of Chicago Law School. He's the author of many books and I want to recommend to you the executive "Unbound After the Madisonian Republic" to cast light on today's topic. He co-wrote it with Adrian Vermeule and he's also written many other works on constitutional international law and financial regulation. Eric thank you so much for joining.
Eric Posner: [00:01:09] My pleasure.
Rosen: [00:01:10] And Julian Zelizer is Malcolm Stevenson Forbes Class of 1941 professor of history and public affairs at Princeton University. He too is the author of many books on American political history including books on the Carter, Reagan, and Johnson presidencies. And he's the author most recently of "Fault Lines: A History of the United States Since 1974," which he co-wrote with Kevin Kruse. Julian. It's great to have you with us.
Julian Zelizer: [00:01:36] Thanks for having me.
Rosen: [00:01:38] Eric let's start with the founding. What was the founders conception of the presidency under the Constitution? Why did they believe that Congress rather than the president would be the most dangerous branch? And how did they expect the president to behave?
Posner: [00:01:55] Well, it's you know, it's not entirely clear what they thought. They were different people. They said different things. They thought different things. They changed their minds later on. But I think a simple way of thinking about it was that there were two basic notions of the presidency. On the one hand you could think they some of them thought of the president is kind of like almost a clerk, you know, he was the executive, he would execute the laws and of course, he was very important and he would be Commander in Chief during war but really policymaking would be done by Congress and then the executive would just follow through on whatever policies Congress chose and enacted in law. At the other extreme though, many of them thought of the president as well the president was officially, the executive branch was officially a co-equal branch with Congress and the president would have policymaking authority. His ability to veto laws, for example, could potentially give him policymaking authority. I think people understood he would have a lot of influence over foreign relations, which would give him policymaking authority. Now, you mentioned that Congress- that the founders were worried about Congress and they were worried about Congress because of their experience with the state legislatures in many of the states which had in their view acted irresponsibly. And so part of the idea was to have the president of the executive branch put a constraint on Congress. And of course, there are other constraints put on Congress as well. But you know, the bottom line was there was a lot of ambiguity about what the president- presidency would look like and I think a lot of them just assumed that George Washington would be the first president and they could trust him to kind of set the contours for the future of presidential power.
Rosen: [00:03:56] Thanks so much for that helpful distinction between those framers who believed in the president as a kind of clerk or a chief magistrate as President Taft put it and those who thought that the president had more policymaking power. Julian how was this debate represented in the Constitution? The Take Care Clause in Article II both grants and constrains presidential power, forbidding the president from breaching federal law, but empowering him to refuse to enforce laws that he thinks are unconstitutional, but describe your conception of the debate during the framing era about the presidency and how it was reflected in the Constitution?
Zelizer: [00:04:44] I think the debate itself is the evidence of the debate is the Constitution and this kind of separated divided fragmented power that's cooked into our system. So you do have a president, you do have one source of centralized power which was there at the founding despite the origins of our country and I think that's very relevant. I think the response to state legislatures is a really important part of the story, but you can see there were many checks built in from the start. So in terms of the power of the purse, it was very important that it was not vested in the executive branch. It was placed really in the hands of the House of Representatives, which was the most popular, directly elected institution that we had. The power to declare war was given to the president- [I mean] to Congress, and the same way in which the president did have the ability to circumvent or check legislation, Congress still had the primary role as the policy-making institution and it had the power of impeachment which was a last resort, but powerful resort for the removal of the president. And so I think the ambiguity and kind of tensions over executive power are very much reflected in how the Constitution is constructed, in some of the rules we had from day one that continue today that don't give the president that power that they often crave in moments of crisis or in moments of ordinary legislating.
Rosen: [00:06:22] Well, the question we want to dig into on the podcast is has the Presidency usurped the Congress's Constitutional power over the purse and the power to declare war over the course of the 20th century and it- fast-forwarding to 1912, We the People listeners know about the significance of that election in pitting perhaps our last constitutionalist president, Taft, who said the president could only do what the Constitution explicitly allowed, against two Imperial presidents, Roosevelt and Wilson, who claimed that the president could do anything that the Constitution didn't forbid; that's speaking broadly, but Eric is 1912 an important turning point and would you describe Theodore Roosevelt and Woodrow Wilson as the presidents who most changed presidential power in the 20th century? And in what ways did they change it?
Posner: [00:07:16] Right I mean the word usurp has a certain quality to it, which I might not agree with but basically the story is that the presidency was weak throughout most of the 19th century and then it became very powerful in the 20th century. I'd probably date it 1901 which is when Theodore Roosevelt first entered office after McKinley's assassination, but 1912 is fine if you want. It was not a sudden process. It was a gradual process. There were certainly some very powerful 19th century presidents including well George Washington and Andrew Jackson. Polk was, Lincoln, but those- they were- they were exceptional and what happens in the 20th century is that the powerful president becomes institutionalized and you know, this is a long and complicated story, but I'll just say very briefly what I think happened and I think this is more or less the conventional wisdom. The United States toward the end of the nineteenth and into the 20th century became a global power and it developed a national economy. So this earlier constitutional understanding which gave a lot of power to the states and more power to Congress than to the president had to give way so that a form of government could arise that would be adequate to these new tasks of regulating a national economy and of conducting foreign relations, and so a lot of power moved up from the states to the national government and then the issue that we're concerned with is how that power was then allocated between Congress and the presidency, and I want to return to this word usurp again. I- you know, I think it's not the right word to use because what really happened was that the presidents were given power. You know, they sometimes grabbed it. They sometimes were given it. Congress by statute gave an enormous amount of power to presidents over the course of the 20th century, well really starting in the 19th century, but the major changes were in the 20th century. And in other ways when presidents asserted power based on often a tendentious interpretation of the Constitution, congress and the courts would acquiesce. So it was not a usurpation. It was a gradual process in which as a general, in a general sense the political class and I think the public more generally accepted a shift of power from Congress to the president.
Rosen: [00:00:00] Julian do you agree that the story of presidential power is more of congressional surrender than presidential usurpation? Tell us about the significance of the Theodore Roosevelt presidency, 1901 or his run for office in 1912 under the banner of the president being a steward of the people and what in particular happened during the Roosevelt and Wilson presidencies that allowed both presidents to assert executive power in ways that Congress accepted?
Zelizer: [00:00:35] Yeah, I mean, I'm as a historian, I always end up saying it's a little of everything and that's how we tend to see these issues. So I think there is an element of usurped throughout the 20th century. There's part of- Teddy Roosevelt for example, who is president, really reimagined what the institution was and made it something that was much more visible to the public, an institution that was more visible than it had been for most of the 19th century, in part through his use of the press and media relations as a way to get his agenda out there, as a way to fight against his opponents in Congress, and he took a more assertive role for example in foreign policy. And you see the same with Woodrow Wilson so that early 20th century, there's part of these presidents simply making the institution more muscular and actually expanding the executive branch and it's apparatus. There's part of it that's given. I think Eric's correct on this. It's given in part by Americans who in the early 20th century are living in a more complex world with industrialization and urbanization and more tensions overseas, and there's a desire which will continue for more some kind of centralized source of authority. Congress never works very well and so as our problems became more complex, I think that was appealing. And certainly when Woodrow Wilson brings us into World War I that's a real turning point in that our role overseas will never revert to what it was in the 19th century and that will bring a series of policy problems that gives support to having more presidential power on national security. My final answer is Congress doesn't actually give everything away. Congress remains very influential throughout the 20th century, right, through this day, and really it's a matter of when they want to use their authority. Often Congress doesn't. They're happy to let the president handle problems, but there's other moments we've seen where congressional power flares up and I'll just kind of give one example people don't talk about. It's the end of the 1930s -Franklin Roosevelt is president, he's been re-elected in '36 and he's one of our most powerful presidents not just then but even to this day, but after the 1938 midterms, a coalition forms in Congress of Southern Democrats and Republicans who oppose a lot of where FDR wants to go on issues like race relations and other kinds of policy questions and they become a very powerful check against the president. FDR really has trouble getting a lot of his remaining domestic ambitions onto the table and presidents through Lyndon Johnson will continue to face a very powerful block in Congress that doesn't believe in imperial presidents and makes that clear and you've seen that in other kinds of flexing of congressional power. So I think all three are important to remember as we sort through what happened to the presidency in this era.
Rosen: [00:03:57] Thank you for putting on the table the importance of congressional pushback to executive action. And thanks for putting FDR on the table. Eric let's think about the FDR presidency as measured by the number of executive orders that he issued. So Franklin Roosevelt issued more executive orders than any other president in US history, 3728. That's up from you know, Washington had eight and in the 19th century was sort of in the 10 to 20 range, Lincoln at 48 was the biggest 19th century number, then the number soared under Theodore Roosevelt who issued more than a thousand executive orders and Wilson who issued a thousand eight hundred and then it goes back down and then Roosevelt is 3700. So the question is, how did Roosevelt transform the presidency through his use of executive orders ranging from temporarily removing US currency from the gold standard which the Supreme Court approved to the Japanese internment, and how is that significant in redefining the relation between the president and Congress?
Posner: [00:05:06] You have to be careful about executive orders. You know there are executive orders that are incredibly trivial about, I don't know the manicuring of the White House lawn and there are executive orders that are quite transformative. But I suppose as a very rough approximation that gives you a sense of how presidents were using their power. You should also understand that a lot of the executives, probably most of them, are- executive orders- are orders that implement authority that Congress has given the president to administer the national government. But what was going on at a very rough level- I mean there are two things. One is Roosevelt was in office during an economic emergency and a military emergency and in both cases the president had to act. Congress was too slow-moving, lacked expertise, and Congress gave the president authorities in some cases, and in other cases he acted based on this constitutional authority, but he had to act in order to address these two extraordinary problems. We're talking about Franklin Roosevelt here. So as the president is given more Authority by Congress - or if you want seizes authority - he has to govern and executive orders is one of the ways that the president governs. It's not the only way. Presidents often just issue memoranda or you know, say on the telephone or by tweet I suppose what they want their subordinates to do. But again, you know, the pattern of executive orders is just an illustration of the rise of presidential power over the 20th century.
Rosen: [00:01:41] J ulian what are your thoughts about the significance of the numbers of executive orders and, giving us a sense of shifting presidential power, to take the numbers further into the 20th century after the high under Roosevelt of 3,700, Truman was 907 and then things settled; Nixon 346, Carter 320, Reagan 381, and things have been- you know - Clinton 364, Bush 291, Obama 276 ,and President Trump only 96. So the numbers have been in the you know the 200-300 range recently. Eric distinguished between trivial and significant executive orders, but have we seen since Franklin Roosevelt an increase in rule by executive order and by efforts by presidents to achieve through executive order what they're unable to achieve from Congress and does that represent a change in presidential power or not?
Zelizer: [00:01:01] Yeah, I think it's significant. Not all executive orders are equal and it is important to remember some of the growth is a function of the president doing more stuff and some of that stuff, it's quicker to do that way and it's not necessarily really to even avoid Congress, but we have seen the president using this tactic on some pretty important measures. You see in the Reagan Administration for example, executive orders become very important in the deregulatory efforts of the administration and using executive orders and other comparable measures to try to weaken regulations that exist or to even try to weaken some of the key agencies is an important strategy for conservatives in the 1980s when they're having trouble getting support in Congress. And, the next time you really see this flare is under George W. Bush during the war on terror where executive orders become significant. It's not all irrelevant decisions- really important decisions in terms of counterintelligence tactics that can be used where executive action is a chief mechanism for the administration to move in areas where Congressional support doesn't exist. We saw it under the Obama Administration certainly with problems like immigration and climate change where frustration with the the Tea Party slash Freedom Caucus led the president in that direction. So I do think it's become an important element of 20th and 21st century presidential power and part of it is who's using it in terms of what you think of it. You know, liberals don't like executive power very much when a conservative or Republican's in office and and vice versa in terms of conservatives with Democrats, but there's a bigger institutional issue that has arisen and it's is this a legitimate form of policymaking when you are dealing with big consequential decisions? The president's still limited. They can only deal with existing programs and existing policies. But we saw with Reagan and Bush it really can move the needle in important ways. And I think it's understandable why people are not always comfortable with that given where we started our history.
Rosen: [00:03:37] Eric you had a piece in the New York Times in 2016: executive Authority is a powerful tool that should be used with caution. You said President Obama has followed in the footsteps of his predecessors in unilateral presidential actions in foreign relations from the decision to launch wars to treaty making but that's been the norm for much of the 20th century and you say the danger is that this can short-circuit deliberation and lead to tyranny and indulges ideological fantasies, and therefore, it should be used cautiously. So would you broadly say that the 20th century post-war presidents George W Bush, Obama, and Trump have been similar in their use of unilateral executive authority? Bush to spend the to create military tribunals and deny habeas corpus to detainees and Obama for the dreamers and so forth. Or are the presidents using the executive power differently? And if you're concerned about this unilateral executive action, what should be done about it?
Posner: [00:04:38] Right. I'm not I'm not shaking not terribly concerned about it. And I think this is where Julian and I disagree and I do want to return to something he said. I think Julian puts the point exactly correctly, which is this is an institutional matter and we need to abstract from whether we're Republicans who are unhappy with the Democratic president or Republicans who are happy with a Republican president, or democrats, you know, happy or unhappy with whoever is president. You have think in terms of the overall institutional development and whether the trajectory has been a good one or a bad one. Just to answer your question, it's very hard to distinguish presidents, I think, since Franklin Roosevelt, they haven't all face emergencies, so they haven't all had to use executive power to the extent that Roosevelt did, but they all have used executive power. And, you know, part of the paradox here is really have to. I mean Congress tells them to, Congress passes these laws like the Clean Air Act, which says, you know, we're concerned about pollution and then they give a lot of authority to the president to do something about it. So it's true, for example, that Reagan used his executive authority to deregulate but that was after Carter and Nixon and Johnson and others. Well Johnson, with respect to other laws, used their executive power to create the regulations in the first place. So again, we have to kind of abstract away from our political views and ask what's wrong with having the president regulate. So, you know, the usual view ,and I acknowledge these concerns in that op-ed and I have elsewhere, is that the president has too much power. He'll implement crazy policies. He'll benefit his supporters at the expense of other people. I mean, yes, there are all these risks of abuse. But as Julian pointed out earlier, there do remain quite significant constraints on the president including Congress itself and also the courts. So the question is, what's the benefit? Why did this long-term trend occur? And the real problem with Congress is one of gridlock. Congress knows this - it can't it can't regulate rapidly in response to either emergencies or even you know, slow-moving changes in technology or the economy that require action. Congress has not been able to address climate change. For example, the president President Obama did implement regulations to address climate change, which he was able to because of the Clean Air Act a statute enacted by Congress decades ago. It's true that Trump is cutting back on those regulations, but at least something's being done in progress has been made. Another example would be the financial crisis. Congress simply was unable to deal with the financial crisis. We saw this in the near catastrophic failure to enact the Emergency Economic Stabilization Act in the fall of 2008. The executive branch was the main actor and addressing the financial crisis because it had been given the authority to do so and it was able to move quickly to do so. And then the last sort of general example that I'll give - althought we can talk about more examples - is conduct of foreign relations. Congress - the senate in particular - have been extremely hostile to a strong foreign role for the United States going back really, you know the entire 20th century. But even after World War II, and most of the institutions that we think, you know with the benefit of hindsight have been good - International Trade institutions, military alliances like NATO - most of these things are either implemented by the president alone, or they were created at the behest of the president with Congress going along reluctantly, so this is really the issue. The issue is in a modern economy and a dangerous world how much authority should be allocated to Congress versus the presidency? My view is that the lesson of the 20th century is that while we can do get bad presidents, like right now, from time to time - generally speaking - the powerful presidency is necessary. I don't mean though an unlimited presidency. I do think that Congress should play a role in constraining the president and does. But you know that that is really the issue.
Rosen: [00:09:43] Thank you very much for that. That thoughtful answer is consistent with the distinction you make in the Executive uWbound between two systems of government the liberal legalism model - where Congress takes the lead in making policy - and in the presidential primacy model in which the executive takes the lead. And you think that the liberal legalism models the official story, but the presidential primacy model more accurately reflects how things work. Julian you wrote a very Illuminating piece in the New York Times with Kevin Kruse in 2019, have we had enough of the imperial presidency? And you note that Congress attempted after Watergate to restrain presidential power in the War Powers Act of 1973 and the National Emergency Act of 1976, which is the subject of the current wall dispute, as well as other reforms, but that what went wrong these attempts to restrain the presidency don't seem to have worked, and then you call on Congress now to put new limits on the presidency. Tell us what those post-watergate reforms were, why broadly they went wrong, and how you think the Congress could reassert itself?
Zelizer: [00:10:59] Yeah, in the 1970s you have real push back against presidential power and there were many proponents of a strong presidency like Arthur Schlessinger, who had been a court historian so to speak. He had worked in the Kennedy administration, had written about FDR, and he hadn't spent much of his career really writing about the virtues of presidential power - it being a more efficient and robust institution, and he famously writes a book in 1973 that I think captured the mood of many Americans in the middle of Richard Nixon's scandal in the end of the Vietnam War. And he wrote a book called the imperial presidency. And he says, he starts the book saying that he himself was wrong that he had - he was guilty of only imagining the best of what the presidency offered and not really seeing the dangers, and when Nixon resigns and 74 the mood of the country is very different and the mood in Congress is one where there's an effort to reclaim some of the power that had been lost. Already in 1973 Congress passed the War Powers Act which tried to reassert more of a role for congress when deploying troops overseas. In 1974 Congress passes budget reform legislation that tries to centralize the budget process and create a more equal setting for congress when dealing with mapping out how money will be spent. In 1978 Congress passes an ethics reform legislation that includes creating an independent counsel - a prosecutor who would be appointed to investigate executive branch corruption and would be pretty free of any kind of oversight or restraint when those investigations were triggered. So they were many reforms - and there were others - that were put into place trying to push back a little on this trend that we've been talking about in the podcast. And some of them, you know, had an effect: the independent prosecutor - very controversial - would be used very often right through the end of Bill Clinton's presidency, the budget reform remains the architecture of how we handle budget matters. But it's clear that presidents are very strong. I think President Trump is exposing just how much muscle they have even if someone's unpopular, even if someone is controversial. And part of the problem is partisanship, meaning what we're seeing at least right now is how partisan incentives and Congress will allow for a president to act in a very aggressive fashion and unconventional fashion, and as we're seeing with the National Emergency, in ways that many people feel are unconstitutional or contradict the intentions of the founders. And so we wrote that piece that some of what was happening in the 70s much of it which has fallen away since that time, it might be time to have some of that conversation. It doesn't mean creating a president that doesn't have power, but putting into place more restraints in the Constitution provides as is, to avoid an excessive use of the authority given to the person in the Oval Office.
Rosen: [00:14:39] Thanks for that. Eric let us hone in on the National Emergency Act of 1976. Presidents have declared national emergencies nearly five dozen times since the Act was passed in 1976. Never before has one been used after Congress rejected funding for a particular policy, and President Trump's Declaration of a national emergency is the first since 9/11 to authorize military action - most of the others have had to do with tariff policy and foreign policy. And the question I want to ask is not the wonky question of whether President Trump's Declaration of a National Emergency to build the wall technically violates the act of 76 because the arguments on that question are complicated as our previous podcast revealed, but if we step back that axe allowed Congress to disapprove the president's actions by concurrent resolution. The Supreme Court subsequently struck that down by saying that legislative vetoes are unconstitutional - you have to pass laws with bicameralism and presentment signed by the president. So that means that to disapprove of the president's action now you need a veto-proof majority in Congress. Does this broadly - not technically - represent a kind of delegation of congress's appropriation power to the president in ways that threaten constitutional values if not technically violate the constitution or not?
Posner: [00:16:10] You know, it's a tough question and you know, there's a lot going on there like the Supreme Court's decision on the legislative these at veto which makes it a complicated question to answer. You know, I think it's a little too early to tell. It's quite possible that the courts are going to block this. If the courts block it, then we would just say that the president tried something and it was it was blocked and all presidents do that. All presidents do things that they think are lawful or claim are lawful - then they're stopped by the courts. And so far at least, presidents acquiesce when courts block their actions, so, you know, I think it's a little early to tell. I think we should not overreact to what Trump is doing. I think actually I disagree with with Julian here about Trump. I think Trump is a weak president. I do think the presidency is powerful, but I don't think Trump has exploited the powers of the presidency very effectively. What he was able to accomplish in the last two years was the result of having Republican majority in both houses of Congress, and Trump, you know, largely followed a kind of a conventional Republican set of policies. It's in this area of immigration where you really differs from his own party as well as most of the public opinion and he's been thrashing around - he's been not very effective. He's been far less effective than Obama was in the area of immigration. Obama did some meaningful things to help some classes of undocumented aliens. Some of what Obama did was stopped by the courts as well, but not all of it. I don't think we can draw lessons from Trump's National Emergency declaration about the power of the presidency yet. All I can say I think in answer to your question is that the reason the Congress has given the president so much emergency authority over many decades, is that it realized that it - Congress - could not itself respond to emergencies . And the real problem here - is almost by definition it's hard to define - It's hard to say what an emergency is. They're always different. It's hard to know what authorities are appropriate if the emergency takes place. And so Congress has been almost forced to give very broad authority to the presidency so that the president could address emergencies - emergencies that in the 19th century would just not have been addressed at least not at the national level. That's I think the system we've had, I think it's a system we have to have. Now there are ways that Congress can assert itself and try to prevent the president from abusing this authority. This kind of procedural check that it had - that you mentioned - was one way; although that's been struck down by the court. It can still conduct oversight- you know, in the extreme it can still impeach the president. It can, in many ways, withdraw cooperation from presidents who abused their power by refusing to give the president something that it wants, so Congress does retain some authority, but I do think that these broad emergency powers are going to continue to be a part of our system.
Rosen: [00:20:02] Thanks for that. Julian, a version of the same question to you to tease that agreement or disagreement. Do you believe that Congress's delegation to the president of this emergency power combined with the Supreme Court's invalidation of the legislative veto represents in spirit, If not technically, an unconstitutional delegation of congressional authority to the president in ways that threatens the separation of powers? Or do you agree with Eric that it has to be this way, that Congress doesn't have the flexibility to respond to emergencies and because of the polarization -you note - it's unlikely to do so anyway, and therefore this is just a new balance that we're going to have to live with?
Zelizer: [00:20:43] Look, I come- I'm more of a congressperson and so first I just for me when I look back at the history of presidents, even with emergency powers, the record is often not so great. Whether you're talking about emergencies or you're talking about broader national security strategy - that is just presidents who have made massive mistakes. Speed often has a cost or excessive power has a cost. So you think of Lyndon Johnson and the escalation in 64 and 65 of Vietnam which was just really done for the wrong reasons. It was done with the wrong logic and the consequences were enormous. The weapons of mass destruction fiasco - and I think you can call it that - that was at root with with the war in Iraq, and the way in which that information was manipulated, and again the cost of a very long war. On those two examples, those are what what's on my mind. And, you know, part of why Congress keeps reasserting itself isn't simply an institutional back and forth- it's the realization at key moments of what goes wrong with presidents that there's a virtue of the kind of deliberate or bargaining dynamic that's required in Congress. And I think we're seeing a little bit of that debate play out today. I think in the last two years were in a situation where the Republican Congress until now has handed the president, or I think Eric's right that he has the - that Congress has given the president lots of leeway to do what the president wants to do. And for me, I guess I see it in not dire terms, but I do think the president not very competent and probably not getting the most out of the kinds of actions he is doing is still moving in some pretty aggressive ways. If you take his bully pulpit power, I don't think it's insignificant the kind of language, he's just unleashed on individuals and institutions without any kind of recourse. I do think you know without getting support for almost anything on Capitol Hill even when Republicans were in control he used his executive authority pretty effectively on deregulatory matters including with climate change. And I do think there's something different in terms of this invocation of National Security a () and that the crisis it's not there is no crisis and there's just not support for the idea. There's any kind of Border crisis. So whereas other examples such as Bush after 9/11 or even Carter after the Iran hostage crisis. There's something real there reacting to and you could dispute if emergency power was the best way to go. This is a political campaign message. That's all of a sudden turned into the basis of this use of power and. Added to that it's using the power to spend money after Congress Republican Congress didn't support it. Now a divided Congress doesn't support the use of money that he wants and he's using the power to spend money that way for me. That's a. Kind of National Emergency action by the president then we've seen and I think it could really set up a dangerous precedent. And I think that's partly why some Republicans are just as unsettled by this as Democrats are.
Rosen: [00:24:35] Eric, a response to those two points: first that the historic uses of emergency power in Wartime in particular in Vietnam and Iraq haven't turned out so well because of the madisonian virtues of slow decision in the dangers of speed and second that regardless of the technicalities here. The president really is invoking this power domestically to spend funds that Congress has refused to give them and that's dangerous, too.
Posner: [00:25:01] Right now I don't want to be in the position of defending Trump okay, just to be just to be clear about that. I don't like him. I don't support him in any way. I don't support this emergency declaration. But but let me let me try to respond more broadly. So first on the international side and we have to look at both sides of the Ledger and and we have to we have to you know, we don't want to just cherry pick. Particular interests Foreign Relations disasters, which Vietnam was want any Rock was another although I want to say parenthetically that Congress did authorize the war in Iraq now possibly possibly the administration was not honest with Congress, but it's not entirely clear what the world would look like. That was what that would be different. This is not a case that the president going to war. Without Congressional Authority Vietnam. There's also it also somewhat ambiguous, but there was basic Congressional support for the for the war. But but you know, the what really concerns me is not that it's World War II and it's the Cold War right? It's the the basic isolationist sentiment of Congress the Congress Congress. We have to remember that half of Congress is the Senate. And a good portion of the power in the Senate is possessed by rural States and these are states that are often isolationist. But in any event don't reflect, you know as a general matter Congress because of the way the Senate is structured does not reflect General American public opinion. It's a biased institution in that respect. The president as much better job the presidency of reflecting overall American public opinion, even though it is true that Trump and other presidents have won elections without the popular vote. Okay. So the my view is that an international relations the presidency has as a general matter acted more responsibly than Congress has going back to World War II. We're isolationist sentiment delayed American entry into the war and hampered Franklin Roosevelt's efforts to help the United Kingdom and so on and so forth. Okay, so that seems to me the debate and and and and I also think that in the general conduct of the Cold War. as a general matter. The president's did a reasonably good job and were frequently hampered by Congress reasonably good job in the in the sense of building International institutions that were helpful and beneficial in building a military alliances. There are a whole range of in treaties and so forth that the Senate refused to. Give its consent to the president said to work around largely sensible types of trees so that on the on the formulation side and the domestic side. well. You know it as I said, I'm not going to defend Trump but we have to we have to sort of think about what the alternative is. And I guess I'm just not clear, you know, what's on the table here. For example, you could take the position that the president that the Congress should simply withdraw all the emergency authorities that it has given to the presidency. And that's a possible position to take. I don't think it's right. I don't know whether Julian takes that position. I think another position would be well. It's okay for Congress to pass statutes to give the president emergency powers. But there should be more constraints. There should be more procedural constraints. There should be more rules. There should be limits on how the President should use the authority that he's given to that. He's given. But that is actually the system we have, you know, we could go, you know one by one through all of these statutes and have a debate about whether they're too broad or too narrow and I suspect you know, the Julian and I would agree in some cases and disagree on other cases, but but I think we have to at least for the time being resist the notion that there's just there's just too much emergency. You know a lot of these statutes do things like say just going back to 2008, you know, if there's a liquidity crisis the FDIC the FDIC, you know can extend Deposit Insurance beyond the 250 thousand dollar limit. I mean, that's an emergency Authority that's in the executive branch. I think it's very sensible. So because I don't think that if there's a liquidity crisis we can expect Congress to do that on its own. Quickly enough to to address the problem. Okay, then final point is you know, once you have these statutes in place, there's always the danger that the president will just violate them. So let's suppose there's supposed Trump announces. There's a liquidity crisis or bullies the FDIC and to claiming there's a liquidity crisis when in fact there isn't. And as a result of which I don't know he can raise deposit limits or get the FDIC to raise deposit limits which pleases his cronies in some way. Well, you know, that's just a legal and we have to trust the courts or Congress or the public to push back if the president violates these rules, but you know, he can violate whatever rules he wants. We don't have to, you know, when Truman ordered the military to see steel mills during the Korean War. You know, he was just breaking the rules and the courts blocked him the Supreme Court blocked him and and I would expect that that will happen in this case. If it doesn't happen, then then I'm be happy to have this debate about whether one or many of these emergency statute should be should be should be eliminated.
Rosen: [00:31:26]Well, it is time for closing arguments in this important debate. And the first one Julian is to you has the presidency become too powerful under the Constitution. And if so, what in particular can Congress do about it, especially in light of the polarization in Congress?
Zelizer: [00:00:20] Yeah, I I do come down on this side that Congress has that the presidency has become too powerful and that there is a need for a renewed look as we had in the 1970s on how to impose some restraints or some stronger checks on the presidency part of this can involved looking at the laws that give the president a certain amount of power so with with. National emergencies act for example, it's possible to think about is it good that the president now has the ability to veto a resolution that comes from the House and Senate revoking that revoking that emergency power which was meant originally to be a check from Congress when they thought it was being misused. I do think there's ways in which we could think about legislation that. Would protect investigations from the justice department as we're seeing today. So part of the conversation does have to include how do we put some brakes on what presidents have been able to do the power they have asserted in the last few decades? I also think part of the solution will come from fixing Congress. And so I think those conversations can't be separate. So when we talk about another world the Congressional reform world that talks about what do we have to do to try to? Create better gerrymandering or better districting systems or how do we reform campaign Finance to push back against some of the sources of polarization. Those are integral because if Congress is acting in a better fashion if there are more paths to negotiation and legislative compromise. That's the best push back for the arguments against increasing presidential power because some of the reasons it's legitimated would fall away and you know the Great Moments in history in terms of domestic policy come from when Congress is actually taking action whether you're talking about the New Deal or the Great Society as examples. Those are really momentous moments because in Congress you see the institution working and through negotiation and compromise and fighting coming up with real solutions to problems that have lasted for decades and so I think those are two. Kind of ways in which we need to think about some of what I believe President Trump has exposed simply in terms of the government. We've built it's not all because of him at all. I think he just exploit saw some of the opportunities that we've given presidents and it's time to do a little push back.
Rosen: [00:03:22] E ric last word is to you: has the presidency become too powerful under the Constitution and, if not, should Americans live with the current state of affairs or are any constitutional or legislative reforms advisable?
Posner: [00:00:19] I do agree with Julian about a number of reforms that would make a lot of sense. I would love to bring back the independent counsel who was an official who had kind of independence of independent authority to investigate the president and other people in the executive branch. I do think that there are procedural reforms that Congress could make that would provide stronger oversight over the presidency. I do very much agree with him that one of the problems is that Congress is in many ways broken and you know, if you can fix Congress you wouldn't need as powerful president. I'm fairly skeptical though about fixing Congress, which is one of the reasons why I do think we need a powerful presidency but I think level we fundamentally disagree and I guess the way I'll put this is to go back to the New Deal which Julian celebrated as a time where Congress, you know, really played a significant role in addressing an economic emergency, and you see the thing is is that the significant role that Congress play was one of setting up administrative government under the authority of the president. That was the great thing that it did during the New Deal. We did of course have administrative government before but this this was really the inflection point in our history when we started moving away from what one would call you know broadly a parliamentary or Congressional system - one where you have a large body of people deliberating and creating policy - to one in which you have bureaucrats who do that under the loose authority of the president. And I do think that this type of bureaucratic centralized administrative government is is necessary. I think it's necessary both for regulation if we care about the environment and financial stability and you know other elements of domestic life and it's and it's important if we care about security. The challenge of course is that an administrative government is it may be less responsive to public opinion then parliamentary or Congressional government. I'm not actually sure that that's true. It's really hard to know. You obviously need significant Democratic checks on it - and we do - it may be that we need stronger Democratic checks, then we have but I don't think the solution is to return to a system where Congress plays the primary role in setting policy. I think the world that we live in is one in which the kind of deliberative body represented by Congress plays the general oversight rule, can step in when the president abuses his power, but will always be to some extent subordinate to the administrative system.
Rosen: [00:03:40] Thank you so much Eric Posner and Julian Zelizer for an illuminating deep and important discussion about the proper balance of the Constitutional Powers of the presidency and Congress. You have taught us that there are legitimate debates about what that balance should be, that the balance has been changing over a long period of time and that our listeners have a duty to educate themselves about both the history and the details of the Constitutional arguments in the cases that are on the horizon in order to decide for themselves what they think the Constitution requires. Eric, Julian thank you so much for joining.
Zelizer: [00:04:19] Thank you. Thanks for having us.
Posner: [00:04:21] Yes. Thank you very much Jeff.
