>> John Haskell: Welcome to
the second in the Pillars of Democracy Series sponsored
by the Library of Congress, the American Enterprise
Institute and the Brookings Institution. I'm John Haskell, director
of the John W. Kluge Center at the Library of Congress. We live in a challenging time. Polls show that major
institutions in American society, both
governmental and civic, are less trusted
and less respected than at any time
in recent memory. In an effort to grapple
with the question of how the decline
can be counteracted, we are bringing together
historians, political scientists,
legal scholars, authors and practitioners from the
across the ideological spectrum. The idea is to create
a full picture of the challenges facing
American institutions and their potential
promise as well. Last month we looked at
the United States Congress. Today we consider the state
of the American presidency. Thank you for tuning
into the second of these important
conversations. On our panel, we
have Elaine Kamarck, who is the senior fellow in
the Government Studies Program as well as the director
for the Center for Effective Public Management
at the Brookings Institution. She also lectures
in public policy at the Harvard Kennedy
School of Government. Elaine is an expert on
American national politics and the government innovation. Next, Sai Prakash, James Monroe
distinguished professor of law at the University of
Virginia School of Law. Sai is a major figure in
legal scholarship focusing on separation of powers issues and particularly on
executive powers. Rounding out the panel
is Jeffrey Tulis, professor of government at the
University of Texas at Austin. For decades he's been a leader in the field bridging political
theory and American politics, including American political
development constitutional theory, political philosophy
and the American presidency. Our moderator today is
Gary Schmitt, senior fellow in the Culture, Social and
Constitutional Studies Program at the American Enterprise
Institute where he studies issues related
to the American presidency, the US Constitution
and its principles and American civil life. Let me turn the stage
over to Gary Schmitt. Gary. >> Gary J. Schmitt:
Thanks, John. Our format today is really
quite straightforward. I'll ask each of the panelists to give a set of
opening remarks. After that, we'll discuss, debate various issues
pertaining to the presidency. And then after about 45
minutes, or thereabouts, we'll turn to questions
submitted by you, those watching online. Now I pledge to be a moderate
moderator, but before turning to the panel, I wanted to note
that the first of this series, as John noted, was on Congress. And it was said that this was
appropriate given the fact that under the Constitution
Article I is about Congress. And of course, our second
event is on the presidency, which is detailed in Article
II of the Constitution, a fact scholars of
Congress like to make note of on a regular basis. But let me in turn note
that almost universally, when histories of American
government are written, it's principally
through the lens of who was president
at any given time. I think this reflects the
high expectations we have about the office. And the question we have today
is does the presidency still warrant those expectations? And if so, how is it
meeting them as a matter of sound governance
and the Constitution? And falling short in either
case, what might be done with the presidency
on a healthier track, which is the point of
our discussion today. Again, we'll start off
with opening remarks by our panelists, and
we'll start off with Sai. Welcome, Sai. >> Saikrishna Prakash:
Well, I'm utterly delighted to be here today with
this distinguished, these distinguished panelists. And the series is, of course,
called Pillars of Democracy. And the way I see it, at least
three pillars of the democracy that we have is the Congress,
the president and the judiciary, the federal judiciary. The way I see it is one of those
pillars has become rather large in circumference and
rather large in height or rather tall in height. And it threatens to upset
the pediment that sits on top the democracy that
we have in such a way that that democracy
might become unstable. The presidency was also designed
to be strong and powerful. That's why many people
compared it to a monarchy at the founding. But it clearly was not
designed to be all powerful. And there have been a
series of changes over time to the presidency, to the
powers of the presidency that others have remarked upon. Famously, Arthur Schlesinger, Jr. wrote The Imperial
Presidency, which was largely
focused on war powers. And the point there is that at
the founding, no one thought that the president could start
a war on his own authority. To give Congress the
power to declare war was to give Congress the power
to decide whether to wage it. And the president had a role. He could veto declarations
of war. He could ask for them. And then he had to execute them. But he could not start a war. And early presidents
said this repeatedly. And presidents said it up
until the 20th century. Well today, that system has
been, is by the boards, right. Presidents routinely
take us to war without congressional
authorization. And a most recent example, most
recent obvious example is Libya. But you could also point to the
strike against General Soleimani of the Iranian Revolutionary
Guard as an example of an action that, you know, could have precipitated
a war with Iran. And so that's a fundamental
shift in our constitutional structure. And it's one that would have
been totally unforeseeable at the founding, but
we're living it now. And, you know, no one knows when the next presidential
war will begin. Let me give two more examples. In foreign affairs we have
this treaty clause which says that the president can negotiate
treaties and can make them bind with the advice and
consent of the Senate. And you need a 2/3 vote
of the Senate in order to give the president
the authority to ratify or make the treaty. Now that's an extraordinarily
high bar to make a treaty, and it's designed to ensure
that we don't lightly enter into international agreements. But in the modern
era, we've had sort of two bypasses of
the treaty clause. One is the rise of sole
executive agreements where more and more presidents are making
agreements without going to the Senate and
getting their approval, claiming that they can
make these treaties on their own authority. And the other example are
so-called congressional executive agreements where
the president goes to Congress and gets Congress to sanctify or sanction the treaty
by ordinary statute. Think of NAFTA. Think of other trade agreements where in the past it would
have been done by treaty and require 2/3 of
the Senate's vote, 2/3 of the senators
present to vote for it. Now they're done
by simple majority. It is far easier,
although still difficult, to get a statute passed through
Congress than it is to get 2/3 of the Senate to
agree to anything. This is a significant change in the president's authority
over foreign affairs. And you can cite other changes
in foreign affairs as well so that even though the
president had significant authority over foreign affairs, the presidents have
far more today. And the last thing I'll mention
in terms of a change that's led to this, you know, growth in
the height and circumference of this presidential pillar is
the president's relationship to law execution. Presidents at the founding were
principally executives, right. They have the executive power. They were supposed to execute
congressional instructions. They were, of course, able to
influence those instructions, the content of them,
through the veto power and to the recommendations
clause. But they were ultimately
supposed to enforce those
laws, not make them. That's no longer true. It's no longer true today. Presidents are basically
junior varsity congresses. Why are they junior
varsity congresses? Well, they're junior varsity
congresses in two senses. First, Congress delegates all
sorts of lawmaking authority to presidents and the executive
branch that they control. And so Congress has given
away certain authority, and I'm sure Jeffrey will
have more to say about that. But the second thing is that
presidents are more aggressive in their interpretations
under statutes. That is to say they read a
statute passed by Congress that oftentimes strip away the
context and read it in ways that furthers their either
personal or partisan agendas. So let me give you
three examples. I don't want to get
into them in detail because time doesn't permit it. But think of DACA, the Deferred
Action for Childhood Arrivals, and President Obama's
willingness to construe the statutory
authority there to give him broad authority. Think of President Trump's
funding of the wall. He goes to Nancy Pelosi and
negotiates a billion dollars. And then the same day or the
next day he finds billions more for the wall, clearly when Congress didn't
want billions more. And then think of something like
the rental moratorium endorsed by Trump and Biden where there's
authority to take measures to prevent the spread of
diseases, but it's being read in a way that I think is
implausible as a matter of statutory construction
in a way that raises constitutional
questions of whether Congress
has the authority to basically prevent pandemics
on a nationwide basis. And what we saw recently
is it seemed as if President Biden
wasn't going to extend it. And then turned around
and did extend, I think, based in large part
on political pressure of various sorts
brought to bear. So why has this happened? Why have presidents been able
to acquire these authorities? And I think there's sort of
multiple reasons one could give. I think if you look at
the Constitution itself, the other two branches
weren't well structured to check the president. Congress is divided, right. It's two chambers. It's very hard to
pass legislation through a unicameral
legislature. It's even harder
to pass legislation through a bicameral legislature, especially when the
president has a veto over that legislation. And then, you know, those divisions have
been further exacerbated by the partisan divisions
of the country where we predictably expect
that half the country, and therefore half the Congress
or a large portion of it, will support what the
president is doing because what the
president is doing is often in service of a partisan agenda. And so Congress just wasn't,
they didn't, you know, the great compromise of having
two chambers I don't think was done with the idea of
checking the president. It makes it harder to
check the president. The courts were never designed
to be a continual censor or check on the president. And they haven't
played that function, despite what people might
suppose about what the role of our courts in our system. And then finally, the public
itself has favored presidential power when it suits
their policy preferences. If a democratic president
takes a measure that is legally dubious to advance a democratic
policy position, democrats are prone to applaud. And the same is true
for republicans. If President Trump or president
whoever advances the republican policy agenda, republicans
are going to applaud that because they
like the agenda. The legal arguments
almost don't matter. And so there's sort of a,
many different reasons. I can give other
reasons as well. I'll mention one and I'll end. The public expects
more of our presidents. We expect our president to
win wars, keep inflation low, keep us employed, provide us
safe streets and communities, prevent, you know,
prevent traffic jams. We have all kinds of
expectations on our presidents. And it turns out that when you
impose great responsibilities or expectations on our
presidents, they tend to believe that great power accompanies it. And so I think actually with great responsibility
comes greater power. At least that's the
way presidents see it and that's the way
they've acted. So I look forward
to the conversation, and thank you for having me. >> Gary J. Schmitt: Thanks, Sai. Elaine, over to you. >> Elaine C. Kamarck:
Yeah, sure. Thank you, and it's
great to be on a panel with such good scholars
and who will cover, I know, different aspects
of the presidency. So I'll talk about a
less discussed aspect of the presidency which
is how things have changed over the years in
terms of who gets to actually run for president. You know, a lot of focus on
general elections, but in fact, primaries and the whole
nomination system is really key to some of the changes that
have happened over the years in the presidency itself. So as I'm sure some of you
know, in the early days of the republic, Congress
actually had the caucus system, and they nominated
candidates for president. This system lasted from the
founding of the republic to about 1824 when it
basically just fell apart. And by 1828, it was
pretty much dead. And that's a whole history. It was replaced by a system, the
convention system, which begins in 1831 and goes all
the way up to 1968. It's a very long lived
method for nominations. And essentially what the
convention system did was people in states around the country in
local democratic, republican, Whig, whatever parties,
sent delegates to a national convention. For the majority of that time, those delegates represented
themselves, or they represented a local or
state political establishment. They were not elected to
go to a convention to vote for candidate A or
candidate B. They were elected as representatives of the party. And when they got into
convention, and the months going up to the convention, there was
essentially a sort of evaluation of the people who wanted to
be president by party leaders, many of whom were also in
government as well, senators, congressmen, et cetera. And that process favored
certain kinds of candidates. It favored candidates with deep
ties in the political party. And it favored candidates
who other people in government looked on
as capable of leading. Because after all, they didn't
want to just elect somebody. They wanted that person to
be able to govern and deliver on their policy preferences. I'll give you a little story which I think exemplifies
the old system. Imagine if in 2015 the
old system was in play. And Donald Trump had to go
to the republican leaders in Pennsylvania and
had to, you know, ask them for their delegate
votes and bargain with them over how the Pennsylvania
delegation would come to his convention. And imagine if they were sitting
around with cigars and brandy, which I know Trump
doesn't drink. But imagine the archetypal
smoke filled room and Donald Trump would say,
I'm going to build a wall and have Mexico pay for it. Now, building a wall is fine. Having Mexico pay for it was from the get-go an
absolutely ridiculous idea. And the people in the
room would have known, would have said you're
going to do what? How are you going to do that? And he's going to say oh, it's
just a thing I say, right. Well, you know, that sort
of discussion, right, would make people kind of
wonder about this guy, right. Who was he? Did he have any realistic
sense of how to govern or what the opportunities
as well as the limitations
were on government. And so what you have in the
convention system is a system that rewards essentially some
level of competence either in government or in negotiation, in the basic business
of politics. That system ended
rather abruptly in 1968, and the first convention
we had after that was 1972. And yet between 1968 and all
the way up to the 21st century, the primary system essentially
delivered the same kinds of candidates that
the old system. So people like Nelson
Polsby, departed, famous political scientist,
people like Nelson Polsby who warned about these
changes and said you're going to get people who are not adept
at the business of government. They're going to be adept at
the business of communication but not necessarily government. They were kind of, their
warnings kind of seemed to have fallen on deaf ears. Okay, they didn't, you know,
they didn't make any difference. It didn't really
happen that way. And then starting in 2000, we
get three presidents who are in fact less qualified and less
experienced in the business of government and politics than
most of our previous presidents. George H. W. Bush, I mean,
George W. Bush rather, Barack Obama and then,
of course, Donald Trump who was less experienced than
any president we've ever had. Why? Well, when you move from a
system of internal negotiation with party leaders to
a system of primaries, what is rewarded is your
ability to get public attention, to get name recognition to say the most sound
bite worthy things, to get people riled up in
favor of you, et cetera. You change, the dynamic changes. And not surprisingly, the kinds of people you get
nominated change as well. That did not hold true for
Biden, for Biden's nomination. And yet if you remember, Biden
started the nomination season as very, very much
a loser, okay. Everybody thought he was going
to be a loser because we were in the habit of looking
for the eloquent person, the person who like Trump or
like Obama could really get to the base of the
party and energize them. And we were in the habit of
valuing communication skills over governance skills. And so I think where we
are right now is we're in this peculiar place where the
nomination system is yielding, tends to yield people
with communication skills over governance skills. And I think what happened to
Biden was very interesting which was there wasn't
a clear Obama-like or Trump-like character, charismatic character
to take him on. And in fact, people, the
issues became very serious. When the issues became
very serious, for instance a pandemic, Trump
obviously decided, I mean, I'm sorry, voter obviously
decided to go to Biden as the sort of safe bet. But the problem still remains. Democrat, when I've expressed
this, democrats say to me oh, we would never nominate Trump,
well, a Trump-like candidate, well that's just not true. I mean the system allows
us to nominate people who in fact don't have any
plausible background for showing that they could do the
job of the presidency. We had on the debate stage in the democratic primaries this
year a spiritual healer, okay, with no, I mean, and taking time from legitimate candidates,
right. So this nomination
system has become a system where celebrity is valued over
any kind of serious competence in the business of governance. And I think that's a problem. I think it's a problem
going forward. I think the republicans
coped with that problem when they got Donald Trump. I think democrats could have
that problem in the future. You can see democrats
nominating spiritual advisors, Oprah Winfrey, you
know, different people. And I think it's a problem
for the nomination system. And because it's a problem
for the nomination system, it is a problem for the
presidency and for the kinds of people and the kind
of skills that we get in people who become president. >> Gary J. Schmitt:
Thanks, Elaine. Jeff, you're up. >> Jeffrey K. Tulis: Thank
you, thanks for everybody, but I'm going to
jump right to it because we want to
get to questions. And I have about six
points or so to cover in my five or six minutes. So the usual picture regarding
the principal pathologies of American politics today
include the main theme, one of the main themes
of this panel, which is a growing
imperial presidency. And connected to it the idea that there's too much partisan
conflict and contestation in government generally. And I want to suggest not that
those developments are not true, not that there isn't something
to them, but that they stem from a much longer
and deeper history that somewhat paradoxically
is the opposite of the phenomena we
seek to understand. Because for a half century, from
the middle of the 20th century to the end of it,
we had a period of profound congressional
application of its own powers
and responsibilities. And there resulting fact
from this is that what looks like an imperial presidency is
actually an advocating Congress. When all the institutions
are designed so as to connect the ambitions
of the office holders to the institutional
duties of the place, it looks as if the presidency
is imperial when the presidency in fact is more than the
Congress adhering to this sort of architectural design
of the Constitution. But because the Congress is
not, the presidency looks and to some degree is imperial. So instead of so much
partisan contestation, we had in the 19th century a
much more robust constitutional contestation between the
Congress as an institution and the presidency
as an institution. And now we don't. Now we have, we might
say, a vacuum for contest that is being filled by
partisanship and demagogues. Now the demagogue president
part I think can be accounted for in large measure by features
of the presidency itself as Elaine just laid out. It's not just incompetence
that is produced by this in growing plebiscitary
selection system. It's the populous dimension
that we saw in Trump. Now I want to say just a few
words about the character of this profound
congressional application. Because it takes several forms. Not just, though definitely
including what Sai already mentioned, which is the
Congress's delegating power particularly with
administration agencies in the executive branch. But these different forms
happened at different times and for different
proximate reasons. But they together come together
to give you a kind of picture or a typology of the many ways in which Congress is
advocating its responsibilities and therefore enhancing
the presidency seemingly. The first I call forbearance where Congress just simply
doesn't use the power that it has. And the best example of this
is a half century of deference to the president's picks for
nominees to the Supreme Court. Again, now we think of it as
a very contestable process because of the recent
nomination fights. But in the 19th century, one out of every three presidential
nominations was turned down. And it was actually
part of the routine that Congress would
be much more assiduous in vetting presidential
nominees. And in our time, it isn't,
and it has the perverse effect of actually forcing
Congress when it does seek to interrogate presidential
nominees to do it on lower than higher grounds. Not so much judicial philosophy,
for example, but for evidence of scandal whether it be
financial, sexual impropriety or something of that sort. The second example I'd
like to label would be, could be called precommitment. This is when Congress sort of
diagnoses its own pathologies, its own inability to do
its job well and seeks to actually repair that but
does not, in fact, repair it but makes the pathology worse. In the example here that illustrates this best
is the budget process, which is a fundamentally
legislative process and is a fundamentally
legislative responsibility. And yet because Congress has in the 20th century
an increasing tendency to blow the budget
without constraint, it started developing
mechanisms to control itself. Such as the
Gramm-Rudman-Hollings Act and proposals, for example,
for balanced budget amendments and other mechanisms by
which the budget is handed over to the president to make and automatic mechanisms are
created to create a ceiling against which that
budget can't exceed. The problem with all
these attempts, of course, is that they abdicate the
fundamental responsibility they have actually decided. The priorities, which is what
a budget is really about. If, in fact, you cut the budget
automatically by 5% or 6% or something like that. You're giving up
your fundamental job or duty to decide priorities. The third example I'd
like to mention is also at first glance seeming
case in which Congress seems to be doing the opposite
of what I suggest, which is it's being aggressive in defending its prerogatives
rather than abdicating them. But I think when you think
about it for a couple minutes, which I'm going to
ask you to do, you see it's actually a
profound form of abdication. I call this camouflaged
abdication. And this comes in the form
of the increasing number of so-called frame, pieces
of framework legislation. Legislation that almost
looks like constitutions as Congress tries to control
the president's future behavior rather than to respond to
particular policy initiatives or particular presidential
decisions. And the best example of this
is the war powers resolution in which Congress tried
to create a framework for regulating the relationship
with the president and Congress and foreign policy
and war going forward. And the result of that is
not only has the war powers resolution been routinely
violated by its own terms, denied as being constitutional
by all presidents, a view that I actually
agree with. But more importantly,
for my purposes, Congress has abdicated its
concreate ability to reign in presidents on foreign policy
and war choices by acting as if the war powers
resolution will take care of its job for them. We passed the war powers
resolution, therefore, the mechanism should be in place
for reigning in presidents. Well it turns out that in order to enforce the war
powers resolution, Congress has to do things. And since they have
to do things, they didn't need the war powers
resolution to begin with. They could have been doing
those things tailored to the particular decisions
of presidents all along. But under the war
powers resolution, they do them even less
as Sai rightly reviewed. And then finally, the final
category I would mention is the increasing tendency of both
the Congress and the president in the second half of the 20th
century and early 21st century to resolve their disputes over
separation of powers questions, the kinds of issues
that Sai reviewed. To resolve those through
litigation and by appealing to the courts to arbitrate them. Then as they have for
most of American history and particularly in
the 19th century, resolve them by themselves. And by themselves, I mean through constitutional
argumentation by themselves to each other. So this process of legalization
has resulted in turning to the courts to
do what Congress and the presidency have
previously done themselves and has over time given Congress
a kind of institutional amnesia about how to even go about
making constitutional and constitutional/political
arguments to advance the prerogatives
of their own institution. So the bottom line from
this quick sketch is that a separation of power
system originally designed to connect the individual
ambitions of politicians to the institutional and
constitutional duties of the particular branch in
which they serve has continued to actually work more or
less well with respect to the presidency, with the
possible exception of Trump. But all the presidents prior to
Trump are not really imperial. They are pushing the boundaries
of power in the service of their institution with
arguments, public arguments, designed to defend their
institutional perspective. But they're doing it
without a Congress that is adequately equipped to
do as it had previously done, which is to push the boundaries of its own competing
constitutional perspectives, principles and purposes. So we have at the
bottom then with respect to Congress a breakdown
of congressional culture. Some have said, some
political scientists of a rational choice variety,
sort of economistic thinking, have said well it's a
collective action problem. You have a big group of congressmen whereas you
only have one president. Well it was always a
collective action problem, and yet we didn't have
this problem for most of American political history. That suggests it's not so much
a collective action problem as a congressional
culture problem. And so I will leave
it with that. >> Gary J. Schmitt:
Thanks, Jeff. Well there's a lot on the table. I don't know how to actually, so much on the table I'm not
sure exactly where to begin. But maybe I'll pick up
where Jeff sort of finished with a question to Sai. I mean your first book and
even in this newer book, you do spend, and I
think correctly so, a considerable amount
of time pointing out just how the intention of
creating the presidency was not to create a, you
know, small executive. It was going to be
powerful and energetic. It was designed to give the
system the kind of leadership and push that the
Articles of Confederation, for example, couldn't muster. So, we have this sort of
institutional capacity, and you know, the
country's, you know, changed. We've gone from being
a fairly isolated power to being a global
power, you know. We created an administrative
state with all kinds of new responsibilities
and the like. And could one just simply argue that what the president's doing
what you would expect him to do as an institution given its
institutional features given these new circumstances? So isn't there sort of a kind
of constitutional argument to be made for some
of the things that you say the president's
acting imperial about. But maybe that's just the
nature of the executive, the constitutional executive
of this new political system. And then, I'm happy to
push back on that too. >> Saikrishna Prakash:
Well, I think, you know, the people that wrote the
Constitution understood that every branch
would be trying to advance its own institutional
interests because the people in those branches gain power by advancing those
institutional interests. And so it's not surprising that presidents have pushed
the boundaries of their office. And if you believe that
the United States ought to be more engaged overseas,
you're going to favor changes that in the constitutional
system that permit that like presidents
starting wars or presidents making more
international agreements. But I think the changes
that have been brought to the presidency can't possibly
be limited to situations where people favor it. That is to say the same forces
that permit the president to push the boundaries of the
office outward will be used in other areas where
people might not favor it. So 100 years ago,
no one would think that the president
could start a war. They do that today. You can tell a story
for why that's useful for the United States. We may think today
that it's unfathomable that a president would
ignore a Supreme Court judge, but I can tell you a
story where some portion of the population will
favor that occurrence, especially if they think the
Supreme Court has the wrong understanding of
the Constitution. And so my point isn't so much that these are bad
policy decisions or that the president should
be understood more narrowly because it's a good idea. And, you know, if we
wrote the Constitution, we would rewrite a
different presidency. I think that's fairly clear. But the system that we
have today has no natural outward boundaries. There's nothing that the
president can't acquire. If you can change the
constitution with respect to war powers and
the treaty clause, you can certainly change it
with respect to the implicit but nonetheless unmistakable
requirement that presidents enforce
judicial judgments. That doesn't seen
fathomable today, but that would have been
true for many of the things that we're talking about. So I agree with you that,
you know, the presidency like other branches
are certainly, understood that all the
institutions would be sort of acquisitive of power. Men are not angels
as we all are aware. Men and women are not angels. And so I think there's
something to what you're saying, but I don't think it's just a
function of it's a good idea to have a stronger
presidency today. I think if you say
that you have to think about where else the president
might acquire power in ways that people would disfavor. >> Gary J. Schmitt:
Elaine, go ahead. >> Elaine C. Kamarck: There. Am I, you can hear
me now, right? I had a question for
both Sai and Jeff, because I totally agree that Congress has
abdicated a lot of power. But I'm kind of confused
as to why. And this, help me think
this out of my own mind. So one of the things
that I experienced in the White House was the
incredible depth of expertise, very technical, very
complicated, that exists in the
modern executive branch in the bureaucracy. And how little of that expertise
was existed in Congress, whether it was the committees or whether it was the
congressional staffs themselves or even the members. They just really didn't know,
sort of some fundamental things. Because I brought, I was
bringing senior bureaucrats into Congress all
the time on issues of reinventing government. And I was kind of
surprised at that. And I'm wondering if in
fact Congress isn't capable, and perhaps it's done it
to itself by, you know, cutting their expertise staff and hiring political staff
not substantive staff. But I wonder if Congress
simply can't keep up these days with the modern executive
branch, and that's why it has sort
of given up so much power. I'd like to hear both Jeffrey
and Sai respond to that. >> Jeffrey K. Tulis: Well,
I don't think so, Elaine. And I'll give you
an example why. One great counterexample to
my story, which is separation of powers working as it should
in Congress being responsible as it should occurred
during the Nixon era in which he impounded funds and
caused a big crisis about that. And for the viewers, that just
simply means first he vetoed an appropriations bill, and
then it was overridden. And then instead of
carrying out the law, he just didn't spend the money. He impounded the funds, and Congress got
justifiably upset about that. And they had a huge
conflict over it. And I actually had a conflict. Nixon, who impounded the funds for partisan political
reasons having to do with who they were going to and who would benefit
found good arguments to defend his position. Which had to do with the fact that only the president was
responsible for the economy as a whole would
be blamed for it. Had the tools, as you've just
pointed out and the expertise, to actually get that big
picture through the Office of Management and Budget. And then Congress didn't. They just weren't capable of it. And Congress responded by
actually conceding your point and saying you know what,
you can't do this anymore. But you're right. And we're going to create the
Congressional Budget Office. So the Congressional
Budget Office was created in this same act that
reigned in the impoundment, the Budget Control
and Impoundment Act that created the CBO as well. Now what's interesting to me
about this that goes directly to your point is that
most people today think that better numbers, more expert
numbers, more accurate numbers, come out of the CBO
than out of the OMB. So that even the executive will
sometimes cite the CBO numbers to advance their
policy proposals rather than their own OMB. So that suggests that at least
in principle it's possible for Congress to get exactly
the tools that they need and the expertise that they need if they actually
step up and do it. >> Gary J. Schmitt: I think
I'll interject a bit here, which is there's been a really
sea change in the structure of Congress as well
that makes a difference. The centrality of committees and committee work has declined
considerably since the mid-90s and even a little
bit before that. And so, you know, a lot of
the expertise that a senator or a congressman would
want to draw on would be through the committees. But the committees don't really
have nearly the same sway in terms of the agenda
setting with the leadership. And so we have senators
and congressmen who don't have the incentive
to spend that much more time or ask their staff to
spend much more time since the agenda is really
being driven by the leadership as opposed to the bottom
up with these committees and their expertise. Elaine, I want to come back
to one of the points, I mean, big points you made which
is the real revolution and the selection
system that took place in the late 60s and early 70s. You know, that was all done
in the name of, you know, more populous, more democratic,
you know, selection system. And we sort of didn't like
party bosses and determining, you know, who the
candidates were going to be. So the question is, how do
you turn back from that? How do you tell a
democratic public that you want a selection
system that's less democratic? And you know, it's good for you. Take this medicine. >> Elaine C. Kamarck: I don't
think you can turn back. I don't think you can put
that genie back in the bottle. But I do think that
political parties, particularly national
parties, can take, be a little bit more aggressive
in terms of who they consider to be people who ought to be
contesting the presidency. One of the, you know, new inventions here
is these debates, which really define
primary seasons as they used to define general
election seasons. Now they really define
primary seasons. Well, you know, both, go back
to the republican party in 2012. There was a pizza entrepreneur
on their stand, okay. Go back to the democratic party. We've had all sorts
of people on there who are not running
for president. They're running to sell books. They're running to get
an anchor spot on CNN. They have no background
in the presidency and Donald Trump included. And I'm sure as Jeffrey and Sai
have been college professors as I have, you know, one
of the skills you pick up as a college professor
is you can tell right away when somebody doesn't know
the answer to the question. Right. You can just
tell right away. And you know, you watch these
debates and you see these people up there, and they don't know
the most fundamental questions that a president needs to know. The one that always
comes to mind for me is Donald Trump being
asked about the nuclear triad. And clearly, not having the
faintest foggiest idea what it is, most Americans don't know
what it is either, and yet, it has been a cornerstone
of our defense and national security
policy for decades. So I mean this is
the sort of thing that you see in these debates. Now you see who knows
things and who doesn't. And yet, we have this
nonsensical notion that oh anybody can
be president. So I think that it is up
to the political parties to start finding ways to at
least shape the field, okay. And that wouldn't
be ideological. And in fact, it wouldn't
end up being ideological because each party is very
cognizant of being the big tent as American political
parties are. So you're not going
to want to, you know, piss off some piece
of your coalition. But they need to be, they need
to stand up and say hey look, this person should
not be running for president on our banner. Now, the Supreme
Court, by the way, has already essentially
said yes, parties have the
authority to do that. Way back in 1996,
Lyndon LaRouche got on the democratic primary
ballot in New Hampshire, and John Fowler was party
chairman at the time said no, you can't run as a democrat. And the case went all the
way to the Supreme Court. The Supreme Court said yeah,
political parties can define who belongs in their party. And I do think that that
would be sort of a first step, kind of weeding out the
most inappropriate people. So we don't have this,
we don't have the danger. And it is a very real
danger of celebrities and demagogues getting
nominated and then in a fluke, getting elected. So I think that it goes to the
two major political parties. They've got to get
themselves back in the game somehow or another. And then -- >> Jeffrey K. Tulis:
Can I just -- >> Elaine C. Kamarck: primary >> Jeffrey K. Tulis:
Yes, Elaine. Isn't there an interesting
irony here which is that this problem was
really initially a creation of the democratic party through
the McGovern-Fraser Commission. But then it was also
the democratic party that invented the idea
of superdelegates to try to repair the problem
that they had created and caused them political
problems because they lost so badly. And then now in this
most recent election, they had a populous
running as well and nearly won the nomination. But Biden won out of
nowhere by virtue really of an old line party
leader, Clyburn. Jim Clyburn is the reason
that Biden is president. And the large black constituency
of the democratic party wanted to know which is the person that
is actually more likely to win to govern, and has
the experience, all the things you're
talking about. So that in a way the democratic
party has groped its way a little bit toward
something less populous. >> Elaine C. Kamarck:
Well that's right. That's right. And it's, again, for much,
I mean, for much of the time that we've had this new
system of primaries, you know, actually the party
regulars have won, okay. People with sufficient
experience have one in both parties. But what we saw recently,
and particularly in 2016, is it is possible under
certain circumstances to get elected someone who is
essentially have undemocratic, who's [inaudible],
you know, instincts and no background in the law. No background in
American politics. No background in
governance, et cetera. And that can be a
really big problem. And that's our vulnerability,
you know. And even though we've had
superdelegates, et cetera, the fact is democrat, they're a
small portion of the convention. And democrats are absolutely
as vulnerable to a candidate like Trump as the republicans
found themselves to be in 2016. By the way, in 2016, I was at the republican convention
doing research for my book, and what everybody
was saying was boy, we wish we had superdelegates. Right at the time when the
democratic party was having a battle over superdelegates. >> Gary J. Schmitt: So
before we turn to questions from our viewers, I wanted
to toss out a really sort of, you know, almost over the top
but not necessarily over the top because I think Sai's
made the case that we really do have a
presidency, and Jeff sort of confirmed, that's lost its,
knows few bounds these days. But, you know, under
the Constitution, there's an impeachment
provision. And you know, we've had four
impeachments and no removals. And so the question I guess is
now is the impeachment provision still useful? And in what ways? It's certainly easy
enough to impeach somebody. It's a majority vote. But it turns out it's very
difficult to remove somebody. Is that adequate? Or are there alternatives? Or should we be rethinking how
the impeachment provision is being used or not used? I know Jeff has written quite a
bit about this, so if you want to take a first crack at that. >> Jeffrey K. Tulis: Well the
first thing I would say is not quite to your point of what
we should do but to the point of it is really further
profound evidence of what congressional
application looks like. I mean you're just not
going to get a better case for impeachment than we had in the two impeachments
for Donald Trump. And had the impeachments, had
the convictions been sustained, I don't have any doubt that the
problems would have been solved, the problem of Trump
would have been solved. He would have left office, and his party would
have been reformed and all that sort of stuff. So the fact that
it didn't work is, the fact that it didn't happen
is a serious, serious problem. Because it's hard to
imagine circumstances in which you could then
subsequently impeach somebody if he couldn't be impeached for
the things he was charged for. And the failure to impeach
him the first time, of course, had something to do with
him doing the things that he was failed to be
impeached for the second time. So, I think it's a really,
really interesting phenomena that helps illustrate
the problem that we have. That's not to answer your
question which is what do we do? I would say that I think people
have made one big mistake about impeachment. There's been a worry that
if it was successful, it would unleash a partisan
politicization of this election and removal process such that
presidents would routinely have to fear being thrown out of
office for partisan differences. And I think that was
a fundamental mistake that in fact impeachment
doesn't need to be used often to be powerful always. That if you had the impeachment
process successful in one of these instances in which
the case was so powerful, then subsequently,
presidents would be much, much more assiduous about
behaving themselves with respect to all kinds of things
Sai is interested in. Because they could
conceivably become the grounds for impeachment if the
president didn't intend to. >> Gary J. Schmitt: Any other,
Sai, Elaine, want to make? >> Saikrishna Prakash: Yeah, I agree with much of
what Jeffrey said. I think Thomas Jefferson said when he was president
impeachment is a scarecrow. And it's a scarecrow because
it's very hard to get 2/3 of the Senate to
agree on anything. And of course, it's really hard when the country is
divided, you know, by party. And that was true in his time,
and it's even more so today. So, it still functions
to remove judges, right. Judges are occasionally
removed via impeachment and conviction in the Senate. It doesn't work well
with executive officers. No executive officers
have ever been removed. They either resign or
they're not convicted. And with respect to the
presidency, it doesn't work because if a, you know, if
it's a republican president, the republicans will
line up behind him. And I think this is also true
if it's a democratic president, democrats in Congress
are very low to impeach and/or
convict their president. That's part of the
partisan divide, right. The presidency is the premiere
leader in his or her party. And if the presidency is under,
the president is under threat, his co-partisans find it
very difficult to oppose him, even on matters you might
think are matters of principle. >> Elaine C. Kamarck:
You know, the -- >> Jeffrey K. Tulis:
I don't think it's, I don't think it's
symmetrical between the parties. I mean look at the way the
democratic party has responded to Cuomo. Look at the way that they
dealt with Al Franken. I just don't think
that it's the case that if you've got a president
who behaved the way Trump did who was a democrat, that
the democrats wouldn't vote to impeach him. I think they would. >> Saikrishna Prakash:
Well just to be clear, we have had allegations
about President Biden, right. And the democrats have
largely ignored them. I'm not saying there's
any truth to them. I have no information
on the matter. But I don't think
it's contestable that both parties will
give every benefit of the doubt to their
co-partisan. And I think that's true
for Joe Biden as well. >> Elaine C. Kamarck: Let
me point out that there was, the first impeachment was
someone who was impeached by his own party, okay. So Andrew Johnson
was a republican. He was impeached by the radical
republicans in the Senate, okay. And he, and that was,
I mean, you know, that was a little bit
reminiscent of Andrew Cuomo's, the situation Andrew got himself in where he was close
to impeachment. Which was he made so many
enemies that his policy, his policy was out of whack
with a piece of his party but not the whole party
who wanted to sort of forget this war
and get back to normal and bring the South
back in, et cetera. And he, but boy did he make
enemies right and left. And he escaped impeachment
by one vote, okay. So the republicans, at least
in the first impeachment, didn't rally around him. And even in the second
impeachment, Richard Nixon's, it was the republican
senators who went to Nixon. It was Barry Goldwater and
two others whose names are not at the tip of my tongue. But went to Nixon and said
you don't have the votes. They're going to impeach you. The democrats are going to
impeach you in the House, and you don't have the
votes in the Senate. So in those two, the
parties did not rally around their president. And I think the reason
is that there is a sense of what is impeachable
and what isn't, right. And certainly with Clinton,
with the third impeachment, nobody really thought that a
sex scandal was impeachable. If that had been the case, we would have impeached almost
all our previous presidents and God knows how many
other people, right. So that obviously did
not rise to the level. I think it's only true frankly
in the Trump impeachment where some big violations of
the way of doing business, of telling the truth, of, you
know, honesty in the conduct of foreign affairs, I think
there the republicans decided no, we're going to
live with that. Even though -- >> Jeffrey K. Tulis: Yeah, and
Elaine, I think you're right. And I think absolutely right,
and if Biden did anything close to what Trump was accused of, you would see tremendous
democratic pushback. And the evidence for that is the
pushback he's already getting on policy grounds from
democrats on, some democrats, on the handling of
the Afghan withdrawal. So -- >> Gary J Schmitt: We're running
out of time, so I don't mean to cut off, I really don't
mean to cut off the discussion. But I wanted to bring
John Haskell back in with the questions
from our audience. >> John Haskell: Thanks. Well there's a lot to go on. I've gotten several questions. I think this one, I think makes
sense to start with Sai first. And then others will probably
have something to say. If you could wave a magic wand, what's the one thing you would
do to right size the presidency and in so doing address
the imbalance and the separation of power? >> Saikrishna Prakash: That's
such a wonderful question. Not having a magic wand, I
don't think I've ever thought about one thing that I would do. I'm going to give a bad answer. I think there is no one
silver bullet solution. There are many different
things going on. And you're not going
to do it just by tinkering with one thing. I think Jeff's absolutely right that Congress has
weakened itself. But I think Jeff makes the
case a little too strongly. I think the presidents
are part of the problem. Again, if when a president
does something in service of the party agenda, every co-partisan is
prone to support the move. And to think, just, you know, cast about whatever legal
arguments are available and to make them and to flip,
right, four or eight years later when another president
does the same thing. So I think, you know, it's
partly the presidency itself. It's partly Congress. It's partly the public, right, that will favor presidential
action that they favor on policy grounds without
regard to its legality. And you know, I guess if
you could wave a magic wand and correct all those
three things, maybe you have a better chance
of [inaudible] the executive. >> John Haskell: Elaine or Jeff. >> Jeffrey K. Tulis: I'm not
sure, we weren't really able yet to get deep into some of
the examples that Sai raised. Because most of them,
it isn't so clear that there is a simple
legal solution to it. Just to take one
that Gary can speak to actually more
authoritatively than me. Which is the development
of executive agreements and even unilateral
executive agreements. It's not at all clear
that somehow that there is a simple
legal answer to whether they are
legitimate or not. That's, they are a good
example of what it means to have a robust interaction
between the Congress itself and the presidency such
that Congress has some say over whether something is
a treaty or not a treaty. One of the reasons these other
mechanisms were used has to do with the status of treaties
and international law. The way that using one mechanism or another affects our
relations with other countries. All sorts of things. And so Gary in his
dissertation showed that some of these go way back
into the 19th century, even as a historical matter. So the issues, the reason
this is interesting is because there isn't a simple
legal solution to a lot of these constitutional
disputes, we need a much more
robust argument of constitutional
style arguments by the Congress itself. I didn't get a chance
to mention it before, but there are two
great books for people that are interested
in this topic. One by Mariah Zeisberg
on war powers in which she develops
this idea that the notion of settling cases the way you do in ordinary litigation
just doesn't work in that context and
shouldn't work. And the other one is by Josh
Chafetz who's a law professor at Georgetown who just wrote
a book two years ago called Congress's Constitution in which
he lays out in detail the ways in the 19th century that
Congress was much more effective and actually standing
up for itself. For example, prosecuting
its own contempt citations. Using its own jail facilities or the Washington
D.C. jail facilities and not depending
on the executive. >> John Haskell: The,
something just came across the transom I think
that would be interesting to have some of you comment
on is that the question of signing statements. That is to say when
presidents sign a bill into law, but they accompany it with
a statement that says hey, some of this isn't
constitutional, and I reserve the right
not to take those actions. Is that an important issue
and presidential power? I mean it got a lot of
attention, particularly in the second bush era. But I was curious whether,
our viewer is curious whether that is an important
issue at this point. >> Saikrishna Prakash:
I've written [inaudible]. I think there's two
things going on, right. One is the rise of more
aggressive constitutional and statutory interpretation
by our presidents. And of course, the signing
statement is a vehicle for making those statements. But of course, you can make
those statements outside the context of signing a bill. You could just issue
it ten days later, and it would still
have the same effect within the executive branch. It would still set peoples'
alarm bells off outside of the executive branch. So the signing statement is a
problem if and only if, I think, it seems to me, if you think that they're making
aggressive claims. And of course, I do think that. But I wouldn't think it
was any less of a problem if they had done it, you
know, a week or two later. The second point is actually
slightly different which is part of what you said, John, which is
do presidents have the authority to sign a bill that
they think contains unconstitutional provisions? And in the early
years of the republic, that never happened, right. No president said, these parts of the bill are
unconstitutional, but I'm going to sign it anyway. And what's going on is presidents are having
their cake and eating it too. They're saying basically, I
can't convince you to take out the unconstitutional things. And I'm not even
really going to bother. Why would I? Because I can just
essentially line out the parts that I think are
unconstitutional, ignore them, and there's nothing you can do. Sometimes someone will be
able to go in the court and contest it, but oftentimes,
no on would be able to. And this is another change
in the presidency, right. This ability to say not that
something is unconstitutional. That's always existed. It's always been a
feature of the veto. But to say I'm going to go ahead
and sign the bill, get the rest of the things that I want, and
reject the part that I don't on unconstitutional grounds. So that is a significant change. And it's separate from the part,
it's separate from the idea of aggressive, or at least,
you know, nominally separate from aggressive statutory
interpretation. >> Jeffrey K. Tulis: But I think
this significant change I also a response to congressional
significant changes. So with respect, not
that it's a good thing. But to take your last
example, it's a direct response to the increasing use
of severability clauses by the legislature in which it
passes a piece of legislature in which people say
but we think pieces of this are unconstitutional. And instead of as in the
19th century debating and figuring it out,
cleaning up the legislation, they say we'll leave that to the
courts, and we'll write a clause that says if the court decides
that it is unconstitutional, the rest of the legislation
stands. So that the presidential
counterpart to that is what you
just described. And both of them, both
of them are a problem. And this follows on something that Charles Free [phonetic]
pointed out when he was one of the originators of the signing statements during
the Reagan administration. And so he was asked about them. And he said this. That the way that they
came about in his memory is that the Reagan administration
felt that the Congress was putting
in what they called stink bombs in the legislative history of
legislation that was being put up before the president
for his signature. Such that they could then go
to court later on and point to these features of
the legislative history to get the legislation to do things the president
maybe didn't want to do. And so the presidency to clean
up the stink bombs decided well, we've got to put in
these signing statements that indicate how we
interpret this legislation, what we interpret
the constitutionality of this legislation to be. And also to create our
own, you might say, addendum to the legislative
history. Now, as it's developed,
of course, it's, you know, it's gone way beyond all that
and all the kinds of issues that you've raised, Sai, are
absolutely appropriate to raise. But the origins of it
have to do with, again, a legislative problem. >> Elaine C. Kamarck:
I would just add -- >> John Haskell:
Go ahead, Elaine. I'm sorry. >> Elaine C. Kamarck: I would
just add one small thing to it is that sometimes the
signing statements are really directions to the
bureaucracy on implementation. And the implementation
piece of it, I mean this is another
problem, Jeffrey, with the modern Congress. They don't think
about implementation. So when they were, when they
were designing Medicare back in the early 1960s, there were
social security bureaucrats, particularly the commissioner
of social security who was in the Congress working
with them on the design of the legislation as
it was being written. And therefore, it
could be rolled out in a relatively
conflict-free way and became, you know, the law of the
land and is now eating up all the money in the
budget, okay, the Medicare. But the implementation was
part of the legislative design. Increasingly, that's
just not thought of. And so then it gets to the
executive branch, and OMB and the analysists at OMB who
are after all bureaucrats, not political people,
have to figure out how do we do this, right? How on Earth do we do this? And that, of course, sometimes
has political implications and changing the, you know, the nature of the
legislation itself. But a lot of times it's because
implementation is not part of legislative work anymore. And I think that that's another
problem with the modern congress and one of the reasons
it has, you know, it's out of the picture
when it comes to ceding power to
the executive. >> John Haskell: And that's a
good segue to the next question which is have recent presidents,
specifically President Trump but others as well, undercut
congressional prerogatives in the area of oversight
in the subpoena power? >> Elaine C. Kamarck:
I'll start with that one. I mean look, it's not just
Trump, it's lots of presidents. I mean going back
in the modern era. I mean, you know,
political scientists write about firehouse oversight. And what's gone, and it's hand
in hand with implementation, as you pointed out, John. All of the rising committees over the years simply
lost ground to the appropriators,
pure and simple. And so what you don't get
in modern Congress is, and I think you got
a little bit more of, although we may be looking
back with rose colored glasses. But what you don't get in modern
Congress is the hard oversight of how is this working? Is this program, is this money
doing what we expected it to do? Or is it not? You don't see much of that. That's hard, boring work. And guess what, it
doesn't get any headlines. In fact, what you get is
oversight these days is something goes wrong, everybody
says the house is on fire. Everybody, you know, starts
criticizing it and going in front of the cameras,
et cetera. It hurts in two ways. First of all, it really
doesn't help people who are trying to
implement policy. It doesn't help them at all. In fact, it often scares
them into, you know, crouching into a hole and either
hiding things from Congress and from the presidency or
frankly, and this happens, outright lying about them. Okay. Just lying
about them and hoping that they don't get caught. So there's a lot of
problems with oversight. I just think oversight has been
cheapened in recent congresses. And it's bad for the bureaucracy
because the bureaucracy needs to be held accountable. But it also needs to be able
to have an honest relationship with the Congress with their
appropriators and authorizers so that they, so
realistic goals are set. So that there's a sort
of realistic expectation of what government can deliver
and what it can't deliver. >> Gary J. Schmitt: I have lots
of conversations with folks on the Hill, and again, I'll sound like an old man
compared with, you know, the days I was up there. But one of the things I've
noticed is when it comes to oversight is the inability
of the committees and the staff, senior staff, to play hardball,
which is to say, you know, we want this particular
information, and we want it by this day. And if we don't, you know, your
budget for whatever, you know, is going to be affected
the next year. You know, you didn't have
to do that very often to all of a sudden get responses
from the bureaucracy or the administration. But for whatever reason, and
I think again it goes back to the decline of the import
of the authorization committees and committees in general. It's very difficult to get
the leadership to want to go to have these kinds
of small fights. But which are absolutely
essential if you want oversight. >> John Haskell: Jeff and Sai,
do you have any commentary on the oversight question,
whether that plays a role here of presidents undercutting
oversight? >> Saikrishna Prakash:
I mean I agree with what Jeff said earlier. Presidents aren't afraid
of Congress, right. The reason why Congress
is going to court is because they need big
brother to help them, right. If you're in a position of
strength, you don't need to go to some other institution
to adjudicate this. It's precisely because you're
in a position of weakness. Who has the information? The presidency. Who wants it? Congress. If Congress was
sufficiently powerful, they'd had it, the president
would hand over the information. And you know, why
is Congress so weak? It's for all the reasons
we've been discussing, right. Lack of information, lack of
expertise, partisan divisions, right, and that's why they're
going to the court hoping that the court will
bail them out. >> Elaine C. Kamarck:
By the way, just on the lack of expertise. I mean, Senator Mike Lee,
the republican from Utah, has been very good
on this issue. Because he keeps pointing out that Congress keeps
dumbing itself down. When you get praised about
budget cutting and you decide to cut the Library of Congress, the Congressional Research
Service, the CBO, you know, all the things that give
Congress some oomph at least in a counterbalancing the
power of the executive branch. You're really cutting off
your nose to spite your face. And I think there's a little
bit of a turning on that. And I ask you to have
a look at Senator Lee because he's been
good on these issues. >> Jeffrey K. Tulis: So
this issue intersects with Elaine's initial points
about presidential selection because it was always
the case that congressmen and senators sometimes
had ambitions to be presidents themselves. But in the old system, they
proved their worthiness for that ambition by being
really good at being a senator or a congressman and
that sort of thing. But under the new sort of
plebiscitary dispensation, they don't care about
the Congress itself. They care about using the
platform of their office for media purposes and sort
of going outside the Congress over the heads of
their colleagues to the people directly to make,
you know, their own appeals as part of their ambitions
to run for a primary. And so that's going to mess up
the entire oversight process as well because you have to be
concerned about Congress's need for the information not your
need to be a grandstander. >> John Haskell: So I forget
whether, was it Sai or Jeff, but which of you
brought up Schlesinger and the Imperial presidency? Was that -- >> Jeffrey K. Tulis: I did. >> John Haskell: Yeah. So Jeffrey brought up that
Schlesinger, particularly with reference to
foreign affairs, referred to the presidency
as the imperial presidency, which as I recall, he said
was an outgrowth of kind of the post-World War II
international stance we had, you know, military bases
all around the world, interests all around the world. That we interpret ourselves,
and of course the Cold War. But even after the Cold
War, that's continued. If the, so the question
came in that basically asked if the problem is an outgrowth
of the fact that we're, you know, we've essentially
become in many respects an empire,
how can that be changed? Is there any way, the
presidency is partly a function of the fact of the
United States. It's not just that we have a
big government domestically, but we have interests
around the globe. >> Saikrishna Prakash: I mean
I guess what I would say is that there are, Congress,
you know, has dealt with this
in various ways. We've had things like the AUMF,
which I think is an exercise of the declare war clause. We have other statutes
that are on the book, some of which I'm not even aware of where Congress has
just authorized the use of military force as appropriate in various theaters
of the world. And that would be
a way of dealing with a constitutional problem
in a constitutional manner. There would still be a policy
problem of perhaps giving that much discretion
to the president. But there's nothing
about the multifarious or multiple interests
of the United States that necessitates the
regime that we have today. That is to say you can imagine
Congress saying here's some authority to wage
war in these sectors, and we don't want you
to do this over here. And you can imagine a president
saying I respect your, you know, the grant of authority
in one area and its rejection in another. And so it's the sort
of we can't wait or I can't, or you're
indecisive. And we have, you know,
we have needs that need to be serviced right away
that leads to the problem. Whenever you hear, you know, someone say that you're not
doing your job, there's a truth to that in the sense that
if you really believe that something needs to be done
and Congress isn't stepping up to the plate,
then you might cast about for someone else to do it. But that doesn't mean
that it's lawful, right. I mean the Supreme Court
could equally say of Congress, you're not updating statutes. We'll take on that
task ourselves. Some people might
celebrate that possibility, but I think at least some of
us would be disquieted by it because it's not the
job of the Supreme Court to rewrite statutes to reflect
modern sensibilities just because Congress isn't
legislating as often as it had in the past. >> Gary J. Schmitt: It's
a really difficult problem to find the right balance. I mean because we do have these
global responsibilities which, you know, frankly the Senate
and the Congress supported since World War II by,
among other things, providing for this
very large military. And if you have a
very large military and you have a president who
is institutionally has sort of the first move and has
the discretion at hand to use the military, then you,
you know, it's easy enough to understand why presidents
have taken advantage of that to do things. I agree with Sai. There's some instances
like, for example, presidents have said we
get to use the military, put them in harm's way, for
important national interests. Well, you know, I doubt that
the founders would have thought that was sufficient
justification for going into combat. But nevertheless, it's, you
know, the only way to remove that possibility is to draw back from your global
responsibilities and cut your military
considerable so the president doesn't
have those tools at hand. And I think, you know, Congress
rightfully probably doesn't want to go down that road. So it has to be much
more assertive though when it finds the
president doing things that it hasn't authorized by actually using its
budget authority to say no, you can't use money for
this particular operation. >> Jeffrey K. Tulis: Can
I follow along, Gary. Because I think you've hit
on the two different ways, two different meanings of
the imperial presidency. The imperial presidency
could be the president at the top of an empire. Which empire was you might say
the reigning governing policy of the United States. If that were true, that's not
really what we usually mean by an objectionable
imperial presidency. You might object to the whole
notion of empire wealth, and the legislature
should change it. And the president should
obviously be diminished by that fact. But what I think we usually mean by an imperial presidency
that's objectionable, and this is why I meant to say
that we've really not had one until Trump, is a president
who simply doesn't, won't, simply refuses to do what
Congress tells the president to do when it's gone through
all the proper procedures for passing legislation
and so forth. Instead, we have Congresses not
telling presidents what to do and them sort of
filling the vacuum. Well that's not exactly
an imperial presidency. It's not a fort of Congress. It's, you know, it's substituting the
irresponsibility of Congress. And so that's the nub of it. Whether in fact a president
is actually going against. The deliberative
will of Congress. That would be a true
imperial president, and the closest we've
come to that is Trump. But generally speaking,
that's not what we've had. >> John Haskell: Any,
well you know, Gary, I don't know what you think. It might be nice to give
everybody a chance to rap. I know Sai rejected my
offer of the magic wand. But maybe each of you, if
you'd like, you can decline, has something positive to say. What Jeffrey just said maybe
constitutes something like that. Elaine, do you have
anything you would like to leave the viewers with? >> Elaine C. Kamarck: I'll
start with the magic wand, sure. The first thing I would do
is get political parties back in the game of choosing
presidents. And choosing who's going to
run, not choosing presidents but choosing who runs
under their banner. I think they talk
about abdication. I think the parties
have abdicated. And, you know, in that
wonderful book about the death of democracies around the world,
they point out that in countries where the takeover has been
by autocrats and dictators, the political parties
let it happen. And there've been
other countries where the political parties
remain stronger and sort of said to these people no,
you're not appropriate. You're not somebody who
should be in this position. So I think that that's
the first thing. The second thing I would do is
I would change the work life of Congress. Make them go to work more. You know, you've all seen the
statistics about the few numbers of days that they actually work. Make them spend more
time in committees. Make them more time
understanding what that gargantuan agency of 200,000 people
that's spending billions of dollars, what does it do? What are its problems? How can you help them? Get them back in the
game of government. They're all about
politics right now. It's all about reelection. It's all about leaving your
office as soon as you can to go to that secret office
over on Capitol Hill where you're allowed to make
phone calls to raise money. And you know, they don't
spend time in the business of government anymore. And I think that's why,
as Jeffrey so points out, they're the ones responsible
for the powerful presidency. Because they've just taken
themselves out of the game. So I think any way you could
get the political parties back in the game, the nomination
game, and the Congress back in the substantive oversight
game, the cop on the beat as people call it as opposed
to the fire alarm oversight. I think if you could
do those two things, it would help balance
this out a great deal. >> John Haskell:
Sai, any last words? >> Saikrishna Prakash:
I agree with so much of what Elaine and Jeffrey said. But I do disagree
with Jeff's point about not having an
imperial presidency. I think there are
plenty examples of modern presidents including
presidents before Trump taking congressional instructions
and basically ignoring them. And I also think there's
a separate problem of where Congress says nothing,
and presidents just decide to act, both domestically
and internationally. And I think that's
part of the problem. I don't think you
can just do something because Congress hasn't said no. Sometimes you need Congress to
say yes before you do something. And if you do something
without the yes, you are acting imperial. That's what I would say. >> John Haskell: All right. >> Jeffrey K. Tulis:
I don't disagree with that, that it's a problem. But the congress,
our disagreement is that Congress has the
opportunity to deal with these issues, either to
chastise or punish a president for acting in ways that
they don't want or to hold to account in some other way. If I could just end with
Elaine's point though to circle back to
Gary's earlier question of how you square the circle of
increasingly democratized system and yet enhancing the role
of parties at the same time. It seems to be enhancing
the role of beliefs. I think the answer
to that puzzle is to say well political parties
should be open to any citizen but that any citizen should
be able to be a member of the political party but
that the political parties and not individual
plebiscites should be choosing the candidates. That gets both. That gets democracy
and party together. And it requires a kind of
reinvigoration and re-dignifying of the very idea of political
parties because, of course, there are a lot of
people critical and skeptical of
political parties. And so it requires an argument
on behalf of political parties as indispensable to
democracy rather than somehow as [inaudible] democratic
features. >> John Haskell: Gary,
any last thoughts? >> Gary J. Schmitt: No, other
than I want to thank Sai and Elaine and Jeff
for a marvelous panel. And I also want to thank
the Library and AEI and Brookings for, you know, generating this idea
for this series. This is really important. >> John Haskell:
And that's nice. It leads me to say
that we appreciate all of your participation and
that the next event is on September 30th. And that's we're
moving to the third of the National Government
Institution Federal Judiciary. So we'll be sending you all
more information on that, and we look forward to
seeing you at that event. Thank you very much. >> Gary J. Schmitt: Thank you. >> Jeffrey K. Tulis: Thank you.
