Debate: Presidential Power and Congress's Response

Featuring:

Prof. Michael W. McConnell, Richard and Frances Mallery Professor and Director of the Constitutional Law Center, Stanford Law School
Prof. Julian Davis Mortenson, James G. Phillipp Professor of Law, University of Michigan Law School
Moderator: Hon. Joan Larsen, Judge, United States Court of Appeals for the Sixth Circuit

Episode Transcript

Speaker 1 (00:03):
My name is Joseph Sturdy and I'm a panel coordinator
for the National Student Symposium. This afternoon's debate is entitled
Presidential Power and Congress's Response. In last fifty days, the
scope of presidential power has been on the top of
everybody's news feed. From legal battles surrounding USAID payments to
the president's threats to seize Greenland and pull the country
out of NATO, The second Trump administration has already ignited

(00:26):
a great amount of critical commentary. That is what we
are here today to discuss how far does the president's
power extend and what can the legislative branch do to
check the executive sweeping policy authority. On one side, Professor
Julian Mortensen will make the case that the Article two
vesting Clause confers upon the president only the narrow power
to execute the laws. On the other hand, Professor Michael

(00:49):
McConnell will argue that the Constitution's grant extends far further.
Is my great pleasure to introduce today our moderator and
our two panelists. Our moderator for today's panel is the
Honorable Judge Joan Larson of the United States Court of Appeals,
for the Sixth Circuit. Judge Larsen graduated first in her
class from Northwestern University's School of Law, and she began

(01:13):
her legal career as a law clerk to the Honorable
David B. Sentel of the United States Court of Appeals
for the d C Circuit and then clerked for Justice
Antonin Scalia of the United States Supreme Court. Following her clerkships,
she joined the law firm of Sidney Austin, where she
was a member of their Constitutional, Criminal and Civil Litigation section.

(01:33):
Before becoming a judge, Judge Larsen was a faculty member
at the University of Michigan Law School, where she was
also Special Counsel to the Dean and received the L.

Speaker 2 (01:42):
HERT.

Speaker 1 (01:42):
Wright Award for Excellence in teaching. Judge Larsen's research and
teaching interests include constitutional law, criminal procedure, statutory interpretation, and
for our purposes, presidential power. Judge Larsen continues to assist
the Law School as the advisor to the Henry M.
Campbell Moot Competition and now to our debaters.

Speaker 2 (02:04):
Michael W.

Speaker 1 (02:04):
McConnell is the Richard and Francis Mallory Professor and Director
of Constitutional Law Center at Stanford Law School, and he
is a senior Fellow at the Hoover Institution. He earned
his Bachelor of Arts from Michigan State University and his
jd from the University of Chicago, and he has received
honorary degrees from Notre Dame University and Michigan State University.

(02:25):
He served as a law clerk to d C. Circuit
Chief Judge J. Skelly Wright and Supreme Court Justice William Brennan, Jr.
From two thousand and two to two thousand and nine.
He served as a circuit judge on the United States
Court of Appeals for the Tenth Circuit. He was nominated
by President George W. Bush, a Republican, and confirmed by
a Democratic Senate with unanimous consent. McConnell has previously held

(02:48):
chaired professorships at the University of Chicago and the University
of Utah, and visiting professorships at Harvard and New York University.
McConnell has argued sixteen cases in the United Slime State
Supreme Court, most recently Carney versus Adams in twenty twenty,
defending a provision of the Delaware Constitution requiring political balance
on that State's courts. More recently, he was co counsel

(03:11):
in Gonzales versus Google. He is the senior council to
the Law from Wilson Sonsini, Goodrich, and Rosati and his
co chair of meta's Oversight Review Board. Professor Julian David
Mortensen is the James G. Phillip Professor of Law at
Michigan Law School. Professor Mortensen received his Bachelor of Arts
in history summa cum laude, from Harvard University, and he

(03:33):
was the salutatorian at Stanford Law School, where he received
his jd. Professor Mortenson clerked for the Honorable J. Harvey Wilkinson,
the Third in the United States Court of Appeals for
the Fourth Circuit, and then for Justice David Soudor on
the United States Supreme Court. Before joining the Michigan Law
School faculty, Mortenson worked at the Law from Wilmer Hale
and in the President's Office of the International Criminal Tribunal

(03:57):
for the former nation of Yugoslavia's litigation practice includes serving
as lead council in a Prio Bergafel lawsuit that required
Michigan to recognize the marriage of more than three hundred
same sex couples. Acting as lead appellate council for the
Arab American Civil Rights League's challenge to the Muslim travel
ban and advocating for discharged military service members challenging the

(04:20):
Don't Ask, Don't Tell law before its congressional repeal. His
current book project develops a comprehensive review of presidential power
at the American Founding. It seeks to establish a new
historical paradigm for presidential power at the American Founding through
the lived history of executive power that shows that the
eighteenth century president was understood not as the amorphis locus

(04:43):
of unspecified sovereign rights, but rather as the pragmatic instrument
of a legislative agenda over which the occupant of the
office had enormous influence. Professor Mortenson is a frequent contributor
to our chapter here, and we are thrilled to have
him on the panel today. There will be time for
questions at the end of this debate, so keep them
in mind as the panel continues. And now I will

(05:04):
turn over the floor to this afternoon's moderator, Judge Jill Larson.

Speaker 3 (05:15):
Well, thank you, Joseph for those kind introductions. I am
just delighted to be back here. As Joseph mentioned, I
was on the faculty here for more than a decade,
and my chambers are right down the road, but I
don't get here as often as I would like. So

(05:38):
it's really wonderful to be back at the law school. Today.
We have a debate, and we spent a fair amount
of time hammering out exactly what the terms of the
debate would be. So I want to read you the
carefully crafted resolution which the two sides will be debating.

(06:03):
So the question on the table is does the Article
two vesting clause give the president any powers other than
to carry the laws into execution? And before we started,
I thought, well, perhaps we should read for you what

(06:24):
the Article too vesting clause says. I will say, this
looks conspicuously like one of the missing Constitutions, but it
is not. I can tell you that it was presented
upon the donation I don't know of some alum So

(06:44):
it looks like it, but it isn't one. Okay, So
the vesting clause. Article two vesting Clause says the executive
power shall be vested in a president of the United
States of America one sentence. We're going to spend an
hour and fifteen minutes unpacking it, and we have with

(07:07):
us just two pre eminent scholars to talk about that subject.
So with that, I will turn it over to Julian Mortenson,
who I understand will take about ten minutes to present
his side of the case. Then Professor McConnell will have
his ten minutes. We'll have a little time for rebuttal
and then some questions for me, and then of course

(07:30):
from the audience. So Professor Mortenson, thank.

Speaker 2 (07:35):
You very much.

Speaker 4 (07:35):
Judge Larsen, is this speaker, Oh we need to push
the d there we are. Thank you very much, Judge Larson.
Thank you to the Michigan Fedsock chapter. It's great to
see everyone here for a conversation about such an important topic.
Particularly delighted to have the chance to welcome Professor McConnell's
Judge McConnell to Michigan. We've been in dialogue about these

(07:55):
questions for a long time, so the chance to have
the conversation here is something I've been looking forward to.
I have slides in the air working, so that's good.
That makes my plans for unt a little bit easier.
I want to start by talking about the structural nature
of the problem, and in some ways just briefly biographically,

(08:19):
the path that brought me to focus on this question,
the answer to which I think is relatively straightforward, and
its implications which are not at all straightforward. For really
the last ten twelve years of my academic career. I
graduated from law school in two thousand and two, in
the wake of September eleventh, into the teeth of the

(08:42):
opening of the Global War on Terror and across a
range of litigation activities. Once I did my clerkships, I
found myself either advising on participating and reading about suits
that were being brought to challenge something that the administration
was doing on the national security front. And it was

(09:04):
remarkable to me how often across why are tapping, across
torture memos, across conversations about the use of force, about
questions like the application and interpretation of international law, something
that was called the vesting clause thesis kept popping up

(09:25):
to be sort of the ultimate trump card for why
the president ought to win in some dispute about whether
the president has the authority.

Speaker 2 (09:34):
To take some action.

Speaker 4 (09:36):
Give a simple, classic example of a federal criminal statute
that this is all coming from Office of Legal Council
memoranda that prohibits torture. Generally applicable federal criminal statute prohibits torture.
It is defined in that statute as the intentional infliction

(09:57):
of physical or mental pain or suffering on some who
is within your custody or physical control. The same OLC
describing waterboarding had a lot to say about waterboarding. Try
to keep the slides short. It says this, among other
things about waterboarding. Waterboarding inflicts the uncontrollable physiological sensation of drowning.

(10:18):
It constitutes a threat of imminent death. Now, the Department
had arguments why this statute didn't cover the behavior in question,
for a variety of reasons, but a theme that emerged
in the arguments in these memoranda made the move that
has sort of turned into I don't know the great

(10:42):
white whale of my academic career, which is the statement, blunt,
straightforward that any effort to apply federal criminal law in
a manner that interferes with the President's direction of the
detention and interrogation of enemy combatants would be illegal. To

(11:02):
make a claim like that that the statute itself is illegal,
that is to say, un constitutional you've got to have
some articulated theory for what in the Constitution prohibits the
application of an even handed, generally applicable statute prohibiting torture.
And if you take a tour through Article two, there

(11:25):
just aren't that many affirmative powers that are given to
the president. There's lots of process powers president can participate
in nominations of officers and judges, participation powers in creating treaties,
participation power in being part of the legislative process with
the veto. But if you look for affirmative substantive grounds

(11:46):
in the Constitution that give the president some affirmative sphere
that only he or she can control, they're few and
far between. And so the question becomes setting up why
these questions matter. How do we think about the claim
that Article two entitles the president to ignore break at

(12:08):
least some statutory laws at least sometimes. This theory floated
around more in scholarship than in actual official circles for
about ten years and has re emerged with a vengeance
under the first Trump presidency and now again in the

(12:30):
second Trump presidency. The phrasing here is in artful, but
where Trump says, I have an Article two, where I
have the right to do whatever I want as president.
He's speaking the words of somebody who's being advised about
constitutional authority to ignore statutory frameworks and statutory obligations on
the basis of Article two. That's the advice that he's
getting and hearing, and it is principally, although not only,

(12:53):
because of the vesting clause thesis and the things it
is said to convey, very big picture three vesting clauses
in the Constitution. I think about these is the load
bearing architecture of the Constitution. Three different kinds of government power,

(13:14):
three different institutions, allocation of portions of the power to
each of the three institutions, and the first sentence in
each of the three articles is part of an interlocked,
structurally parallel, complete statement of the sorts of powers that
the federal government has. The executive power is the power

(13:35):
that is said that has been said to create substantive
authority for the president over a wide range of foreign affairs,
national security, and emergency questions. It is said to have
been a reference, a standard reference, a term of art

(13:56):
to reflect a bundle of authorities that executives, particular century
executives and probably the British Crown as the archetype possessed
as a matter of their being executive. What is the
executive power? This thought goes, Oh, it's those powers that
typically belong to executives. So I got pulled down the

(14:18):
historical rabbit hole, and it's become more of a joy
than a rabbit hole over time, because the research is fascinating.
These disputes then and now tend to involve very high stakes,
complicated legal regimes in very high stakes political questions. It
seemed to me when I read Blackstone, my very first

(14:38):
step in trying to figure out just how much does
this argument hold up? That Blackstone rejects the idea that
the executive power refers to a substantives basket of authorities.
To the contrary, he says quite explicitly that the executive
power is the power to execute laws. Legislative power is
the power to make the laws. Now it's just one person,

(15:00):
but it is just one person. And so what I
launched on was a project across years of work, millions
of words, tens of thousands of documents digitized, and not
reading every discussion of the concept of executive power over

(15:22):
about a twenty year period in the political sphere in
North America, as well as what I think of his
Madison's bookshelf, the regular tomes and references that a well
educated lawyer and public citizen would have had on his
or her bookshelves or would have been aware of as
being reliable and important sources of information I expected to

(15:45):
find contestation. I expected to find sort of the old
historical it's complicated answer. As time went on, I found
myself more and more surprised not to find any of
it evidence for the proposition that the executive power, in
a cluster of three allocated powers in a government meant

(16:08):
anything other than the power to execute the laws. Lots
of evidence that executives participate in foreign affairs, lots of
evidence that executives play an important role in emergency situations,
in taking the lead and being forceful and being vigorous,
But in terms of a suite of legal powers that
were granted as like a bucket of stuff, there wasn't

(16:31):
evidence for that at any point that I saw, during
any of the work that I did over many many
years of a lot of reading of an incredibly broad.

Speaker 2 (16:39):
Array of sources.

Speaker 4 (16:40):
There was a term for it it was the prerogative.
The executive prerogative was a basket of authorities, and that's
what they called it when they were referring to a
suite of authorities that an executive possessed. So what is
it instead the complete government framework? They used the word complete,
it's not mine. They used the word perfect. It's not mine,
perfect in the aeeenth century sense of not lacking anything.

(17:03):
The idea is that the vesting of the three powers,
with judicial actually being conceptually a subset of executive power.
For what it's worth, the vesting of the three powers
in a single government made that government perfect. And this
was important because of the radical imperfections incompleteness and sort
of incoherent inability to effectuate policy and force law do

(17:28):
things that were meaningful not only of the Continental Congress famously,
but also of the state governments. So when they talked
about what is executive power what is legislative power, I'll
read you a bit from Rousseau. That is the utterly
standard eighteenth century body metaphor for talking about legislative power

(17:50):
and executive power in a government's context. You will see
the psychology is naive by our standards. But but the
upshot is clear. Every free action is produced by the
concurrence of two causes, one moral the will that determines
the act, and one physical, the power that executes it.

Speaker 2 (18:13):
This is an.

Speaker 4 (18:14):
Observation about action in general, and in particular action by humans.
It's like a brain body explanatory mechanism for talking about
how human cognition, perception, and behavior works. Very naive as
an account of how the body works, but deeply explanatory
of how they thought about the interlocking pair of legislative

(18:34):
power and executive power. He goes on to say, and
you could pick any one of a number.

Speaker 2 (18:39):
Of people for this.

Speaker 4 (18:39):
I just like the way he puts it, because he writes, well,
when I walk towards an object, it is necessary first
that I should will to go there, and in the
second place that my feet should carry me. If a
paralytic will is to run and an active man wills
not to, they will both stay where they are. In
other words, you have to have an alignment of the instruction,
the will, the command and the direction the orders, and

(19:06):
a body that is capable of exercising them. Then he
goes on and again, in utterly quintessential, uncontroversial fashion, talks
about how this metaphor is what they mean in the
late eighteenth century across a broad range of legal cultures
and political theorists talking to one another, in which the

(19:26):
framers and founders were deeply immersed. The body politic has
the same motive powers here too, Force and will are distinguished.
Will under the name of executive power, legislative power enforce
under the name of executive power. It's embarrassingly simple. Legislative
power is the power to issue authoritative instructions, authoritative prohibitions,

(19:52):
authoritative authorizations. It's the brain of the body public. Executive
power is the power to take those instructions, whatever their
proper source, and implement them. This is not theoretical rocket science.
It's one of the reasons that it's a little bit
strange to have spent so much time digging into something
so simple. But it's my claim that the executive power

(20:16):
was actually an extremely straightforward authority, the authority to the
authority to execute instructions that had to be created by
some source of legislative power.

Speaker 3 (20:26):
All right, oh, thank you, Professor Mortenson. We will now
hear from professor McConnell.

Speaker 2 (20:34):
Thank you. Is this on I turned up it's on
when it turns red. This is counterintuitive, let me.

Speaker 3 (20:47):
Say, especially in especially in Michigan, where we think we
say go blue nut.

Speaker 5 (20:56):
So thank you first to the organized for inviting me.
It's always good to be back at the University of
Michigan as a Michigan State spartan. I got down here
a few times as an undergraduate. It was always intimidating.
Then not so intimidating anymore. But thanks for having me,
and thanks to all.

Speaker 2 (21:17):
Of them people in the audience today. I've come to
quite a few of these.

Speaker 5 (21:22):
I was the very first ever Federal Society student symposium
back in the early nineteen eighties, and I always enjoy them.
But I especially appreciate having been invited to speak on
a debate. I don't know if we're debating or speaking,
but with Julian Mortensen, whose work I very much admire,

(21:46):
I learn a lot from it. I especially I don't
know if Julian considers himself a quote unquote originalist, but
he does originalism, and that means we have something we
can actually talk about, like we can agree upon the
his and what does this mean? And it's just such
a pleasure to talk to somebody who knows what he's
talking about, has done such great work in the area.

(22:08):
I get tired of debating with people who think that
the idea of a good argument is to raise your voice.
But that said, I think that Julian's thesis is just
demonstrably incorrect. Before I get into that, though, I do
want to create correct what might be a not a

(22:29):
statement but a misimpression. So Julian began his talk with
the incident of the Torture Memos, which has to do
with the president disobeying a law. That's not actually what
the vesting Clause is about, at least under my reading
of the Vesting Clause, which I'm going to lay out
here today. The Vesting Clause gives the President the authority

(22:53):
to act in matters or executive in nature, but when
Congress has enacted statutes within it's enumerated powers, they trump
the executive power. So in Julian's terminology and actually mine
as well, this means that the executive powers under the
Vesting Clause are quote defeasible.

Speaker 2 (23:15):
That is, they exist.

Speaker 5 (23:17):
President has first mover authority, but he's ultimately subject to
the authority of Congress. This is in contrast to prerogative powers,
where the executive has the power both by virtue of
his constitutional standing, but also those powers cannot be regulated, diminished,

(23:39):
or taken away by Congress. Examples of that would be
such things as the pardon power or the veto power.

Speaker 2 (23:46):
You know.

Speaker 5 (23:47):
The powers elsewhere in an article, too, are prerogative powers.
The power vested by the executive power clause is not Now,
why do I think this is also rather clear? Let
me see if I can get Oh, here we go,
it's already oops. If I messed this up, how do
I get forward rather than back?

Speaker 2 (24:07):
Somebody know how to use this? Oh okay, excellent.

Speaker 5 (24:10):
So let's begin at the beginning on the third day
of the Philadelphia Convention, when Governor Randolph is presenting the
Virginia Plan. They on that day they get to the
provision for the National Executive. They didn't yet call it president,

(24:30):
so that's it's just called the National Executive. They didn't
know at this point whether it's going to be one
person or more. They just called it the National Executive.
And it provides that. And the entire provision for the
authority for the powers of this National Executive are that,
in addition to a general authority to execute the laws

(24:52):
it ought to enjoy the executive rights vested in Congress,
meaning the Congress under the Article of Confederation.

Speaker 2 (25:01):
Now I thought I had a second slide here, but I'm.

Speaker 5 (25:07):
Here it is somebody else seems to be doing my
work for me, thank you.

Speaker 2 (25:11):
So our topic today is does.

Speaker 5 (25:14):
The vesting clause give the president any powers other than
to carry the laws into execution? And Julian's position is
that he's read, you know, millions of words, lots of things,
and is unable to find any examples of where the
term executive power is used to mean anything more than

(25:35):
or other than the power to carry the laws into execution. Well,
that would have come as some surprise to the delegates
to the Philadelphia Convention, because, as you can see, they
had before them the Virginia Plan, which gives the new
national executive two things. One thing it gives them is

(25:57):
the general authority to execute the laws. That's what Julian
says is the only thing stick. And I emphasize the
word and the executive rights vested in Congress by the Confederation.

Speaker 2 (26:13):
Now, even without knowing what.

Speaker 5 (26:16):
The executive rights tested in Congress by the Confederation were,
we know from the word, and that at least something
is being given to the executive other than the thing
that Julian says is the only thing that is included
with the term executive powers. By the way it does
say executive rights, don't get hung up. I'm quite confident

(26:39):
I doubt Julian would disagree executive rights means executive powers.
In the corresponding provision for the Congress, it refers to
legislative rights and then lists many of the things that
are now in Article one, Section eight and are in
fact legislative powers. So executive rights. So how has this
readily without anything, without any explication from the drafters? Charles

(27:06):
Pinkney of South Carolina sort of gasps, and he says,
why that would give this new executive authority the powers
of peace and war?

Speaker 2 (27:16):
Why that would make him a king?

Speaker 5 (27:18):
By the way he says, Madison's note says peace and war, etc.
Which I don't know whether Pinkney said, et cetera, or
whether Pinkney listed a bunch of other things that Madison summarizes, etc.
But it isn't just peace and war. Well, why would
anybody think that the powers of peace and war are
comprehended within Congress's powers under the Confederation. Well, Congress under

(27:42):
the Confederation had the powers of peace and war, and
so did virtually every other executive in the world. Certainly
King George over in London had the powers of peace
and war and some very considerable ETCeteras. So we know
as a fact that the term we're talking about definition

(28:05):
of words here. We know that the words used in
the Virginia Plan, they use the term executive power to
mean something considerably more than just the power to execute
the laws. Well, this did not go over well, it
was not a popular idea, and immediately James Wilson says,

(28:25):
oh dear, we don't want to make the king's prerogatives,
and he uses the term prerogative to be the measure
of this new executive powers. And they ended up adopting
an extremely abbreviated version of this clause, and they don't

(28:46):
return to it for a month and a half. And
then the Committee of Detail does all the very serious
work on construction of the executive And what the Committee
of Detail does is they allocate explicitly or implicitly. I
think virtually every there's only one clear exception to this,

(29:10):
every prerogative power of the king that was listed in
Blackstone is given up, but not all to the executive
Many prerogative powers of the crown are given to Congress,
according to a one account, and I don't the numbers
don't really matter, but something like thirteen of the twenty

(29:32):
seven specific powers given to Congress in Article one, Section
eight were listed in Blackstone as prerogative powers of the crown.
Well so, and then they say the executive power. Then
they come back with the vesting clause again that have

(29:55):
been eliminated in the early debate. And at this point
it is that prerogatives have been given out. What is
left for the executive power. It's the other royal powers
that were not prerogative in nature, which is to say,
very considerable powers of an executive nature, but not indefeasible.

(30:17):
Now we also know for sure that the first Congress
adopted this view. So in the adoption of the creation
of the Department of Foreign Affairs, they create the department.
And this I'm reading from the statute here it charges
the Secretary with performing quote, such duties as shall from

(30:40):
time to time being joined on or entrusted to him
by the President of the United States, relative to and
it lists the number of foreign affairs, and then it
says or other such matters respecting foreign affairs so entrusted
to him by the President. But where does the President
give get the power to create, to create these powers

(31:05):
and to give these instructions. Not from the statute. It's
not in the statute or any other statute. It must
be from the Constitution itself. Now is it from the
three foreign specific foreign affairs powers given the president? That is,
to appoint ambassadors with advice and consent, make treaties with

(31:25):
advice and consent, and receive ambassadors. Foreign affairs powers are
vastly broader than just those three things, and all of
them the first Congress presumes that they arrest, that they
are vested in the president. Now where do they come from?

(31:46):
It seems to be perfectly clear that they come from
the vesting clause, And indeed that's what leading founders said
about this. Hamilton has the most famous statement of this.
This comes from his Pacificus Essay and Defense of the
Neutrality Controversy. Since I'm running out of time, I'm not

(32:09):
going to read it to you, but it's quite famous.
Less famous is an official written opinion by Thomas Jefferson
as Secretary of State in seventeen ninety, in which he says,
and I quote, the transaction of business with foreign nations
is executive altogether. It belongs then to the head of

(32:32):
that department, that is the executive department. He's referring here
to the vesting clause. Exceptions are to be construed strictly.
And he goes on to say that this gives the
president their particular they're arguing about whether President Washington has
the power to determine the titles of the rank of

(32:54):
various foreign affairs ministers, and he says belongs to the president.
It may not have been, he does and say it's
part of the enumerated power it is. He says that
the foreign affairs has been given to the executive branch
in general. Madison makes an extremely similar argument in favor
of the removal power. Three other people in the House

(33:16):
of Representatives make this. The Jefferson opinion was given to Washington,
and his diary, he says he shared it with Madison,
John Jay.

Speaker 2 (33:26):
And that they agreed with it. So let's look at
the evidence here.

Speaker 5 (33:31):
Not only do the words from used by the convention
clearly indicate that the executive power goes beyond merely law execution.
And the first Congress passes law, a law, a major
piece of legislation that presumes that to be true and
treats foreign affairs as being within it. And we have

(33:52):
express statements by Hamilton, Jefferson, Madison, three other members of Congress,
and apparently joined in by Washington and Jay. This is
the entire spread of opinion among the prominent founders of
this country.

Speaker 2 (34:13):
I'm just baffled.

Speaker 5 (34:17):
That anyone could conclude that it is that there is
no evidence in favor of this position.

Speaker 3 (34:24):
All right, oh, Professor Mortenson, I'm guessing you're less baffled.
So we can briefly hear a response from each of you. Yeah,
five minutes or so, and then we'll get to some questions.

Speaker 6 (34:43):
Thank you, Okay, thank you.

Speaker 4 (35:00):
Five minutes and then very very much looking forward to
the conversation, the continuing conversation up here, as well as
Q and A from you guys. I want to say
about Professor mcconagal's Professor McConnell's theory that it's it's a
big compliment to say McGonagall, right. I want to say
about mcconnald's theory that it is elegant, it's beautiful, it's

(35:24):
carefully wrought. He's working through a complex set of observations
about a more or less consistent set of English views
on what the content of royal prerogative was. He's tracing
them in a sophisticated, careful way to things that places
in the Constitution that those things appear. He's suggesting that

(35:45):
there is a residual interaction between the executive power that
exists except in so far as one of these other
prerogative powers. And then he also suggests that this is
the one clause. I think it's the one clause, perhaps
I'm wrong in the Constitution or certainly Article two that
is defeasible by congressional statute. It pulls together lots of

(36:07):
nice stuff. It has the attractive result of leaving no
foreign affairs gaps in the Constitution even when there isn't
a statute, and it keeps Congress in the driver's seat
because his emphasis that it's defeasible lets Congress come in
second to reform, alter, or shift going forward. The difficulty

(36:32):
is that there's no reflection anywhere in any of the
conversations that they talk about Article two that comes anywhere
close to describing the operation of the document in this
way everyone treats the executive power throughout ratification? Is this
completely mundane, boring, uninteresting vesting of power that everyone knows

(36:57):
needs to be vested. If you were going to going
to assume a defeasibility characteristic of the president, the core
grand of presidential power, that would have come out somewhere.
If you're going to assume a complicated relationship between a
really long list of very particular powers in their allocation
at various points across a long document, somebody somewhere would

(37:20):
have said something. What happened instead? In the ratification conventions
and in the most heated pamphleting debates with a tax
on the president as a monarch? Was this the anti
federalist of those, loosely speaking, who oppose, who posed ratification
for a variety of often internally consistent reasons. Would Patrick

(37:41):
Henry pounding the table, probably literally, about the tyrant that
has been being created by this single man with a
veto and with the executive power, and will will it
slouches towards it, slouches towards monarchy, The squints toward its monarchy.
Thank you, The intensity and the passion with which they

(38:04):
warned about kingship in these debates is astounding. And in
the context of those debates where they just finished talking
about how dangerous of the king is, they then start
walking through the text. Nobody says anything about Article two
first sentence. Nobody says anything other than well, of course,
you have to have the executive power. The laws need
to be executed. The North Carolina Convention is hilarious if

(38:27):
you are easily amused and reading reading a lot of old,
dry documents. I mean, it's pages of like over the top,
you know, paranoia, like the old school country paranoia about
central power. And then they read the first sentence of
the Constitution. A long silence ensues. We know this because

(38:48):
the next recorded observation is from a federalist in North
Carolina who says, whence the long silence, my friends, and
emphasizes you keep saying how dangerous this officer is. We've
just read the first clause of the Constitution. Where is
the danger? What snake in the grass is there here?

(39:09):
As he talks about the range of authorities in Article two,
that just isn't a close call. When they talk about
the executive power especially in the context of talking about
the structure of the vesting clauses. It simply is the
case that there is zero discussions there are anything like

(39:30):
what Professor mcconnel's says, and dozens of discussions that are
like what I've said. I want to pause before I'm
still under five. I think I want to pause before
handing the mic back over.

Speaker 2 (39:43):
To jump to.

Speaker 4 (39:46):
I'm trying to go to my Professor McConnell's slide. Well,
I can't find it. If one of you guys can
find this lib, fantastic. I want to urge you to
think about during Professor McConnell's presentation how often he used
the word the executive power when describing about the distinction

(40:06):
that was made in the Virginia Plan. The executive power
does not appear in the Virginia Plan. What happens when
this weird phrase, the executive rights appears. I have been
unable to find another instance of that phrase in easily
circulable databases. The idea that is a term of art

(40:26):
in the way that the executive power was absolutely a
term of art, seems simply to be incorrect, looks hastily drafted.
As much of the rest of the Virginia Plan was.
And so what happens when there's this weird phrase that
nobody really knows that you're talking about executive rights?

Speaker 2 (40:41):
What is that?

Speaker 4 (40:41):
We know what the executive power is? What's executive rights?
And Pinckney stands up and does the standard, this is
going to be a tyranny. This will be the basis
to insert the prerogative. Remember the prerogative being precisely that
basket of authorities that modern investing clause thesis Modern vesting

(41:02):
clause thesis proponents insist is in the executive power clause
except as otherwise reallocated. The next three people all jump
up and say no, no, no, nobody had any idea
of doing that. And then Madison, one of the co
authors of the plan, says, oh, of course, I'm not
saying that the president has any powers of the power
to execute. We'll have to rewrite that, no problem. And

(41:27):
so the phrase used here plausibly in an intensely paranoid age,
would make people think of the royal prerogative that had
been used with such abusive effect in their recent revolutionary memory.
But it was not the phrase the executive power, much
less the phrase the executive power in an interlocked system

(41:48):
of load bearing struts at the basic structural level of
the Constitution, and the response to it, their rejection of
the proposition that it ought to be seen as carrying
derogative authorities I think makes the episode look much worse
for michael thesis than for mine.

Speaker 3 (42:09):
But then I would all right, Professor McConnell.

Speaker 5 (42:14):
Well, so thanks, thank you Julian, and thank you Judge
Larsen for turning on my microphone better than having you
turn it off in the middle, which is what usually
happens the at least at least in court right when
you run out of time. The first of all, I

(42:34):
want to acknowledge one argument that Julian made that I
think it's an excellent argument, and I don't have a
perfect answer. I don't have an answer for it at
all except to say that it's overwhelmed by the other evidence.
And that is the point that during ratification none of
the anti federalists mentioned this, and surely you would certainly
think that they might. This is by this, I mean

(42:59):
that the vesting claw in part substance of a power
beyond what is specifically enumerated. Thereafter, it's a good point.
I can't say anything other than this, and I talk
about this for a number of paragraphs. And by the way,
the book that get the full story, The President Who
Would Not Be King? It is available on Amazon and

(43:21):
if you want an originalist account of like the whole
the whole executive power episode, please take a look. So
the argument from silence, I'm just going to concede that
is quite a good point. The idea that nobody mentions
this though, that the defeasibility. This is exactly what Hamilton

(43:45):
and Jefferson say is that the executive powers power of
an executive nature with such exceptions and qualifications as are elsewhere,
which includes all of those previous royal powers that have
been now invested in Congress. So when Congress is exercising

(44:06):
one of those powers, it's an.

Speaker 2 (44:09):
Exception to the executive power.

Speaker 5 (44:14):
Now they may not have called it diffusible, that's a
more modern term, but that's what they meant by it.
And so one of those powers is the power to
Congress has the power to make rules for the regulation
of the conduct.

Speaker 2 (44:27):
Of the armed services.

Speaker 5 (44:29):
This is what the so called torture memo debate was
all about, and it's why I totally agree with Julian's
conclusion about that Congress is given an enumerated power. They
pass two statutes which, if interpreted a certain way, and
that's not what we're arguing about, made the enhanced interrogation

(44:51):
techniques unlawful.

Speaker 2 (44:54):
The OLC says, oh, no, that's trumped.

Speaker 5 (44:56):
By They didn't use the word trump.

Speaker 2 (45:01):
Good thing.

Speaker 5 (45:01):
I guess that it's no the command that's trumped by
the commander in chief power.

Speaker 2 (45:08):
They were wrong.

Speaker 5 (45:09):
About that, I think, because it's not trumped the command.
The Congress's enumerated powers prevail over the executive powers in
the vesting clause, not the other way around. Now, they
didn't come up with this. It wasn't just them. This
had been an argument for a long time, and perhaps
most conspicuously it was the argument of Harry Truman's solicitor

(45:32):
general in the.

Speaker 2 (45:33):
Steel seizure case.

Speaker 5 (45:35):
Rejected there and I think rightly so.

Speaker 2 (45:39):
So.

Speaker 5 (45:40):
The idea of defeasibility does not come out of nowhere.
This is exactly what the explicators of the clause said
at the time. Now, Julian has a reading of the
way the debate went on that first day. The way
I see this is, yes, Madison's Madison probably wrote Resolution seven.

(46:04):
And then why would they suddenly assume that executive rights
includes progative powers, because look at the Articles of Confederation
and at the executive type powers that were vested in Congress.
Congress had the power to make war, it had the
power to make peace, and a number of other powers.

(46:28):
They were executive type powers vested in the Congress under
the Articles of Confederation. And lo and behold, all it
takes is young Charles Pinkney pointing it out, and they
suddenly realized, oh, my goodness, the idea of executive all
you know, executive powers that were vested in the Congress
should now be in an executive magist. That's a much

(46:50):
bigger thing than we realized. And so they rapidly erased
that then, and then a month and a half later
they come back in the Committee of Detail. Unfortunately, all
we have are their drafts. We do not have any
notes about what they said or thought. But in the
drafts what they do is they allocate the prerogative powers

(47:13):
mentioned in Blackstone between the executive and the Congress, and
many of the prerogative powers given to the president are
actually cut back relative to the size their size, and
under the British Constitution they're actually very careful about all
of this. And then what about all the other executive

(47:36):
powers they you know they they are. Then they can
then have a grab bag without it being dangerous. It's
not dangerous because the most dangerous powers are the prerogative powers,
and they've already been dealt with elsewhere, and these can
be overridden by acts of Congress. So you know, it

(47:56):
doesn't present the specter of a new care like an
overwhelming like a tyrant or a monarch. What it does
is it presents a spect It's not a specter the
attractive vision of a president who is able to respond
to uncertain future events of through acts of an executive nature,

(48:19):
but subject to the control of Congress. And it makes
sense of everything that they said. It doesn't make sense
of the silence at the ratification, but it makes sense
of everything else.

Speaker 3 (48:33):
All right. I have a few questions that I thought
I was going to ask about why how this might
affect sort of modern controversies. But before we do this,
I think it might be useful just for the students
in the room, many of whom are one else, who
have just taken con law to to think about this

(48:59):
in Youngstown terms. So we've heard this debate, and what
I hear Professor Mortensen saying is that if we think
about our Youngstown typology zones one, two, and three, the
president has everything in zone one, everything Congress gives him
he can obviously do. He also has everything in zone three,

(49:20):
that is, the things that are specifically granted to him
by the Constitution, the power of pardon, the power of veto.
Presumably Professor Mortensen doesn't think that Congress could interfere with those.
But there is no zone two. The twilight zone does
not exist. And I hear Professor McConnell saying there's zone one,

(49:46):
there's zone three, and there's also zone two. Zone two
is all of the formerly prerogative powers not allocated elsewhere
and subject to defeasment by Congress. So zone two belongs
to the president in the first place until Congress acts.

(50:08):
Is that an accurate description of the debate to sort
of frame it in an easy way for the students
to understand. I hate to say no, Dang, I thought
I'd gotten an A in the class, but I.

Speaker 4 (50:27):
Really hate to say no. But it's a useful no, right,
It's a useful, No, I read, I mean Michael Presior
McColl should speak for himself. I read your characterization of
how he thinks about these things correctly. One of the
most important things to recognize is that the executive power
requires a source of legislated instruction in order for it

(50:50):
to have anything to do. There must have been a willed,
legislatively authoritative act, statute, instruction, proclamation. But that doesn't necessarily
have to come from Congress. What does that look like
in terms of a universal field theory of how other
laws at a time where people thought about the general

(51:10):
common law differently, international law differently, what does that look like?
I frankly don't know, and I don't think they did either.
But it was a completely standard move, and it is
totally explanatoryous some of the most significant episodes offered by
residuent by investing clause theorists for the president to say,

(51:31):
international law authorizes and requires the following I'm going to
enforce it. I don't know if you'll have a chance
to talk about the neutrality proclamation. But again, as I said,
when I first came to these questions with the view
that surely there must be some there there for the
confidence with which generations of people in the White House
had been making this claim. I was shocked to read

(51:54):
the Neutrality Proclamation. All the Neutrality Proclamation says is I'm
going to prosecute violations of the international laws of war.
That is, taking the legislative instruction, do not violate the
laws of neutrality, embedding an interpretation in it, I must
interpret it to decide whether it applies or not. I

(52:16):
interpret us to remain in a neutral posture. What follows
if you violate neutrality, I shall prosecute you. That is
zoned too in a broad sense, in the sense that
it doesn't require congressional authorization, and in the sense I
assume unless you have a very robust view of natural
law in late eighteenth century thinking, I assume must be

(52:39):
overrideable by Congress. But it doesn't exactly map onto the
zone two three framework in the sense of action without
any authorization other than the Constitution itself. It is, I'm
afraid to say, an empty vessel.

Speaker 3 (52:55):
How about one prime In other words, the laws enacted
by Congress, plus other sources of law that would have
been generally recognized at the time of the founding international law.
The general common law, and then I'll let let Professor
McConnell respond my.

Speaker 5 (53:16):
Interest goold answer for Julian, I think he and I agree.
He and I agree that it isn't the law, isn't
just statutes of Congress. It's common law, international law, treaties.
I mean, there are other sources of law. So I
don't think that's the problem. I like, Judge Larson. I
like your formulation with you have made the three Jackson's

(53:38):
three part tests conform to what I have to say.
That's good rather than forcing me to conform to his
three part tests. I have a short chapter here which
I would recommend to those studying con law.

Speaker 2 (53:52):
One.

Speaker 5 (53:53):
It's an attack on the three part test and why
it's misleading in a number of small ways, but in
the big way that you disc Judge Larsen, I think
that this is right neutrality proclamation. Julian says that all
Washington warns is that he's going to prosecute under international law. No,

(54:14):
because the content of international law depended upon whether we
were an ally of France.

Speaker 2 (54:21):
Or neutral toward France.

Speaker 5 (54:23):
We had a treaty of amity with France dating back
to the time of the American Revolution. So America was
allied with France. France is now at war under international law.
Americans had the right to take actions against Britain because

(54:43):
we were not a neutral power. We were an allied power.
Once we became a neutral power, it became unlawful under
international law for Americans to take up arms against Britain.
The most concrete example of this, of course, being privateering,
because lots of people loved I mean, privateering is like piracy,

(55:06):
only legal. It's a very profitable business, and lots of Americans,
especially pro French Americans, wanted to engage in privateering. It
was okay the day before the neutrality proclamation the day
after it because we are if the if the president
has the right to decide whether we are neutral or not.

Speaker 2 (55:28):
If he has that power.

Speaker 5 (55:30):
Then under it, then their implications of that for international law,
also domestic law, and a bunch of other implications as well.
So the question is does the President have the authority
to decide whether we are neutral toward France or whether
we are allied with France?

Speaker 2 (55:49):
That is not nothing, okay.

Speaker 3 (55:54):
I had hoped to ask some contemporary questions of our
of our panelists, but we only have about sixteen minutes left,
and I always like to hear from the student, so
I think I'm going to turn it to the audience
for questions. And if you don't have enough, I've got plenty.
So oh gosh, I have to call in people. Well

(56:17):
let's take this gentleman right here. I'm going to guess
you're from Notre Dame Law school. Oh well, go blue.
You're just sitting next to a Notre Dame guy, so
guilt by association.

Speaker 7 (56:31):
Yes, thank you all for being here today. My question
is for Professor Mortensen, and I wrote it down.

Speaker 2 (56:36):
I'm just going to read it.

Speaker 7 (56:38):
Some people use the Article one vesting clause, the inclusion
of here and granted as dispositively showing that Congress is
limited to its numerted powers. So I'm wondering if you
think that, since there's no hearing granted similar language and
Article two's vesting clause, if that could be an indication
of non enumerted powers of the president.

Speaker 4 (57:00):
It's a terrific question. I think the textual move basically works.
I don't think it's decisive, but I think it basically
works as an argument. I will reflect back to you
that is historical matter. They leaned in hard on enumeration
limits when it came to presidential power, in talking about
whether to ratify that the only powers the president had
where those.

Speaker 2 (57:20):
Were enumerated here.

Speaker 4 (57:21):
Ironically, emerging research from folks like Richard Primus so I
think I saw here in this room earlier, has emphasized
that some of that enumeration talk was not so salient
and indeed rejected in the legislative context, which is a
little bit mind bending if you've been educated at American
law school in the last thirty years. But in terms

(57:42):
of what the actual historical conversation looked like, there was
no question that the powers granted to the president being
only what they said and nothing more. Was at the
heart of the ability of the federalists to say, don't
worry about it, I won't have all that much power,
just anybody, just any power that Congress gives him by statute,

(58:04):
which turns out to be a whole.

Speaker 2 (58:05):
Lot of power.

Speaker 3 (58:08):
All right, I want to go to this side of
the room. So gentlemen with a blue shirt, Yeah, that's you,
blonde hair, blue shirt. I can't do better because I
don't have a seating chart.

Speaker 8 (58:18):
So yeah, So I guess my question is about some
of the lessons about executive power from the United States
versus Texas in the twenty twenty three session, and kind
of where this line of background principles of discretion leads
to kind of not following the law, and how we
think about that moving forward with this administration.

Speaker 2 (58:40):
Thank you.

Speaker 5 (58:47):
I'm not going to defend every bit of the opinion
and that case, but here's the core of it. That
there are certain exclusive powers of the president, the powers
that are given to the president exclusively that Congress can't
speak to.

Speaker 2 (59:07):
I think those are.

Speaker 5 (59:08):
The prerogative powers like you know, pardon and others, and
that he can't be prosecuted for them. And I think
the reason he can't be prosecuted for them is that
neither Congress nor anyone else has the power.

Speaker 2 (59:23):
To regulate his use of those powers.

Speaker 5 (59:26):
And that seems I'm a little I'm curious to see
if Julian disagrees with that, but that seems to me
to follow from the nature of the idea that there's
certain powers that you know that are just that are
vested in the president subject to no one else's whim.
Now there may be you know exactly what those are,

(59:47):
and whether the indictment having to do with January six
touches on them. As a matter of some detail, I think.

Speaker 3 (59:58):
Did you ask about United States for is Texas?

Speaker 6 (01:00:01):
So?

Speaker 2 (01:00:01):
Are you?

Speaker 5 (01:00:02):
Yes?

Speaker 2 (01:00:02):
I answer the wrong case.

Speaker 3 (01:00:04):
I think you were talking about Trump community. I was
so the United States versus Texas as I recalling you.
There were a million cases named like Texas versus Biden,
Texas versus you know, some secretary, United States versus Texas.
So I think United States versus Texas is the one
where there's a command that says that aliens who have

(01:00:29):
been found to be commit who to have committed crimes,
shall be deported. Yeah, and so the question is whether
that shall be deported. Language binds the president and whether
he has to deport. That was your question.

Speaker 2 (01:00:47):
I apologize for jumping to the wrong case.

Speaker 3 (01:00:51):
I mean it was a pretty salien.

Speaker 5 (01:00:53):
So this has this is governed by the take care
clause rather than the executive power clause. If all we
had were a vesting of the authority to execute the laws,
then that would look like the president either can or
can't execute.

Speaker 2 (01:01:10):
We don't have that.

Speaker 5 (01:01:11):
What we have is a duty the president shall take
care that the laws be faithfully executed.

Speaker 2 (01:01:17):
Now there is.

Speaker 5 (01:01:17):
An uncomfortable and difficult to define boundary between refusal to
execute and prosecutorial discretion. But my personal view and I
think I think one can reasonable arguments about President Obama's
action either side, but I think he was on the
wrong side of that. And when mister Trump says President

(01:01:39):
Trump says that he's not going to enforce the or
instructs the Department of Justice not to enforce the Federal
Corrupt Practices Act, I think he's clearly on the wrong
side of that, and I think it's unconstitutional.

Speaker 3 (01:01:56):
All right, I'm going to go move over here to
this side the room. How about this gentleman here on
the aisle. Yeah, that's you. Oh sorry, I have to
wait for the microphone.

Speaker 4 (01:02:08):
Yeah.

Speaker 9 (01:02:09):
I want to go back to something mentioned a beginning
with the executive powers being the emergency like an emergencies,
those type of powers. Do you think those like the
executive powers to act in an emergency come from the
other executive powers or is it like an additional like
break glass in case of emergency powers.

Speaker 4 (01:02:33):
The account that I'm trying to develop and present doesn't
think that there are legal constitutional emergency powers beyond those
that are in the Constitution acknowledging that's begging the question
to the extent that sometimes you infer the existence of
authorities in the periphery of other authorities, but at least

(01:02:57):
as a starting point for the conversation, reflecting what they
understood the presidency to be, it was an entity of
strictly limited powers that everyone knew was going to be
extremely important, extremely influential, and potentially frighteningly powerful. But the
reason for that was the president's chief power. The executive

(01:03:19):
power gave the president not only but including the power
to execute statutes. And once you have Congress with a
range of regulatory authorities and sort of an has its
act together, a new architectural structure, and a president who's
authorized to execute those powers, you've got a very powerful president,

(01:03:39):
especially when the president has the single biggest lever on
what legislative policy looks like of any single person, because
he can veto his vote. It's only a negative vote,
but ask anybody who's done negotiations how much power the
veto gives you. His influence and the legislative process was enormous.

(01:03:59):
So to come back to how that's all relevant to
your question, from the very beginning, Congress enacted statutes that
were meant to create residual emergency authority, and from the
very beginning, presidents complied with their provisions and strictures such
as they were almost say, religiously, very carefully. It's indeed

(01:04:21):
remarkable how compliant presidents were about judicialized proceedings that were
required prior to let's say, calling out the militia.

Speaker 5 (01:04:32):
Can I just say there are no emergency powers provisions
in the Constitution. That doesn't mean that some of the
powers that are in the Constitution are not likely to
be invoked in the time of an emergency.

Speaker 2 (01:04:45):
As I think about it, there were.

Speaker 5 (01:04:47):
At least two converse discussions about what we would consider
to be emergency powers. They didn't use the term at
the Convention, the most important one being repelling said attacks.
The president is not given the power to repel sudden
attacks in the text of the Constitution. He is assumed

(01:05:09):
to have the power to repel sudden attacks. As we
see that in the Congress's decision to reduce the scope
of Congress's power.

Speaker 2 (01:05:20):
I know said Congress.

Speaker 5 (01:05:21):
The Convention's decision to cut back on the scope of
the congressional war powers from the power to make war
to the power to declare war, and they believe that
that would mean that Congress can't interfere with the president's
authority to repel sudden attacks. Now that's an emergency. They
assume that he has that authority. But when it comes

(01:05:44):
to domestic insurrections and the use of the militia, which
are also all all of these are emergencies, the president
can only call forth the militias into federal service upon
the occurrence of these three particular emergencies, and then only

(01:06:06):
by authorization by Congress.

Speaker 3 (01:06:12):
Okay, how about this guy all the way.

Speaker 10 (01:06:14):
In the back, thank you. When it comes to looking
at the aggrandizement of executive power, a lot of that
can be traced back to Theodore Roosevelt, who famously subscribed
to the stewardship theory of the presidency. He felt that
executive power was limited only by specific restrictions and prohibitions

(01:06:37):
appearing in the Constitution and passed by Congress, and that
the president, as the only nationally elected figure, was best
fitted to be the steward of the people and not Congress,
even though that's popularly conceived as the representative branch of
the citizenry. How do you feel this conception of presidential

(01:06:57):
powers holds up against the founding debates about what executive
power should be, and how has the emergence of this
view of power changed how the executive functions.

Speaker 4 (01:07:13):
My sense is that Professor McConnell's theory of the executive
power as a pruned down prerogative that can be overridden
by Congress maps on pretty well across right century and
a half to t R's thinking about when the president
could do things without statutory authorization. Roosevelt wasn't a deeply

(01:07:41):
sophisticated theorist, but I think my sense is that that important.
I'm not saying he's dumb. I just mean that the
theory wasn't particularly complicated. My senses that it maps onto
Professor McConnell's views, at least potentially.

Speaker 2 (01:07:59):
Uh.

Speaker 5 (01:08:00):
I think they may end up in the same place.
But the idea that the president represents the people and
more so than Congress, I don't think anybody at the
founding would have agreed with that. They all thought of
Congress as being the representative of the people, and there
was still a kind of distrust of executives. You see

(01:08:22):
this in the very way in which Hamilton begins as
great a paper on the executive power. He says, you know,
there's a lot of belief out there that a powerful
executive is anti Republican, and he proceeds to refute that,
but he doesn't go full tr I don't think anybody
would have gone full tr in theory now that isn't

(01:08:42):
I mean, I'd like to know what tr actually thought
he could do and win before, just like you know,
Trump says absurd things about being able to do whatever
he wants to, and I just like to know, you know,
what are the specifics.

Speaker 3 (01:09:01):
Okay, let's take blue shirt, light blue tie. That's you.

Speaker 11 (01:09:10):
In regards I guess to the president's power and emergencies,
and then also I guess to Professor Mortenson's how enumerated
does Congress's instruction have to be? If you look at
the first and second Barbary Wars, if I'm correct, I
don't believe either were declared by Congress. However, there were
naval acts that gave the president discretion in regards to

(01:09:31):
the navy.

Speaker 4 (01:09:34):
I love reading Jefferson's instructions to the flotilla that he's
sent go out there and sail around, and you know,
have a look.

Speaker 3 (01:09:46):
Here, have a look there.

Speaker 4 (01:09:48):
If by any chance somebody should happen to fire upon you,
then you are to defend yourself with right like. And
then he lies to Congress about what happened when the
engage it begins, he lies about the sequence of events.
It makes it sound purely defensive in a way that
it was not. So it's interesting, right, hypocrisy is the vice,

(01:10:09):
the homoge of vice, past of virtue, making the moves,
framing them in the way that he did.

Speaker 2 (01:10:15):
Lawyer's being a lawyer.

Speaker 4 (01:10:16):
But like, think about the framework for how to talk
about presidential power under the Constitution that that represents in.

Speaker 5 (01:10:24):
My view, the I mean, Julian's quite right about Jefferson
in this, but what Congress. It is true that the
Congress did not declare war, but they did pass the
statute authorizing the use of force in this naval conflict.

(01:10:45):
And I don't think unlike in the Vietnam War, which
is authorized by the sort of by the Gulf of
Tonkin resolution without a declaration, a number of people began
to say, no, the president can't commit troops unless there's
been a quote declaration of war unquote. But I think

(01:11:06):
the Barbary affair indicates that Congress doesn't have to use
the magic words declare that an authorization is good enough.
And an authorization is quite different from a declaration, because
a declaration of war compels the president to go to
war and to bring the war to a successful conclusion.
That's what the declaration meant. An authorization authorized enables the

(01:11:31):
president to go to you know whoever it is, and say,
unless you you know, stop doing this, we're going to
go to war. And I already have authorization to go
to war in my pocket. The bombs will start landing tomorrow.
So authorization, I think, just like you know, the various

(01:11:54):
George Bush wars were authorizations for the use of military force.
There were some people ran Paul's father one of them,
who said that's not good enough. I think that was
good enough, and in fact, I think it's a really
flexible and intelligent way to go about that sort of thing.

(01:12:16):
Now that's not to say that you can then fight
everybody in the Middle East till forever on the theory
that they were related to al Qaeda. Whether they were Canada, well,
I might make an exception for Canada. You know that

(01:12:36):
the articles of Confederation provided that Canada could be admitted
to the Uniteds. They had a right to be admitted
to the United States, and I think some people thought
that they would love that invitation. There was no mention
of Greenland though.

Speaker 3 (01:12:51):
All right with that, we are out of time, so
thank you all for your great questions, and thank our panelists.