 Okay, we're back for the 3 o'clock block. And this is History Lens. I'm Jay Fidel. And to my left is John Davidan. He is the progenitor of History Lens. He's a professor of history at White Pacific University. And to his right, my brother Gene Fidel, who teaches law at Yale Law School. What a combination. Anyway, so what leads me to this discussion? This is like a pepperoni, half pepperoni and half mushroom pizza. Which is a mushroom pizza. Which is a pepperoni. I like pepperoni actually. Actually, we're going to do the whole show about pizza. Change the title. The title is The History of Presidential Power. And it's dramatic, inexorable expansion over the years. What makes us think of this is, of course, Trump and the national emergency and other gambits that he has used in his administration to enhance and expand his own presidential power and become more authoritarian all the time. And it's very scary. A lot of people are worried about that. So we need to study this, John. But the thing is, some scholars have argued that Trump actually pulled back a little bit on presidential power. And when he determined that the DACA declaration that Obama did, which was an executive order, was unconstitutional and then abandoned that, some scholars have argued, well, he actually took back some presidential power. But then he made his own declarations, didn't he? Well, he's, you know, in distinction to his position on the original DACA executive order. He made his own executive orders. I mean, that's the fear, right? The fear of the left and of Democrats is that Trump is accumulating all this power. And what will he do with it, right? I read an article in The Atlantic recently, which suggested, well, Trump could, with a national emergency declaration, send troops into the polling places on the day of the election just to make sure that there's no violence associated with it, which could, you know, provide enough intimidation on the part of voters that they might actually, you know, voters might not show up and boom, Trump wins re-election. It's like reconstruction all over again. Seriously, sending federal troops into and insured Democrats? Well, that's true, right. I mean, that's, and of course... What's chilling about it is Michael Cohen's closing remarks this week about how if Trump loses the election in 2020, there will not be a peaceful transition of power. That's a great concern. He'd still be president. He'd still theoretically have the right to, you know, supervise the military. But let's go back. We go back to the beginning. What did the founders intend here and how far off base have we gone? What do you call an executive creep? Yeah, well, I mean, there's a sense in which creep. There's a Nixon era. Exactly, right. Executive, the creeping authority of the executive branch or the chief executive. So let me toss a few ideas out. Yeah, sure, go. And then you can, if you can assemble these in a way that makes some sense for viewers, that would be great. I'll just, I'll toss out a few things. We have seen the function of the cabinet ebb and flow. Right. At the moment, I would say it's at low. Yes. The power of the cabinet. The power of the cabinet, the quality of the cabinet appointees, those who are not yet in jail. So you have that you have an expanded role for the president under the theory of the unitary executive. In other words, that all article two powers vest ultimately in the president and the implications of that. So that's the second thing. The third is the morphing of the foreign relations power, which is a classic executive power and coupled with that, the atrophying of senatorial ratification of treaties because we've largely gone out of the business of negotiating classic treaties. Instead, we have all these international agreements that may or may not ever require bicameral or even unicameral approval. And then you have the growth of the sort of inferior officers for purposes of the appointments clause so that people don't have to ever come before Congress before the Senate for confirmation. And finally, where is the sort of energy source in terms of new executive branch initiatives. So I guess that my question for you, that's all sort of preliminary. My question for you is, have we drifted too far from the shore? Right. So I think we certainly have. Take a minute. Yes. But so yeah, I mean, so if we go back a very long way to the to the writing of the Constitution, of course, you had several different ideas of what the presidency should be. And, and, you know, while the Jeffersonians thought the president should have various circumscribed powers, the Hamiltonians believe that the president should have great power. Alexander Hamilton believed that a president should be elected and then serve for life. Yeah. So, and, you know, Adams, who didn't consider himself to be a monarch, but he did make the mistake of berating the Congress about what they should call him at the beginning of his term was a dumb thing that he did. But, you know, he wanted, he was, he was thinking about what should, how should the Congress refer to me. And, and, you know, and somebody joked, oh, you're Highness. He'd been in London. That's right. He'd been exposed to the British Royal Court. So he knew what it looked like with a powerful executive. One of the Jeffersonian, you know, and this was a time period in the 1790s when political combat was open and it was visceral. It was a very nasty time period. Fist fights on the floor of the Congress. The sedition in Alien Acts, which then provoked Jefferson to argue that actually secession was constitutional. So it's, it's a, it's a nasty time period. So, so if you go that far back, you could say, well, okay, you know, there's debate at the very beginning of the nation about how powerful the president should be. So there's always an issue then, even from the outset. Yeah, absolutely, absolutely. And the president believed that we were, we were sliding towards a monarchy very rapidly under the atom's presence. And some of the, you know, it's like a pointless painting. There are little data points along the way. Yeah. And this is the way things grow when they assemble enough into a pattern. So an early issue was at one point, President Washington thought, well, I'll go up to the Hill and testify in person. He said, no, no, no, no, no, no. Not a good idea. Right. It was about, I think, an Indian treaty maybe or something like that. Right, right, right. Yeah. So, you know, and that's the way the sort of norms of executive. Working out a relationship between the branches. That's, you work it out. Yeah. And it's over particular issues. It's like in a relationship, in a domestic relationship. Yeah. Well, you know, who's going to do the dishes? Who's, you know, who's going to do the shopping? Yeah. It's easy at my house, never mind. For another time. Different show. Yeah. So, I mean, Washington did actually act unilaterally. I mean, he acted to declare that we would be neutral in the conflict between France and Britain in the 1790s. And not everybody liked that. The Jeffersonians thought, hey, you don't have the right to say that. We think the United States should be on the side of France. So Washington actually established a little bit of kind of unitary action on the part of the president. But it's also part of it is that it depends upon how compliant Congress is. Whether, you know, you've got the opposition in Congress or whether they've got your own party in Congress. There have always been times. If I ask you a question. Yeah, you go ahead. The Louisiana Purchase. Right. Did Congress approve that in advance? Not in advance. But they ultimately did because they had to appropriate that. That's correct. Jefferson negotiated it. Jefferson administration negotiated it. And then Congress came back in approve. Was that wrong under the law at the time? Well, there's, again, there's debate. As you pointed out, there's debate about what the Constitution actually dictates in terms of presidential powers. There's leeway. There's wiggle room in Article 2 of the Constitution. Yeah, I mean, it's not as clear-cut as we'd like it to be. I mean, Jefferson, who was the limited power guy when he was out of power, when he became president, then he did the Louisiana Purchase without prior approval of Congress. He sent ships out to defeat the Barbary pirates, and he didn't ask Congress for approval of that. So, I think if you can see it as something that has, I would say, before the Roosevelt administration, something that really changes with the administration and the Congress. But after, during Franklin Delano Roosevelt's administration, then Roosevelt accumulated quite a bit more power to his administration. And as I mentioned beforehand, in 1939, he asked Congress for the power to establish lots of executive offices, agencies, offices in the White House that were not a part of the federal bureaucracy, but were connected directly to the president. And these have just exploded since Roosevelt's time. It changes the nature of government, doesn't it? It reminds me of the Enabling Act of 1933 in Germany. Hitler didn't just do that by fiat. He asked the Reichstag to pass statutes. I mean, to pass at both houses, and they passed at both houses, and now he was in charge. So they gave it up willingly. And the same thing for Roosevelt. Roosevelt could have asked Congress to establish each one of these commissions separately. It could have been. But Congress gave up that discretion. Sometimes that kind of change where things, a bit of power flows from column A to column B. Sometimes it may be, on the spur of the moment, a sort of microaggression between branches. An example is committing the country to war. Combat operations. Wasn't it a combat operation in Libya? What was going on? What is going on in Syria? Under the Obama administration, who we like. In Africa. All over Africa involves in combat operations right now. Secretary of State Hillary Clinton went to the Congress and said, look, we don't need your approval. And she actually said it. Because it was a part of, they would have made some, you know, some specious arguments about, well, the mission is a part of NATO. It's actually not an American mission. So we don't need congressional approval. Does anybody question this stuff? Does anybody come along? Sure, the Republicans did at that point. And there's a Supreme Court opined on this sort of thing? Yes, the Supreme Court has. Yes, the Supreme Court has. Yes, so it's talking about a lot of things. It's complex and it's changed over time. But typically when the Supreme Court gets involved, and I want to mention one other thing about courts, but when the Supreme Court gets involved, it's usually after the fact. And the crisis has passed. World War II, Japanese relocation and so forth. That's conveniently after the problem is over. The other thing that, you know, in talking about the long trajectory here is the evolution of the federal courts. That's the scope of their jurisdiction. And they're willing this to exercise it. And that ebbs and flows as well. Where the court has, I'll say, lurched to the right over time. And we're currently in a lurch. That's going to have an impact on the other two prongs of the stool, the other two legs of the stool. Right, but the current court is filled with strict constructionists. So, this is the weird thing about it. It's like, okay, look, it's very clear that the Congress must declare war. That's clear. That's crystal clear in the Constitution. Well, these strict constructionists, I bet, would fold in a second if Trump declared a war. So the politics of this is really intense. And the strict constructionists, I think, have always given way when their party is in power and they want the president to succeed. So, you know, politics are deeply embedded in this. Well, you know, one question I have, and I'm not as into it as either of you guys, but so if you keep on creeping and giving the executive more power and letting him be more of an authoritarian, more of even a dictator and do things without consent by anybody, are you threatening the democracy? Are you threatening the rule of law? Are you threatening the Constitution going forward? Do we have that now? Well, I think we have a serious problem. Let me mention lawyers, I think, have a particular responsibility to be up on this. I've been involved in forming a new organization called Lawyers Defending American Democracy. We've issued an open letter hundreds of lawyers have signed on and the purpose is not to be partisan and cold balls and strikes about particular things that the president hasn't done, but to talk about the systemic issues, the issues concerning the basic values of the American Democratic Project. And so that really is a concern that I think people have to have in mind regardless of who happens to occupy the White House. One other thing and I'd be interested in your thought on this, we always think about a kind of trajectory and it's kind of, you know, what is it, like a pendulum, that it'll swing back. And I think the better understanding now is that it is not necessarily the case that the laws of physics that cause a pendulum to swing back apply where you're talking about political evolutions. And you don't know whether it's going to work like that or whether it's going to do curl-acuse or some combination. But it all moves forward. Everything is on the record. Well, I'm reminded of a guest we had from Yale Law School, Jack Balkan. Wonderful colleague. It was during the Trump administration, I'm sorry, during the Bush administration, W. Bush. And we had a show, he was on it. And I asked him, I said, well, when Bush is finished, there's no word before. Can we just, you know, just reverse all the things that we are offended by during his administration? And what he says is, J, it's all on the record. It all moves forward. Everything that happens in the future. Right, no, that's right. It becomes in a way precedent. Except if you have what I'll say is a radical occupation of the White House, a radical non-subscriber to the basic norms of the American political culture, which is what we currently are seeing. That's true. That's what we have right now. So the thing is it's not, the pendulum theory is not a good theory for describing history in general, much less this particular. It's like a swing in a children's playground. And you're on the swing swinging back and forth. Every once in a while. You'll lose one. I mean, why? Jimmie catapulted off into space. I sense this possibility of that right now. Yeah, it's possible. So Arthur Schlesinger Jr. wrote a book in 1973 at the height of the crisis over Nixon, which was really a constitutional crisis. And it was a crisis about the presidency as well, and then of course impeachment proceedings began to be designed. But Schlesinger wrote this book and I think he wrote it to kind of wake up the American people that's like, hey, you've got to be aware that this presidency is gaining a lot more power. He called it the imperial presidency. And he identified a lot of things historically in which there had been a kind of creeping power accumulating to the president. But honestly, it does wax and wane. Lincoln, of course, we go back to the Civil War, and by the way, wars are a moment where the president seems to accrete a lot of power, to get a lot of power. You look at the Civil War, World War I, World War II, the Korean War. That's a case where the president never asked for approval to send troops into Korea. It created a new normal about wars. But if you go back to the Lincoln era, Lincoln, of course, Lincoln was quite open about the fact that he was during the Civil War, once the Civil War starts. He said, I'm not going to run things according to the Constitution. I can't in order to win this war. And so I'm going to do things as commander in chief. And, well, of course, there's a constitutional prerogative there for the executive as the commander in chief. But Lincoln said, I'm going to do this stuff and it's probably going to be beyond the Constitution in many cases. But I'm going to do this to win the war. And he said, after the war is over, it's all done. I will back off of all of that. So the martial law declaration in Washington, D.C., the suspension of the habeas corpus, you know, the anyway, the whole lot of it, there was a lot of things that Lincoln did, especially in Washington, D.C., because it was a haven for Confederate spies. And that border in the North and South was really porous. And Lincoln locked up a lot of people who he suspected were spies for the Confederacy. And he was right in about 90% of the cases. Does that make him a dictator? Well, he did say I'm going to get out of this. I'm not going to do this. This is not going to become permanent. Well, he found a strange way of getting out of it. No, I mean, Congress ultimately ratified what he did. But there was a time there. There was a window where he was out in front and he defended it by saying something like because he had violated the suspension clause of the Constitution, the one that permits under narrow circumstances suspension of the writ of habeas corpus. He said, should all the laws be set aside just so we honor this one? In other words, if I honor the letter of the suspension clause, the whole rest of the government crumbles. Who's what responsible public official would do that? Okay, we get that. The question is what is that a loaded gun to use Justice Jackson's term for any future president? Right. The answer is yes. The answer is yes. And the national emergency issue right now is the same thing. Be careful who you vote for and make sure you have a functioning check in Congress. Right. It's back and forth and it's up and down. It's a sign curve. Right. But I feel that if you look from the time the beginning when we were sorting things out until now, there has been a visible creeping, a visible expansion of presidential power. I think Schlesinger understood that exact thing when he wrote the book in 1973 because he went back and he created this narrative which really stops at Roosevelt and says, look, this is where presidential power doesn't return to what it was. Okay, previous president said if I'm taking more power I'm going to return it later. Roosevelt doesn't... Roosevelt does say that but he dies, of course, and Roosevelt just accumulates a lot of power to himself in Congress' response to that by putting in term limits in a couple of other things but there's not enough there and actually what you see after Roosevelt is a pretty rapid accumulation of power by presidents. You've got the Korean War and then of course you have the 1960s and 70s with Nixon and a dramatic increase in power at that point. Nixon does all kinds of stuff that's not constitutional unless you assume the president has any power that's not prescribed to the Congress and but then there's a reaction against that. Also it's not a one-way street there are, and maybe this is the exception that proves the rule, but desegregation Congress didn't desegregate anything. It was the Supreme Court that kicked off desegregation with Brown against Board of Education and it was Dwight Eisenhower who was willing to commit the executive branch namely the U.S. Army to enforcing the writ of the federal courts. That was the right way. Well, that was what to do because Congress was missing in action. They had a toothless civil rights act and it was because of the Dixie Crats it was impossible to get anything through Congress until well into the 60s when President Johnson was willing to make the kind of strong commitments and put his stars on the table and he did it. In other words, there are complications and there are times when this readjustment or malleable power can be exercised in a way that sort of normatively we would say oh, that's a good thing. But the question is, is it a good thing institutionally because Congress actually we permitted Congress to basically go in and out. That's an earlier gene and something you said way earlier too you're talking about the speed at which government works and sometimes it doesn't work quickly enough where the executive, he sees the issue he can act immediately, that is something but it goes back to something that you and I discussed 20 years ago and it's this, it's a military you weren't in that conversation but it's memorable. So back in the what, the 17th century, the 18th century commander of the ship, you know took off, he had a sealed packet of orders, you remember what I'm talking about? He opened the packet of orders once at sea and he followed those orders and they were not necessarily that detailed. But he had complete control of that ship while we were out there because there was no way the admiral could talk to him. Fast forward to modern times, the 21st century the admiralty can talk to him all the time, continually. So his discretion is really very limited because he may have to check back with them, they're going to change their minds he's got levels of bureaucracy he's not really the master of his ship. And that's because we have high speed technology we have events moving at a much faster pace around the world and so I suggest to you that that speed of events, speed of communication really affects this. Congress is stuck in something that can't act Supreme Court can't act the president can act. Well, just to react to that we are we're a very conservative country we've had a really an amazingly stable set of governmental arrangements I mean the big breakpoint once the Civil War was over that was really a challenge to the integrity of the country obviously but then the 14th amendment which was basically a second revolution that changed the operating system the social operating system what I think what I think we're experiencing now is a combination of factors number one an individual who happens to be occupying the highest office in the land at the moment has tremendous power attached to it by any standard, you know whatever your standards are. So you have a person who is unmoored from all of the cultural norms that we've been discussing and that you teach and have written about at the same time we are in a pivotal moment regardless of who was in the White House and why is that? World War II I would say let's say ended basically when conscription ended in about 1973 when you think about it Jay and I were both on active duty roughly the same time here where I was stationed the ships were World War II ships in many instances the whole framework the social norms within the military were World War II vintage many of the people had served in World War II towards the tail end then what happened was we wrapped up the Vietnam we wrapped up conscription and the next big thing that happens really is the collapse of the Soviet Union and we then enter the growth of Europe obviously whatever is happening there that's another show but at the time it was pretty positive but the point is it's a major change and the new World War II Europe really ripened still fragile as we know and who knows what it looked like in six months and then at the same time you see that quickening as a result of instantaneous communications the internet space travel space weapons a nuclear era that seems to have receded for the moment but who knows North Korea but we're now at a point where a new equilibrium which may be a fragile equilibrium may be emerging and I think that's what makes the current uncertainty about the values and orientation of the president so and the sort of enemy within Congress so unsettling to those of us of our age you're a young man but you know J's old you know but it makes it unsettling when we realize that this world that was basically organized and orderly and predictable is now not necessarily any of those and that is a very unsettling moment so when you add enhanced presidential power to that recipe you get it's troubling so you really have a minute left and I'd like to ask you to sort of put this all together so the thing about Slesinger's work the imperial presidency is that Congress did pass a couple of laws in the 1970's that pulled back on presidential power they passed the national emergency act in 1976 and they passed the war powers act in 1973 now there's been presidential creep presidential power creep since that time but on the other hand Congress pulled those powers back to a point where there's actually a legal framework and presidents are supposed to work within that legal framework of course but it didn't begin to violate it and then Bush both Bush and Obama violated probably violated the war powers act do you think the war powers act is constitutional? well there's that debate as well and honestly I'm not qualified to answer that question but it seems to make sense that Congress should be involved because of what the Constitution says that Congress is the one who actually declares war not the commander but the chief prosecutes war Congress declares war so I think we're in a situation where exactly we need a new equilibrium and I guess positive side maybe a Congress where there are a lot of Republicans who are limited government Republicans a Congress like that and Democrats who don't like Trump maybe at some point will actually get their act together again pull on the reins pull Trump back barring that maybe the Supreme Court will get a good ruling on the Trump's national emergency out in the Supreme Court because that national emergency law has been tested a couple times in the courts but not a lot not a big time not a lot and they changed some of the provisions of it but so tests of that can the government be successful if we're going back a little bit I think there's some interest in that there's of course a great deal of fear of what Trump will do but you know we'll have to wait and see last thoughts Jane I'm concerned I don't feel that I have the ability to peer through the fog as much as I would like and I'm concerned about the developments that combined with the political developments that we've talked about and I'm thinking here about the media the emptying out of newsrooms the dying off of many newspapers and the budgets for the major networks and news coverage when you sprinkle that in to our pepperoni half mushroom it's a really dangerous time it is and of course rampant globalization and communication globalization where you foreign powers can very easily influence what you're doing and then AI right well I can't even say that let me ask but I'm hopeful that in the future it chips off the lawyer's letter that you described as my own view is Congress may not be well educated enough to deal with this I'm sorry a good part of the electorate same thing you know so and presidents can be elected on the basis of other than competence as we know so you know who is responsible in this country in this democracy who is the best arbiter of how you follow the rule of law and how you remain faithful to the notions of the Constitution it's the lawyers and they have a duty to do this now is the time they have to step up and see a letter is so important well I think that's right although and I do believe that lawyers are uniquely positioned because of the when you add everything up the number of insults to the principle of the rule of law it's just far too many in recent times but I also think that the academy has special responsibility I think academic leaders the presidents of universities for example should be speaking out just as the presidents of bar association should be speaking out those are sources of of insight and wisdom that have not been brought to bear in any event the further settlement of where we are the balance that you spoke of really depends not only on the institutions involved and the political officials involved but on people who are mindful of this and have the ability to speak on it a civil democracy including a civil society and I think that the potential for that to reemerge is actually there right now but we don't have a moment to lose we have to move quickly and thinking of that we don't have a moment left on the show good way to end Jay thank you Gene Feijer thank you so much it used to be a part of this