President Trump’s far-reaching executive actions have given rise to a debate about whether the president is acting within the tradition of presidential power—or whether recent events represent a departure from the constitutional order and precedent. Melody Barnes of the University of Virginia Karsh Institute for Democracy, Charles Cooke of National Review, Joanne Freeman of Yale University, and Yuval Levin of the American Enterprise Institute join Jeffrey Rosen to discuss the American tradition of presidential power and evaluate analogues to our constitutional moment from across U.S. history.
This conversation was originally recorded on February 20, 2025, as part of the NCC’s President’s Council Retreat in Miami, Fla.
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Today’s episode was produced by Samson Mostashari and Bill Pollock. It was engineered by Bill Pollock and Advanced Staging Productions. Research was provided by Yara Daraiseh and Gyuha Lee.
Participants
Melody Barnes is executive director of the UVA Karsh Institute of Democracy and a professor of practice at the Miller Center. She is also a distinguished fellow at the UVA School of Law. A co-founder of the domestic strategy firm MB2 Solutions LLC, Barnes has spent more than 25 years crafting public policy on a wide range of domestic issues. Barnes earned her BA from the University of North Carolina at Chapel Hill, where she graduated with honors in history, and her JD from the University of Michigan.
Charles C. W. Cooke is senior writer for National Review and the former editor of National Review Online. After studying modern history and politics at the University of Oxford, his work has mainly focused on Anglo-American history, British liberty, free speech, the Second Amendment, and American exceptionalism. He is the co-host of the Mad Dogs and Englishmen podcast and is a regular guest on HBO's Real Time with Bill Maher. He has written for the New York Times, the Washington Post, and the Los Angeles Times.
Yuval Levin is the director of Social, Cultural, and Constitutional Studies at the American Enterprise Institute (AEI), where he also holds the Beth and Ravenel Curry Chair in Public Policy. The founder and editor of National Affairs, he is also a senior editor at The New Atlantis, a contributing editor at National Review, and a contributing opinion writer at New York Times. He holds an MA and Ph.D from the Committee on Social Thought at the University of Chicago.
Joanne B. Freeman is the Class of 1954 Professor of American History and of American Studies at Yale University. She earned her Ph.D. at the University of Virginia. Her most recent book is The Field of Blood: Congressional Violence in Antebellum America, which explores physical violence in the U.S. Congress between 1830 and the Civil War.
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
- Yuval Levin, “A Rule of Thumb for the Executive Power Debates,” National Review Online (February 5, 2025)
- Melody Barnes et al., Karsh Institute of Democracy Statement of Principles
- Melody Barnes, Corey D. B. Walker and Thad M. Williamson, “Introduction: Can We Make American Democracy Work?,” in Community Wealth Building and the Reconstruction of American Democracy (2020)
- Charles Cooke, The Conservatarian Manifesto: Libertarians, Conservatives, and the Fight for the Right’s Future (2015)
- Charles Cooke, “The American System Works, and It Will Work If Trump Wins Again,” (December 15, 2023)
Excerpt from the interview: Yuval Levin argues the president controls the executive branch but cannot bypass Congress or the courts, with the Supreme Court shaping the debate over executive power.
Yuval Levin: I think that it's important to see that we're in a very dramatic moment. It feels like a very intense and active moment and a moment where a lot of big questions are open. But constitutional disputes are always a matter of pushing and pulling, of action and reaction. And we have seen the action. And not yet the nature of the reaction. That means we don't really know what kind of moment we're in quite yet. Not much has reached the Supreme Court. Congress has not done much. It may not do much. That's the nature of the problem we face, in a sense. But I think that it's important to think about. The kind of intensity and assertiveness that we're seeing from the administration to distinguish executive power in the way that you've suggested, Jeff, which is, I would say I have a rule of thumb for thinking about these executive power debates, which is broadly speaking that the President really does command the executive branch, but the executive branch does not command the American government.
And some of the disputes we're seeing are about the first, and some are about the second. If you're seeing a dispute about can the President fire this guy, can the president let some 21-year old idiot run this payment system at the treasury, the answer is probably yes. It is likely that ultimately, whatever process this goes through, it's going to turn out that the President can run the executive branch. If the question is can the President ignore Congress or can the President ignore the courts, the answer is likely to be no. And in the middle, there are a lot of other kinds of questions that are going to arise, questions about the nature of our system, the nature of the relations among the branches. I think it's worth seeing that this Supreme Court is not inclined to a maximal reading of executive power in the larger system, but is inclined to a maximal reading of presidential power over the executive branch. And drawing that distinction is going to be very important for us to make any sense of what's going on in the next coming months and years, because we have to see this as part of a broader disagreement between left and right about the nature of the administrative state in which the right wants to restrain the executive branch, but empower the President.
And this Supreme Court has done both in just the last term at essentially the same time. I think we're going to see more of that now. I don't know that the administration itself is going to be that coherent. And the President does just want power over the whole system. We may see a fight over impoundment, we may see fights over the authority of the executive in the system. But I think the Court will be much less patient with that than with the notion that the second branch is run by the President. Essentially is the President. That view, I think, is going to play out, and the differences between them, the distinctions between them are going to have a lot to do with the kinds of debates we have about executive power in the coming years.
Excerpt from interview: Melody Barnes warns that unchecked executive power and Congress's failure to assert its authority risk a constitutional crisis.
Melody Barnes: For so long we have had these debates about the imperial presidency or the imperiled presidency. I mean, Gerald Ford said the president doesn't have enough power. And those who have argued that the size and the breadth and the scope of executive power has gone too far, and having worked in both institutions, spent three plus years in a White House, about a decade in Congress. I look at this, and one of my deep concerns is that the road to the constitutional crisis, and you laid it out, that point at which there is an active, clear rejection of a court order, the road to that point in time is littered with the kinds of actions that we are seeing today and the impulses that we're seeing today.
Included in that for me, though, is what's happening with Article 1, Section 1 of the Constitution, the Congress, and having spent 10 years in Congress watching Congress also pull back so far from its exercise of its authority and not jealously guard its responsibilities is, I think, part of the crisis that we're seeing or part of the road to the crisis that we're seeing today that we absolutely have to have all three branches of government, all with specific kinds of responsibilities and authorities, working together to engage and to move the country forward. And that we're not seeing that. One of the things that I'm reminded of and just very briefly flashback to, was it 1999, and it's the Clinton impeachment and the House has acted, and I'm working in the Senate, and the Senate can see that this trial is coming their way.
And what Republican and Democratic senators did, some who I'm sure would have been happy to see Bill Clinton impeached and others who absolutely did not think it should happen. But what they did was say, we aren't going to look like the House. We as an institution have to protect our prerogatives. We have to protect and think about how we present ourselves to the American people as we carry out our responsibilities. They go to the old Senate chamber where there are no cameras, so there is no performative action. And they go in there with two staffers and they hammer out a deal or the framework to the deal that would allow the trial to start. And the reason I use that example is because it is a fierce protection of the prerogatives and an understanding and a deep caring for what that institution means. And I think part of the challenge that we have today, in addition to the deep concern that I have about the kinds of the exercise of authority, is that the president that has control over or his party has control over Congress has chosen to completely go around Congress and Congress has said, okay. So to me, that is part of the peril that we find ourselves in today.
Excerpt from interview: Joanne Freeman stresses the importance of responses to presidential actions, arguing they can empower the public and shift political dynamics, rather than focusing on "authoritarianism".
Joanne Freeman: Okay, so I'm going to answer that question and make one other point that I think is an important one to make about the word authoritarianism. But I'll be, as a historian, remarkably brief in answering the historical question. To me, the beauty of the Declaration of the Founding is inherent in the fact that it created remarkable ideals that were not followed through on and that marginalized people in later times, used and adapted and adopted to change America. And I don't think you can just, in isolation, celebrate what the Founding generation did without acknowledging they were in a moment in time. What they created matters. But it doesn't matter in isolation. The importance of those documents have only become obvious to us over time, including now. And I shall now make the briefest of segues I have set myself up. I just wanted to make a point that I think is really important that has to do with the word authoritarian. I don't like us focusing on the word authoritarian because it's a measuring stick. We shouldn't be measuring. Are we there yet? Are we there yet? I think in judging what's going on now, what we should be judging is call and response that gets back to some of what people have been saying about Congress.
When the President is saying certain extreme things, the question is what is the response and how is that working? How is that dynamic working? And when the response is by other structures of government, huh, that's a problem. And whether we brand that authoritarianism or not, that's a problem. Now, historically speaking, before the Civil War, a moment of change happens when you have years and years and years of Southerners basically saying we're going to use violence to shut up anyone who wants to get in the way of slavery, and Northerners who'd wanted to get in the way of slavery sitting there and saying, well, if you're going to threaten violence, we're just going to sit here and not say anything. What changes is you get, actually ironically, a new party, the Republican Party, and they come into Congress and they say, literally, you can see this in the record. We're a different kind of Congressmen. We stand up, we're not going to sit down, we're not going to do the same thing these other people have been doing. And what happens? The north rises up, they elect different people to Congress. It totally alters the dynamic of what's been going on for a good five, six, seven years now, of course, then there's that Civil War, which I acknowledge.
But the fact that call and response and the response matters and that that response and giving a response can really empower the American people, I really think we have to own that right now.
Excerpt from interview: Charles Cooke argues that executive overreach is a long-standing issue, not unique to Trump, and calls for Congress to reclaim its power, though he doubts it will happen soon.
Charles Cooke: I think the most important thing here is that we remember that whatever is happening now is not new and is not the product of Donald Trump being president. Now, I say that as somebody who did not vote for Trump, not a great Trump fan, and doesn't like executive power. If you go back 15 years, through everything I've ever written, you will see a consistent theme. I don't like executive power and I like legislatures. But the issues that we're discussing. And Melody, you hinted this by going back in time as you have no new. Now, perhaps people are more upset about it at the moment than they have been, but the supine nature of Congress has been a growing issue in our politics for 20 years, and we can just look back at the last few years. So if you look at Donald Trump's slew of executive orders, there were a lot of them. They've boasted about them. They think this is a great thing. Most of those executive orders are within powers that have been delegated by Congress. Now, I wish they hadn't been, and I wish that the Supreme Court had, at various points in American history, pruned that delegation power, but it hasn't.
And so most of those executive orders sit within congressionally mandated executive power. There are a couple of exceptions. One of those is that Donald Trump is refusing to enforce the TikTok Bill that was passed on a bipartisan basis in Congress and then upheld by the Supreme Court, nine to nothing. The other one is that he has attempted to redefine the 14th Amendment as it relates to birthright citizenship. But if you go back one month and two days, you'll find Joe Biden refusing to enforce the TikTok bill, and then the day after trying to create the 28th Amendment by tweet. So this is an issue that we have had. And if you go back a couple of years before that, you'll find Joe Biden trying to spend between $250 and $750 billion without Congress on student loan forgiveness. You'll find Joe Biden trying to pass an eviction moratorium that he knew at the time and said was illegal. You'll find Joe Biden trying to issue OSHA rules that he knew he wasn't allowed to do and his own press secretary had said were illegal. I don't say that to criticize Joe Biden. I say that because we have had a Congress that cheers along the president of their own party and a Congress that doesn't want to legislate for a long time.
What did Congress do when Joe Biden did those things? If you're Republican, it complained about it, and if you're. A Democrat, you cheered it. Let's Elizabeth Warren, Bernie Sanders, Chuck Schumer, Alexandria Ocasio-Cortez, they all went on television every day, day in, day out, and they said, we need the student loan bailout. They didn't say, we'll pass it through Congress. They said, we need the student loan bailout. The reason the eviction moratorium happened was because Representative Cori Bush laid down and went to sleep outside the Congress and said, I have been homeless and I know what this is like. And so Biden changed his mind. Trump is not my cup of tea. This is not a defense of Trump. But what you're seeing now is an expression of that same underlying problem. Now, what I would like to see happen in response is I would like to see Congress take back that power, go through the law and take out the lines that say the secretary shall, in the judgment of the president, if the agency determines it, do it on a bipartisan basis so that it applies to both parties.
I don't see anyone doing it. They're not doing it because although they complain about it, Republicans and Democrats alike, what they really hope is that next time their guy is in power, he will be able to use the authority that's been delegated in ways that they like. And until that changes, we're going to be sitting here in Miami, the three people in the Yuval Levin caucus in America, and we're going to be complaining about this. I think it would be a profound mistake to assume that this is something unique about Donald Trump. He is more brazen about it and he is probably more likely to turn it into a crisis if, for example, he tries impoundment. But at the moment, you are seeing the expression of a longstanding problem. So, no, it's not conservative, it's not conservatarian. It is our politics now. And at some point I hope that both sides get together and say, we're not going to do this anymore. We want some stability. We want to re-establish Congress's powers and they fix it. But that is not on the horizon as we sit here.
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