2020 was a tumultuous and eventful year—starting with the impeachment trial, and then the COVID-19 pandemic, crucial conversations about racial inequality, the death of Justice Ruth Bader Ginsburg and addition of Justice Amy Coney Barrett to the Supreme Court, as well as the 2020 presidential election and ensuing court battles over it. How did the Constitution, and American institutions, prevail throughout? John Yoo, a professor at Berkeley Law who previously served in the Bush administration’s Justice Department, and Melissa Murray, a professor at NYU Law and co-host of the Supreme Court podcast Strict Scrutiny, reflect on that question and look back at the major events of 2020 through a constitutional lens. Jeffrey Rosen hosts.
FULL PODCAST
PARTICIPANTS
Melissa Murray is Frederick I. and Grace Stokes Professor of Law and the Faculty Director of the Birnbaum Women’s Leadership Network at NYU Law. She’s an expert in constitutional law, family law, and reproductive rights and justice. Melissa is the author, most recently, of “The Symbiosis of Abortion and Precedent,” published this year in the Harvard Law Review, and a co-host of the podcast Strict Scrutiny.
John Yoo is the Emanuel Heller Professor of Law and director of the Korea Law Center, the California Conhttps://constitutioncenter.org/women-and-the-constitutionstitution Center, and the Program in Public Law and Policy at Berkeley Law. His most recent book is Defender in Chief: Donald Trump’s Fight for Presidential Power. He is also a visiting scholar at the American Enterprise Institute and a visiting fellow at the Hoover Institution, and previously served in the Bush administration.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- Roman Catholic Diocese of Brooklyn v. Cuomo (2020)
- Ensuing COVID-19 rulings: High Plains Harvest Church v. Polis (2020) and Robinson v. Murphy (2020)
- Russo v. June Medical Services LLC (2020)
- Dept. Of Homeland Security v. Regents of Univ. Of California (2020)
- Melissa Murray, Harvard Law Review, “The Symbiosis of Abortion and Precedent”
- John Yoo, Defender in Chief: Donald Trump’s Fight for Presidential Power
- National Constitution Center, Constitution Drafting Project
- Jane Mansbridge, Inez Feltscher Stepman, and Carol Jenkins, Live at the National Constitution Center podcast, “Should the Equal Rights Amendment be Revived?”
- National Constitution Center, Women and the Constitution initiative
This episode was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Lana Ulrich, Ashley Kemper, and Alexandra "Mac" Taylor.
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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. We the People friends, 2020 was a dramatic and eventful year for constitutional debate, starting with the impeachment trial of President Trump and then the Corona virus pandemic, crucial conversations about racial inequality, and litigation over the election. We'll look back at these important events and more on our annual constitutional year in review episode. I'm so excited to be joined by two great constitutional scholars and two great friends of We the People.
Melissa Murray is Frederick I. and Grace Stokes professor of law and faculty director of the Birnbaum Women's Leadership Network at NYU Law School. She's an expert in constitutional law, family law, reproductive rights and justice. She's the author, most recently, of The Symbiosis of Abortion and Precedent, published this year in the Harvard Law Review and a cohost of the podcast, Strict Scrutiny. Melissa, it is wonderful to have you back on the show.
Melissa Murray: [00:01:21] Thanks for having me, Jeff, it's great to be here.
Rosen: [00:01:24] And John Yoo is the Emmanuel Heller professor of law and director of the Korea Law Center, the California Constitution Center and the program in public law and policy at Berkeley Law. His most recent book is Defender in Chief: Donald Trump's fight for Presidential Power. He's also a visiting scholar at the American Enterprise Institute and a visiting fellow at the Hoover Institution. John, it's wonderful to have you back on the show.
John Yoo: [00:01:48] Thanks, Jeff. It's always great to be virtually home in Philadelphia, where I belong.
Rosen: [00:01:53] We all belong in spirit in Philadelphia, the home of the Constitution. John, in the spirit of your new book Defender in Chief: Donald Trump's fight for presidential power, I want to ask you about the performance of the constitutional system in the wake of our election. This is the week that the electoral college declared Joe Biden to be president-elect. Some have argued that the fact that the courts and election officials evaluated the post-election litigation in a neutral and nonpartisan way showed the system work. Others say that the fact that it took six weeks for President Trump's opponents to recognize Vice President Biden's victory as president-elect shows the system is broken. What is your view about how the Constitution fared in the wake of the election?
Yoo: [00:02:40] That's a really interesting question, Jeff. And of course, we're right in the middle of it, as the electors met in their states and just sent their votes to Washington DC yesterday. I think that the electoral college showed its real virtues, this election , in two ways. One , people may not realize, but I think they now notice that the electoral college sets up a system where the existing president and really the federal government have almost nothing to do with picking the president. The president's really chosen in the states. The Constitution gives the job of choosing the electors to the state legislatures, which in every state have turned around and vested that in the people through popular election. The president's not involved in picking a successor. The federal government's not really involved in picking the successor.
The second thing I think the electoral college has shown in terms of virtues this year has been this more fancy social science phrase we use, which is resilience. That's a big thing in the study of institutions these days and stubborn governments, businesses, and so on. How do you design systems so that they are resilient to shock? To unanticipated challenges , to disruptions. And I'd be the first to admit President Trump is a terribly disruptive political figure. But the electoral college, because it dispersed power throughout the states, to the 50 states, it is almost impossible, I think, to successfully tamper with and defraud the electoral college system in the way that President Trump alleged, because you would have to interfere with the way, not just multiple states, but dozens and dozens of counties that you would have to know about beforehand would be the crucial counties in order to sway the election. And so I think what this shows, which is, I think the Constitution's basic message in institution after institution, is the importance of decentralizing government power, which itself creates a resilient system. And I think the electoral college showed that more this year than perhaps any elections since the middle 19th century.
Rosen: [00:04:45] Melissa, you heard John's argument, the electoral college worked because the president can't pick a successor and the system was resilient. Do you agree, or do you believe that the system was tested in ways that suggested may break in the future?
Murray: [00:04:59] Well, first let me say that I'm not sure the resilience of the electoral college necessarily speaks to the question of the health of the system overall. So, it is true that the electoral college was resilient and it did its job yesterday, but we've seen throughout the entire period, from the election until now, that there has been incredible stress on the system overall. I mean, any time you have local and state governments worried about their health, their safety, while they're counting ballots, while they're getting ready to assign electors. All of that suggests a system that is incredibly stressed. And I think part of that is because of these efforts to delegitimize what have been normal processes that have worked in past elections and that were working in this election as well.
Rosen: [00:05:48] On the same day that the electoral college met the first vaccines were given in the United States. And that leads me to ask about COVID and the Constitution. John, you have written about the limits and extent of Congress's power to impose a quarantine and to regulate the vaccine in light of the defense production act and other delegations of power from Congress to the president. Is there any act that president-elect Biden in conjunction with Congress might do with regard to COVID that you think would exceed Congress or the president's power from a national mask mandate to a national quarantine?
Yoo: [00:06:28] That's a tough question. Jeff, I think actually you're not going to see the Biden and Trump approaches to COVID differ that much, but it's because of the question you asked, because the Constitution, as it does with the electoral college, the Constitution, again, maybe for good, maybe for ill, disperses power, even over things like public health emergency . The Constitution doesn't give the federal government any explicit power in public health. And so the power again is driven down to the states and they are decentralized. That means that they can promote a diversity of powers. I like to say back in March, I wrote a piece when the lockdowns first started saying people are going to think it's the federal government's job, but the frontline players in policy are going to be the state governors.
And I actually wrote a line which everyone thought I was crazy for, but I think it turned out ... which was that President Trump's reelection was essentially going to be in the hands of the state governors, because it was their decisions that would determine how successfully we could fight the pandemic. The federal government's role is not to open and close every business in the country and decide you know, institution, institution, school by school, who's open and who's closed, but to provide the things that are set out in the Constitution as Article One, Section Eight powers, the spending power , the taxing power. So the federal government can raise money devoted towards buying PPE, devoted towards accelerating research into the vaccine, distributing the vaccine. It can provide technical and scientific information, but what it doesn't have the power to do is, the federal government just doesn't have that many people working for it.
It doesn't have that much of an institution at the day-to-day city-state level that it would take to set a uniform policy about the pandemic. And so really , just like the federalism informs the electoral college , Jeff, it also informs the response to the pandemic. So, what's outside those powers? I don't think that a President Biden, could, for example, mandate a national lockdown of every business, of every church, of every school.
I don't think President Biden could impose a national mask mandate on everybody. I think he'd run into the federalism limits and the limits on the executive in areas where Congress has already acted. But I don't think that really handicaps the federal government either. It's going to roll out a vaccine. A lot of governors are coordinating. The federal government is providing information. I, frankly, I mean, I wish it were different, but I don't think the Biden Administration's gonna be able to do a lot that's going to change the course of this terrible disease as it goes through society.
Rosen: [00:09:03] Melissa, do you agree or disagree that Congress could not impose a national mask mandate or require the closing of all churches? And then maybe talk about some of the recent cases the Supreme Court has heard involving churches and COVID shutdowns, and whether you agree with the majority or dissents that the states have broader powers to impose quarantines than the Supreme Court is willing to acknowledge.
Murray: [00:09:31] John is exactly right in outlining the division of power between the state governments and the federal government. I think the only way that the federal government could say, for example, initiate a mandatory mask requirement is if they did so on federal property, for example, that might be one area where they could do it. Or if president-elect Biden would impose a lockdown on federal buildings or something like that, that might be permissible.
But broadly, I think, as John says, that is unlikely. Nevertheless, the model that John was outlining was one that I think could be appropriately described as a kind of cooperative federalism model, in which there is a role for the state governments, perhaps in ordering shutdowns or in dealing with local issues involving businesses and whatnot. And there is a federal response, whether it's pushing out guidelines for stemming the flow of transmission or initiating funds for a vaccine. And I think what the difficulty was, at least in the early days of the pandemic, is that we really didn't have that coordinated federal and state response, and instead what we had was more like the 50 different laboratories of experimentation. All of which are sort of doing their own thing about this virus, where there really needed to be a coordinated response. So, on the one hand, what John lays out I think is exactly what we should have seen, and perhaps it's aspirational, but at least in the early days of the pandemic, we really had most of the action really being isolated on the state and local levels.
And it's not clear that that was what needed to happen in order to make the most effective dent in this . In terms of the court's response to many of the challenges that arose over efforts to stanch the spread of the disease, I think there were real questions, certainly early on, about whether or not the state's police power to legislate in favor of public health could co-opt, for example, fundamental rights regarding religion or, for example, abortion, which was also on the table. We saw at least initially the Supreme Court weighing down with some deference to states. So a couple of cases out of California and in other places around the country in which the court deferred to executive orders and state legislatures shutdown orders over claims from religious institutions, that these were harsh measures that were singling out religion for harsh treatment.
More recently, however, and again, this may have something to do with the change in personnel on the court, we've seen the court maybe go the other way. We saw just before Thanksgiving, the Court come down with a really consequential ruling in a New York case in which it held that Andrew Cuomo's executive order limiting the number of attendees at particular religious institution services and in other places where individuals might be singing or talking loudly or whatnot was treatment of religion that was too harsh and violated the First Amendment. And, today, for example, we saw that the Court again came down with another ruling, dismissing a series of cases and instructing the lower courts to refer back to that New York ruling.
So, the pendulum seems to be swinging. Some say it's because of the change in personnel on the court. It could also be because we're 10 months into this and maybe we know a little bit more about the disease and perhaps there is less deference to the state legislatures and state officials regarding what they know and how they're trying to deal with the disease, given that there's more information that's available. So, we're seeing sort of a wide range of activity on that front.
Rosen: [00:13:06] John, we're talking about the Supreme Court . Justice Barrett has joined. We saw in the New York free exercise case that the balance of the court may have changed. Describe how you think this change will be most significant, both the substantive areas that you think will be most effected by the joining of Justice Barrett and also Chief Justice Roberts, who's made institutional legitimacy such a keynote of his chief justiceship. To what degree will his ability to foster narrow, unanimous or bipartisan opinions be made more difficult?
It's
Yoo: [00:13:44] interesting. And of course, this was the focus of the hearings for Amy Coney Barrett and whether her addition to the Court is going to really shift the direction of the justices. I tend to think she will. You, of course, none of us has anything to go on. I don't think she's actually written, you know, published her first majority opinion yet. If she had, it's probably in some interstate water dispute that nobody read. So, I can't tell, you know, what she's actually done aside of, as you mentioned, Jeff, from that one religion case where she voted with the conservative justices, Thomas, Alito, Kavenaugh, Gorsuch, against the lockdowns of religious institutions in New York and in California and Chief Justice Roberts, as you mentioned, Jeff, had been trying to keep the Court pretty much out of reviewing any of these individual right claims against pandemic lockdowns. And when the Court was, you know, five to four or four to four, he could play that role in the middle. You know, we've seen that also in some other cases, even before the pandemic where the Chief Justice was trying to be the fifth vote, kind of taking the place of Kennedy and O'Connor.
Going all the way back to Justice Powell, I suppose, in the early eighties. I think now with Amy Coney Barrett on the Court, Roberts's his ability to do that as evaporated. I don't think the conservatives need Chief Justice Roberts. I think if he wants to keep influencing the direction of the conservative majority, he's going to have to join them and be part of a six justice majority.
I especially think this is true because Amy Coney Barrett in her hearings you know, if anybody was her judicial role model, it was Antonin Scalia. And one thing Scalia was, was that he was not the kind of justice who was compromising to build majorities. Right. He and I think Thomas were very happy to be out on the extremes of the court if they could lay claim to some principle. And so I think that spells trouble for Chief Justice Roberts's project . You know, he, maybe he got it this far, and that was as far as you need to get through the Trump years without getting the Court to embroiled into claims of being partisan. But I don't think he's gonna have that ability anymore.
So what areas, so just finish up quickly, Jeff, your question, where areas is this gonna affect? I think the most obvious one is abortion. We could probably talk about June Medical and Chief Justice Roberts being the fifth vote to uphold state restrictions on state efforts to regulate abortion. I also think affirmative action may be on a clock now because that's a case where even Chief Justice Roberts in the past has voted for more colorblind principles, but he, I could have seen him also being afraid to strike down affirmative action in colleges and universities.
I think you're gonna see it in more rights for states. I think you're going to see it again especially in religion. And I think he's going to be a weakened chief justice overall in all those areas and probably ones we can't even think of yet, because we don't know, you know, the new issues that are going to arise under this new court.
Rosen: [00:16:49] Melissa, you've written very thoughtfully on this question of the influence of Amy Coney Barrett. In the Washington Post, you wrote with Leah Litman a long piece, shifting from a five to four to a six to three Supreme court, majority could be seismic, and you said the impact would be not only in abortion cases, but also other areas, including voting rights, and the heart of the functioning democracy and government. And then you've written this article in the Harvard Law Review, which sounds fascinating, on the symbiosis of abortion and precedent. So tell us how could Justice Barrett affect the Court including in abortion rights and what is the symbiosis of abortion and precedent?
Murray: [00:17:26] Sure. So let me first go back to the initial point that you asked John, like what will happen to the chief justice? And I think John's exactly right. He's definitely going to be sidelined or hobbled in some way. And I think we saw that from the beginning. As soon as Amy Coney Barrett was officially confirmed, the White House celebration of her confirmation occurred at the White House with Clarence Thomas swearing her in, rather than the chief justice. The Chief later swore her in at the court, but the sort of ceremonial publi ceremony was one that was done with Clarence Thomas, who is closer to her judicial mentor, Antonin Scalia then perhaps to the chief justice himself.
So, I think we already saw at least one glimmer of the president sidelining the chief justice. The other way, I think that chief justice will be sidelined is because he is no longer needed for a conservative block. Now that they have a firm five on the conservative side of the court. I think that means that the chief justice has to decide whether to join them.
And I think, if he does join them, he does get to exercise some of his perogatives as Chief Justice. So he's not completely out in the cold. He can decide, if he joins them, who writes the majority opinion and in that case, he could choose to keep a majority opinion for himself and maybe dictate a more narrow holding then the other five would want.
But again, he will have to walk a very fine line in order to maintain that majority where he gets to control how things are written. So, I think that's one way that he might be able to do that. So, I wouldn't count him out just yet. In terms of what Amy Coney Barrett will mean for the court, I mean, I think this is perhaps the most consequential appointment that President Trump made in the course of his presidency, which, you know, had a number of appointments, including a Justice Gorsuch and Kavanaugh. I think where this one is most consequential is one it is the first woman that he's appointed. And I think that's meaningful again, because he specifically singled her out to occupy the seat that was formerly occupied by Ruth Bader Ginsburg.
And I think the sort of symbolic import of that choice cannot be understated. As John says, she will have, I think, an important impact on the Court in terms of its reproductive rights jurisprudence. And I think that's not uncalculated. The idea that five men would overturn Roe vs. Wade, I think stuck in the kraw of some people who thought the optics of such a decision would be poor. I think it is less optically problematic if you have five men and one woman coming down to signal problems with Roe, or even to overturn Roe entirely. And so there is a way in which having a Justice Amy Coney Barrett, as opposed to one of the other justices writing, what I think will be at some point in the future decision, seriously, challenging Roe gives it a kind of epistemic authority that otherwise has been missing. And I think that's critically important.
She will also be important for second amendment rights. She's already indicated that in her time on the seventh circuit. I think we'll continue to see that. We had an important second amendment case last term, that the court really didn't get to the merits on because it determined it lacked justicibility.
But I think going forward, we won't see those quick exit ramps for those kinds of cases. This is a court now that is willing and I think amenable to the problem of sort of expanding the understanding of the second amendment beyond even what was done in Heller. So I think we'll see more of that under Court where Amy Coney Barrett I think has really swung it more to the right than it has been in the past.
Rosen: [00:21:07] I think we should have another round on the decisions that the Supreme Court issued this term. There are so many significant ones that both of you have written about. And I'll ask you a question that Justice Byron White asked me in an unsuccessful clerkship interview long ago, namely, what's the worst decision the Supreme Court has issued? He meant ever. And I'll just ask you this year. Among the many significant ones, John you've criticized, for example, Bostik, the LGBTQ rights decision. If you had to pick one that you want to disagree with most tell us what it is and why.
Yoo: [00:21:43] Actually, I'm curious to hear Jeff, what your answer was in the interview. I mean, this was an answer that shaped the future of a constitutional law and stopped you getting on the Supreme Court and then ended up running the National Constitution Center. What are you talking about? Who cares what I think.
Rosen: [00:21:57] Very glad to have whiffed the question, but I didn't answer it directly because the man did not like dodging. So , you've got to answer it squarely. So that's what I'm asking you to do.
Yoo: [00:22:05] Here's the answer to all the law students listening, trying to take notes. The correct answer is Marbury versus Madison. That'll really screw people up. But that's a, it's an interesting question. I have been critical of some of the Court's work product. Bostik, I'm not really sure upset about it. I mean, I'm all for extending, you know, title seven protections to gays and transgender. I just wanted to Congress to do it. And I was actually looking at the polls and congressional support, I fully expected Congress was going to do that soon. I guess the decision I find most difficult and puzzling actually is the decision about the DACA program, the deferred action for childhood arrivals, which you remember back in the Obama Administration , President Obama decided to not enforce the immigration laws , first with the dreamers and then the parents.
A fairly large class, you know, millions of potential cases. So putting aside whether you think that was constitutional or not the thing I think that's very puzzling and it's going to I think have a big impact on the Biden Administration, as it did on the Trump Administration, is this question of reversal.
This is an article I'm working on right now, actually, which is if a president does something, how do you reverse it? Right. This is in a way was with Biden's platform was, is I'm going to get into office and I'm going to start reversing left and right all these things Trump did. And so you would've thought the background rule would be, if a president issued an executive order, then the next president could just repeal the executive order. If the president made one decision, the next president can undo it in exactly the same way. In fact, it's interesting. It's actually easier to undo presidential power than it is to do things. So think about appointing an officer. You have to get Senate advice and consent. But to fire the officer, you don't need anyone's advice and consent. You can just do it on your own. So in this case, President Trump tried to reverse president Obama's DACA program using the exact same means that President Obama had used to basically issue an order saying, this is my prosecutorial discretion. I am choosing not to enforce these kinds of cases. Then President Trump says I'd like to re, I would actually like to enforce them again.
The Supreme Court here said no. It said actually President Trump had to go through something called the Administrative Procedure Act to undo President Obama's decisions that could take, and does take years, usually , I think this is actually something that the Biden Administration might come to rue, which is the idea that you have to undergo extra steps, a longer process, a different process to reverse what the last president did.
So just take, for example, suppose President Trump, right before he goes out, office says, you know what? I'm just cutting everybody's taxes by 50%. I'm just not going to enforce the tax laws beyond 50% of what you owe. And yeah. Good luck President Biden, trying to undo that for a year if you believe so.
I think that's I think the Supreme Court, Ruth, you know, sorta really structurally undermine the president, one of the main checks on presidential power, which is. The check by the next president on the past president. I think that's actually exciting. That's the worst decision from last term from this year.
Thank you for answering the justice white question. So squarely and clearly crux of granted Melissa, same question to you. What is the worst decision in your view that the Supreme court. You should this year? Well this'll perhaps gave me an opportunity to go back to the question. I didn't answer the last time, which was to say a little bit about June medical services.
I don't disagree with the outcome in June medical services, which was to invalidate the Louisiana admitting privileges law. I, I think what concerned me most about this case was the chief justice has concurrence, which has become sort of the lead opinion coming out of that case that has been now subsequently.
Used in the lower federal courts and dealing with abortion restriction. So in, in the piece that you referenced in the Harvard law review the symbiosis of abortion and precedent it, it is a comment on June medical services. And what I note here is that the chief justice is. Decision to join the liberal wing of the court to invalidate this Louisiana law was not because he'd had a change of heart about abortion regulation, but rather because he recognized that only four years earlier, the court had under, had undertaken a review of an almost identical law from Texas and had also invalidated it there.
And so as the chief justice said, starry decisis demanded his vote in this particular case. And he went along with the liberal wing of the court, but in writing that concurrence What we actually saw was less about deference to precedent and really a kind of undoing of precedent. In that concurrence, the chief justice basically unwinds the decision that the court reached and whole women's health versus Hellerstedt, that 2016 case that invalidated a variation.
Similar Texas admitting privileges law and returns the court status quo back to planned Parenthood versus Casey that 1992 decision that affirmed Roe, but gave the States broad latitude to further restrict abortion regulation going forward. And so. In my view, that was a really problematic case in part, because it was heralded as a real triumph for abortion rights.
When in fact, I think it actually sets back the project of abortion rights by a number of years by returning us to the 1992 status quo. And as we seen. That's the decision that the lower federal courts have really been looking to as they go forward. So to my view, that was one of perhaps not the worst decided decision, but it was certainly a disappointing one because it was wrapped in the guise of a victory.
And it really was not. Thank you for explaining that so clearly. And we, the people listeners please check out the article in the Harvard law review, which sounds fascinating, John, let me ask you about. Impeachment. Melissa Murray was part of a fascinating project that the constitution center recently sponsored where we asked progressive conservative and libertarian teams to draft constitutions from scratch and all three teams proposed making explicit that presidents can be impeached for non-criminal behavior.
I'll ask first, do you agree with that? Proposal. And then you had argued against the impeachment of president Trump on the grounds that president should be able to make foreign policy decisions free from interference by Congress. In retrospect, what is the legacy and what is your view of the failed impeachment of president Trump?
So I I wouldn't want to have a system where we had something like the British, no confidence. Motion where if you don't have the confidence of the Congress or the legislature you can be removed from office. So that's what the proposal is. I think that's something that the founders considered and they rejected.
They had before them something like parliamentary systems at the state level back then, and they wanted the president to be more independent. And you, if you go back and look at the records they, they. They wanted to reject having the president being too subservient to the legislature. Now, maybe, you know, the you know, scholars who participate in his project, they would like to increase legislative control of the president.
I mean, that's certainly the model that exists in much of the rest of the Western world. Which you know, mostly follow the British parliamentary system. I actually think that the independence of the executive has a lot of benefits in law, those benefits have redounded to the success of the country.
And so for that reason, I would rather have a system where it's difficult to remove a president aside from elections. That said, I agree. I agree with your reading, Jeff, that Hi, Keira. I think you said this before, back in the Clinton impeachment days, you know, high crimes and misdemeanors, I think we argued about it back then a high crimes and misdemeanors is not just crimes but it has to be important.
Right. I, you know, it's treason bribery and other high crimes. And misdemeanors to me means that the high crimes and misdemeanors have to be on a similar level with treason and bribery. But the reason you put that clause on is because you don't want to limit it just to the crimes of treason and bribery.
And so I, you know, I think, you know, I agreed back then that what president cleanse PQ perjury while technically criminal wasn't important enough to remove here, I think in this case, President Trump's case was a lot closer. I could see a case in the house for impeaching, right? I mean, I think you could say the president could use a foreign affairs power in such a way that was so harmful to the country that he should be removed.
She should be removed. You know, the founders talked about removing presidents because they lost Wars. I mean that that's not criminal, but it's certainly important. And it certainly involves a foreign affairs power. So I, I, but I think the system worked again. I, I maybe I'm just a traditionalist defender of the constitution and the way it worked out.
But it seemed to me, this was there and there were founders who talked about this exact circumstance happening, a president who might've been accused of bribery with foreign countries. They were actually far more worried about that than we were. And they said, well, look, the house can impeach. It is really hard to remove in the Senate.
Maybe two thirds is going to let president slide who maybe you shouldn't let slide, but they said that will be such a stain on the president's reputation and character that they couldn't envision that a house that was elected by the majority of the people who would impeach a president would then not.
Remove that president just through the next election, right? It was the same majority of the same people. And I think they were right. I mean, that's the way it turned out. President Trump wasn't removed by impeachment, but he was removed by the November election. And so I think the system, I think the system worked actually, Melissa, in your proposal with your colleagues, for the progressive constitution, you did clarify that the standard for impeachment should be that the president need not commit a statutory crime, but an abuse of the public trust shall be sufficient grounds for removal.
But you also changed the majority requirement for impeachment and removal to three fifths in each house to forestall partisan impeachments while ensuring that in cases of real abuses of power, the president can in fact, be removed. Tell us more about your reasoning and making both of those changes and then apply that to the Trump impeachment.
Did the president commit. And abuse of the public trust. And do you think he should have been removed and what will the consequences of the fact that he wasn't removed be? So I will just say, first of all, that both the project of drafting, the progressive constitution and impeachment seems like it was 150 years ago in, in COVID time.
So I'm reaching all the way back, but we had a lot of discussions in that drafting project about various proposals that we might make. And I think we came out with just. The basic view that the bones of the constitution are good. Like, like the structure actually is sound and we didn't really want to deviate from it substantially.
We made a lot of choices that I think may have surprised those who were interested in a more progressive vision of the constitution. I mean, certainly that seems to be okay. What the take is on Twitter. Like for example, we did not include protections for positive entitlements in the constitution. Like we, we played it pretty straight because we think that the structure itself is sound and, and what really needs to happen is protection for democratic processes.
With that in mind. Impeachment was a place where we talked quite a lot about the various kinds of reforms that could be made. And we did discuss the prospect of moving to a parliamentary model with a no confidence vote. And we disposed of it relatively quickly. Again, because I think. We all recognize that the level of polarization that currently exists in the country would make that too tempting and too easy to dispatch a president for political ends.
And so we did not want to facilitate that, but we did make it easier for the houses in terms of the voting requirements to actually impeach and remove a president. And we also clarified. That the idea of high crimes and misdemeanors was not confined to a statutory crime, but rather encompass what we understood to be you know, sort of the kinds of abuses that public men might engage in.
So again, that sort of idea of the public trust and. With that in mind, if our constitution was the one that was in use in January of this year. And if the allegations against the president had been proven you know, that there was. Significant pressure placed on the Ukraine and the withholding of foreign aid that had been congressionally appropriated in the hope that the Ukrainian government would assist in getting information on a political rival.
Then I think that would constitute an abuse of the public trust, sufficient to require. Not just the impeachment, but the removal of a president, if those allegations were proven. So in our view, even though it was not necessarily a statutory crime, this was exactly the kind of behavior that we thought should be encompassed in an abuse of the public trust.
That would be a high crime or misdemeanor sufficient to prompt impeachment. John progressive conservative and libertarian teams also surprisingly converged in a series of proposals to limit executive power and remarkably, both the conservatives and the Progressive's would have replaced the electoral college with a national popular vote with ranked choice voting, and both teams would have resurrected the legislative veto, which allows Congress to take the lead in regulation and repudiate executive regulations.
Disagrees with and the conservatives would have had a single presidential term of six years. Not eligible for renewal. You haven't read the constitution. So I'm asking you to react on the spot, but what is your reaction to the proposal that I've just mentioned where both conservatives and progressives proposed in their constitutions?
To limit executive power. That's interesting. I don't know if those people poses themselves with limited, but I'm glad they're grappling with the fundamental paradox of presidential powers that you do want to have a, an executive that is bound by law on the one hand. But on the other hand, you need a part of the government that can react as Hamilton put it, you know, quickly decisively.
With speed and energy to unforeseen circumstances, emergencies, foreign policy crises, and ultimately war. And so how you do that, there's no one right or wrong answer and not saying the constitution strikes the right balance. You know, this is a really. Just set our greatest leaders, you know, Thomas Jefferson, for example, he thought the answer was to limit the president as narrowly as possible, which sounds a little bit like this project you've mentioned, but then he would have allowed the president to act illegally.
And then you know, he would say, go ahead and use what he called the Prague. And if by Louisiana, even though the constitution, he thought didn't allow it and then just ask the people after you do it. For their blessing. Right. And so this is Jefferson's ever to have a strict constructionist presidency, but he knew there had to be a flexible part.
Oh, the government too. Or you could be like a Lincoln, right? Lincoln tried to justify all of his actions, including the emancipation proclamation, which was attacked as being unconstitutional, as fitting within the executive power, the take care clause and the commander in chief power. And he liked Hamilton thought the executive power could grow in response to amazing challenges like the civil war.
And so I tend to fall on the Lincoln side. It sounds like your proposals tend to fall more on the Jeffersonian side. And so I've been like to say you know, would you be willing to test these limits on the presidency against something like the civil war? Well, I think this, I think there was a law for a long time.
Amongst scholars, there was this view that LinkedIn was an unconstitutional dictator and there's a famous book from the sixties called Lincoln, the dictator. But now I think the view has come to be among scholars. That Lincoln actually was very careful to try to justify everything he did. Within the powers of the executive.
And so I asked, you know, the people who would propose a constitution that would limit the presidency. Could it survive that test of a civil war? Could a single president have six years you know, Tied down with a legislative veto, with a more explicit limitations on what the president can and can't do maybe with a lower impeachment clause would it have allowed Lincoln to have successfully blocked brought us through the civil war or would it have forced the presidents to become more like Jefferson where they can't do it under the constitution, but because it's so important for the nation's benefit that they just violate the constitution repeatedly and just ask for political blessings afterwards.
Melissa. I know that this was several months ago, which in 2020 terms seems like several constitutional years, but the progressive team did propose a series of mechanisms to limit executive power and increased Congress's oversight authority over the executive branch, including requiring information and testimony from administrative officials.
And. To ensure that the law enforcement power isn't abused for partisan gain. You said the attorney general should receive the votes of two thirds of senators to be confirmed. Can you describe those and other proposals that you and your progressive colleagues made to limit executive power? And do you consider them Jeffersonian or would you present them in some other way?
So the progressive constitution, again, we did make some pivotal changes that were, I think, big departures from the existing document. But I think they were animated by what we have seen over the last couple of years. So in that sense, you could think about this entire project as a kind of. Time capsule, because it really is a response.
I think, to some of what we've seen over the past couple of years and what we thought were, I guess, failures of the constitution to respond to an administration that was perhaps more disruptive than others had been in the past. So we wanted to be able to enable the Congress to conduct oversight. In a meaningful way.
We wanted to ensure that the department of justice could remain independent of the executive and of the president specifically. And so those changes were made with that goal in mind. And I think again, Where are we writing this at another time? And another moment, I don't know that we would have thought that those changes were necessary, but it did seem urgent given what we had seen coming out of the last four years, and certainly what we had seen coming out of the impeachment which literally had concluded just as we took up this project.
And we, the people friends, once again, you can check out those constitutions@theconstitutiondraftingprojecthomepageatconstitutioncenter.org. John, back to the year in review the death of George Floyd and the protests that it inspired or a seismic. Event for the nation in an op-ed in Newsweek. You wrote domestic military uses lawful, but not yet prudent.
Tell us why you think that the president's response had the right answer on the law, but not on the policy and then discuss other reforms that were. Called for in the wake of the violence, including qualified immunity reform. And tell us whether you think that there are any legal or constitutional reforms that might be cited, Terry.
Yeah. So there's two different questions here, which is one, what was the power of the government to respond to unrest in the cities? And here talking not about peaceful protest, but some of the. Pictures. We saw particularly Portland and Seattle actually downtown San Francisco where unfortunately, some aspects of the protests or people connected with them became violent at night.
And then there's a, I think a separate question. Just what did, what do we want to do in terms of police reform to after this last year. And actually it's been more than a year where you've seen. These kinds of killings go on. What kind of changes could we make to the law to deter them to punish them, to try to reduce them.
So what the unrest, I didn't think in the end believe that the use of troops or federal officers was necessary. But it's always something that's possible. I, you know, the last major deployment was here, here in California, in Los Angeles after during the Rodney King riots in 1992 it's a case when.
A city just cannot enforce law and order anymore. You see so much violence and disorder that that becomes the responsibility of the federal government. Not to enforce the law, not to try to catch people for criminal acts, but to just restore basic law and order. This is done through something called the insurrection act, which has been on the books.
Almost as long as the constitution has been on the books and has been used in its earliest forms by president Washington on. But I I'm happy to, to think that the S the state of our cities never quite got that. Bad. That's city and state law enforcement were able to restore order and that they were able to allow the proper scope for peaceful first amendment protest.
But I was worried at some points. I mean, some of the videos are coming out, especially the West coast cities were getting worrisome in terms of what to do in terms of reforms. Yeah, there's this interesting. Constitutional statutory question about whether federal officials or state officials should have any immunity at all for violating the constitution.
You know, Akilah Mar Yale, you know, our teacher, he has argued very, you know, very very strongly. That the regular common law of torts and regular ways of recovering against people who harm you should exist against officials as well as just private people. But we've had in our law for so long, more than a hundred years, this idea.
That officials should be immune. Now I want to say these are pretty much created by the judges and by the courts. And so one question, this is in my, my sense, this is a kind of judicial activism of its own kind, where Chuck has kind of created this immunity that doesn't really sit in the constitutional text.
And then. So I think it's certainly up to Congress if it wants to, to overrule it. I, I doubt that that's gonna happen. I mean, in fact, I think in fact, I think that was a sticking point and congressional efforts this year to try to pass a bill in response. So I think that. At least initial steps could be things where we talked about the federal government's role in other areas to act interstitial.
For example, if state authorities aren't able to police themselves, they should be able to use their resources in terms of funding, federal investigatory agencies, like the justice department already, I think have tools. Maybe they need more money and resources. You could have a larger civil rights division.
You can have more money and grants to States to get them to bring. They're police practices up to speed. I would just be reluctant to try to change significantly the constitutional law doctrines that govern this area about the use of force about reasonableness under the fourth amendment or even about immunity.
And rather look for, I'd like to see more increment first, let States of course be responsible for trying to bring their police forces up to par, but then relying on the federal government. To use spending and thing and measures like that, to try to engage in incremental reform, Melissa, the same set of questions to you.
Do you believe that president Trump's response to the protests that followed the killing of George Floyd were consistent with the law and constitution or not? And when you look at the range of reforms that are on the table, including reform of qualified immunity, which do you think. Should it be adopted.
So let's just start with the response from the president of the summer, which was alarming to many of the threat of deploying federal troops to many of these cities. I'm John has rightfully mentioned the insurrection act of 1807. One of the. Requirements for the use of the insurrection act is that the States actually request federal assistance in dealing with these situations within their own borders.
And the idea behind that was to prevent the federal military power from being deployed as sort of a general local law enforcement. Gap filler, basically. So again, I think John is right, that there are situations where this question of the balance between federal power and state power is really important and maintaining that is important.
And. Again, I think the threat of deploying federal military power in situations where state and local officials were saying that it wasn't necessary. And in fact might actually exacerbate problems within their borders was meaningful and that needed to be attended to in terms of. The efforts to reform the jury prudence and the policy around qualified immunity.
I think those are really difficult, important conversations. Almost immediately the administration began talking about its own efforts to deal with this. The Trump administration issued. Some guidelines that they planned to deal with via executive order that would require the department of justice to do more oversight, provide greater federal spending incentives to local law enforcement officials.
I think all of those are really important and much needed incentives. And we could probably do more with that. It's also worth noting that. During this period, Congress also began debating the question of reforming the doctrine around qualified immunity. And there were a number of cert petitions filed with the court that addressed the question of qualified immunity as well.
Interestingly the court refused some of those petitions, I think at one point there might've been five that were declined and I think it's not because the court wasn't interested in the question, but rather. They recognize that the issue had really gained some traction in the other branches of government and I'm namely the executive and in Congress and they were sort of staying their hand.
So in that respect I thought it was a really interesting issue and, and the way that it played out in all three branches of government was also really important and interesting as well. Well, it is time for closing thoughts in this wonderful year end constitutional review. And John, the first one is to you.
And I'll just ask the simple question. What do you think was the most significant constitutional development of 2020 and lions? Wow. That's a tough one. I had, I mean, this has been such a crazy disruptive a year. I'm like probably anyway. I hope we see in our lifetimes again. I guess you know, let me say, I think a lot of people often when they hear a question like yours, assume it's gotta be the Supreme court.
And I think one thing this year reminded us is that much of the constitution operates. Outside the purview of the Supreme court thing, but all the main topics we talked about today protests in the streets The impeachment, the response to the pandemic, all of those major constitutional issues are not handled ultimately by the Supreme court or if they will be, there'll be years from now.
They're all things that are resolved through other constitutional methods. And ultimately, so I guess the main one to me is the law. The one we began with, which was the presidential election. We had extremely disruptive president. We're living through a divisive time. I mean, I think maybe politics haven't been this polarized since the civil war and reconstruction in terms of the, you know how much the different parties seem to just dislike each other.
But yet the prophy electoral system worked right. The constitutional processes went forward. Institutions have been tested as most, so they've been stressed, but they did not waiver. Right. They actually yielded, I think in the end, the person who won the election, which was Joe Biden, even though you have a president who would like to use any power that is available, you know, available to stop him, there's nothing he can do about it.
And so I think that's the, you know, maybe the happy ending to 2020 is that the constitution set up institutions in all these areas. And under the most severe test in our lifetime so far they all came through the test you know, I think a pretty strong and ready to continue into the future.
So that's why conservatives, unlike progressive, like Melissa are optimists at heart. I knew you were going to sneak that in there. Well, Melissa, the last, the last word is, do you optimistic or not? What. Do you want to leave our weather people, listeners with, and please tell them what you think the most significant constitutional development of 2020 was and why?
So, I mean, this has been, it feels like a very long year, but it has been jam packed with constitutional developments. This year saw the Centennial of the 19th amendment, which gave American women the right to vote. We also saw. And Virginia, the last state necessary for the ratification of the equal rights amendment that will of course, engender more questions about whether or not that is validly ratified, and would be a valid amendment to the constitution.
But. Everything suggests that the constitution continues to sort of go about its business, despite the Sturman drawing that goes on around it. And that was kind of the point. And so I rarely agree with John, but I find myself agreeing with him on this point. Despite all of the drama that occurred this year very fraught.
Presidential election a pandemic unrest in the streets, the constitution just kind of did its thing. And now going forward, you know, there are all of these questions about what will happen, but it will kind of continue to do its work. Perhaps it will be amended in the future, but nonetheless, it continues to strive toward a more perfect union.
Beautiful. The constitution did its work and we will continue to strive toward a more perfect union. Thank you so much, John, you and Melissa Murray for an elevating illuminating and inspiring conversation about this remarkable year of constitutional debate. And thank you, dear. We, the people listeners, I have to tell you what a privilege it is every week to be able to learn along with you from the greatest constitutional minds in America, like.
John and Melissa, in a spirit of the civil dialogue and respectful conversation, I can feel you learning along with me. And it's just a privilege to be part of this great enterprise of constitutional conversations. I, in my mind, I'm thinking of the words of Justice Holmes, who said that the constitution is an experiment as life is an experiment every year.
If not every day, we have to wager our salvation upon some prophecy. Based upon imperfect knowledge and the ability to listen to John and Melissa and all the wonderful scholars who've been with us all year gives us more perfect knowledge and leaves us with faith in this evolving, imperfect, but ultimately durable document of human freedom, which is the us constitution.
So happy new year to all sending good wishes to you and your families. And please join me with a very warm thank you to John and Melissa, John, Melissa, thank you so much.
Murray: Thanks for having us.
Yoo: Thanks, it was great to be with you.
