April 10, 2026 • 39 mins
As presidents increasingly rely on executive action to advance their agenda, Philip Wallach and Oona Hathaway join Margaret Hoover to discuss why Congress has abdicated its constitutional power and how to fix it in a forum at Hofstra University.
Wallach, a senior fellow at the American Enterprise Institute and author of “Why Congress,” talks about the role the founders envisioned for the legislative branch and how it has changed in recent decades amid rising partisanship and political dysfunction.
Hathaway, a Yale Law School professor who served on a Princeton University panel examining congressional reform, assesses how presidents have claimed war powers that the Constitution assigned to Congress and comments on the role of the Supreme Court in shifting power to the executive branch.
The guests take questions from students, offer ideas for reform, and explain how Gen Z can help fix the system and restore the balance of power in Washington.
Support for Firing Line with Margaret Hoover is provided by Robert Granieri, Vanessa and Henry Cornell, The Fairweather Foundation, The Tepper Foundation, Peter and Mary Kalikow, The Beth and Ravenel Curry Foundation, Pritzker Military Foundation, Cliff and Laurel Asness, The Margaret and Daniel Loeb Foundation, Katharine J. Rayner, Charles R. Schwab, Lindsay and George Billingsley, The Meadowlark Foundation, Jared Stone, Al and Kathy Hubbard, and Craig Newmark Philanthropies.
Listen
Watch
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:01):
Congress is supposed to be the place where we find our way
through the big questions we make up our minds as a
collective. But when the president is able
to act without any checks from Congress, then you end up with
something closer to a monarchy or a dictatorship.
That's American Enterprise Institute's senior fellow Philip
Wallach and Yale Law School professor Ona Hathaway
(00:22):
explaining what happens when Congress abdicates its authority
to the White House. I'm Margaret Hoover.
This is the Firing Line podcast.I've got a pen to take executive
actions where Congress won't, and I've got a telephone to
rally folks around the country. In recent decades, Congress has
stood by while presidents of both parties turn to executive
(00:45):
action to implement their agenda.
No, I have a lot of powers to dothings and we use the powers
where appropriate. And then people accuse me of
being a king. In his book Why Congress, Philip
Wallach detailed the role the legislative branch is supposed
to play in our democracy. It really is different than how
things were half a century ago. There was much less of a
presumption of just falling intoline with the president because
(01:07):
he happened to be in the same party as you were.
Ona Hathaway served on a panel of experts convened by Princeton
University to examine how Congress can reclaim its power.
To some degree we can say to Congress like do better, but in
the end, some of these are structural problems and the
structural problems are going torequire structural fixes.
Philip Anona joined me to discuss the problem and the
(01:29):
possible solutions in front of astudent audience at Hofstra
University in February, weeks before President Trump went to
war with Iran without consultingCongress.
The test is going to be at some point does Congress realize it's
being turned into completely irrelevant institution.
But it needs to be willing to push back against the president,
which right now this Congress isjust not willing to do.
(01:55):
Ona Hathaway, Philip Wallach, Welcome to Firing Line at
Hofstra University. I'm so grateful that you've
joined me here in front of a student audience.
The very first article of the Constitution enumerates the
powers of Congress. This includes powers to make
laws, powers to tax, powers to spend.
(02:16):
Phil What role is Congress supposed to play in the context
of our representative democracy?Congress is supposed to be the
place where we find our way through the big questions we
make up our minds as a collective, right?
The Founding Fathers took it forgranted that representative
(02:38):
legislatures were at the center of government.
There was already a a tradition as old in America as the Civil
War is to us of of representative legislatures
doing the real work. Because the King, of course, was
way across the ocean, right? And so they they assumed that
Congress would be the place where the real action was.
(02:58):
Oh, now, you worked very closelywith former Representative
Mickey Edwards, a Republican from Oklahoma, who put together
an initiative in which you participated, the Princeton
Initiative on Restoring Constitutional Powers of
Congress. And in the initiative's final
report, Representative Edwards wrote presidents unchecked by
(03:19):
Congress become monarchs, and monarchs unchecked become
dictators. When Congress doesn't do its
job, who fills the void? Yeah, it's a good question.
When when Congress doesn't do its job, it really is left to
the president to act on his own unchecked.
(03:41):
And as Phil rightly said, you know, that was not the original
vision. The original vision was quite
the opposite. And we were responding to a
situation in which we had been ruled by a king.
And the whole reason for the revolution was to was to reject
that form of government and bring government back home, to
have Congress play a central role in making policy.
(04:02):
But when the president is able to act without any checks from
Congress, all of that goes away.And I think Mickey's absolutely
right. Then you end up with something
closer to a monarchy or a dictatorship.
And that's not what our constitutional democracy is
supposed to give us. You both prefer to instances in
our history where Congress has worked better than it is in its
(04:22):
current iteration. You, Philip, often refer to.
World War 2. When Congress worked, as you
say, at its best, to navigate American involvement in the war.
Explain. Well, I think when a lot of
people think of World War 2, they think of generals and
President Roosevelt. But what I try to bring out in
(04:42):
my book is that Congress did a lot to figure out exactly what
kind of cost the American peoplewere willing to bear.
The war was way across the oceanand, and Congress is a down to
earth branch, right? It sort of knows what people
really will put up with. And so there's a huge fight over
(05:04):
taxes during the war. Congress and the president were
very much at odds. Congress did not want to layer
on the tax increases that the president wanted.
They stood up to FDR in that case.
They kept him from kind of installing the war footing as a
permanent feature of American government.
So I think Congress very much played a central role that
(05:27):
people forget about. And it's worth reminding people
that that was a Democratic Congress, a Congress that was
overwhelmingly led by Democrats,and they were standing up to a
Democratic president. Well, that's true, but Democrat
and Republican didn't mean then quite what they mean now, right?
Because the whole S was all Democrats, and many of them were
the most conservative members ofCongress.
(05:47):
So there was a conservative coalition, especially after the
1942 midterms, that was very strong in sort of asserting its
own vision of what was appropriate against the
president. 'S in fact, one of the things
you point out is there were cross ideological coalitions or
cross partisan coalitions because conservatives spanned
(06:07):
both parties and liberals spanned both parties.
ONA after Pearl Harbor, Congressvoted nearly unanimously to
declare war. How does America's entry into
World War 2 contrast with most of the military operations that
the country has engaged in in the last 15 to 20 years?
(06:30):
Yeah, there's a huge contrast. So, as you rightly say, Congress
declared war against the Axis powers, and that was the signal
that the president could actually go to war.
And in fact, there's lots of evidence that Roosevelt wanted
to get involved earlier. And in fact, he was constrained
because he knew that Congress wasn't going to support it, that
(06:51):
there wasn't going to be supportfor declaration of war until
Pearl Harbor. And that was what then energized
the public and LED Congress to be willing to give that
authority to the president to enter into the war.
Today, we have a very different world.
We don't have declarations of war.
The last time Congress voted to authorize a use of military
(07:12):
force was in 2002, which was theauthorization to enter into war
against Iraq. And yet we've had how many
military operations and how manycountries in the last 20?
Years. I mean, it depends on how you
count, but we have military operations of various kinds and
somewhere close to 80 countries.So it's really extensive.
And the last time, as I said, Congress voted was 2002.
(07:34):
And before that, it was voted in2001, right after the 9/11
attacks, to authorize use of military force against those who
caused those attacks. But that authority is now still
being used for things that have really nothing to do at all with
those original attacks. And so it's really drifted very
far away from what Congress thought it was authorizing back
in 2001. OK.
(07:54):
So we've just discussed sort of how it worked better in the
past. Can we just back up and
establish what to each of you are the top three biggest
problems with how Congress is operating right now?
Phil, you go first. I mean, the easy answer is just
partisanship and, and I, I thinkit goes a long way, right?
(08:17):
Just that this idea that legislators see themselves first
and foremost as team players fortheir parties, not not as
members of the first branch. And so we don't see a lot of
standing up for Congress's prerogatives as an institution.
And on this war making front, that's especially clear.
(08:39):
You know, you give the presidenta hard time when he's of the
other party and you defend him to the hilt when he's in your
party. That's that's the sort of
default position today. It really is different than how
things were half a century ago. There was much less of a
presumption of just falling intoline with the president because
he happened to be in the same party as you were.
If the Founders intended separate but equal branches of
(09:01):
government, is Congress currently separate but equal?
I mean, in theory, yes, it coulddo much more than it is choosing
to do. But Phil's right.
I mean, the partisanship is preventing it from acting and
actually defending its prerogative.
So Republicans, of course, control both houses of Congress,
(09:23):
and they've made it quite clear that they don't see their job as
placing limits on the president.They see their job as enabling
him and supporting him, even what when what he's doing is
really undermining traditional congressional prerogatives.
So using force in Venezuela without even informing Congress
(09:44):
in advance, Congress really did almost nothing in response.
And so that's a that's a real problem in terms of Congress
actually playing this separate but equal role that it's
supposed to be playing under ourConstitution.
So after the Vietnam War and Nixon's secret bombings of
Cambodia, Congress passed the War Powers Resolution in 1973,
(10:05):
which was intended to affirm itsconstitutional role in declaring
war. As you've just, you've just
discussed, it's it's, it is Congress's prerogative to
declare war. In 1989, William F Buckley
Junior hosted Barry Goldwater onthe program, and he had voted
against the War Powers Resolution.
Take a look at what Goldwater said to Buckley in 1989.
(10:28):
We passed the War Powers Act a number of years ago.
I voted against it. Did you say it was
unconstitutional when you voted?I said it's unconstitutional.
I still think it's unconstitutional now.
We've never had a president obeyor pay any attention to the War
Powers Act. I wish we could do away with it.
(10:49):
The only man in this country that has the power to send your
children or my children to war is the president.
And I don't care if he's a Democrat or Republican, he
should have that power. But the Constitution says only
Congress can declare war. Well, the declaration of war
doesn't mean a thing. On a take on that argument, why
(11:10):
shouldn't the president who commands the armed forces be the
one who decides whether to send America's boys and girls into
war? So it's true that the president
needs to support the war, right?President's commander in chief,
right? You're not going to wage a war
if the commander in chief opposes it.
But you also need the approval of Congress.
(11:30):
And so that is the constitutional arrangement is
that Congress declares war. Congress is the one that raises
and supports armies. You know that it pays for the
war. So there's a number.
The Constitution doesn't just have the declare war clause.
There's many different classes that that go to the role that
Congress plays as a decision maker as to whether we're going
(11:52):
to enter into a use of force. And then, of course, the
president decides how to fight the war.
And so if you have to have both of them on sides and the idea
there was waging war is a huge undertaking for the country.
It's expensive. You're putting American service
members at risk. You're putting the future of the
country at risk. You want the whole country to be
(12:13):
behind this. You don't just want one person
to be making that decision. So yes, the president needs to
be behind it, but Congress needsto approve it as well.
Phil is Goldwater, right? The presidents have essentially
blown off the War Powers Resolution.
I think that's that's mostly right.
I think that the underlying impulse to say we need
(12:35):
cooperation between the branchesis still active even as the the
formal mechanism of the War Powers Resolution hasn't hasn't
been such a success. Presidents have all sorts of
ways of manipulating it, but I, I think it's also just clear
that presidents of both parties have found if they initiate
short actions, there's very little that Congress can do to,
(12:58):
to, to really second guess them.I do think it's still the case
that if, if a president wanted to put boots on the ground for a
long time, which would be a veryexpensive proposition both in
terms of dollars and lives, I don't think he would do that
without without Congress's support.
(13:20):
And now how whether that would be formal support as like a
declaration of war, maybe that'sgone obsolete at this point, but
it would be some kind of active support.
I don't think the president, even even in this age of
executive dominance, would just ignore what Congress wanted in
that situation. Look, Trump.
President Trump has gone furtherthan any of his predecessors in
(13:42):
pursuing military action withoutthe consent of Congress.
His administration bombed Iran'snuclear facilities, attacked
boats in the ocean under the suspicion that they were
carrying drugs, targeted terrorists in Nigeria, and
removed Venezuela leader NicolasMaduro.
It's also threatening further action against Iran now.
(14:03):
Oh, no. You have written extensively
about the illegality, from your perspective, of many of these
actions internationally. Why don't you see a plausible
legal rationale for these attacks?
Yeah. So each of these, I mean each of
these has to be justified both as a matter of international law
(14:24):
and domestic law. So under international law, the
only justification available would be if it's an act of
self-defense. Under domestic law, the
president needs to get the consent of Congress.
Or it also, again, has to be in a situation where there's an
imminent attack on the United States, where there's no moment
(14:45):
for deliberation and there is necessary to act to respond to
save the country. That's the kind of situation
which the president can act without going to Congress.
None of these meet that test, right?
None of these meet this, that test.
Just let's take Venezuela, for instance.
There we're removing a sitting leader of a country, no obvious
(15:05):
immediate threat, not even a claim of an immediate threat
that's being posed to the country, and no reason that
Congress couldn't have at least been informed, much less asked
for its consent. And so what's striking about the
Venezuela operation that's even more striking than these earlier
operations, which were also deeply troubling, is that the
(15:27):
president has actually stopped even trying to make legal
arguments. So in the earlier cases, so with
the drug boats, strikes on thesedrug boats, which are really
quite lawless, at least there were some claims maybe that
there was sort of a self-defenseagainst these drugs that were
coming into the country and somehow that was a threat to
(15:47):
Americans that doesn't fit into any of the legal boxes.
But at least it sort of sounds like a legal argument.
But they haven't even haven't even bothered to make something
that sounds like a legal argument when it comes to the
Venezuela operation. And that is, I think, very
troubling to me because it suggests the lawyers aren't in
the room. The lawyers are not really being
(16:08):
listened to. To go back to the question of,
you know, back in 89, was the War Powers Resolution having an
impact? I mean, I've talked to lawyers
who were involved back in the 80s and the 90s and how they,
you know, took into account the War Powers Resolution.
They actually had meetings wherethey talked about whether the
operations they were undertakingcould be done consistent with
(16:30):
the War Powers Resolution. And when did they have to inform
Congress? They took that quite seriously.
Didn't stop all military operations.
Absolutely. And there've been lots of cases
where it's been violated. But this is a step way beyond
that, and deeply troubling, because this suggests there's no
legal limits whatsoever. Phil, how do we get from a
(16:50):
Congress in, say, the 1960s where bipartisan coalitions
passed sweeping laws from the Civil Rights Act to the Voting
Rights Act, to one that now can barely keep the government
funded, let alone resolve major policy debates as the founders
(17:12):
intended in your description at the beginning?
Well, it's, it's not something that happened overnight.
It's, it's really been kind of aslow, steady decline in many
ways and, and an erosion of the political culture that used to
prevail on Capitol Hill, where people felt that they could
(17:32):
argue with each other in quite aheated way and call each other
some names. But at the end of the day, they
were going to make a deal. And along the way, the whole
idea of making a deal has come to be discredited as somehow
corrupt. And so many of our politicians
today spends almost all their time denouncing the institution
that they're a part of. And what they want to show their
(17:54):
voters is that they're willing to always say no to deal making.
Right? And that leaves Congress in a
very awkward place. Congress is an inherently
transactional kind of branch. It's always, if it's working
well, it's about getting to yes.And you know, I think we should
pause and note even today, it could be worse.
(18:17):
We, we, we got, we got some appropriations laws by healthy
bipartisan basis even even here in 2026, so.
Something I've noticed that because in your most recent post
on the the AI website, you have sort of said, don't look because
quietly under the in the dark ofnight, they're still working
(18:38):
together, that there is a degreeof cooperation beyond what we
have seen so far in the Trump administration.
It is. It's a modicum more of
cooperation, but it's there. Does that suggest to you that
Congress is beginning to guard its power slightly more
jealously than it had previously?
Yeah, I, I think it's, it's a tricky thing because there are a
(19:00):
lot of issues in which congressional Republicans just
agree with the president and they want to work with the
president and they're happy to let the president take the lead
in many cases. But there's a there's a lot of
things which are Congress's coreresponsibilities and that pretty
much need to get worked out on abipartisan basis.
The Defense Authorization Act is, is one of those that we pass
(19:21):
every single year and the appropriations laws as well.
So over the last couple months, I was worried that even those
mainstays would fall away, that Congress would basically throw
up its hands and say, executive branch, you figure all this out
because it's just the, the partisan enmity here is too bad.
(19:43):
But in fact, we passed the National Defense Authorization
Act. We passed 11 out of 12
appropriation bills as we're here taping today.
That's sounds very glass half full.
Yes, it is. OK, as Congress has sidelined
itself, the presidents increasingly have pushed the
limits of executive action. President Obama created DACA,
the Deferred Action for Childhood Arrivals, in 2012.
(20:06):
This is an executive order, as you both know, that intended to
protect undocumented immigrants who arrived to the United States
as children from deportation. President Biden also, through
executive action, tried to forgive vast sums of student
debt through an executive order.In 2025 alone, President Trump
has signed 225 executive orders,exceeding his total for his
(20:29):
entire first term. All of the presidents would
agree that congressional dysfunction has left them in a
in a position where they have nochoice but to govern through
executive order. Phil, is there some truth to
that? There there is, But at the same
time, when executives take up that slack, they also deflate
(20:54):
the pressure for Congress to getto yes, right.
There was active negotiations onthe immigration reform front in
President Obama's first administration, and he was
frustrated. He thought Republicans were so
determined to thwart him that itjust wasn't going to happen.
So he decided to go ahead and use the executive branch's
(21:16):
prosecutorial discretion to makethis happen.
That's it's not a great substitute, though, right?
When when we pass a law, it's there on the books, It's
settled. When we have a president go
through executive action, it's kind of just waiting for the
next president to come in and sweep it away and replace it
with something else. So we, you know, for the, all
(21:37):
the folks who, who were classified in the DACA program
that you just mentioned, a decade later, they're still in
this legal grey zone. It's it's terrible that we've
allowed it to go on that way. Ona, in your report, you focused
on fixes things that could be changed pretty easily in order
to in order for Congress to begin to assert itself again and
(22:00):
to really become a separate but equal branch of government.
One of them relates to war powers.
Do you want to walk us through some of those?
Yeah. I mean, look, I think the main
power that the Congress has thatit really doesn't use is the
power of the purse. It could do a much better job of
conditioning the power of the president, and it's his ability
(22:22):
to spend money on actually following the law.
And so the War Powers Resolution, which you mentioned
passed in 1973, doesn't condition funding on following
the law. You could condition the ability
to actually pay the troops and to do all to to actually pay for
a military operation on having it be consistent with the law,
(22:46):
with the War Powers Resolution and with the Constitution.
But Congress is nervous about doing that.
And I think, you know, the test is going to be at some point,
does Congress realize it's beingturned into completely
irrelevant institution and that it's going to have to actually
use the power of the purse to more effectively assert itself.
But it needs to be willing to push back against the president,
(23:08):
which right now this Congress isjust not willing to do.
Philip, what do you see as a couple of the major fixes or
easy fixes that would allow Congress to assert itself in a
way that would balance the powers?
Well, it's not really about allowing, right?
The Constitution allows them. So it's really giving them the
(23:29):
push to, to take the action. I, I think we as citizens should
all remember that these legislators can make this
institution what they decide forit to be.
What they've decided for it to be right now is not what it's
always been. So I, I think it is a matter of
putting the onus on them to act.How do we get them to break out
of this bad equilibrium where they're partisans 1st and
(23:52):
legislators a distant second? I think we have to make both the
House and Senate less leader dominated chambers both both are
historically leader dominated atthe moment and the leaders have
an interest in keeping things ona hard partisan edge.
(24:13):
If we recenter power more in thecommittee's that allows people
to be workhorses, it allows themto say, OK, I'm going to invest
in this issue, work with my colleagues, and at the end of
the day, the work we do togetheris going to change the laws.
That sort of creates a better set of incentives for lawmakers
to to to think of themselves as lawmakers.
(24:35):
Did you breathe? Yeah.
I just want to add that, you know, one of the problems that
we have right now is that we've got hyper partisanship and
increasing polarisation. And to some degree we can say to
Congress, like, do better. But in the end, some of these
are structural problems and the structural problems are going to
require structural fixes. So for instance, like the
(24:56):
gerrymandering to get these verykind of crazy districts that
then allow you to elect very extremist representatives who
then won't talk to the people across the aisle, that really
needs to be addressed. The extreme role of money in
politics really needs to be addressed.
I mean, there's a lot of structural things that are
driving this increasing polarisation.
(25:18):
Most partisan primaries. Yeah.
I mean that is that probably is part of it, right.
And, and the, the close partisanprimaries and the concern about
being primaried, you know, so this concern about, you know, if
you do, if you do any kind of deal with the other side, you
know, your own party is going torun.
Somebody that matters is your, you know, partisan primary.
(25:39):
Right, because you don't have toactually compete for a
competitive seat because these seats are just not competitive.
Because they've been drawn in a way where representatives are
selecting their districts, not. Not the other way around.
The representatives. And I will say the court plays a
is partially responsible for this.
So the Supreme Court has allowedunlimited money in politics.
It's a lot, it's undone a lot ofthe protections for voter rights
(26:01):
and, and protections of like effective, you know, preventing
some of the worst gerrymanderingtechniques that are being used
to basically close out people from being able to actually have
a say in who their representative is.
So I do think part of this also eventually is going to go to
reform at the Supreme Court, which sounds like it's doesn't
(26:21):
have anything to do with Congress, but it has a lot to do
with Congress because they've struck down a lot of the
important limitations that actually were helping to keep
Congress within some bounds. That actually brings us to our
first student question and we have a question from a first
year law student about the judiciary, about the judicial
branch. Mallory Noble, take it away.
(26:42):
Thanks for having me. There's been lots of debate over
which branch of the government has the most power.
The judicial branch essentially has the most power over legal
regards because they have the power to decide over cases.
So how does the Constitution attempt to limit that power, and
what does Article 3 have to say about it?
Wow, that's a great question. Thanks for that.
(27:04):
So how does the Constitution tryto limit that power?
Well, look, the courts ultimately are making decisions
about the cases that are in front of them.
So the courts are limited to Article 3 basically creates
limitations on who's selected tobe for in the court.
So the president nominates and then Congress has to the Senate
(27:27):
has to give it's advice and consent to the nomination as to
approve the nomination. So there's some limitation
there. But ultimately, once members of
the Supreme Court are on the court, they're on for life.
And, and there are a lot of questions about what kinds of
limits can be put in place, given that this court has been
(27:47):
drifting quite to an extreme level.
It's been striking down a lot ofthe laws that Congress has been
passing. Probably the most likely is it's
constitutional to engage in court packing, although it would
require change in the law. There's a there's just a law
that that sets the limit at 9:00, but that is not a
constitutional limit. So you could expand, you could
(28:11):
expand the Supreme Court. Another possible limitation is
what's called jurisdiction stripping.
So cutting things out of the jurisdiction of the court so
that they don't have the ability, for instance, to strike
down laws that Congress has passed or certain kinds of laws
that. Constitutional change now.
That does not require constitutional change, no.
(28:32):
I mean, so that is something that also could be done just
through ordinary legislation. These are all things that are
going to be in discussion. I think ultimately I do think
court reform is essential a partof this because without court
reform, you're not going to be able to do any of the rest of
the reforms because the court has has really been pushing to
(28:53):
the extremes and has limited theability to actually put in place
some of these democratic constraints.
A follow up question I have really relates, I mean, I'll,
I'll, I'd like it for both of you, but but Phil, I mean, there
are some, including some of yourcolleagues at AEI that see the
Supreme Court's recent rulings as that have weakened federal
(29:14):
regulations, federal federal regulators and independent
agencies. They're seen by some as an
effort to force Congress to reclaim its power.
But there are also critics on the other side who believe that
the Supreme Court's majority is actually just going all in on
unitary executive power with theidea of empowering the president
(29:36):
without accountability. How do you see it?
Well, it's a there's a lot goingon there, but the court clearly
is favouring the idea that the president is in charge of
executive branch actors and they're taking that principle to
a much farther down to its logical extension than any of
(29:57):
their predecessors ever had. So in terms of controlling the
personnel of the executive branch, and even if some
agencies that we previously saidwere independent agencies that
were supposed to be enslaved from this court has said, yes,
we are empowering the president.Now, at the same time, they've
been developing a a doctrine which which I would defend as
very useful of saying major questions have to be decided by
(30:21):
the Congress. And we're going to see whether
they're willing to apply that toPresident Trump as much as they
did to President Biden. But for me, it was very healthy
that when President Biden took some of these emergency powers
on the books and did some thingsthat I considered very dubious
around student loans, around a COVID vaccine mandate, the court
(30:42):
was willing to say, hold on, These are big questions.
This is the exactly the kind of thing that you would need a
clear mandate from Congress to tell your agencies to take these
actions. And you don't have a clear one.
You're taking an old statute andreinterpreting it in some
strained way. That's not good enough.
Oh, no. You follow the court closely.
You've clerked at the Supreme Court for Justice, the for for
(31:03):
Justice Sandra Day O'Connor. How do you interpret the Court's
actions? Yeah.
I mean, I think that the court has been extremely partisan in a
way that we haven't seen from the Supreme Court in my
lifetime. And as Phil mentioned, I mean,
absolutely big question is, are they going to apply the same
limitations to President Trump that they applied to President
(31:24):
Biden? It's very unclear that they
will. And if they don't, then I think
their partisanship will really be showing.
And and that's a real tragedy because it means the death not
only of Congress and its abilityto place any kind of effective
limits on the president, but also the unwillingness of the
court to play its role in the constitutional system.
(31:46):
We have another student questionfrom a freshman political
science major, Olivia Anstadt. Olivia, what is your question?
How do we ensure that in making Congress more efficient and
transparent, the reform neither targets a specific party or
obstructs Congress's constitutional right to check
and balance the president? That's a great question.
(32:10):
Whenever you're doing congressional reforms today,
there's such a suspicion that you must be just working out a
partisan advantage one way or the other.
That's what makes those of us who are trying to find things
that Congress can do for itself as an institution makes our job
very challenging because people are so cynical and so suspicious
(32:31):
of each other. So that is a real challenge.
And I think transparency is one that I'm very interested in.
I think we have to realize that in some ways transparency has
taken away the spaces where legislators are able to meet
each other as individuals and have candid conversations.
We, we don't have enough smoky rooms in some ways today where
(32:55):
where those relationships get built.
So I'm, I'm sympathetic to the idea that many things should be
transparent, but I think that inthis age of, of constant media
surveillance and self surveillance, we, we, we may
have taken it too far. You know, this, this question of
whether reforms to Congress favour one party or another was
(33:17):
addressed in the Princeton Initiative report that you
worked on ONA and it, well, it wasn't in the chapter that you
authored. I mean, one of the
recommendations was Sunrise provisions that, you know, a
reform would be set to take effect at some point in the
future and not affect the current Congress.
I mean, could this approach work?
Yeah, I do think so. I mean, I think the number of
(33:38):
thinking about how do we get away from this idea that this is
just about checking this president who happens to be of a
different party. Well, one way to do that is to
have the have the reforms go into place later.
So there's sunrise provisions, which is where the reform comes
into place down the road when there might be maybe it's four
years later when there would be a new president in office and
(34:00):
you don't know exactly who it's going to be or sunset
provisions. So that's another one that we
talk about in the war power space Sun setting the
authorization for use of military force in four years or
five years. And at that point, then a
president and the Congress wouldhave to pass a new law if they
want to continue fighting the fight.
(34:22):
We have one more student question from Morgan Mighty,
Class of 2027. How do you feel Congress can
more broadly appeal and represent future generations
such as Gen. Z?
That being the issue where in mygeneration increasingly shares
the sentiment of growing cognitive dissonance in Congress
between the interest of long term sustainable goals and short
(34:42):
term policy change that benefit previous generations.
Ultimately, it's the voters who have to assert their their
generational perspective, right?So, you know, young, young
people tuning in, this is your Congress, right?
And the ultimate term limit is the voters.
So that, you know, we see some gens ears already showing up in
(35:05):
the halls of Congress. And I think a lot of them
understand how to connect with voters in a very different way
in this 21st century media environment.
So I think that's something thatwe can hope, hope for
improvement on. And I'll just add to that.
I mean, traditionally young people don't turn out to vote.
(35:25):
And if you don't turn out to vote, then you can't be
surprised when Congress doesn't represent your interests.
So it's absolutely critical the young people turn out to vote,
express themselves and play their role in our constitutional
democracy because it won't work if they don't.
Well, it's interesting you mention that, that young people
often don't vote because young people showed up in an
(35:47):
extraordinary way in the New York City mayoral primary this
last year and effectively selected the person who would
ultimately win the candidacy. Of course, this is Zoram
Mamdani. There is an entire conversation
around what we want from a representative of democracy as
we approach our 250th anniversary of the country.
(36:10):
And as much of our audience tonight is Generation Z, and
increasingly they're sceptical of our entire system of
government, So what is a pitch from both of you to the next
generation that the system is worth fixing?
Yeah. And the question is, what's the
(36:31):
alternative? And you really have the power to
make it work. I mean, the, the New York
mayoral race is such a good example because it wasn't just
that young people turned out to vote, but the young people just
made a difference from the beginning.
They were out canvassing. They were, you know, on the
streets talking to people, explaining why Mdani was the
(36:51):
best candidate, convincing theirfriends to to come out and
canvas. I mean, it really was a
groundswell effort really run byyoung people.
I mean, that's what it takes to change politics, is for young
people to get involved, to do the hard work and to and to play
their role in in the system. If they do that, that's the
(37:13):
possible. That's the only way in which the
system is going to change. That's the only way in which the
system is going to be held to account.
It's the only way in which it's going to actually work for Gen.
Z and for the rest of us. Given that they are so cynical
about the ability of representative democracy to
solve basic problems in their lives, what is your pitch to
(37:35):
Gen. Z?
Well, I think what we've been trending toward is this system
where every four years we feel like we're electing a king for
the next 4 years, and it makes us all go crazy.
So my pitch is that that's a very bad system for finding a
(37:57):
way for us all to live together.It's a way for us all to go to
each other's throats and feel like we're in a constant war
when Congress is the center of the action.
Again, there's always room for adeal.
It's about positive sum interactions.
It's about realizing that even though we disagree on some very
(38:19):
fundamental things when it comesto immigration, hey, there's
some practical solutions we can put in place when it comes to
what role is AI going to play inour society.
We have to work through that together, even if we disagree on
our big philosophical premises. That's the way we can turn the
heat down a little bit on our politics.
And I would think that Gen. Z should internalize and
(38:43):
understand the appeal of that pitch, that they can see that in
this era that they've grown up in, politics has gone absolutely
crazy. But it it's hard to break out of
the cycle. I don't.
I don't. I don't pretend it isn't because
so, so many of us feel like the next election really is somehow
existential, that everything rides on it.
(39:04):
We actually have to be able to zoom out and say this whole
evolution of the system toward presidential dominance is what's
making us go so crazy. Philip Bollack on a Halfway and
the students of Hofstra University, thank you for
joining me here on Firing Line. Thanks so much for having us.
Thank you.
Congress is supposed to be the place where we find our way
through the big questions we make up our minds as a
collective. But when the president is able
to act without any checks from Congress, then you end up with
something closer to a monarchy or a dictatorship.
That's American Enterprise Institute's senior fellow Philip
Wallach and Yale Law School professor Ona Hathaway
(00:22):
explaining what happens when Congress abdicates its authority
to the White House. I'm Margaret Hoover.
This is the Firing Line podcast.I've got a pen to take executive
actions where Congress won't, and I've got a telephone to
rally folks around the country. In recent decades, Congress has
stood by while presidents of both parties turn to executive
(00:45):
action to implement their agenda.
No, I have a lot of powers to dothings and we use the powers
where appropriate. And then people accuse me of
being a king. In his book Why Congress, Philip
Wallach detailed the role the legislative branch is supposed
to play in our democracy. It really is different than how
things were half a century ago. There was much less of a
presumption of just falling intoline with the president because
(01:07):
he happened to be in the same party as you were.
Ona Hathaway served on a panel of experts convened by Princeton
University to examine how Congress can reclaim its power.
To some degree we can say to Congress like do better, but in
the end, some of these are structural problems and the
structural problems are going torequire structural fixes.
Philip Anona joined me to discuss the problem and the
(01:29):
possible solutions in front of astudent audience at Hofstra
University in February, weeks before President Trump went to
war with Iran without consultingCongress.
The test is going to be at some point does Congress realize it's
being turned into completely irrelevant institution.
But it needs to be willing to push back against the president,
which right now this Congress isjust not willing to do.
(01:55):
Ona Hathaway, Philip Wallach, Welcome to Firing Line at
Hofstra University. I'm so grateful that you've
joined me here in front of a student audience.
The very first article of the Constitution enumerates the
powers of Congress. This includes powers to make
laws, powers to tax, powers to spend.
(02:16):
Phil What role is Congress supposed to play in the context
of our representative democracy?Congress is supposed to be the
place where we find our way through the big questions we
make up our minds as a collective, right?
The Founding Fathers took it forgranted that representative
(02:38):
legislatures were at the center of government.
There was already a a tradition as old in America as the Civil
War is to us of of representative legislatures
doing the real work. Because the King, of course, was
way across the ocean, right? And so they they assumed that
Congress would be the place where the real action was.
(02:58):
Oh, now, you worked very closelywith former Representative
Mickey Edwards, a Republican from Oklahoma, who put together
an initiative in which you participated, the Princeton
Initiative on Restoring Constitutional Powers of
Congress. And in the initiative's final
report, Representative Edwards wrote presidents unchecked by
(03:19):
Congress become monarchs, and monarchs unchecked become
dictators. When Congress doesn't do its
job, who fills the void? Yeah, it's a good question.
When when Congress doesn't do its job, it really is left to
the president to act on his own unchecked.
(03:41):
And as Phil rightly said, you know, that was not the original
vision. The original vision was quite
the opposite. And we were responding to a
situation in which we had been ruled by a king.
And the whole reason for the revolution was to was to reject
that form of government and bring government back home, to
have Congress play a central role in making policy.
(04:02):
But when the president is able to act without any checks from
Congress, all of that goes away.And I think Mickey's absolutely
right. Then you end up with something
closer to a monarchy or a dictatorship.
And that's not what our constitutional democracy is
supposed to give us. You both prefer to instances in
our history where Congress has worked better than it is in its
(04:22):
current iteration. You, Philip, often refer to.
World War 2. When Congress worked, as you
say, at its best, to navigate American involvement in the war.
Explain. Well, I think when a lot of
people think of World War 2, they think of generals and
President Roosevelt. But what I try to bring out in
(04:42):
my book is that Congress did a lot to figure out exactly what
kind of cost the American peoplewere willing to bear.
The war was way across the oceanand, and Congress is a down to
earth branch, right? It sort of knows what people
really will put up with. And so there's a huge fight over
(05:04):
taxes during the war. Congress and the president were
very much at odds. Congress did not want to layer
on the tax increases that the president wanted.
They stood up to FDR in that case.
They kept him from kind of installing the war footing as a
permanent feature of American government.
So I think Congress very much played a central role that
(05:27):
people forget about. And it's worth reminding people
that that was a Democratic Congress, a Congress that was
overwhelmingly led by Democrats,and they were standing up to a
Democratic president. Well, that's true, but Democrat
and Republican didn't mean then quite what they mean now, right?
Because the whole S was all Democrats, and many of them were
the most conservative members ofCongress.
(05:47):
So there was a conservative coalition, especially after the
1942 midterms, that was very strong in sort of asserting its
own vision of what was appropriate against the
president. 'S in fact, one of the things
you point out is there were cross ideological coalitions or
cross partisan coalitions because conservatives spanned
(06:07):
both parties and liberals spanned both parties.
ONA after Pearl Harbor, Congressvoted nearly unanimously to
declare war. How does America's entry into
World War 2 contrast with most of the military operations that
the country has engaged in in the last 15 to 20 years?
(06:30):
Yeah, there's a huge contrast. So, as you rightly say, Congress
declared war against the Axis powers, and that was the signal
that the president could actually go to war.
And in fact, there's lots of evidence that Roosevelt wanted
to get involved earlier. And in fact, he was constrained
because he knew that Congress wasn't going to support it, that
(06:51):
there wasn't going to be supportfor declaration of war until
Pearl Harbor. And that was what then energized
the public and LED Congress to be willing to give that
authority to the president to enter into the war.
Today, we have a very different world.
We don't have declarations of war.
The last time Congress voted to authorize a use of military
(07:12):
force was in 2002, which was theauthorization to enter into war
against Iraq. And yet we've had how many
military operations and how manycountries in the last 20?
Years. I mean, it depends on how you
count, but we have military operations of various kinds and
somewhere close to 80 countries.So it's really extensive.
And the last time, as I said, Congress voted was 2002.
(07:34):
And before that, it was voted in2001, right after the 9/11
attacks, to authorize use of military force against those who
caused those attacks. But that authority is now still
being used for things that have really nothing to do at all with
those original attacks. And so it's really drifted very
far away from what Congress thought it was authorizing back
in 2001. OK.
(07:54):
So we've just discussed sort of how it worked better in the
past. Can we just back up and
establish what to each of you are the top three biggest
problems with how Congress is operating right now?
Phil, you go first. I mean, the easy answer is just
partisanship and, and I, I thinkit goes a long way, right?
(08:17):
Just that this idea that legislators see themselves first
and foremost as team players fortheir parties, not not as
members of the first branch. And so we don't see a lot of
standing up for Congress's prerogatives as an institution.
And on this war making front, that's especially clear.
(08:39):
You know, you give the presidenta hard time when he's of the
other party and you defend him to the hilt when he's in your
party. That's that's the sort of
default position today. It really is different than how
things were half a century ago. There was much less of a
presumption of just falling intoline with the president because
he happened to be in the same party as you were.
If the Founders intended separate but equal branches of
(09:01):
government, is Congress currently separate but equal?
I mean, in theory, yes, it coulddo much more than it is choosing
to do. But Phil's right.
I mean, the partisanship is preventing it from acting and
actually defending its prerogative.
So Republicans, of course, control both houses of Congress,
(09:23):
and they've made it quite clear that they don't see their job as
placing limits on the president.They see their job as enabling
him and supporting him, even what when what he's doing is
really undermining traditional congressional prerogatives.
So using force in Venezuela without even informing Congress
(09:44):
in advance, Congress really did almost nothing in response.
And so that's a that's a real problem in terms of Congress
actually playing this separate but equal role that it's
supposed to be playing under ourConstitution.
So after the Vietnam War and Nixon's secret bombings of
Cambodia, Congress passed the War Powers Resolution in 1973,
(10:05):
which was intended to affirm itsconstitutional role in declaring
war. As you've just, you've just
discussed, it's it's, it is Congress's prerogative to
declare war. In 1989, William F Buckley
Junior hosted Barry Goldwater onthe program, and he had voted
against the War Powers Resolution.
Take a look at what Goldwater said to Buckley in 1989.
(10:28):
We passed the War Powers Act a number of years ago.
I voted against it. Did you say it was
unconstitutional when you voted?I said it's unconstitutional.
I still think it's unconstitutional now.
We've never had a president obeyor pay any attention to the War
Powers Act. I wish we could do away with it.
(10:49):
The only man in this country that has the power to send your
children or my children to war is the president.
And I don't care if he's a Democrat or Republican, he
should have that power. But the Constitution says only
Congress can declare war. Well, the declaration of war
doesn't mean a thing. On a take on that argument, why
(11:10):
shouldn't the president who commands the armed forces be the
one who decides whether to send America's boys and girls into
war? So it's true that the president
needs to support the war, right?President's commander in chief,
right? You're not going to wage a war
if the commander in chief opposes it.
But you also need the approval of Congress.
(11:30):
And so that is the constitutional arrangement is
that Congress declares war. Congress is the one that raises
and supports armies. You know that it pays for the
war. So there's a number.
The Constitution doesn't just have the declare war clause.
There's many different classes that that go to the role that
Congress plays as a decision maker as to whether we're going
(11:52):
to enter into a use of force. And then, of course, the
president decides how to fight the war.
And so if you have to have both of them on sides and the idea
there was waging war is a huge undertaking for the country.
It's expensive. You're putting American service
members at risk. You're putting the future of the
country at risk. You want the whole country to be
(12:13):
behind this. You don't just want one person
to be making that decision. So yes, the president needs to
be behind it, but Congress needsto approve it as well.
Phil is Goldwater, right? The presidents have essentially
blown off the War Powers Resolution.
I think that's that's mostly right.
I think that the underlying impulse to say we need
(12:35):
cooperation between the branchesis still active even as the the
formal mechanism of the War Powers Resolution hasn't hasn't
been such a success. Presidents have all sorts of
ways of manipulating it, but I, I think it's also just clear
that presidents of both parties have found if they initiate
short actions, there's very little that Congress can do to,
(12:58):
to, to really second guess them.I do think it's still the case
that if, if a president wanted to put boots on the ground for a
long time, which would be a veryexpensive proposition both in
terms of dollars and lives, I don't think he would do that
without without Congress's support.
(13:20):
And now how whether that would be formal support as like a
declaration of war, maybe that'sgone obsolete at this point, but
it would be some kind of active support.
I don't think the president, even even in this age of
executive dominance, would just ignore what Congress wanted in
that situation. Look, Trump.
President Trump has gone furtherthan any of his predecessors in
(13:42):
pursuing military action withoutthe consent of Congress.
His administration bombed Iran'snuclear facilities, attacked
boats in the ocean under the suspicion that they were
carrying drugs, targeted terrorists in Nigeria, and
removed Venezuela leader NicolasMaduro.
It's also threatening further action against Iran now.
(14:03):
Oh, no. You have written extensively
about the illegality, from your perspective, of many of these
actions internationally. Why don't you see a plausible
legal rationale for these attacks?
Yeah. So each of these, I mean each of
these has to be justified both as a matter of international law
(14:24):
and domestic law. So under international law, the
only justification available would be if it's an act of
self-defense. Under domestic law, the
president needs to get the consent of Congress.
Or it also, again, has to be in a situation where there's an
imminent attack on the United States, where there's no moment
(14:45):
for deliberation and there is necessary to act to respond to
save the country. That's the kind of situation
which the president can act without going to Congress.
None of these meet that test, right?
None of these meet this, that test.
Just let's take Venezuela, for instance.
There we're removing a sitting leader of a country, no obvious
(15:05):
immediate threat, not even a claim of an immediate threat
that's being posed to the country, and no reason that
Congress couldn't have at least been informed, much less asked
for its consent. And so what's striking about the
Venezuela operation that's even more striking than these earlier
operations, which were also deeply troubling, is that the
(15:27):
president has actually stopped even trying to make legal
arguments. So in the earlier cases, so with
the drug boats, strikes on thesedrug boats, which are really
quite lawless, at least there were some claims maybe that
there was sort of a self-defenseagainst these drugs that were
coming into the country and somehow that was a threat to
(15:47):
Americans that doesn't fit into any of the legal boxes.
But at least it sort of sounds like a legal argument.
But they haven't even haven't even bothered to make something
that sounds like a legal argument when it comes to the
Venezuela operation. And that is, I think, very
troubling to me because it suggests the lawyers aren't in
the room. The lawyers are not really being
(16:08):
listened to. To go back to the question of,
you know, back in 89, was the War Powers Resolution having an
impact? I mean, I've talked to lawyers
who were involved back in the 80s and the 90s and how they,
you know, took into account the War Powers Resolution.
They actually had meetings wherethey talked about whether the
operations they were undertakingcould be done consistent with
(16:30):
the War Powers Resolution. And when did they have to inform
Congress? They took that quite seriously.
Didn't stop all military operations.
Absolutely. And there've been lots of cases
where it's been violated. But this is a step way beyond
that, and deeply troubling, because this suggests there's no
legal limits whatsoever. Phil, how do we get from a
(16:50):
Congress in, say, the 1960s where bipartisan coalitions
passed sweeping laws from the Civil Rights Act to the Voting
Rights Act, to one that now can barely keep the government
funded, let alone resolve major policy debates as the founders
(17:12):
intended in your description at the beginning?
Well, it's, it's not something that happened overnight.
It's, it's really been kind of aslow, steady decline in many
ways and, and an erosion of the political culture that used to
prevail on Capitol Hill, where people felt that they could
(17:32):
argue with each other in quite aheated way and call each other
some names. But at the end of the day, they
were going to make a deal. And along the way, the whole
idea of making a deal has come to be discredited as somehow
corrupt. And so many of our politicians
today spends almost all their time denouncing the institution
that they're a part of. And what they want to show their
(17:54):
voters is that they're willing to always say no to deal making.
Right? And that leaves Congress in a
very awkward place. Congress is an inherently
transactional kind of branch. It's always, if it's working
well, it's about getting to yes.And you know, I think we should
pause and note even today, it could be worse.
(18:17):
We, we, we got, we got some appropriations laws by healthy
bipartisan basis even even here in 2026, so.
Something I've noticed that because in your most recent post
on the the AI website, you have sort of said, don't look because
quietly under the in the dark ofnight, they're still working
(18:38):
together, that there is a degreeof cooperation beyond what we
have seen so far in the Trump administration.
It is. It's a modicum more of
cooperation, but it's there. Does that suggest to you that
Congress is beginning to guard its power slightly more
jealously than it had previously?
Yeah, I, I think it's, it's a tricky thing because there are a
(19:00):
lot of issues in which congressional Republicans just
agree with the president and they want to work with the
president and they're happy to let the president take the lead
in many cases. But there's a there's a lot of
things which are Congress's coreresponsibilities and that pretty
much need to get worked out on abipartisan basis.
The Defense Authorization Act is, is one of those that we pass
(19:21):
every single year and the appropriations laws as well.
So over the last couple months, I was worried that even those
mainstays would fall away, that Congress would basically throw
up its hands and say, executive branch, you figure all this out
because it's just the, the partisan enmity here is too bad.
(19:43):
But in fact, we passed the National Defense Authorization
Act. We passed 11 out of 12
appropriation bills as we're here taping today.
That's sounds very glass half full.
Yes, it is. OK, as Congress has sidelined
itself, the presidents increasingly have pushed the
limits of executive action. President Obama created DACA,
the Deferred Action for Childhood Arrivals, in 2012.
(20:06):
This is an executive order, as you both know, that intended to
protect undocumented immigrants who arrived to the United States
as children from deportation. President Biden also, through
executive action, tried to forgive vast sums of student
debt through an executive order.In 2025 alone, President Trump
has signed 225 executive orders,exceeding his total for his
(20:29):
entire first term. All of the presidents would
agree that congressional dysfunction has left them in a
in a position where they have nochoice but to govern through
executive order. Phil, is there some truth to
that? There there is, But at the same
time, when executives take up that slack, they also deflate
(20:54):
the pressure for Congress to getto yes, right.
There was active negotiations onthe immigration reform front in
President Obama's first administration, and he was
frustrated. He thought Republicans were so
determined to thwart him that itjust wasn't going to happen.
So he decided to go ahead and use the executive branch's
(21:16):
prosecutorial discretion to makethis happen.
That's it's not a great substitute, though, right?
When when we pass a law, it's there on the books, It's
settled. When we have a president go
through executive action, it's kind of just waiting for the
next president to come in and sweep it away and replace it
with something else. So we, you know, for the, all
(21:37):
the folks who, who were classified in the DACA program
that you just mentioned, a decade later, they're still in
this legal grey zone. It's it's terrible that we've
allowed it to go on that way. Ona, in your report, you focused
on fixes things that could be changed pretty easily in order
to in order for Congress to begin to assert itself again and
(22:00):
to really become a separate but equal branch of government.
One of them relates to war powers.
Do you want to walk us through some of those?
Yeah. I mean, look, I think the main
power that the Congress has thatit really doesn't use is the
power of the purse. It could do a much better job of
conditioning the power of the president, and it's his ability
(22:22):
to spend money on actually following the law.
And so the War Powers Resolution, which you mentioned
passed in 1973, doesn't condition funding on following
the law. You could condition the ability
to actually pay the troops and to do all to to actually pay for
a military operation on having it be consistent with the law,
(22:46):
with the War Powers Resolution and with the Constitution.
But Congress is nervous about doing that.
And I think, you know, the test is going to be at some point,
does Congress realize it's beingturned into completely
irrelevant institution and that it's going to have to actually
use the power of the purse to more effectively assert itself.
But it needs to be willing to push back against the president,
(23:08):
which right now this Congress isjust not willing to do.
Philip, what do you see as a couple of the major fixes or
easy fixes that would allow Congress to assert itself in a
way that would balance the powers?
Well, it's not really about allowing, right?
The Constitution allows them. So it's really giving them the
(23:29):
push to, to take the action. I, I think we as citizens should
all remember that these legislators can make this
institution what they decide forit to be.
What they've decided for it to be right now is not what it's
always been. So I, I think it is a matter of
putting the onus on them to act.How do we get them to break out
of this bad equilibrium where they're partisans 1st and
(23:52):
legislators a distant second? I think we have to make both the
House and Senate less leader dominated chambers both both are
historically leader dominated atthe moment and the leaders have
an interest in keeping things ona hard partisan edge.
(24:13):
If we recenter power more in thecommittee's that allows people
to be workhorses, it allows themto say, OK, I'm going to invest
in this issue, work with my colleagues, and at the end of
the day, the work we do togetheris going to change the laws.
That sort of creates a better set of incentives for lawmakers
to to to think of themselves as lawmakers.
(24:35):
Did you breathe? Yeah.
I just want to add that, you know, one of the problems that
we have right now is that we've got hyper partisanship and
increasing polarisation. And to some degree we can say to
Congress, like, do better. But in the end, some of these
are structural problems and the structural problems are going to
require structural fixes. So for instance, like the
(24:56):
gerrymandering to get these verykind of crazy districts that
then allow you to elect very extremist representatives who
then won't talk to the people across the aisle, that really
needs to be addressed. The extreme role of money in
politics really needs to be addressed.
I mean, there's a lot of structural things that are
driving this increasing polarisation.
(25:18):
Most partisan primaries. Yeah.
I mean that is that probably is part of it, right.
And, and the, the close partisanprimaries and the concern about
being primaried, you know, so this concern about, you know, if
you do, if you do any kind of deal with the other side, you
know, your own party is going torun.
Somebody that matters is your, you know, partisan primary.
(25:39):
Right, because you don't have toactually compete for a
competitive seat because these seats are just not competitive.
Because they've been drawn in a way where representatives are
selecting their districts, not. Not the other way around.
The representatives. And I will say the court plays a
is partially responsible for this.
So the Supreme Court has allowedunlimited money in politics.
It's a lot, it's undone a lot ofthe protections for voter rights
(26:01):
and, and protections of like effective, you know, preventing
some of the worst gerrymanderingtechniques that are being used
to basically close out people from being able to actually have
a say in who their representative is.
So I do think part of this also eventually is going to go to
reform at the Supreme Court, which sounds like it's doesn't
(26:21):
have anything to do with Congress, but it has a lot to do
with Congress because they've struck down a lot of the
important limitations that actually were helping to keep
Congress within some bounds. That actually brings us to our
first student question and we have a question from a first
year law student about the judiciary, about the judicial
branch. Mallory Noble, take it away.
(26:42):
Thanks for having me. There's been lots of debate over
which branch of the government has the most power.
The judicial branch essentially has the most power over legal
regards because they have the power to decide over cases.
So how does the Constitution attempt to limit that power, and
what does Article 3 have to say about it?
Wow, that's a great question. Thanks for that.
(27:04):
So how does the Constitution tryto limit that power?
Well, look, the courts ultimately are making decisions
about the cases that are in front of them.
So the courts are limited to Article 3 basically creates
limitations on who's selected tobe for in the court.
So the president nominates and then Congress has to the Senate
(27:27):
has to give it's advice and consent to the nomination as to
approve the nomination. So there's some limitation
there. But ultimately, once members of
the Supreme Court are on the court, they're on for life.
And, and there are a lot of questions about what kinds of
limits can be put in place, given that this court has been
(27:47):
drifting quite to an extreme level.
It's been striking down a lot ofthe laws that Congress has been
passing. Probably the most likely is it's
constitutional to engage in court packing, although it would
require change in the law. There's a there's just a law
that that sets the limit at 9:00, but that is not a
constitutional limit. So you could expand, you could
(28:11):
expand the Supreme Court. Another possible limitation is
what's called jurisdiction stripping.
So cutting things out of the jurisdiction of the court so
that they don't have the ability, for instance, to strike
down laws that Congress has passed or certain kinds of laws
that. Constitutional change now.
That does not require constitutional change, no.
(28:32):
I mean, so that is something that also could be done just
through ordinary legislation. These are all things that are
going to be in discussion. I think ultimately I do think
court reform is essential a partof this because without court
reform, you're not going to be able to do any of the rest of
the reforms because the court has has really been pushing to
(28:53):
the extremes and has limited theability to actually put in place
some of these democratic constraints.
A follow up question I have really relates, I mean, I'll,
I'll, I'd like it for both of you, but but Phil, I mean, there
are some, including some of yourcolleagues at AEI that see the
Supreme Court's recent rulings as that have weakened federal
(29:14):
regulations, federal federal regulators and independent
agencies. They're seen by some as an
effort to force Congress to reclaim its power.
But there are also critics on the other side who believe that
the Supreme Court's majority is actually just going all in on
unitary executive power with theidea of empowering the president
(29:36):
without accountability. How do you see it?
Well, it's a there's a lot goingon there, but the court clearly
is favouring the idea that the president is in charge of
executive branch actors and they're taking that principle to
a much farther down to its logical extension than any of
(29:57):
their predecessors ever had. So in terms of controlling the
personnel of the executive branch, and even if some
agencies that we previously saidwere independent agencies that
were supposed to be enslaved from this court has said, yes,
we are empowering the president.Now, at the same time, they've
been developing a a doctrine which which I would defend as
very useful of saying major questions have to be decided by
(30:21):
the Congress. And we're going to see whether
they're willing to apply that toPresident Trump as much as they
did to President Biden. But for me, it was very healthy
that when President Biden took some of these emergency powers
on the books and did some thingsthat I considered very dubious
around student loans, around a COVID vaccine mandate, the court
(30:42):
was willing to say, hold on, These are big questions.
This is the exactly the kind of thing that you would need a
clear mandate from Congress to tell your agencies to take these
actions. And you don't have a clear one.
You're taking an old statute andreinterpreting it in some
strained way. That's not good enough.
Oh, no. You follow the court closely.
You've clerked at the Supreme Court for Justice, the for for
(31:03):
Justice Sandra Day O'Connor. How do you interpret the Court's
actions? Yeah.
I mean, I think that the court has been extremely partisan in a
way that we haven't seen from the Supreme Court in my
lifetime. And as Phil mentioned, I mean,
absolutely big question is, are they going to apply the same
limitations to President Trump that they applied to President
(31:24):
Biden? It's very unclear that they
will. And if they don't, then I think
their partisanship will really be showing.
And and that's a real tragedy because it means the death not
only of Congress and its abilityto place any kind of effective
limits on the president, but also the unwillingness of the
court to play its role in the constitutional system.
(31:46):
We have another student questionfrom a freshman political
science major, Olivia Anstadt. Olivia, what is your question?
How do we ensure that in making Congress more efficient and
transparent, the reform neither targets a specific party or
obstructs Congress's constitutional right to check
and balance the president? That's a great question.
(32:10):
Whenever you're doing congressional reforms today,
there's such a suspicion that you must be just working out a
partisan advantage one way or the other.
That's what makes those of us who are trying to find things
that Congress can do for itself as an institution makes our job
very challenging because people are so cynical and so suspicious
(32:31):
of each other. So that is a real challenge.
And I think transparency is one that I'm very interested in.
I think we have to realize that in some ways transparency has
taken away the spaces where legislators are able to meet
each other as individuals and have candid conversations.
We, we don't have enough smoky rooms in some ways today where
(32:55):
where those relationships get built.
So I'm, I'm sympathetic to the idea that many things should be
transparent, but I think that inthis age of, of constant media
surveillance and self surveillance, we, we, we may
have taken it too far. You know, this, this question of
whether reforms to Congress favour one party or another was
(33:17):
addressed in the Princeton Initiative report that you
worked on ONA and it, well, it wasn't in the chapter that you
authored. I mean, one of the
recommendations was Sunrise provisions that, you know, a
reform would be set to take effect at some point in the
future and not affect the current Congress.
I mean, could this approach work?
Yeah, I do think so. I mean, I think the number of
(33:38):
thinking about how do we get away from this idea that this is
just about checking this president who happens to be of a
different party. Well, one way to do that is to
have the have the reforms go into place later.
So there's sunrise provisions, which is where the reform comes
into place down the road when there might be maybe it's four
years later when there would be a new president in office and
(34:00):
you don't know exactly who it's going to be or sunset
provisions. So that's another one that we
talk about in the war power space Sun setting the
authorization for use of military force in four years or
five years. And at that point, then a
president and the Congress wouldhave to pass a new law if they
want to continue fighting the fight.
(34:22):
We have one more student question from Morgan Mighty,
Class of 2027. How do you feel Congress can
more broadly appeal and represent future generations
such as Gen. Z?
That being the issue where in mygeneration increasingly shares
the sentiment of growing cognitive dissonance in Congress
between the interest of long term sustainable goals and short
(34:42):
term policy change that benefit previous generations.
Ultimately, it's the voters who have to assert their their
generational perspective, right?So, you know, young, young
people tuning in, this is your Congress, right?
And the ultimate term limit is the voters.
So that, you know, we see some gens ears already showing up in
(35:05):
the halls of Congress. And I think a lot of them
understand how to connect with voters in a very different way
in this 21st century media environment.
So I think that's something thatwe can hope, hope for
improvement on. And I'll just add to that.
I mean, traditionally young people don't turn out to vote.
(35:25):
And if you don't turn out to vote, then you can't be
surprised when Congress doesn't represent your interests.
So it's absolutely critical the young people turn out to vote,
express themselves and play their role in our constitutional
democracy because it won't work if they don't.
Well, it's interesting you mention that, that young people
often don't vote because young people showed up in an
(35:47):
extraordinary way in the New York City mayoral primary this
last year and effectively selected the person who would
ultimately win the candidacy. Of course, this is Zoram
Mamdani. There is an entire conversation
around what we want from a representative of democracy as
we approach our 250th anniversary of the country.
(36:10):
And as much of our audience tonight is Generation Z, and
increasingly they're sceptical of our entire system of
government, So what is a pitch from both of you to the next
generation that the system is worth fixing?
Yeah. And the question is, what's the
(36:31):
alternative? And you really have the power to
make it work. I mean, the, the New York
mayoral race is such a good example because it wasn't just
that young people turned out to vote, but the young people just
made a difference from the beginning.
They were out canvassing. They were, you know, on the
streets talking to people, explaining why Mdani was the
(36:51):
best candidate, convincing theirfriends to to come out and
canvas. I mean, it really was a
groundswell effort really run byyoung people.
I mean, that's what it takes to change politics, is for young
people to get involved, to do the hard work and to and to play
their role in in the system. If they do that, that's the
(37:13):
possible. That's the only way in which the
system is going to change. That's the only way in which the
system is going to be held to account.
It's the only way in which it's going to actually work for Gen.
Z and for the rest of us. Given that they are so cynical
about the ability of representative democracy to
solve basic problems in their lives, what is your pitch to
(37:35):
Gen. Z?
Well, I think what we've been trending toward is this system
where every four years we feel like we're electing a king for
the next 4 years, and it makes us all go crazy.
So my pitch is that that's a very bad system for finding a
(37:57):
way for us all to live together.It's a way for us all to go to
each other's throats and feel like we're in a constant war
when Congress is the center of the action.
Again, there's always room for adeal.
It's about positive sum interactions.
It's about realizing that even though we disagree on some very
(38:19):
fundamental things when it comesto immigration, hey, there's
some practical solutions we can put in place when it comes to
what role is AI going to play inour society.
We have to work through that together, even if we disagree on
our big philosophical premises. That's the way we can turn the
heat down a little bit on our politics.
And I would think that Gen. Z should internalize and
(38:43):
understand the appeal of that pitch, that they can see that in
this era that they've grown up in, politics has gone absolutely
crazy. But it it's hard to break out of
the cycle. I don't.
I don't. I don't pretend it isn't because
so, so many of us feel like the next election really is somehow
existential, that everything rides on it.
(39:04):
We actually have to be able to zoom out and say this whole
evolution of the system toward presidential dominance is what's
making us go so crazy. Philip Bollack on a Halfway and
the students of Hofstra University, thank you for
joining me here on Firing Line. Thanks so much for having us.
Thank you.
Popular Podcasts
Hey Jonas!
Hey Jonas! The official Jonas Brothers podcast. Hosted by Kevin, Joe, and Nick Jonas. It’s the Jonas Brothers you know... musicians, actors, and well, yes, brothers. Now, they’re sharing another side of themselves in the playful, intimate, and irreverent way only they can. Spend time with the Jonas Brothers here and stay a little bit longer for deep conversations like never before.
Crime Junkie
Does hearing about a true crime case always leave you scouring the internet for the truth behind the story? Dive into your next mystery with Crime Junkie. Every Monday, join your host Ashley Flowers as she unravels all the details of infamous and underreported true crime cases with her best friend Brit Prawat. From cold cases to missing persons and heroes in our community who seek justice, Crime Junkie is your destination for theories and stories you won’t hear anywhere else. Whether you're a seasoned true crime enthusiast or new to the genre, you'll find yourself on the edge of your seat awaiting a new episode every Monday. If you can never get enough true crime... Congratulations, you’ve found your people. Follow to join a community of Crime Junkies! Crime Junkie is presented by Audiochuck Media Company.
Betrayal Weekly
Betrayal Weekly is back for a new season. Every Thursday, Betrayal Weekly shares first-hand accounts of broken trust, shocking deceptions, and the trail of destruction they leave behind. Hosted by Andrea Gunning, this weekly ongoing series digs into real-life stories of betrayal and the aftermath. From stories of double lives to dark discoveries, these are cautionary tales and accounts of resilience against all odds. From the producers of the critically acclaimed Betrayal series, Betrayal Weekly drops new episodes every Thursday. If you would like to share your story, you can reach out to the Betrayal Team by emailing them at betrayalpod@gmail.com and follow us on Instagram at @betrayalpod and @glasspodcasts. Please join our Substack for additional exclusive content, curated book recommendations, and community discussions. Sign up FREE by clicking this link Beyond Betrayal Substack. Join our community dedicated to truth, resilience, and healing. Your voice matters! Be a part of our Betrayal journey on Substack.