20:00

administration, we justice department lawyers call

20:02

that the Curtis right, so I'm

20:04

right, slight, because if

20:06

you just cite that case and that

20:08

language, you can get away with

20:10

anything. Really, literally, you could get

20:12

away with murder. And

20:15

now we see it being applied by

20:17

a president who says, I could murder

20:19

someone on Fifth Avenue, and there

20:21

be no consequence. And the Supreme Court goes

20:24

out of its way to protect that

20:26

power. Now against that vision

20:28

is the one that we know from the

20:30

Steele seizure case, which is, as Justice Jackson

20:32

put it, the president's powers are not fixed,

20:34

but they fluctuate depending on

20:37

its concurrence with Congress. But

20:41

what's fascinating about today's opinion by

20:43

Chief Justice Roberts is

20:45

he starts by citing Youngstown,

20:47

the Steele seizure case, and

20:51

then uses separation of powers as

20:54

a sword to

20:56

strike down anything that

20:58

would invalidate the president's conduct.

21:01

It's a heads eye, wind, tails, you

21:03

lose situation where if

21:06

Congress tries to restrain the

21:08

president, for example, by legislative

21:11

veto or judicial

21:14

oversight, it's unconstitutional. Whereas

21:17

if the president takes certain kinds

21:19

of actions, it's consistent with the

21:21

separation of powers. That's the asymmetry

21:23

of this decision. So

21:26

the net result is it dramatically

21:29

furthers the trend toward executive unilateralism,

21:32

which I think sets

21:34

the stage on the one hand for Donald

21:36

Trump, who will be very

21:39

unconstrained in the second term, either

21:41

by internal or external checks and balances.

21:44

But even for a president Biden

21:46

reelected, what is to

21:48

stop him from with

21:51

all good intention, getting dragged

21:53

deeper and deeper into a war in the Middle

21:55

East, if he's trying to support

21:57

Israel against Hamas has blah,

21:59

Iran and the Houthis all at

22:01

the same time, because

22:04

this structural pattern, presidential

22:06

overreaching, congressional acquiescence,

22:08

and judicial rubber

22:11

stamping will allow that to

22:13

happen. So that's

22:15

the problem that we're trying to identify, and

22:17

we have to take it very seriously. It's

22:19

not just about personality. It's

22:22

about structure. Very

22:26

powerful. Thank

22:28

you. Deborah Prostein,

22:31

the majority cites Hamilton, and

22:34

in his Pacificus essays in

22:36

the first of the seven,

22:39

Hamilton produced what would become the most

22:41

influential defense of broad executive power in

22:43

American history. He said, the general doctrine of

22:45

our Constitution is that the executive power

22:47

of the nation is vested in the

22:49

president subject only to the exceptions and

22:51

qualifications expressed in that instrument. Harold

22:55

has argued that

22:57

the Supreme

23:00

Court in a Curtis Wright case

23:04

exaggerated the scope of executive

23:06

unilateralism, and then in subsequent

23:08

cases, constrained Congress from

23:11

checking the president, creating a kind of

23:13

asymmetry, as he put it, that

23:16

allows executive overreach and makes Congress

23:18

powerless to constrain and leads to

23:20

judicial rubber stamping. Is

23:23

that right and help us understand even

23:25

more how we got from Hamilton's vision

23:27

of the unitary executive in the Pacific

23:30

essays to the broad

23:32

vision of executive power of the court ratified today?

23:35

Yeah, thanks. I think this

23:38

actually points out exactly

23:40

how different what the court has

23:42

done today from even what

23:44

the court was doing in Curtis

23:46

Wright itself, and much

23:49

broader than the vision that

23:51

Hamilton laid out. So Hamilton,

23:54

for example, says this

23:56

is in the Constitution, not Hamilton, but

23:58

the executive power is vested. The

24:00

court today, picking up on dissents from

24:03

Justice Scalia from years past, says, the

24:05

entirety of the executive power is vested.

24:07

Now, the word entirety is not in

24:10

the Constitution at all, nor is the

24:12

word all the executive power, which often

24:15

gets used. This is even broader,

24:17

so specifically quite a bit beyond

24:19

what the text of the Constitution

24:21

does. And then Hamilton

24:23

would say, did say, the

24:26

reason why we need the energy

24:28

vested in the executive, right, which

24:30

is what he often talked about,

24:32

was because the executive has unique

24:35

institutional advantages, the ability to act

24:37

with unity, secrecy, and dispatch, right?

24:40

And these are the advantages, the sort

24:42

of Hamiltonian virtues that are trotted out

24:44

and celebrated by the court in Curtis

24:46

Wright from 1936. And

24:49

the Curtis Wright court is talking about things

24:51

like, well, you know, secrecy is important if

24:53

the president needs to negotiate treaties, which is

24:56

a power given to the president in the

24:58

Constitution. It might not be helpful

25:00

in the interest of the United States

25:02

or treaty negotiation to have to share all

25:04

of our thinking about treaty negotiation with

25:06

his 500 closest friends in

25:08

Congress. Or if the United

25:11

States is subject to attack and the president

25:13

needs to make a decision immediately about how

25:15

to respond and how to act in

25:18

defense of the United States, speed there,

25:20

time there is of the essence. This

25:22

is why we need to leave

25:25

the president and the executive a sort

25:27

of broader breadth of power than we

25:29

might otherwise afford the other branches. Here,

25:32

the court is not talking

25:34

about the Hamiltonian virtues. It's

25:36

not quoting the Constitution even

25:38

specifically, or the sort of

25:40

key passages from Hamilton or Curtis Wright. What

25:43

the court here seems to be worried about

25:46

is just flexibility, presidential flexibility

25:48

in the abstract. And to the

25:50

extent it points to a particular

25:52

problem it's concerned about, the problem

25:54

the court seems to be worried

25:57

about is that if any criminal

25:59

prosecution of as

28:00

sort of an unconstrained

28:02

presidency in the

28:04

areas of national security and foreign affairs. Those

28:07

who root that in originalism, I think, are

28:09

wrong. I

28:12

agree with Harold on

28:15

this descriptive point that over

28:19

time, through

28:22

the actions and inactions of all

28:24

three branches of government, we've moved

28:26

from an original vision in which

28:28

the president was much more checked

28:31

in the areas of foreign affairs and national security

28:33

than he is today, moved

28:36

away from that system of very

28:39

robust checks and balances to one

28:42

in which the president is much,

28:44

much, is quite unconstrained. And we

28:46

were talking about Curtis Wright. I'll

28:49

just say that opinion is a

28:51

mess. That opinion is

28:53

a mess. I can't think of any

28:55

other Supreme Court opinion that matches it

28:58

in terms of the delta between its

29:00

influence and its coherence.

29:04

But it is an influential

29:06

one because it has this

29:09

line that Harold quoted before

29:11

about the president as the

29:14

sole organ of the nation in its

29:17

foreign affairs. So

29:19

I agree with Harold that there has

29:21

been quite a

29:23

big evolution, quite a big change

29:27

from a very constrained presidency

29:29

to an unconstrained one. I

29:32

think where I would differ from

29:34

Harold would be in what factors

29:37

I'd emphasize as the cause of

29:39

that shift and I differ

29:42

with him in an assessment

29:44

of the dangerousness. In

29:48

terms of why did we end up over

29:51

time with an erosion of these checks,

29:54

I think Harold's points about the

29:56

institutional features of the three branches

29:58

uh as a cause are are

30:00

right i think a lot of

30:02

it also though did have

30:04

to do with dramatic changes

30:07

in american power american

30:10

interests and the american place

30:12

in the world uh we're

30:14

talking about a constitution

30:17

uh that was written

30:19

and we're talking here about

30:21

provisions of the constitution that that have not

30:23

been amended a constitution that

30:25

was written for a weak proto

30:29

state uh that

30:31

grew into a global superpower

30:34

uh written for a state with

30:38

virtually no standing army to a

30:41

nation armed with uh nuclear

30:44

weapons humanity i i i

30:47

capable of of human extinction

30:50

we've moved from a nation

30:53

with an aversion to so-called

30:55

entangling alliances to one

30:58

that's the primary guarantor of

31:01

a system of alliances around the world

31:03

um none of that was predicted at

31:05

the time of the founding um

31:08

and all of those in

31:10

other developments in american power

31:12

american foreign policy have required

31:14

some adjustments to

31:16

the system of checks and

31:18

balances including i would argue

31:20

a stronger executive branch now

31:23

do i think that uh

31:25

we need in order

31:27

to protect american interests a

31:30

completely unconstrained executive

31:32

branch absolutely not absolutely

31:34

not we do need congress to

31:37

play a stronger role

31:39

uh and to

31:42

me one of the most

31:44

interesting aspects of herald's suggestions

31:46

in recommendations in the book

31:48

is a set of recommendations

31:50

for how to get congress

31:52

to let's say up its

31:54

game right we

31:56

talked a moment ago about

31:59

some of the institutional virtues

32:02

that many argue are vested

32:04

in an executive branch, speed,

32:07

flexibility, secrecy. And

32:09

these are very different

32:12

virtues than you'd find in

32:14

a Congress, which is designed

32:17

to be sort of slow

32:19

and cumbersome. And Harold

32:21

has some interesting recommendations

32:24

at the end of the book for

32:27

how we might get Congress

32:29

and within Congress's control, how

32:31

could Congress reorganize itself to

32:34

develop better expertise,

32:37

capacity for more

32:39

flexible, agile action,

32:42

especially in crises, to

32:44

better protect secrecy, to

32:47

better bring together

32:50

expertise in diplomacy,

32:52

intelligence, military affairs, which

32:55

as currently organized

32:58

are split among a wide

33:01

range of committees, separate committees

33:03

in each House of Congress.

33:06

So there are some ways, I think,

33:08

that Congress can up its game in

33:11

order to rebuild some checks

33:14

while still also maintaining some

33:16

of the important, let's call

33:18

them Hamiltonian virtues that are

33:20

important for maintaining

33:25

American leadership in the world,

33:27

especially given that today the

33:30

United States is still, it plays

33:33

a key and indispensable role in

33:36

underwriting global stability

33:40

through its system of alliances, especially

33:43

in Europe and East Asia. Many

33:47

thanks for that. Harold,

33:49

I do want to talk about the reforms

33:51

you just suggested in your book, but before

33:53

we do that, I really would

33:55

like you to tell the remarkable historical story,

33:57

which is also a personal story

33:59

for you. for you about how we got here

34:01

in the book you describe. Have you worked for

34:04

four presidential administrations?

34:07

You got a call

34:09

to write the first version of

34:11

this book in 1987, after

34:14

you wrote a law

34:16

review article about the Iran-Contra

34:18

affair. The Reagan years, as

34:20

you described it, were really a turning point

34:22

of the move toward executive unilateralism. So give

34:24

us a sense of the arc of

34:26

the book, how this Curtis Wright

34:29

vision expanded in the Reagan years,

34:31

was adopted by attorneys, advisors like

34:33

the one who used to be

34:35

your point of contact in the

34:37

OLC, and the Reagan administration,

34:39

John Roberts, and then

34:42

how we got to where we are today.

34:45

Yeah. I think this is what brought

34:48

me back to this topic. 38

34:53

years after I wrote the first book, I

34:56

went into the Biden administration on Inauguration Day

34:58

2021, and

35:01

I felt as if I was in a

35:04

government in which one muscle had been

35:07

shot with steroids for the last 30 years.

35:11

In other words, the national

35:13

security counter-terrorism muscle, power

35:16

had been centralized in the executive, it

35:18

had been centralized in the national intelligence

35:21

entities. The

35:23

assumption was that Congress would do nothing, that

35:26

the courts would defer, and

35:29

this was just accepted as the way in

35:32

which things were to go. In this

35:34

story, the president emerges as much as

35:36

a victim, as a villain,

35:39

because the president is not only

35:42

obliged to respond, everybody

35:45

thinks that he's the only one who will

35:47

respond. Congress can sit it out,

35:49

and then the courts rarely

35:52

get brought in, and when they do,

35:54

they reject the external challenge. So there's

35:56

no accountability in this system. Now,

35:59

this- I thought, let's trace this

36:01

back to the beginning of the republic and

36:04

through the various periods that Matt mentioned.

36:07

America's infancy has rise to a dominant

36:09

regional power. It's becoming

36:11

a global hegemon, the creation of a

36:13

national security system in 1947 with

36:17

the National Security Act. And then that was quickly

36:19

followed by the ratification of

36:21

that constitutionally by the Steele-Seizure

36:23

case. But then the

36:25

parts that I lived through, the Cold

36:27

War, the post-Cold War period, the age

36:29

of terrorism, and now

36:31

the age of globalization with

36:33

Trump and Biden. And

36:36

I just come back to the Trump opinion

36:38

today. The Supreme

36:40

Court is living in a different

36:43

world. They're thinking, as Deborah said,

36:45

about the poor

36:47

future presidents who might be

36:49

pursued by their

36:51

successors. And they're

36:53

ignoring the president that we just

36:55

had, Donald Trump, who

36:58

showed how a president

37:00

can use a Curtis

37:02

Wright theory to nullify the rule

37:04

of law for his own administration.

37:08

Under his view of Article II, which he

37:10

says is absolute, and he

37:13

said this even more bluntly with regard to the

37:15

future, any challenge to him coming from

37:17

inside the government violates the

37:19

principle of the unitary executive. Any

37:21

principle coming from outside violates the

37:23

principle of separation of power. And

37:26

any effort to hold him accountable, and

37:29

if the penis he litigates,

37:32

if criminal investigations occur to his subordinates

37:34

and they're prosecuted, he pardons them. Even

37:37

after he leaves office,

37:40

he holds classified materials in his

37:42

home. And now he

37:45

has very broad claims of immunity,

37:47

even for acts which have absolutely

37:49

nothing to do with foreign policy and

37:51

national security. That's the most striking thing

37:54

about this opinion, is they

37:56

cite these principles of core presidential authority

37:59

when the president is making a speech calling

38:01

for people to attack

38:03

the Capitol. And this to

38:06

me is an amazing diversion away

38:08

from the notion that the president

38:10

is protecting us from national security

38:12

threats and ignoring the way he

38:15

becomes a national security threat. If,

38:18

as in his two impeachments, he works to

38:21

try to coerce a foreign power to

38:23

skew an election, or secondly, he

38:26

encourages his own supporters to try to

38:28

undo an election. An

38:31

attack on an election is

38:35

a severe national security threat. It's an

38:37

attack on New York by terrorists. And

38:40

it ought to be treated as a

38:42

national security threat. So in other words,

38:44

the system has to be adjusted to

38:47

address this kind of concern. And this

38:50

is exactly what these reforms are. We

38:52

have to take some pressure off the

38:54

president. We have to put

38:56

more of a burden on Congress to

38:59

orient itself and respond. We

39:01

have to turn to the courts to reduce

39:03

their ability to not

39:07

do their job and to not

39:10

use various kinds of cannons of construction

39:13

to expand presidential power well beyond

39:15

its scope. What we

39:17

saw today from John Roberts is

39:20

someone who thinks he's

39:22

applying textual principles historically,

39:27

and in fact is doing the exact opposite.

39:29

And he's doing it in such a way that

39:32

it's distorting the Constitution that we inherited

39:35

and weakening the checks and balances that

39:37

are supposed to apply in these circumstances.

39:41

Thank you for that. Deborah,

39:44

some more light

39:46

on the practical effects

39:48

of this decision. Justice Sotomayor in her

39:50

dissent suggests that a president could

39:52

say that he wanted to

39:55

stop his rival from passing opposing

39:57

legislation and then assassinate him. And

39:59

under the majority's decision, you wouldn't

40:01

be able to to introduce

40:04

evidence of the speech to prove the intent,

40:06

because that was an official act. Is that

40:08

right? Might that indeed make it harder to prosecute

40:11

active attempts to undermine

40:13

an election by enlisting a foreign power,

40:15

as Harold suggests, and maybe because I

40:17

know you've read the decision. Justice

40:20

Amy Coney Barrett suggested a more

40:22

modest approach that would have first

40:24

asked whether the criminal statute covers

40:26

the conduct in question and second,

40:28

whether applying the statute to the

40:30

president intrudes unduly

40:32

on executive authority. Might that

40:34

have created

40:36

less havoc? And what

40:39

do you think of the alternative approach and why

40:42

didn't the court adopt it? Yeah, so

40:45

I guess let me

40:47

answer the question narrowly and then back up

40:49

to the big picture that Harold was talking

40:51

about and Matt to some extent as well.

40:54

So right in this opinion,

40:56

Coney Barrett writes, I think an

40:58

important sort of very specific, narrow,

41:01

but important concurrence in the judgment

41:03

in which she says, look, we

41:07

don't have to decide everything about

41:09

executive power, right? There

41:11

is a huge amount that actually

41:13

we have in common here. There's

41:16

probably broad agreement even among the

41:19

dissent that the president shouldn't be

41:21

criminally liable for acts

41:23

of pardoning people, right? Which is a

41:25

power he's given expressly under the Constitution

41:27

or, for example, the veto power, right?

41:30

No criminal liability should attach when

41:32

the president exercises his express power

41:35

to veto legislation and examples of

41:37

that nature. And

41:39

that some statutes, some criminal statutes,

41:41

while sort of generally written, may

41:45

not apply to particular acts of

41:47

presidential power. And if

41:49

that's the case, then the president should be able to

41:51

make those arguments. The former president should be able to

41:53

make those arguments in court and

41:56

should be able to take an immediate appeal

41:58

of any decision to get those resolved. promptly.

42:01

But questions of evidence, what was

42:03

actually going on here, right, should

42:06

come in because the prosecution has to be

42:08

able to make its case for why this

42:10

matters. As she says, if it's a case

42:12

of the president offering a pardon

42:14

in exchange for a bribe, for

42:16

example, the pardon is an official

42:19

act. The bribe for which the

42:21

president has no authority, right,

42:23

is not an official act. But if

42:25

you are trying to prove a case

42:28

of quid pro quo bribery against the

42:30

president committed, you

42:32

have to be able to show both the quid and

42:34

the quo, right? You can't just show one. And the effect

42:39

of the court's sort of

42:41

bizarre five-vote evidentiary,

42:44

the majority of five evidentiary

42:46

ruling is to say you

42:48

have to be able to make your

42:51

case only showing one side of that

42:53

equation. And and how that actually plays

42:55

out in the lower courts

42:57

when this is remanded and what exactly

42:59

each of the justices thought they were

43:01

doing there, I think is left vague

43:03

in the majority opinion and is

43:06

the reason why I think this is

43:08

going to take a while to sort out. And I'm not

43:10

clear how this will come out when it comes back

43:12

to the court. So that's on the specific question

43:15

about this. But I want to back up, if I can,

43:17

just for a second to the broader question of accountability

43:20

or checks, any checks and balances

43:22

on the presidency, right? And you

43:24

can think about three potential pots

43:27

of vectors for checks

43:29

from which one might draw, right? One

43:32

are sort of the Madisonian branches. Congress

43:34

or the courts could help check the

43:36

presidency, right? That's one. A second set

43:38

of checks might come from the popular,

43:40

from the voters, from the press, from

43:42

others. That's a second. And a third

43:45

is internal checks, which Harold was talking

43:47

about in which many of his reforms

43:49

I think importantly point to how do

43:51

we tighten up the checks inside the

43:53

executive branch, change the way legal advising

43:55

works, for example, of the

43:57

president, which I think are really important. Here

44:00

in the national security and foreign

44:02

affairs context popular checks right are

44:05

always really hard to Use

44:07

because national security and foreign affairs

44:09

are so often wrapped in secrecy

44:12

or classified information So what we

44:14

might hope for is an effective

44:16

Popular check is relatively more disabled

44:19

in the national security context even

44:21

for a first-term president Today

44:24

the court says well

44:26

Congress doesn't say Congress isn't gonna act

44:28

but even when Congress is act

44:30

you can't use these Criminal laws

44:33

that Congress passes to prosecute the

44:35

presidents through the judicial system Essentially

44:38

taking the Madisonian branches out of the

44:40

business of checking the president Which leaves

44:42

us only the internal checks and maybe

44:45

in a in a next round we

44:47

can talk about How

44:49

and whether it's possible to strengthen them the

44:51

final point I just make here is The

44:55

argument that the majority was making

44:57

today is because of the their

44:59

sense of unitary executive power Congress

45:01

shouldn't have any power to control

45:04

even the kinds of advice that

45:06

the president gets in other words

45:08

Pointing to we're not

45:10

so sure about the effectiveness of internal

45:12

checks either That's what makes this

45:15

a pretty frightening set of decisions Thank

45:18

you for that Matthew let's

45:20

introduce this question of how in practice

45:22

It's possible to strengthen the

45:24

checks that the framers clearly had in mind Which

45:27

is that all the branches would do their part

45:29

and preventing the president from being

45:31

a king while still ensuring a vigorous

45:34

executive you know the

45:39

polarization that afflicts our political

45:41

system the difficulty Congress has in acting at

45:43

all the stuff you and you identified this

45:46

Asymmetry of the courts trying to prevent

45:48

power from flowing to the executive in

45:50

domestic policy in the low Local

45:53

bride and Chevron arena while seeming to do

45:55

the opposite dynamic In

45:57

foreign affairs in practice given our action

46:00

actual political realities

46:02

in America today, what do

46:05

you think could be done to resurrect

46:07

some of the framers' vision of a

46:09

constrained but vigorous executive? It's

46:12

going to be very hard, and I

46:14

wish I had a more optimistic

46:17

account to lay out for you.

46:20

Here's why I think it's hard. And

46:23

again, I'd come back to my

46:25

earlier point that a lot of

46:27

the solutions are going to lie

46:29

in the ballot box. And that

46:31

means if we want to correct

46:34

the current state of

46:36

affairs, we need to elect different leaders. And

46:39

I'm talking here not just about the

46:41

executive branch, but perhaps even more so

46:43

Congress, because Congress hasn't been playing its

46:47

proper checking role. In

46:50

some ways, this should be a very

46:53

propitious time for reform

46:56

of the national security

46:58

state, the national security

47:00

constitution. It should be a

47:02

propitious time for a number of reasons. You're

47:05

coming out of a recent

47:08

Trump presidency, which didn't

47:11

just reduce, we

47:14

had many eyes, the

47:16

sort of faith in the

47:18

Hamiltonian virtues of the executive

47:21

branch, but also seem to

47:26

encounter to some of the other virtues

47:28

often attributed to the executive

47:31

branch, the expertise, the

47:34

idea that there are

47:36

internal checks within the

47:38

executive branch that can

47:40

function effectively as breaks

47:42

on bad, dangerous, abusive

47:44

policy decisions or personal

47:46

decisions. So that's

47:49

one factor. And by the way, even on the

47:51

other side of the aisle, there's deep

47:53

distrust of President Biden

47:56

as holding the... appropriate

48:00

presidential values. So

48:03

distrust in the presidency.

48:06

This also comes at a time

48:08

when on both the political right

48:10

and the political left, you have

48:13

a lot of calls for a

48:15

foreign policy of greater restraint, especially

48:17

when it comes to the use

48:19

of military force. And a lot

48:22

of that, I think, stems from

48:24

the terrible mistake of the Second

48:26

Iraq War. So in many respects,

48:29

this should be a propitious time

48:31

for reform, much like the

48:34

post-Vietnam, post-Watergate period was

48:37

a propitious time for reforms.

48:39

Many of those reforms failed

48:41

for reasons Harold details in

48:43

the book. But it

48:45

was a moment where there

48:48

was the will and capacity to

48:50

pass a number of

48:53

statutes to better check

48:55

presidential action, the War

48:57

Powers Resolution, the Hughes-Ryan

48:59

Amendment to put some

49:01

checks on covert action, restrictions on

49:03

arms sales, and so on. But

49:06

here's why this is not a propitious moment

49:08

at all for reform, which is that Congress

49:11

is terrible. We

49:13

sometimes, when focused on

49:15

the problems

49:19

of a Trumpian

49:21

president, we

49:23

sometimes adopt a sort

49:25

of romanticized view of

49:28

a Madisonian Congress and its

49:31

deliberative virtues. And

49:33

yeah, it's slow and cumbersome, but that's

49:36

great because it takes into

49:38

account a wide variety of interests

49:40

and is slow in its careful

49:42

deliberation. That's not the Congress we

49:45

have at all. We

49:47

have a Congress that can barely keep

49:49

the lights on in the

49:51

federal government. It's

49:53

distracted. It's in

49:55

expert. It's deeply, deeply

49:58

polarized. It's chaotic. It's

50:00

often paralyzed. And

50:03

so we're now in a situation

50:06

pretty rare in

50:08

American history where I think

50:11

both political branches

50:14

are in some state of

50:16

crisis. And so

50:18

both I think are in need

50:20

of some serious repair. And

50:23

I would put a lot of emphasis on

50:25

the ballot box as the source of, as

50:29

the key source of some of that repair. I

50:32

take Harold's point that law and

50:34

the constitutional law in particular have

50:36

an important role to play here.

50:40

But I do think ultimately we

50:42

need to correct our politics if

50:44

we're going to solve the problem

50:47

I just described. I

50:51

appreciated one of the great aspects

50:53

of Harold's book is the way in

50:56

which he draws on

51:00

his own personal history inside

51:02

government to inform both his

51:04

descriptions but also his prescriptive

51:08

set of recommendations. And I look

51:10

back on my own time in

51:12

the George W. Bush administration

51:14

as there again is one that

51:18

was deeply, deeply

51:20

ideologically committed to

51:22

an unconstrained

51:25

presidency. I

51:27

would say to a great fault,

51:30

not just because that

51:33

deep commitment to removing

51:36

constraints led

51:39

to some abuses. I think

51:41

it was wrong on the constitutional law

51:43

but it also just led to bad

51:45

policy. So

51:49

I saw some of, up

51:52

close, some of the

51:54

pathologies of an unconstrained

51:56

president. But I also

51:58

saw in the second term. sort

52:01

of the national security constitution

52:03

striking back. You

52:05

had both the

52:08

courts and Congress pushing

52:10

back on certain policies,

52:13

I'm thinking torture in

52:15

particular, as well

52:17

as warrantless surveillance. On

52:20

certain policies like detention without

52:23

trial, all three branches got involved.

52:25

I think a lot of critics

52:27

of Guantanamo don't like the result.

52:30

But you did have all three branches kind

52:32

of getting in the game. So

52:34

it's not that long ago that

52:37

we had a much better system

52:40

of checks and balances. I think

52:42

one of the big things that's

52:44

changed in the last 20 years

52:46

is sadly American politics. Thank

52:50

you so much for that. Well,

52:52

it's time for closing thoughts in

52:54

this important and very illuminating discussion.

52:57

Harold, one of the many virtues of

52:59

your important and timely new book, The

53:02

National Security Constitution in the 21st Century,

53:05

is that you have chapters on the first

53:07

Trump and Biden administrations. Final

53:11

thoughts with responding to some of the points

53:13

that have been made. Give us a sense

53:15

of how you think the reforms that you

53:18

suggest might fair in a

53:20

second Trump or Biden administration

53:23

and any other closing

53:25

insights with people listeners. First

53:28

of all, the ballot box

53:30

is not the solution. If

53:33

you throw the rascals out, as we've seen,

53:35

the rascals can return. It's a structural problem

53:37

and you need to make structural fixes. There

53:41

is a problem of attitude, which is that

53:43

the politics is not inclined

53:46

to do that. And we

53:48

are waiting for a period where

53:50

our politicians return to being Americans

53:52

first, rather than talking

53:54

about America first, to try to

53:56

do the right thing. But I

53:58

think it's wrong to say that... Congress is terrible.

54:01

They're excellent congressmen. They just need

54:03

to organize themselves in such a

54:05

way that they can, the experts

54:07

on national security can present

54:10

themselves, as I propose in the book, as

54:12

a joint committee on national security, like the

54:14

joint committee on taxation, which

54:16

does a very effective job. It's a

54:19

feature of how things are organized more

54:21

than anything else. And

54:23

finally, I think we have to look at the

54:26

lessons of the recent past. Some

54:29

administrations proactively are extremely unilateralist

54:32

and try to use this

54:34

approach, George W. Bush

54:36

and Trump, and then the next

54:38

administration, Obama and Biden, under correct.

54:41

And so the pendulum keeps moving

54:44

further and further toward unilateralism, aided

54:46

and abetted by the

54:48

courts and by Congress's own

54:50

acquiescence. And that's what's shaping

54:53

our or misshaping our constitution beyond

54:55

recognition and taking it so far

54:58

away from the original design. I

55:01

favor a strong executive, but it has

55:03

to be a strong executive within a

55:05

strong constitutional system, which is

55:07

what the framers intended. And

55:09

we have a so-called originalist Supreme Court,

55:12

which is taking it in a very,

55:14

very different direction, something that

55:16

the framers wouldn't recognize. Many

55:20

thanks for that. Deborah Prostein,

55:22

final thoughts about the

55:24

national security constitution and

55:26

the future. Well,

55:29

first of all, thank you for including me. It's been

55:32

a wonderful discussion. I think it's a

55:34

worrisome time. I guess

55:36

I'd just like to return to two points I

55:39

think we've talked about before. One is the extent

55:41

to which this distinction between the national

55:44

security constitution and the constitution

55:46

or issues of national security

55:48

and issues of any other

55:50

kind of policy, whether it's

55:52

climate change or AI or

55:55

biological threats of any kind, right?

55:57

These are issues that were never

55:59

really really especially separated. They are

56:02

especially difficult to separate and keep

56:05

separate today. So to the extent

56:07

we see carving out exceptions for

56:09

national security, we have to assume

56:11

those are exceptions that will come

56:13

to infect all of

56:15

constitutional interpretation. And the second is

56:18

simply to say this is as

56:20

perilous a time for democracy as

56:22

I've certainly faced in my lifetime.

56:25

I think there's a case to be made that as

56:27

perilous a time as we faced in US history, helping

56:30

what the National Constitution Center does

56:32

and helping Americans to understand the

56:35

stakes of what

56:37

we're really talking about here that

56:39

goes so far beyond kind of

56:41

classic disagreements about foreign policy and

56:45

into much more fundamental questions about

56:47

what does it mean to have

56:49

a constitutional democracy under the rule

56:51

of law, I think

56:53

is an essential service. So I

56:55

want to thank you for doing that

56:57

again and thank Harold for this wonderful

56:59

and timely contribution at this moment. Thank

57:02

you so much for that. It is

57:05

an honor for the National Constitution Center

57:07

to convene scholars like you to cast

57:09

light on these urgently important questions involving

57:11

the future of the Constitution. And

57:14

in that spirit, Matthew Waxman, the last

57:16

words are to you for your thoughts

57:18

on the future of the National Security

57:20

Constitution. Sure. First,

57:23

I very much appreciated Harold's

57:25

comments about how we can't

57:27

just rely on the ballot

57:29

box. We need also some structural

57:32

reform. I think there's a chicken and an egg

57:34

problem here, though, because it's going to be difficult,

57:37

maybe impossible to get that structural

57:39

reform without some change to the

57:42

politics. I'd

57:44

like to see both, but I think I still

57:47

think you're going to need the policy to

57:49

get the politics right. I

57:52

want to come back to a point

57:55

that I'm glad Harold just raised

57:57

because it was a... point

58:00

of his book that I'd commended

58:02

earlier, which is this idea that

58:04

there is, there is, Congress

58:07

can unilaterally strengthen itself

58:10

by, for example, reforming its

58:13

own procedures and its own

58:15

committee structure in

58:17

order to give itself better

58:20

expertise and a bigger seat at

58:22

the foreign policy and national security

58:25

table. I think that's, I think

58:27

those are good recommendations. And

58:30

if you get some of these

58:32

reforms to the way in which

58:34

Congress does its business, as

58:37

Harold also mentioned, you

58:40

know, individual members of

58:42

Congress, individual committee chairs

58:45

can exercise some pretty powerful

58:47

checking functions if they have

58:49

the political will, even

58:52

lacking a

58:54

legislative majority. And

58:57

so we need to think about strengthening

58:59

Congress's hands in ways

59:02

that doesn't require it

59:05

to legislate statutes into positive

59:07

law, because that's going to

59:09

be extremely difficult in the

59:11

current political environment. I would

59:14

focus on Harold's

59:16

recommendations for strengthening

59:18

internally how the Congress

59:21

operates. Jeff,

59:23

10 seconds. Our alternatives

59:25

are acceptance of the state

59:27

of affairs, which I don't think we should do,

59:30

despair. I

59:32

think we can be discouraged or reform. And

59:35

it's either reform now or

59:38

developing ideas for reform that we can

59:40

do later when the politics allow. And

59:43

I think the whole point of being an

59:45

academic is you give the people the ideas

59:48

that if the spirit to reform

59:50

comes about, piecemeal or comprehensively, those

59:53

ideas are there to be picked on. Matthew

1:00:00

Waxman for illuminating, broad-ranging, and

1:00:02

valuable. Discussion of the

1:00:04

future of the National Security Constitution, as well as

1:00:07

today's decision in Trump the U.S.

1:00:10

Dear We the People listeners, your

1:00:12

homework is first to read

1:00:14

Harold's book, The National Security

1:00:16

Constitution in the 21st Century, and to

1:00:18

read the decision, Trump vs. U.S., both

1:00:21

the majority opinion, the concurrences, and the

1:00:23

dissenting opinions, and as always, make up

1:00:25

your own mind. Harold Co. Deborah

1:00:28

Pearlstein and Matthew Waxman. Thank you so much

1:00:30

for joining. Thank

1:00:32

you. Today's

1:00:37

episode was produced by Lana Ulrich, Samson Mastashari,

1:00:39

and Bill Pollack. It was engineered by Bill

1:00:41

Pollack and David Stotts. Research

1:00:44

was provided by Samson Mastashari, Cooper Smith,

1:00:46

and Yara Derase. Please

1:00:48

recommend the show to friends, colleagues,

1:00:51

or anyone anywhere who's eager for

1:00:53

a weekly dose of constitutional illumination,

1:00:55

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1:00:58

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On behalf of the National Constitution Center, I'm

1:01:36

Jeffrey Rosen.