Panel 3: The Future of Executive Power

In recent years the Supreme Court has decided critically important executive power and administrative law cases. From agency deference and adjudication, to presidential immunity, to “jaw boning”—what does it all mean for the future of the presidency and the administrative state the president oversees? How might the country’s new president approach these issues?
Featuring:

Steven Engel, Partner, Dechert LLP
Jack Goldsmith, Learned Hand Professor of Law at Harvard University
Sarah Harris, Partner, Williams & Connolly LLP
Moderator: Hon. Chad Readler, U.S. Court of Appeals, Sixth Circuit

Episode Transcript

Speaker 1 (00:04):
For our next panel, it is my honor to introduce
the honorable Chad Raidler. Judge Raidler earned his undergraduate and
law degrees at the University of Michigan. After graduating, he
served as a law clerk to Judge Alan Norris of
the United States Court of Appeals for the Sixth Circuit.
Judge Raidler then began practicing law in the Columbus office
of the international law firm of Jones' Day, eventually spending

(00:26):
ten years as partner in the firm's Issues and Appeals
practice group. While at Jones' Day, Judge Raidler appeared in
state and federal trial and appellate courts around the country,
most frequently the Supreme Court of Ohio and the Sixth Circuit.
Judge Raidler also successfully argued before the United States Supreme
Court and mcquiggin Firsus Perkins on behalf of an inmate

(00:49):
claiming actual innocence. His other pro bono representations include representing
capital defendants before the Tenth Circuit and the Supreme Court
of Ohio, as well as representing defendant sentence to life
in prison before the Sixth Circuit and while at Jones Day,
Judge Raidler traveled to Nairobi with Lawyers Without Borders to
train Kenyon lawyers in prosecuting domestic violence cases. He was

(01:14):
also a recipient of the American Marshall Memorial Fellowship, awarded
by the German Marshal Fund of the United States. Following
his career in private practice, Judge Radler served as Acting
Assistant Attorney General in the Civil Division of the United
States Department of Justice from twenty seventeen to twenty nineteen,

(01:34):
and in that role, Judge Radler led and supervised a
team of over one thousand lawyers on in the Department's
largest litigating division, briefing and arguing several cases on behalf
of the United States in federal courts across the country,
including high profile cases significant to the administration and the Department.

(01:54):
In March twenty nineteen, Judge Raidler was confirmed to serve
as a circuit judge on the Sixth Circuit. I know
that we will benefit from Judge Braidler's expertise and insight
on this panel today, and please join me in giving
him a warm welcome.

Speaker 2 (02:12):
Thank you for the very nice introduction. I hope you
benefit from my appearance. I am benefiting from being in Florida,
so it's quite cold in Ohio right now, So thank
you very much for having me. In all seriousness, this
is actually a conference I've wanted to attend for many years.
We now have a statewide conference in Ohio. I think
the reason we have that is because of the success
of the Florida conference, which really started off the notion

(02:34):
of having statewide conferences with the Federal Society. So I
think of you as all the founding fathers in this respect.
So thank you for your efforts to promote state conferences
across the country, including in Ohio. So you know, it's
common to say we have experts on a topic and
they're going to talk about today's topic for you, but

(02:54):
this is really a pre eminent group. I can't explain
to you enough how please I am to be with
these true experts about presidential power. We have three alums
of the Office of Legal Counsel at the Department of Justice,
and we have the acting Solicitor General. So I think
you're really in for a treat. Over the next hour plus,
let me introduce our panel and let me see a

(03:17):
couple of introductory remarks about maybe some of the things
they are going to cover and kind of give you
a little insight into how the Department of Justice works,
and then I'll turn it over to them. So moving
from this end of the table to the end to
other end, I'll start with Steve Engels. Steve is a
partner at Deckert LP, where he serves as an advocate
and high profile trial and appellate matters. He previously served

(03:40):
as the Assistant Attorney General for the Department of Justice's
Office of Legal Counsel. While serving at DOJ, Steve was
awarded the department's highest honor, the Edmund J. Randolph Award,
for outstanding service to the Department. Steve Clerk on the
United States Supreme Court for Justice Anthony Kennedy. Jack Goldsmith
is the Learnard Hand Professor of Law at Harvard Law School.

(04:02):
He has written many books and hundreds of articles and
essays on topics related to presidential power, national security, international law,
and internet policy. Before joining the Harvard faculty, Jack also
served as Assistant Attorney General for the Office of the
Leal Council and a Special Council to the Department of Defense,
and he too clerked for Supreme Court Justice Anthony Kennedy.

(04:24):
Sarah Harris is the Acting Solicter General at the United
States Department of Justice. There, she represents the United States
before the United States Supreme Court. Before returning to the Department,
Sarah was a partner at and Supreme Court litigator at
Williams and Connolly. She previously served as a Deputy Assistant
Attorney General in the Department of Justice's Office of Leal Council,

(04:44):
and Sarah clerked for Supreme Court Justice Clarence Thomas. And
we were so thrilled to have her giving everything that's
going on at this moment at the Department. But in
light of our current service, I imagine there are some topics
she won't be able to discuss as robustly as maybe
the rest of our panelists. And let me just say,
embarrass my introduction was about three times as long as theirs,
and these are really the distinguished folks up here on

(05:05):
the panel. But in interest of time, let me just
give you a little background on what I view as
the importance of the Office Legal Council. And I come
at that from someone who served in the Department with
Steve and Sarah as the acting head of the Civil Division.
So the Civil Division is a thousand lawyers in Washington
responsible for handling most of the high profile cases involving
an administration and the top sort of policy matters that

(05:27):
are in litigation at the Department. But OLC is really
the part of the Justice Department and of the executive branch.
More broadly, that really solves a lot of legal problems
facing the executive branch. So the Department Justice gives binding
legal advice across the executive branch, and that really starts

(05:48):
first and foremost at the Office of Legal Counsel or OLC.
You've probably heard of OLC memos, the way that OILC
gives sort of formal advice through the memo process. But
anybody in the executive branch, from a cabinet sect critary
to the White House, if they have a legal question
they're pondering, the place they go to to get again
binding advice is the is the Office of Leal Council.

(06:08):
And so any policy before it goes into our experts
can tell you more. But before any policy goes into
a fact and executive order is issued, an agency passes
an important rule of regulation. They're getting advice from. We'll
see on the legality of what they're doing, and so
for someone who had to litigate issues they once they
were introduced, I still appreciate OLC for solving many of
the problems before they became litigation problems. They couldn't solve

(06:32):
them all because we had to go in front of
judges and they might have a different view than the
OLC and executive branch. But these are three people who
have just seen policy and presidential power issues at the very,
very highest level. So I'm thrilled to be with them
this morning. I think they're all going to start with
maybe five or six minutes about some current issues and
presidential power. Then I'll have some questions, and then hopefully

(06:55):
we'll have time for questions from all of you. So Steve,
do you want to start it?

Speaker 3 (06:59):
Sure? Thanks, Judge.

Speaker 4 (07:01):
It's nice to be here with this distinguished panel as
well as everyone else who woke up early on a
Saturday morning to.

Speaker 3 (07:08):
Talk about topics in executive power.

Speaker 4 (07:12):
Over the past two decades, we have seen a Supreme
Court that's increasingly interested in taking the Constitution's separations of
powers seriously, and that shift has become only more pronounced
in recent years since President Bush. President Trump rather put
three strong nominees on the Court who have built a

(07:34):
durable majority.

Speaker 3 (07:36):
On these issues.

Speaker 4 (07:38):
It's also a good time to talk about executive power
because with the recent presidential transition, we've closed the book
on President Biden's first term and we are in a
position to evaluate the impact that his administration had had
on executive power. We're also, i think, at this point,
in a position to say a few words on what
is a really ambitious agenda of President Trump's second term.

(08:01):
As we've seen over the last couple of weeks, starting
with the Biden administration, although President Biden may not have
publicly trumpeted his views on executive power, his administration in
fact advanced a very aggressive view of the president's power
to unilaterally solve the nation's problems. He came into office
by seeking to wield the executive's emergency authorities to address

(08:24):
the COVID pandemic, and that led the administration, you know,
notably and somewhat controvers controversially, to impose things like the
vaccine mandates and the mask mandates in similar measures in
the first year of his administration. But those regulatory efforts
were not limited to COVID. The Biden administration pushed unprecedentedly

(08:46):
broad regulatory mandates across the broader economy. Some of them
he turned to COVID to facially justify those issues, like this,
his proposal to forgive four hundred billion dollars in student
loans purportedly dressed justified by the pandemic. But the regulatory
program went much further across a range of departments and agencies.

(09:09):
President Biden sought to pursue progressive policy goals through the
use of the power of the administrative state. And so
it's a very long list, but we saw regulations involving
greenhouse gas, regulations on power plants and on automobiles, DEI initiatives,
net neutrality, the regulation of cryptocurrencies, noncompete clauses in the

(09:29):
fifty States, you know, in employment contracts, and in these
areas the President the Biden administration invoked, you know, largely
that they relied heavily upon the Chevron doctrine, which held
that federal courts should defer to an administrative agency's own
interpretation of ambiguous and often open ended federal statutes. And

(09:50):
so the theory would be that when the agency adopts
a regulation, and when it arguably fits within the parameters
of the statute agency should win. Although the Biden administration
was about as aggressive on the regulatory front as any
administration that I've seen, its ultimate record in the courts

(10:11):
and therefore the impact on executive power was not quite
as good. When these broad regulations were challenged in court
by industry groups, by states attorneys general, and a great
many of them were, the Biden administration lost most of
the time. And not only did they lose in the
sense that the particular regulation was held to be invalid,
but the Biden administration produced a reaction in the federal

(10:34):
courts and notably the Supreme Court that significantly cut back
on the powers of the administrative state, which ultimately is
the power of the president and the executive branch to
adopt policy goals without express statutory authorization. And so, for example,
the Supreme Court formally adopted the major questions doctrine in
cases like West Virginia versus EPA and Biden versus Nebraska,

(10:57):
where the court held that administrative agency could not rely
upon vague statutory delegations to adopt regulations of vast economic
and political significance. And then the other famously, the Biden
administration's regulatory efforts also produced the final death knell of
the Chevron doctrine. After the Supreme Court knocked down a
number of regulations as contrary to law. The Court in

(11:20):
lowper Bright took the additional step of holding that Federal
Court should no longer defer to administrative agency interpretations of
purportedly ambiguous statutes, and taken together, these decisions cut back
on executive power for the Biden administration in future presidential
administrations from relying upon these broad and open ended agency

(11:43):
statutory delegations to agencies now. Although the Court rebuffed the
Biden administration's efforts to rely upon executive power to regulate
the economy, the court's recent decisions did strengthen the hand
of the president when it comes to executive power as
exercised and controlling the executive branch itself. In a series
of decisions, the Court in recent years has confirmed that

(12:06):
the Constitution vests all power, all executive power in the
president and that the rest of the executive branch must
be accountable to him. And so doing, the Court chipped
away at earlier decisions such as Humphrey's Executor and Morrison
versus Olsen that had permitted Congress to fragment executive power
and therefore weaken the hand of the president in seeking

(12:26):
to pursue his elected agenda. The Court emphasized the president's
central role in cases like Cela law on Collins, which
struck down statutes that had prevented the president from removing
executive officers, and the Court also made a similar move
in cases like Magia and Arthrex, which emphasized that every
officer of the United States, every person holding an office

(12:48):
with substantial executive power, must be appointed and therefore be
accountable directly or indirectly to the President. Now, the Bidy
administration didn't always push for a unitary executive president unitary
executive before the Supreme Court, but President Biden did push
that power in a number of cases when it promoted

(13:08):
the policy goals of his administration. So for example, in
a shift from past practice, when he came into office,
he removed the Anler B's General Counsel and the Social
Security Administrator officers who had traditionally served out their terms
across administrations. He also removed Trump appointees from presidential commissions
and caused the removal of at least one career ses

(13:31):
official because of essentially policy disagreements. Now I cite some
of these examples of President Biden's use of executive power
because what we've seen in recent weeks, the President Trump
has come in and pushed hard to continue this trend
toward consolidating the authority of the president in the executive branch.
The Trump administration has sort of notably come in with

(13:52):
a whole series of muscular executive actions, many of which
involving executive orders that perhaps we'll talk about this morning,
but also on the personnel front, where the President has
terminated Inspectors General, members of the NLRB and the EEOC,
among other positions by invoking his authority under Article two.
And you know, we've also seen the Trump administration continue

(14:15):
these aggressive efforts to consolidate authority in the civil service
as well. And you know, while I think some of
these issues may well be challenged, may well be put
in front of the courts in the months to come,
my guess is that the president and the President trub will
win a lot more than he loses, and that the
net result of these actions will be to further consolidate
executive power, you know, within the president. So with that,

(14:39):
you know, I look forward to talking about these questions
with the panel.

Speaker 5 (14:42):
Great.

Speaker 6 (14:42):
Thank you, Steve jack Thanks so much, Judge, and thanks everybody.
I'm delighted to be on this distinguished panel. I'm going
to talk about Trump versus the United States, the immunity
decision from last term. I think that this decision may
be the most consequential decision that the Court has yet

(15:05):
announced on the scope of presidential power, at least with
regard to domestic presidential power. I think it will come
to be seen as a president that so Youngstown is
typically thought to be the kind of canonical case that
through which we understand president's powers, and especially through Justice
Jackson's third category, and I think that Trump versus the

(15:27):
United States will eclipse that. And I think it just
has extraordinary implications that not all of which have been
fully fleshed out. I'm not going to be able to
do that in my seven minutes, obviously, so I'm just
going to say a few things about the opinion. First,
I just want to emphasize what an unusual case it was.

(15:47):
The arrangement of the case. You had the current president
prosecuting the for former president. You had both parties making
broad claims of presidential power the Biden administration, the Special
Council was arguing for and it had invoked the president
to broad discretion to prosecute, and it argued to be

(16:13):
sure that the former president lacked immunity from this broad
prosecutorial power. But at the same time, in the Supreme Court,
the Special Council went out of its way to emphasize
all of the many protections that a former president had
from prosecution. And the reason the Special Council had to
do this was because one, it knew that the Court

(16:36):
would be concerned about that, but two, as Michael Dreban,
the attorney set for the Special Council at oral argument, said,
the Special Council had a dual role and that there
were conflicting equities. On the one hand, the Special Council
wanted to prosecute the former president, thought that it had
the proper predicette to do so, thought that there was

(16:57):
no immunity. On the other hand, the Special Council had
the duty to ensure that presidents going forward were protected
from inappropriate prosecutions. So in the course of the Special
Council's brief, and this was the dominant theme in oral argument,
there was a broad discussion of all of the many
ways that the president had protections from criminal prosecutions, and extraordinarily,

(17:22):
these issues really weren't fleshed out below. This was the
question about whether Congress could the circumstances in which Congress
could regulate the presidency through criminal law. None of these
issues were addressed by the courts below. So it was
and then on the other side, on President Trump's side,
you had broad claims of presidential power and broad claims

(17:43):
that any prosecution of a former president would have detrimental
effects on a sitting president. So it was a strange
case in which broad assertions of presidential power were being
waged along a variety of dimensions. As you all know,
the court ruled that the president is absolutely immune from

(18:05):
prosecution for under criminal laws that touch on the president's
exclusive power, and that the president was at least presumptively
immune from prosecutions subject to a kind of burden test
for prosecutions that concern his concurrent powers with Congress. And

(18:29):
so everybody has focused on and there was a lot
of catastrophizing in my opinion, about the implications of the
immunity part of the ruling for me, that's not the
important part of the ruling. The immunity holding itself, the
fact that the president had the immunities I just described
was not the important part of the opinion. I actually
think that's not going to have a large impact on

(18:50):
the presidency. I could be wrong about that. It was
the predicates. It was the underlying analysis of the scope
of presidential power that underlay that unity that's going to
be so consequential, And I just want to talk about
two or three elements of that. First of all, the
court held that because of the president the removal power,

(19:11):
the president could not be prosecuted for threatening to remove
the acting Attorney general as part of an alleged scheme
to obstruct a congressional proceeding, i e. Congress cannot criminalize
a president's efforts, a president's threats against the attorney general

(19:32):
to further a scheme that would otherwise, by allegation, violate
a criminal law. Because of the threat to remove the
attorney general, the court said that implicated the removal power,
and that that was unconstitutional and the president could not
be prosecuted for that.

Speaker 5 (19:48):
Just' this is.

Speaker 6 (19:49):
A novel understanding of the scope of the removal power.
The removal power, as best I can tell, I'd love
to be corrected, has been limited to cases where either
there's a fore cause provision that the tre It was
trying to resist or an insistence that another branch of government,
primarily the Senate, had to have a role in the removal.
So this was a novel holding extended to a novel context,

(20:13):
the implications of which are not yet clear. Second, and
much more importantly to my mind, the court held that
the president, and this is best I can tell, is
a novel holding with potentially very broad implications, that the
president has the exclusive authority an absolute discretion over which

(20:34):
crimes to investigate and prosecute. Let me say that again,
the exclusive authority and absolute discretion over which crimes to
investigate and prosecute. And therefore, because the President was allegedly
trying to, according to the allegations, advise slash coerce the
Justice Department to engage in an investigation that was allegedly

(20:54):
fraudulent in order to further a scheme of obstructing a
congressional proceeding. Because that took because he was being prosecuted
for the act of exercising prosecutorial discretion and investigatory discretion.
The president cannot be prosecuted for that, and the scope
of that is potentially very broad. It means that it

(21:16):
seems any order by the president concerning investigation and prosecution,
and to my mind, and I won't get into the details,
not just criminal enforcement, but civil enforcement as well, that
the president has, according to the Supreme Court, exclusive power
over those choices. This is a novel holding with the

(21:38):
take care clause is a clause with multitudinous meanings. Take
care clause is the clause that binds the president to law.
The president has a duty to comply with the law
because of the take care Clause. The president's authority to
interpret law flows in part from the take care Clause,
and the president's authority to enforce law, including the president's
discretion to enforce law, flows the take care of clause.

(22:01):
And the Supreme Court in this case for the first
time said they'd said this indicta in US versus Nixon,
in a case that had nothing to do with this issue,
for the first time said this was an exclusive power
that could not be regulated by Congress. And this, I'll
just say this has potentially huge implications for the scope
of presidential power. If the court meant that, I'm not

(22:23):
sure it did. I'm not sure it meant for this
principle to have legs. Just to take one example, if
I'm speaking for myself, if I'm defending the president's decision
not to enforce the TikTok ban, I'm going to be
citing this provision of Trump versus the United States saying
the president has the exclusive authority over the discretion about
which laws to enforce.

Speaker 5 (22:46):
I think I'll leave it there.

Speaker 6 (22:47):
I'll just also say one last thing, what was left
of Morrison versus Olsen, or at least one slice of
what was left of Morrison versus Olsen is pretty clearly
gone by this decision. And did I write this down yet? Morrison,
I'll lend you with this. Morrison said that Congress can
reduce the amount of control or supervision that the Attorney

(23:09):
General and through him, the President exercises over the investigation
and prosecution of cases. That Congress can reduce that control.
That is clearly overruled. That is clearly inconsistent with Trump
versus United States. So that's the third important element of
the case. I think that we're going to see Trump
versus United States being invoked a lot in the next

(23:29):
four years, and I think that the contours.

Speaker 5 (23:32):
Of the decision will will be fleshed out.

Speaker 2 (23:34):
Thank you, Thank you Jack, Sarah.

Speaker 7 (23:37):
Thank you guys for having me. I will do start
off with a disclaimer. I am speaking here only in
my personal capacity. I don't speak for the United States,
and therefore I will be your most boring speaker. I
will not be offended if you use this time to
check your phone, although I do hope to convince you,
just sort of at a forty thousand foot level, to
take a step back. Why should you care about the

(23:57):
separation of powers? You evidently do, because you're here at
like nine point thirty on a Saturday. So that's very
encouraging for those of us who kind of live and
breathe separation of powers issues. But I think it's worth
kind of taking a step back and thinking, like, why
do we have this system. Why do we have this
kind of rock paper scissors type system of Congress, the

(24:18):
President and the courts kind of checking each other. Why
do we have a system of defined powers but also
overlapping powers, expending a lot of effort to figure out
whose power is exclusive? Visa the other, and what can
each other do to check the others. I mean, it
really is because our system is designed to have these
kinds of checks on the branches to advance liberty, to

(24:40):
make sure one branch doesn't go too far, and to
make sure the rights of individuals are vindicated. And as
sort of Steve recounted with some examples, you can sort
of very quickly see how these really abstract separation of
powers principles about who gets to decide things, who's the
right actor for something can very quickly have real world

(25:00):
consequences for what can the particular administrative agency do visavi
a large number of people. So I have always cared
passionately about the separation of powers. But it's a hot topic,
not just because it is a topic that increasingly affects
people's lives, but it's a very hot topic on the
Supreme Court docket in the last sort of ten years.

(25:21):
It's really the golden era of separation of powers challenges.
So Steve and Jack have both sort of touched a
little bit on Article two issues, and I think the
sort of forty thousand foot storyline for Article two really
is the Court has given Article the President and Article
two powers sort of has defined Article two powers in

(25:42):
a way that emphasizes the president's control. That is an
obvious thing to say, just given the trend line for
a lot of the cases on the president's duty and
powers visa ve control of who is in the executive branch,
who is a subordinate? How can the president make make
sure that the people working for the president are faithfully

(26:03):
executing the president's objectives. These are the sort of cases
about who can be appointed in what manner, what kind
of like sort of officer of the United States are you,
and how can you be removed? And the area of
law gets really technical, But the big principle really is
how can the president and you know, those who are

(26:23):
heads of agencies or otherwise sort of one level below
the president make sure that there are checks within the
executive branch so that it's sort of a unitary system
that is all responsive to the president. That's the kind
of question that the court's addressing in those cases, and
the Court's opinions have very much emphasized that principle of
accountability being really important. You know, twenty or thirty years

(26:46):
ago you would kind of see more debates in the
Supreme Court about is it okay if it's sort of
functional checks or abstract checks. Now, the Supreme Court has
trend in much more to sort of a formal sense
of the buckstops with the president. The Court has used
that line in sort of multiple opinions, and how does
that sort of cash out visa vie Who is working

(27:07):
in the executive branch and what counts as being part
of the executive branch.

Speaker 3 (27:10):
So in that.

Speaker 7 (27:11):
Sense, it's correct to sort of see the Court's cases
as a real emphasis on controlling accountability. The flip side
for Article two, though, is that the Article three, the
courts have been more skeptical of what the executive.

Speaker 3 (27:26):
Branch can do.

Speaker 7 (27:28):
And in addition to Low or Bright and the demise
of the Chevron doctrine and the Supreme Court saying that
it is courts and not agencies who are ultimately the
interpreters of statutes, And in addition to cases raising questions
about how can Congress delegate powers to agencies? How clear

(27:51):
does it have to be? Can agencies sort of search
broader powers without clearer congressional commands? Some questions so called
major questions doctrine and non delegation doctrines. I just also
flag one more area that is getting a lot of
play in litigation right now, which I'm not commenting any
specific litigation, but just a fact in the world. The

(28:13):
Supreme Court has said that there are constraints on what
administrative agencies can do visa VI the types of penalties
and types of adjudications they are allowed to do. And
this has spawned a great deal of litigation, much of
it in the lower courts right now, but just for
big picture of questions about our administrative agencies doing too much,

(28:37):
too many things, too many types of things, too many
types of remedies that should really be done by Article
three courts, and that continues to be a big question,
and I think is a looming question in light of
some recent Supreme Court decisions. So I would just end
by saying, sort of who benefits from this. It's not
just the executive branch in terms of clarity about what

(28:59):
types of controls are permissible in the president's dealings with
subordinates and who's part of the executive branch. But there's
also a sense in which Article three has become like
a very very the courts have become a very very
powerful actor in this process, because a lot of the
constraints on Article two come at the sort of the
benefit of courts then being the ones who say what

(29:21):
the law is on statutes, courts potentially being the ones
as opposed to administrative agencies that are trying to resolve
particular types of questions, and courts at the end of
the day obviously playing a very important role in all
of the things we're discussing in defining what the ultimate
meats and bounds of a lot of these policies might be.

(29:43):
It's an active time for courts.

Speaker 3 (29:44):
I'll leave it at that.

Speaker 8 (29:46):
Thank you.

Speaker 2 (29:46):
That wasn't boring at all and checking their phones, so
we'll have to say that I have a few questions.
Let me pick up with the theme, the separation of
powers theme that especially Sarah hit on. So to my mind,
the Framers designed our separation hours with Congress and a
vision to be the most powerful the three branches. It's
Article one, after all, they had to pick someone to
go first. But Section eight, Article one gives tremendous power

(30:10):
to Congress to regulate commerce, tax, clear war. But I
think it's true in modern day separation of powers world
that the Presidency of the executive branch has become the
most powerful branch of government. So tell me you think
I'm wrong. Law professors are always happy to tell judges
they're wrong, so I know this panel won't be shy.
But if you think I'm right, is are there certain
inflection points over the last number of years where the

(30:33):
presidency was sort of sealed as the most powerful branch?
And is there a path to return power to Congress?
Maybe we don't want to, maybe we do, But is
there a path or Congress maybe reclaiming it's post.

Speaker 3 (30:48):
I do.

Speaker 4 (30:50):
I agree, but it's not because structurally Congress is not powerful.
Because Congress can be powerful. But what the founder didn't
really foresee, I think, and what's certainly accelerated in the
twenty first century is the rise of partisanship on the
front end. Been partisanship goes back to the first you know,

(31:13):
the Watch administration, but also to the point at which
the president has become the leader of a party. And
so in every presidential administration, whatever the structure is of Congress,
there is a large number of people in Congress, maybe
even majorities, as as often as at the beginning of
an administration who are on the president's team and on
the president's side, and over the last like twenty five

(31:35):
thirty five years, that has become a really dominant feature
of American politics. And used to be you would have,
you know, committee barons on, you know, congressional barons on
who would run committees, and they would regard their committees
as very important, almost quasi executive actors in the system
of government and putting forward legislation and the like. But

(31:57):
these days, you don't see members of Congress speaking vocally
for congressional prerogatives against presidents of their own party. You know,
you see people, you know, they'll fight the opposing president,
and they'll fight hard against the opposing president to you know,
to prevent his agenda. But but you don't see you know,
you see negotiation. And I don't mean to sort of

(32:19):
sell out, you know, the very meant you know, able
members of Congress who are out there, but as a
general matter, they're on the team of the president and
they work together with the president. The results of that,
I think is two things. One, particularly given the filibuster rule,
big legislation rarely gets passed because we haven't had situations,
you know, or other than perhaps a fleeting period at

(32:39):
the beginning of the Obama administration in which you actually
had sixty votes in the Senate. And so Washington being
what it is, Congress tends to Congress is very good
at spending money. They do confirm nominees appointees, and then
from time to time, when there's no other choice, they
actually adopt large legislation. But most of the time you

(33:02):
have paralysis. And in the face of legislative paralysis, you've
had an executive who has been you know, very grasping,
you know, in part because people look at the president
to solve the nation's problems, and that's part of, you know,
why you have administrative agencies with these very bold and
ambitious agendas, which the courts have correctly cut back on

(33:23):
in the name of not knowledge judicial power, but actually
that the idea that Congress is the one is supposed
to do that.

Speaker 3 (33:28):
But so that's I guess that's.

Speaker 4 (33:29):
My my sense of agreeing with your premise that, you know,
the executive has been the affirmative actor in our system
of government, particularly in recent decades.

Speaker 6 (33:40):
I'll say two or three things. First, I mean, I
generally agree Congress still does. First of all, the presidency
has been important, much more I think important than many
of the framers thought from the beginning, and increasingly so
from the beginning to the President's current power rests to
a large degree on statutory authorizations from Congress, many of

(34:04):
which are vague, which require or or under specify, which
require aggressive presidential interpretations, which have been the subject of
so much dispute, but.

Speaker 5 (34:13):
Many of which are not.

Speaker 6 (34:14):
I mean, the reality is is the Congress has a
lot of power that it has transferred to the president,
sometimes specifically, sometimes not. Third, I would say, in Congress
still is in the game of passing an important legislation
every year. The National Defense Authorization Act is a massively
consequential law.

Speaker 5 (34:32):
It gets enacted. Tax bills regularly get enacted.

Speaker 6 (34:35):
But Congress is not in the game in other context
the way it used to be, for a whole bunch
of reasons, some of which Steve mentioned.

Speaker 5 (34:41):
The fourth thing I'll say is I think.

Speaker 6 (34:44):
Courts are in charge, not the president, because it's courts. Yes,
the president is taking an aggressive role in making law
in this country when Congress used to, but it's the
courts ultimately that have been deciding how much the president
can do this. The courts have been pushing back. This
was your point. I think we're part of your point.
And ultimately we have a government now where law is

(35:08):
made by a dialogue between the two branches that were
supposed to make law, the executive branch and the courts.
And the courts have had the ultimate say, and they
have been dramatically changing the executive branch and the scope
of the executive branch's power and some respects enhancing it,
some respects contracting it. Obviously, it's a dialogue. Presidents do

(35:28):
things that force courts to react, but I would put
the courts up there as also being hugely consequential.

Speaker 7 (35:35):
I'll just make a pitch also in terms of the
moment in time, we're at where I think you have
to kind of zoom out because right now it is
a truism. Congress is not passing a kind of massive, massive,
ambitious legislative objectives that were past like stay in the
middle of the twentieth century, like that's actually a truth
in the world, obviously, And so I think we're kind

(35:57):
of starting off from a point in time when Congress
has accomplished so much in terms of legislation that expanded
just conceptions of what Congress might have been able to do,
and the goalposts are are are where they are in
terms of what Congress has been able to accomplish, and
I think it's kind of important to just sort of
start with that recognition. It's not so much that Congress

(36:20):
is sort of like the weak party in all of this.
It's that historically the executive has been in a weaker
position or sort of received less attention in terms of
the sort of scope of executive power, and Congress has
gotten a number of opinions from the Supreme Court just
sort of looking at a broad time horizon that have
recognized very very broad congressional powers, commerce class being a

(36:44):
prime example. And so it's sort of hard to say,
like who's in charge now because the window of what
Congress can do has shifted a lot in the course
of the twentieth century. One other actor we haven't talked
about at all because it's not part of the federal government,
but states I think increasingly important just in terms of

(37:04):
who benefits When there is a decision that says federal
agencies can't do a particular thing. Sometimes the upshot is
this is something reserved for the states, or something that
states need to be more involved in And so I
don't think there's like a right or wrong answer in
terms of I mean, this is just a reflection of
like our system of government. Like you can make a
case for most actors having really important roles and really

(37:27):
you know, particular areas, but it's a dance and that's
that's the design.

Speaker 2 (37:32):
I think the state point's an excellent point. In some ways,
the lawmaking process has really become executive order, state lawsuit
court decides. And so I know a lot of members
of the AG's office here in Florida in the audience,
and it's sort of hard to understate the role that
states are playing now and bringing issues to the courts.
We have sort of twenty five Republican states, twenty five

(37:53):
Democrats states. There's always lots of willing plaintiffs out there.
Do you want to add something?

Speaker 3 (37:57):
Yeah, No, no, like one hundred percent agree.

Speaker 4 (38:00):
I mean when we talk about what is the legislative
process that we have in most instances, because when you
think of the recent the controversies in the Biden administration,
some of which I mentioned kind of in my opening remarks,
and you think of like how should we how if
it all, you know, how should we regulate auto emissions
or power plan emissions, or how should we regulate cryptocurrencies
or the like? These are all basic, important, you know,

(38:22):
legal questions that one would think that if there's an
answer to be had, like Congress could just pass a
law and do this, they could update these like should
we have net neutrality? You know, well, maybe Congress should
pass a law and decide whether we should have net neutrality.
But what's happened as a practical matter is that the
executive branch has sort of tried to answer these questions
through broad statutory delegations that were passed you know, one

(38:45):
hundred years ago in many instances eighty years ago or
the like. And then you have the regulation, and then
that you have the lawsuit by this by the states,
and you know, the red states, like the Great State
of Florida, we're very active in the Biden administration, and
the Blue states now are all excited because they've got
something to do, just like they did from twenty seventeen

(39:06):
to January twenty twenty one. You know, and then even
the courts change, right, I mean, we saw how busy
the Fifth Circuit was over the last four years well,
fifth circuit's going to be less busy, you know, over
the next four years. And you know, apparently the first
circuit is the initial circuit of choice, so the ninth
circuit will be busy as well. But you do have
this system in which the whether or not we're we

(39:30):
adopt these policies, which would be quote quote legislative, is
done precisely as Judge Ridler said, by first executive action,
then lawsuit, then court decision, and then also the states
being able to fill.

Speaker 3 (39:43):
In the gaps.

Speaker 4 (39:44):
I mean, as again as Florida has seen with its
Florida actually is passing laws and Florida is addressing the
problems of the people of Florida, And the same could
be said, you know, whether they're addressing them well or
not for the people of California or the people of
New York, where those legislatures actually passed laws and the
like that happened to be generally bad laws. But uh,
you know, but that is what it is. But you know,

(40:04):
so the states do play, you know, a very important role,
you know, with effect to their population.

Speaker 2 (40:11):
Can we talk for a minute about executive orders? So
obviously that's been sort of the predominant news story the
last couple of weeks other than the tragedy at DCA,
and that was probably true to some degree at the
start of the Biden administration as well. So we hear
a lot about executive orders. But I wonder, since we
have experts here in sort of writing and understanding them,
you know, does is every executive order self executing or

(40:31):
do these executors really rely on other people in the
executive branch to carry them out?

Speaker 8 (40:37):
Is it?

Speaker 2 (40:37):
Does that mean that sort of when we hear about
executive order that it's actual sort of implementation and effect
may be delayed even by by years. Can you can
zero experts, you can just give us some sense of
what are all you know, what an executive order is,
and are they all created equal?

Speaker 9 (40:51):
Yeah?

Speaker 5 (40:52):
Sure, I so.

Speaker 4 (40:55):
So generally speaking, executive orders come in two flavors, one
of one set of executive orders, and perhaps the majority
of executive orders are basically directions from the president to
his senior officers. And what the what the White House
is doing with those executive orders, I think is two things,
one of which is setting priorities for the departments and agencies.

(41:17):
The President is formally publishing a document which says, here's
what I want you know, that Secretary of Homeland Security,
Here's what I want you to do, you know, on
the border and on immigration, or to the Secretary of
Defense or the like. And so they are setting priorities,
directing action and sort of forcing the departments, you know,
to take that action. And so they're and they're also

(41:39):
performative in the sense that they were publicly declared and
you know, President Trump was you know, very public in
signing his executive orders, you know, on day one. These
are the priorities of my administration. This is what I
expect the departments and agencies to do. And then when
the departments and agencies, when the cabinet heads receive these orders,
they generally carry them out. But they must be carried out,
you know, the recipient. And it's not actually direct presidential authority,

(42:03):
other than the president's authority to supervise the executive branch.
There is a second set of executive orders in which
the president actually activates statutory delegations and so and actually
I haven't read the latest news, but President Trump has
been talking about tariffs on Canada and Mexico. Maybe as
soon as you know, as today. The President has delegated

(42:25):
very broad, delegated statutory authority under a number of statutes
to actually set tariffs in a variety of different contexts,
some as sanctions for international emergencies and some other and
some others under sort of under various delegations. And so
those executive orders, those proclamations actually have the force of law.
They are they're not inherent actions of the executive in

(42:47):
the sense that the president can do it on his own,
but he is activating statutory delegations, you know, through those
executive orders and proclamations, and so those, you know, have
essentially the force of law. They can affect, you know,
not parties outside the government.

Speaker 6 (43:02):
I'll just add to that something that probably everybody in
this room knows, but some people don't know. Executive orders
themselves do not create legal authority. They all rest on
prior authority, either from Congress or the Constitution. And typically
an executive order will say based on my constitutional and
satatory authority. Sometimes treaty authorities hereby do X. So I'll

(43:25):
just add that they're not in themselves technically, they don't
add to the president's power.

Speaker 5 (43:31):
They're drawing on the president's power.

Speaker 2 (43:36):
I talked a little bit at the beginning about the
job that you do in OLLC, and so I'm just
wondering if you give us some anecdotes or just add
some some color to what it's like to give, you know,
legal direction to cabinet secretaries who are themselves you know,
confirmed by the Senate and have pretty high ranking jobs,
and to the White House, to the President, you know,
to give legal advice that it's presumed they will they

(43:57):
will follow Sarah's heart for you to discuss. But our
panels want to talk about the job of running a
LLC or being in LLC.

Speaker 5 (44:07):
Where we go.

Speaker 3 (44:10):
It's a good job, very good job, I mean it is.

Speaker 4 (44:15):
I mean, I mean, I'll see has traditionally performed a
pretty critical role within the executive branch because the president
at the top takes, you know, faithfully executes the laws
and everyone needs to figure out kind of what the
law is and well, these days, many of these questions
will wind up in front of a court sooner rather
than later. Not alluite the important questions that the executive

(44:36):
has to to deal with do in fact wind up
in court. Some are nonjudiciabal, some are national security matters
that are not public, and so it's very important that
there be, you know, a centralized way of sort of
figuring out kind of what the law is for the
executive branch. And traditionally the Attorney General was given this
statutory authority the very beginning of the Republican the Judiciary

(44:58):
active seventeen eighty nine. Attorney General is now a busy
man or woman running a giant bureaucracy that has been
delegated for the better almost a century now to the
Assistant Attorney General for the Office of Legal Counsel. And
so all C is brought in when they're there's disagreement
within the executive branch. It's also brought in, I think

(45:20):
when there are certain all s like questions, including many
of these questions of executive power that we're talking about,
that the White House or the Cabinet secretaries want to
sort of deal with on the front end. And so,
you know, it's the office has about twenty five attorneys,
many of whom are there across administrations and become kind
of experts in their particular areas of law. And you know,

(45:42):
and what makes ALLC tick is generally is the support
given by the White House. The White House Counsel and
the Attorney General. And the fact that it's often convenient
for many departments and agencies to be able to point
to someone outside of their department of agencies and deciding
what their legal authority is. Particularly if the answer is
going to be you can't do a certain thing, then

(46:02):
it's easy to blame OLC, and you know it's it's
a mechanism of accountability or whatnot.

Speaker 6 (46:09):
Yeah, I agree with all that. I'll just add three
little things. A lot of olc's advice one tends to
see ollc's work product in terms of opinions. Those opinions
are in some sense not representative of the office's jurisprudence
because sometimes often the office advice is no or no, no,
like that, and then there's that's based on a predominary analysis,

(46:32):
and then there's no opinion written. So the opinions themselves,
although they constitute the jurisprudence of the office, can be
misleading about the work of the office. Second, well, for
four points, the OLC often gives a lot of informal advice,
at least they did when I was there, that didn't
rise to the level of formal opinions where the White

(46:54):
House or department is thinking about doing something and they
just want to gut check about or they're obvious problems
of this. We're not asking for a formal opinion. You're
the experts on this. Let us know what you think.
A decent amount of the work of the office was that.
Or the office reviews executive orders for form and legality.
This is an important function of the office, although the

(47:15):
form and legality processes itself its own hard to describe.
Beast and for the office again, at least I was
there a long time ago comments on bills of Congress,
looking for constitutional issues and infirmities in bills and acted
by Congress with an eye towards either trying to fix

(47:37):
those problems incoming and congressional legislation, or to advise the
President that the president might want to through a signing
statement make note of the unconstitutional or possibly unconstitutional provisions
in the statute.

Speaker 5 (47:51):
So though there's some other small board things.

Speaker 7 (47:53):
That the office does, and I guess I'll just jump
in from like a historical matter of just having worked
in it less as well the things that I didn't
realize OLC was involved in, because I think everyone does
try to think of it as like OLC issues opinions
for the executive branch and like that's what people hourly see.
But there's also you know, the Office is very involved
in relations with Congress, so especially in divided government, like

(48:16):
the Office plays an important role in developing a jurisprudence
of like executive privilege and these kinds of things, and
they are like the world experts on that and in
a very helpful way to the executive branch often. And
then there's sort of other things the Department of Justice does,
like rulemakings or the Attorney General has authority to issue

(48:37):
immigration opinions by a statute, and so there are these
things that in different administrations can really loom large in
terms of things that OLISSE may or may not be doing,
and the mix of things that OLISSE does. I think
it's fair to say like changes from administration to administration.
But the bottom line is the Office does just sort

(48:59):
of historic do many more things than you might think
at first blush.

Speaker 3 (49:02):
But they all relate to.

Speaker 7 (49:05):
How should the executive branch do a particular thing and
who can they turn to for advice on that thing.

Speaker 3 (49:11):
Often it's just called ollc ID.

Speaker 6 (49:13):
You said once flight point building and what you said,
every presidency potentially uses OLC and advice in.

Speaker 5 (49:22):
The Justice Department and from OLC.

Speaker 6 (49:24):
Differently, the Obama administration kind of diminished the role of
the Office of Legal Counsel and had more of a
White House centered process. The Bush administration I worked in,
and I believe the Trump administration had more of a
DOJOLC centered locus of the device. I will say it's
not clear to me yet how the Trump administration is

(49:45):
organizing its receipt of legal advice.

Speaker 5 (49:47):
I think that's an issue we have yet to learn about, Sir.

Speaker 2 (49:52):
I don't know if you want anything about the sg's
office in their general role, and I'm not going to
put you on the spot, but I'll just say, as
someone who is an a litigating division at the department,
really the two most important offices in the department, with
all due respect to the AG and the DAY or
OLC and the SG, because OLC, as you've heard, was
trying to spot legal issues and correct them to the
best of their ability before a policy went into effect.
Once a policy went into effect, the be litigation and

(50:14):
the Civil Division or Environmental Natural Resource Division or their
litigan division be handling that. But the sg's office then
was very involved in active litigation, in part because of
something went to the Supreme Court, of course they'd be
arguing the case, but in part because no lawyer in
the Department of Justice, whether it's the head of the
Civil Division, whether it's the US attorney in the Middle

(50:36):
District of Florida or somebody else, no one can take
an appeal in a governmental case from the district court
to the Core Appeals without the permission of the sg's office.
So the sg's office really controls how which cases get
appealed and which circuits on what issues. They really control
how issues get up to the Supreme Court, and then
of course they argue the case is once they get there,
So their job is more than just arguing in the

(50:56):
Supreme Court. Have you add to that or means.

Speaker 7 (51:00):
That is a correct That is a correct reflection of
the DLJ regulations governing the sg's role.

Speaker 2 (51:07):
I passed the test. So we talked a lot about
the presidential power. One thing that I think has been
interesting about sort of modern presidential powers, the use of
soft power by means of persuasion or threat. In the
last administration, the Supreme Court decide the Murphy case, which
reflected on the Biden administration's efforts to job oone coerce

(51:28):
encourage social media companies to not post certain content on
their platforms. President Trump certainly uses these authorities a little
much more, I would say, overtly through tweets and other things,
you know, harassing the president of Columbia to accept their
citizens back, or harassing members of Congress to vote for
his nominees. So I think we've seen a lot of
big rise in the use of what I would call

(51:50):
soft power by presidence, sort of actual formal action to
accomplish things they'd like to see done. So any reflections
on that that trend? Is it important? I just love
to hear from the experts.

Speaker 3 (52:05):
I wouldn't say harassing.

Speaker 4 (52:10):
I mean, well, I just I mean, I mean, what
we've seen from President Trump since the election is really remarkable.
I mean, I frankly, and you know, even prior to
January twentieth, I mean, I've never seen you know, a
president elect, you know, or maybe even president put the
country on such a real powership, real shift in priorities

(52:34):
that President Trump has brought, and much of which he
did without using any actual powers of the office, you know,
in the interregnum between the election and January twentieth. Then
you know, when you see inauguration Day and you see
the lineup of folks who were there, you know, the
leaders of you know, the major companies you know around
around the country, and folks who have sort of on

(52:55):
their own voluntarily announced policies that are consistent, you know,
with the the policies of the Trump administration. You know,
I think, you know, it's it's about the hardest soft power, uh,
you know that I've ever seen exercised. And so, you know,
I think and clearly, you know, historians of the presidency
you talk about this, and you know, about the presidency
being the power to persuade and the impact of you know,

(53:18):
Franklin Roosevelt and others you know kind of out there, uh,
kind of using the you know, the you know what
Teddy Roosevelt called the bully pulpit, and to some degree
perhaps that had sort of declined over time, but I
think in the sort of with the advent of social media, uh,
and you know and the like, it really has magnified,
you know, the powers of the presidency.

Speaker 6 (53:38):
I generally agree with that don't have much to add.
It didn't start with President Trump, and as you said,
the bully pulpit idea started with tr and the use
of social media. If you look at even the Obama
administration and then the late Bush administration, they were starting
to use social media. Each administration, I'm not sure about
the Biden administration, but has gotten better and more adept
at using these communitative powers direct connections to constituents as

(54:02):
a way to circumvent other forms of opposition and to
shape agendas. And it has been remarkable how President Trump
has used that power in the first two weeks.

Speaker 7 (54:11):
Yeah, I think it's sort of a broad historical issue.
Every time there's a newer technology, be it radio, television,
there are some presidents who are particularly adept at using
those methods to communicate with the people and finding ways
of creating just a sort of direct relationship with people
to announce policies, et cetera. And presidents, like any other power,

(54:33):
use that particular lever of communication with more or less
skill on. So I think this is just sort of
consistent with the way it often just works throughout the
twentieth century. And we now have social media, which has
very much changed access to a large number of people
at once, and we'll just have to see what happens next,
what comes after that, Sure we will.

Speaker 2 (54:55):
So I'm going to ask one more question, but then
if anyone in the audience wants to ask questions, we
have a couple of microphones here on each side. So
I think it was Jack who talked about the role
that courts play and course in the separation of powers.
And maybe there's been some rise in the in the courts.
And if we look back over the last couple of
terms from the Supreme Court, there are significant decisions see
the Law Dark and see Lope or Bright that addressed

(55:18):
the separation of powers and in some ways have cut
back the power of the administrative administry of state and
the executive branch. So can you sort of comment maybe
on those cases and in what effect they've had on
maybe curtailing executive power or maybe not me, any any
of you.

Speaker 5 (55:36):
Yeah you talked about those cases, I mean in your
opening remark.

Speaker 4 (55:40):
Yeah yeah, yeah, No, I no, I mean I think again,
I mean I think you do. See I mean with respect,
I mean the common theme and I talked about how,
on the one hand, we've seen the unitary executive branch.
On the other hand, we've seen the curtailing of executive
power with respect to the administrative state. I think one
dominant theme in the Supreme Court jurispry has been cutting

(56:02):
back on the powers of administrative agencies in the name
of separation of powers. I mean, we have the separation
of powers to protect liberty. You have administrative agencies that
developed over the course of the twentieth century basically conflating.

Speaker 3 (56:14):
All of the powers. You know.

Speaker 4 (56:16):
They they wrote the laws through regulations, they decided who
to investigate, and in many cases they had their administrative
judges in there to decide who violated the law.

Speaker 3 (56:26):
And like.

Speaker 4 (56:27):
While parties theoretically could eventually get to the Article three courts,
you know, most parties don't have two years and millions
of dollars in legal fees to sort of finally get
you know, out of that you know behemoth. And so
we've seen, you know, real shift in the driven by
the Supreme Court in enforcing the separation of powers and

(56:48):
you know, kind of restoring you know, that balance in
a way that cuts back on the administrative state, although
it does has increased the president's personal control over the
executive brand.

Speaker 7 (56:58):
I guess I see this area too for courts as
a like. Courts have gained power in some sense because
they are now adjudicating things or addressing matters or deciding
questions that previously the executive branch had been deciding. But
at the same time, I mean, the Supreme Court has
been very has a long line of cases constraining like
Article three standing like the idea of who can be

(57:20):
in court, and so there's also like this sort of
same dynamic of there might be sort of an additional
power or consolidation over what courts can do. But at
the same time, courts are being very circumspect in a
lot of these cases, and there's sort of looming questions
on this about the limits of it, about who can
be a litigant before Article three courts and the trend

(57:42):
of the Supreme Court cases in general has been to
titan who's allowed to sue any particular matter.

Speaker 2 (57:51):
Okay, I think there's some questions over here.

Speaker 9 (57:53):
Hello, I was really interested by your discussion of the
Trump the United States holding that the president essentially has
unfettered discretion to investigate and prosecute crimes and the implications
of that. You brought up the TikTok case, which is

(58:16):
interesting because there's from my understanding of the Act, there's
both civil and criminal penalties. So I assume that you
were talking about both, that you understand the implication of
the United States top Trump to apply to civil actions
as well for penalties. And I was wondering if you

(58:39):
could also talk about that that sort of discretion might
have like very broad implications, as you said about all
kinds of presidential discretion, so you know, the Impoundment Act
comes up as an example that might.

Speaker 2 (58:54):
Be very just make it a tighter question.

Speaker 3 (58:56):
Yes, sorry, So one, are.

Speaker 9 (58:59):
You you are saying that the USB Trump holding applies
to civil actions? And then two, does the USB Trump
holding have implications for presidential power over spending?

Speaker 6 (59:12):
So I'm saying yes that even though the court was
talking about prosecutorial discretion, the court's cases that talk about
prosecutorial discretion rely on the take care clause. They also
are the same cases and this take care clause citing
the criminal cases in the civil context, So the source

(59:33):
of presidential discretion to enforce civil law seems the same.
And even though the Court did not rule on that issue,
I'm not saying it it inexorably follows from Trump. I'm
saying it is an open question whether and typically if
you read these cases carefully, the court has said the
president has broad discretion to enforce the law. But for example,
in the United States versus Texas, it said, but if

(59:54):
the president stopped enforcing a single law altogether, that might
go too far.

Speaker 5 (59:59):
Well, I'm not sure or where that line is now.

Speaker 6 (01:00:02):
After Trump births the United States and yes too, I
imagine that in the spending clause case, this argument will
be raised. I'm not sure it will work, but I'm
saying there's ammunition now in these cases that didn't exist before.

Speaker 4 (01:00:15):
Thank you. Next question, actually thrist United States cited Hecla
versus Cheney, which actually which is a civil enforcement for
this proposition exactly.

Speaker 10 (01:00:26):
So I want to ask a question about President Biden's impairment,
and uh, was there a shadowy group running things and
you know, basically like some sort of ventriloquist, you know,
exercising executive power. And the question is would the twenty

(01:00:46):
fifth Amendment be the only way to deal with that
or for example, could people have challenged the ban on
export of liquefied natural gas by calling Mike Johnson as
a witness and saying the president and had no clue
about what was going on, so there wasn't really this
is invalid inherently because the executive didn't really do it.

(01:01:09):
But just any of your thoughts about you know, we
haven't had this since Woodrow Wilson with what happened with
Biden and what do you think about it?

Speaker 2 (01:01:18):
I think Sarah's going to sit this one out, and
I guess, but enough, I'm going to also, I don't
know if anyone else wants I don't.

Speaker 5 (01:01:25):
I don't have an informed view about that.

Speaker 6 (01:01:27):
I think it would be hard to bring a case
against I think the court would probably deem it a
political question bringing a case saying that a presidential order
is invalid because the president was mentally incapacitated. I don't
think that kind of lawsuit work, but I could be wrong,
So I guess I do think that the twenty fifth
Amendment is the remedy there.

Speaker 4 (01:01:47):
It sounds like sounds like it would have been a
good idea to bring that lawsuit. But it may be
mood now. But no, actually, I don't also say something
recognizing that I don't know anything about you know, I
haven't met President Biden, and nobody's confiding to me about
his his condition. But I actually think but but I
think the way the executive branch works, the way the
White House works is actually slightly different as a general matter,

(01:02:08):
which is whatever the state the fitness of President Biden,
you know, whether he's a secret genius or whether what
we saw on the debate is.

Speaker 3 (01:02:16):
You know, is bread and butter.

Speaker 4 (01:02:20):
When the president is in the room, the president actually
makes the decisions, and there are people who sit around him,
and they all have different views and the like. Maybe
the president listens, maybe he doesn't. But at the end
of the day, somebody's got to make the decision. And
so as you know, putting aside a particular regulation or whatnot,
which I guess technically is made by you know, the
departments and agencies typically rather than the president, like I

(01:02:41):
actually think, you know, for better or for worse, you know,
the president is the one who actually probably puts the
direction on things, even as he has advisors who you know,
channel what's presented to him.

Speaker 8 (01:02:52):
Next question, Thank you all. I'm wondering how you think
these separation of powers issues cut on private non delegation doctrine.
So as I understand it. It's always been sort of
justified several different ways, you know, subdue process rationale, maybe
some stuff about Article two, but it's not been entirely clear.

(01:03:14):
I think in the last twenty thirty years, maybe you've
seen more people start to root the private non delegation
doctrine more firmly. An Article two I'm thinking of, you know,
the Amtrak concurrences by Justice Thomas just leto Judge Newsome
here in the Eleventh Circuit wrote interesting opinion in Consumers Research.

(01:03:35):
So just how are you thinking about the private non
delegation doctrine in terms of separation of powers? And you know,
to put a to bite to it, isn't it sort
of odd that the current remedy for a private non
delegation doctrine violation seems to me like it just makes
the private entity and inferior officer, but then they're not appointed.

Speaker 5 (01:03:58):
Yeah.

Speaker 4 (01:03:58):
No, I totally agree, And I think the private as
as I take it, you know, I mean, we've seen
a real increase in private non delegation cases, and you know,
there have been cases involved in the horse Breeding Statute,
you know, the Horse Breeding Association out of the I
think it's the Fifth and the sixth Circuits and the like,
and so I think, I mean, well, there is a
due process type issue. I think very much there's an

(01:04:20):
Article two issue. And when we talk about the appointments clause,
what we're talking about is accountability.

Speaker 3 (01:04:25):
Right.

Speaker 4 (01:04:25):
The appointments Clause ensures that the officers of the United
States are directly or indirectly responsible to the elected president.
And so if you don't have that, and if there's
a problem because private organizations are not appointed consistent with
the appointments clause, you know, those decisions should be subject
to challenge and vacuator and the like. And I think

(01:04:45):
we you know, it's I think it's all the same
stripe of the courts taking the separation of powers increasingly seriously.

Speaker 6 (01:04:53):
I just add to that this is that a cousin
of this idea, the Court has increasingly insisted this is
an analogy. It's not perfectly in point, but in the
standing context, the Court is increasingly invoked Article two as
a reason to not allow Congress to delegate absent concrete
injury enforcement of federal law to private parties. And it's

(01:05:17):
not an appointments clause issue. It's a take care clause issue,
But I think these ideas come together.

Speaker 11 (01:05:27):
And thank you all for being here. My question is
about the seemingly international trend away from globalist engagement in
policy and more of a focus on national priorities. How
do you see, obviously that's happening here in the US,
and it's happening in Europe and South America as well.

(01:05:49):
How do you see that at a large level driving
more power to the executive or creating a response from
administrative states to try to take the power away from
the executive.

Speaker 5 (01:06:02):
Can you give a concrete example.

Speaker 11 (01:06:04):
Sure, so in South in Central America you have Bouquelea
who's consolidated a lot of power. In the US, obviously,
Trump is, as you previously discussed, using the bully pulpit
in a little bit more of an aggressive way and
trying to consolidate a little bit more power to deal
with the issues of the administrative state in the US.

(01:06:26):
So I guess the question is do thet the WEF,
For example, they just announced that they lost against Trump
and that Trump's return to office was a defeat for
their policy proposals and their view of how the future
would work. So I guess the question is do you
think executive power, not just in the US, but around

(01:06:48):
the world will continue to take more from the administrative
state or not.

Speaker 6 (01:06:57):
I'm afraid I don't have an informed view on that question.
I'm not sure I understand the question. I apologize, do
you no.

Speaker 4 (01:07:07):
I mean, I think when we talk about the administrative state,
you know, in the in the US, you know, we're
obviously talking about a system of government and the way
in which agencies fit within our you know, separation of powers.

Speaker 3 (01:07:16):
Obviously.

Speaker 4 (01:07:17):
You know, a number of other countries have very different
structures and when they're on parliamentary systems and the like,
and so the relationship between the head of the government
and the bureaucracy can be very you know, can be
very different. So it's it's hard to generalize. I think,
you know something part of what we're seeing though, is
the increase in channels of nass communication with social media
and the like, is its strengthening the hand of those

(01:07:38):
with the largest voices. And it wouldn't be surprising if
in many cases the head of the government has the
largest voice, you know, in a particular jurisdiction.

Speaker 6 (01:07:46):
I'll just say one thing, that idea that was provoked
by this idea, there's not a direct answer. I don't
think we should assume this might not be a good
room for this good news for this room. I don't
think we should assume that all or most of President
Trump's assertions of executive power in the last two weeks
they're going to prevail. I'm not at all sure they're

(01:08:07):
going to prevail, and so I think it remains to
be seen. You know exactly where executive power stands in
this country in two or three or four years.

Speaker 3 (01:08:17):
Sarah's confident that it will prevail.

Speaker 5 (01:08:20):
I wasn't doubting Sarah's acumen.

Speaker 6 (01:08:22):
I'm just saying I won't comment anymore on the task
Sarah has ahead.

Speaker 2 (01:08:27):
We can all gather next year and check in and
see how things are going. But please join me in
taking this really terrific panel