Walter Shaub: This podcast is sponsored by the Project On Government Oversight, a nonpartisan independent government watchdog.

[musical note]

Richard Nixon: Well, when the president does it … that means that it is not illegal.

David Frost: By definition.

Richard Nixon: Exactly.

[musical note]

George W. Bush: Terrorists who once occupied Afghanistan now occupy cells at Guantanamo Bay.

[musical note]

Barack Obama: So, it is in this context that the United States has taken lethal, targeted action against al-Qaida and its associated forces, including with remotely piloted aircraft commonly referred to as drones.

[musical note]

Donald Trump: If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both chambers of Congress.

[musical note]

Mark Warner: I wish the Biden team would have given Congress greater knowledge and greater warning. We got a heads-up about 15 minutes warning before the attack took place. I think it brings into question a whole new debate around the Authorization of Use of Military Force.

[music]

Virginia Heffernan: Hello and welcome to The Continuous Action. I’m Virginia Heffernan, and this is episode four. Today, we’re gonna delve into the power of the president, its built-in constraints, and what happens when a president’s will to power bucks against those constraints.

Walt Shaub: And I’m Walt Shaub. You know, in 1973, historian Arthur Schlesinger Jr. coined the phrase “the Imperial Presidency” to highlight this problem of presidents grabbing way too much power.

Virginia Heffernan: And the audio we just heard was a few chilling highlights of presidential power trips. My favorite, I gotta say, the ominous favorite is the one from Nixon. It’s Nixonianism at its creepiest, which just sends chills down the back. And by the way, speaking of backs — lest you think Nixon’s long gone, Walt — let’s remember that Trump’s close advisor, Roger Stone, idolizes Nixon so much that he has a tattoo of that imperial president on his back. So come on, let’s listen to Tricky Dick talking to David Frost again.

Richard Nixon: Well, when the president does it, that means that it is not illegal.

David Frost: By definition.

Richard Nixon: Exactly.

Walt Shaub: That really sums up the issue we’re looking at today. In addition to Nixon, we had clips from the Bush, Obama, Trump, and Biden eras. And there’s one more from the Clinton era I wanted to play for you. Sadly, I couldn’t find a recording online, but I did find a transcript. Are you up for little Hollywood magic?

Virginia Heffernan: Always! Who do I get to play?

Walt Shaub: Well, you pick. You can either be Joe Lockhart, Bill Clinton’s press secretary, or you could play the part of “unnamed reporter.”

Virginia Heffernan: Oh, I always get the anonymous roles, like in Rip Van Winkle I had to play “village child.” So, I like unnamed reporter. Come on.

Walt Shaub: Okay. Very good. Let me set the stage. It’s April 13th, 1999, at around 2:30 p.m. The reporter, unnamed reporter, is asking Lockhart about the military action that Clinton initiated in the former Yugoslavia without congressional approval.

Virginia Heffernan: All right. Here goes…

[music starts]

Virginia Heffernan (as unnamed reporter): When talking about this situation, sir, the White House has said “conflict” or “issue.” Senator Kerry was outside, and I asked him a question about war, and he said, “This is a low-grade war.” And there are some people around the White House that have called this situation a war. Is the president ready to call this a “low-grade war”?

Walt Shaub (as Joe Lockhart): No. Next question.

Virginia Heffernan (as unnamed reporter): Why not?

Walt Shaub (as Joe Lockhart): Because we view it as a conflict.

Virginia Heffernan (as unnamed reporter): Well, when there’s such a discrepancy about sending in troops; you’ve got this humanitarian effort. That’s massive. How can you say it’s not war?

Walt Shaub (as Joe Lockhart): Because it doesn’t meet the definition as we define it.

[music ends]

Walt Shaub: I don’t think we’re gonna win an Academy Award for that one.

Virginia Heffernan: Although I love getting to play the White House press pool, come on. Who’s better than they are? They — they’re the real journalists, shouting out their questions and pushing the presidents and their spokesmen. All right. So, he just said this conflict, as he’s calling the interference in the Balkans, Lockhart says, “it doesn’t meet the definition as we define it.” The royal “we,” the president and this lawyer, that they get to choose definitions. The Clintonians were so into their kind of posh, bespoke definitions, right? “It depends on what the definition of ‘is’ is,” Clinton said at one point.

Walt Shaub: That’s right. You know, and this is the game presidents play. They assert that they have the authority to interpret things. And, unfortunately for Congress, it’s made of hundreds of members. And so, they really can’t compete with the decisiveness of one individual. And that’s the advantage presidents press.

Virginia Heffernan: Okay. I got a clip for you. I got the audio for this one, so we don’t have to resort to our acting chops again. It’s a member of Congress, John Conyers, posing a question at a hearing for George Bush’s last attorney general, Michael Mukasey. Conyers wants to know what Mukasey’s going to do about a documented case of waterboarding.

John Conyers: Well, are you ready to start a, a criminal investigation into whether this confirmed use of waterboarding by United States agents was illegal?

Michael Mukasey: That’s a direct question, and I will give a direct answer. No, I am not. For this reason: Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law, as it existed then.

Walt Shaub: Ah, the old “hide behind the Office of Legal Counsel” trick.

Don Adams (as Maxwell Smart): The old gas mask and the false nose trick.

Virginia Heffernan: You know, it’s one thing when Nixon just says, “I get to do what I want” in so many words, but it’s another, and it’s especially galling, when some of these AGs and when some of the lawyers around the president start to use this magic language, that basically means, “I get to do what I want,” but there’s all kinds of palaver and filtering through OLC that ends up justifying that power grab.

Walt Shaub: Yeah. And they’ve created a whole office for just this baloney language that justifies whatever they do. And folks inside the beltway were well familiar with the Office of Legal Counsel — which almost should be pronounced [alters voice] the Office of Legal Counsel — before the Trump administration. But folks really got familiar with it during the Trump administration, because that was the office that issued the opinion that said a president cannot be prosecuted.

Virginia Heffernan: Yeah. We heard about it a lot in questions around Trump’s — I think first impeachment. Can you — because you know way more than I do about some of these three-letter government offices that conceal, in many ways, around the banality of their acronyms, all they do to — let’s just put it simply — erode democracy. Tell me more about the OLC.

Walt Shaub: The Office of Legal Counsel, OLC, is an office inside the Department of Justice that issues legal opinions for the attorney general, who advises the president and agency heads. OLC gives advice on complex legal issues, often involving constitutional law. Now OLC doesn’t have any special authority over the government or American citizens, but its guidance drives a lot of executive branch policy, especially when it comes to battles over the separation of powers between Congress and the president. Now, unfortunately, OLC is secretive about its work. POGO has had to file a lawsuit just to get information about some of its secret opinions. OLC’s fighting literally to keep us from even knowing the titles of its opinions, much less see the opinions themselves. And the case is currently pending in federal district court, so we’ll see how that goes. You know, this is the office that justified torture in the Bush administration.

Virginia Heffernan: These are the things that, you know, phrases like “OLC” or “executive powers” or “unitary executive” come to conceal, that actual violence and death to bodies gets done...

Walt Shaub: Yeah.

Virginia Heffernan: … at the behest of the president and his henchman. As opposed to, with any kind of transparency to the American people or the press.

Walt Shaub: Yeah. The Office of Legal Counsel is filled with pointy headed little lawyers marching around in an office that is filled with marble. The hallways are marble; there’s a whole booklet DOJ put out about how fancy the headquarters building is. And so, in this sanitary, sanitized environment, these lawyers are really agents of death, and worse in some cases. You know, when Obama wanted to target American citizen Anwar al-Awlaki in a drone strike, OLC is the one that greenlighted the killing. They rationalized it for the White House. And then, after having handed down this neat little document in their pinstriped suits, a drone then takes air and actually blows up a human being.

Virginia Heffernan: I mean, we gotta leave it at that. That’s pretty dark. And we’re gonna hear about other gross abuses of power in this episode. And there are other offices, right? That extend the powers of the president kind of unbeknownst to the public, and the voter, and even the Congress, the OMB, right?

Walt Shaub: Yeah.

Virginia Heffernan: This is the one that, its apportionment directives really determine how the government agencies are going to operate. But they do this in relative secret.

Walt Shaub: Yeah. And, and let me define that term you just used for our listeners. An “apportionment” is a decision OMB makes about how to spend money Congress has appropriated. Which means Congress funds the government, but its instructions are very high level. “This should go to this program or in this general area.” And then OMB finds every ounce of wiggle room and issues things called “apportionment directives,” which Congress has allowed them to do, that specify how and when money will get spent. Well, they abused that, and OMB was complicit in that. When Trump decided to extort Ukraine and pressured them to interfere in our election, OMB withheld the money for so long that they missed the deadline for spending some of it. And it took an act of Congress to expand the deadline so that they could still spend it.

Virginia Heffernan: Once again, I mean, we’re talking about Ukraine, so it moves to violence pretty quickly. I mean, I just hope listeners understand that some of this sounds technical, and it sounds technical for a reason. Because it’s a smoke screen to conceal how money is apportioned or the death of people. So, the two things are sort of out of sync. You hear about OMB or OLC and it just seems like they are making administrative wheels turn, but no. It’s more than that. They’re giving cover, in some cases, to violence.

Walt Shaub: Yeah. Government actions have consequences, is the lesson here. And you know, you would think that since Joe Biden was the target of this Ukraine extortion, he would be all for Congress trying to claw back some of its power by reining in how apportionments are done and demanding more transparency. But actually, he opposed it when Congress tried to do that. And I asked my colleague at POGO, Liz Hempowicz, to give us an explanation of how that went down. So, let’s listen to Liz now.

Liz Hempowicz: So right now, there’s, there’s an issue around something called an apportionment. And I know that sounds complicated. So let me just make this really simple. It is — an apportionment is how the White House, or the executive branch, decides to actually spend the money that Congress has given them to spend on any given thing. As we all know, Congress holds the power of the purse. And so, they tell the executive branch and the president, ultimately, how to spend money.

But the president and his advisors write these apportionment directives, and they send them around the executive branch to kind of tell agencies, “Now spend this money this way.” But they don’t — they don’t share that with Congress. They don’t share that with the public. So, it’s actually kind of impossible.

And this is what we saw happen with President Trump when he withheld aid from Ukraine that Congress had appropriated. He did that by, you know, futzing around with the, with the apportionment directive that was related to that funding. And so, they were able to do that without Congress being aware of what was going on, until a whistleblower came forward and made — and helped make this public.

And so, what we’ve asked Congress to do is require the executive branch to share that information, those apportionment directives, with them proactively so Congress can know if the president is inappropriately substituting what they want to do with congressionally directed spending over the will of Congress. With its, you know, the example I gave you about how we saw this particular power abused in a way that led to the first impeachment of President Trump, you might expect that President Biden would be all about this kind of reform.

And yet, we’ve seen — with the White House pushing back on this particular issue — this executive prerogative where they, you know, fiercely defend any secrecy they are allowed to have. Even when we’re talking about a power that they only have, these apportionment directives, they only even write them because Congress has asked them to. It’s not a power that the president gets from the Constitution. And so — but yet the White House, even this current White House, is fighting this really small sliver of transparency that will allow Congress to do their jobs related to their exercise of the power of the purse, something directly derived from the Constitution.

[music]

Virginia Heffernan: Yeah. It seems like whatever party they belong to, presidents like every scrap of power can get their hands on.

Walt Shaub: They really do. And we’ve reached a point where the presidency looms large over the rest of the government.

Mel Brooks: It’s good to be the king.

Virginia Heffernan: It seems so un-American. In some ways, this podcast is a civics podcast. And it’s meant to remind us that, you know, this country was founded in opposition to a monarchy. Our president is supposed to be a relatively weak presider over a country. Not an autocrat. Not a tyrant. And the institutional checks on tyranny are not supposed to facilitate tyranny. They’re supposed to impede it. And even if a particular president doesn’t have authoritarian ambitions, the next president might. So, keeping these checks in place is extremely important.

Walt Shaub: Yeah. And every bit of power that a president grabs inures to the benefit of a future president who may have much more sinister uses for that power.

So, Virginia, we have a great guest coming up. Somebody who’s a real expert in presidents. Do you want to introduce him?

Virginia Heffernan: Yes. Matt Dallek is a professor at George Washington School of Political Management. He’s also a historian.

[music]

Walt Shaub: Let’s set the stage a little bit. People talked a lot about the expanding power of the presidency during the Trump administration, but the trend didn’t really begin with Trump, and it’s not gonna end with Trump. So, can you give us an overview of the growth of presidential power, and maybe tell us what people mean by the phrase “Imperial Presidency”?

Matt Dallek: Yeah. Well, thanks for having me on. The first thing I would say is that America’s wars — including dating back to the Civil War, but also World War I and II and beyond — have exponentially expanded presidential power. And, you know, World War II is a great example. The idea, of course, is that, you know, Congress, hundreds of members, the judiciary, there is no other branch of government, no other person that can defend the country’s security.

And so, especially during World War II, when there was a national emergency, an existential threat from abroad, Franklin Roosevelt believed that he was treating both actually the Great Depression and the war, the coming of war, as a major threat. And one of the ways he did that — not the only way, but one of the main ways — was through presidential power, expanding executive power. And I think he actually created more than 40 agencies, executive federal agencies, wartime agencies, on his own, through executive authority.

The Imperial Presidency follows on that. It’s really the idea, as the name implies, that, you know, the president is a king. It’s Arthur Schlesinger’s phrase during the Cold War. And especially in the nuclear age, the idea was that the country needs someone, something, to protect them. And that you can’t have a debate about whether to launch a nuclear weapon if nuclear weapons are coming in from the Soviet Union. And so, the rationale behind it was that you really need a commander in chief, right, as the title implies.

That, of course, has brought with it all sorts of challenges and risks and threats in and of themselves. But, you know, that’s, I think, the basic idea of it. And I would say the Great Depression, the economic emergency, and then World War II, the international emergency, really did the most to kind of usher in this modern era.

Walt Shaub: So, you know, speaking of other kinds of emergencies besides war, there’s also some special powers that presidents have in national emergencies. How does that work, and how has that contributed to the growth of the presidency?

Matt Dallek: Yeah. The president has the authority now, since I think 1976, to declare a national emergency, although Franklin Roosevelt and Woodrow Wilson also declared national emergencies. You know, the president can declare a national emergency over pretty much whatever they want. And that’s part of, of course, the problem, right? The opening for an abuse of power. Because if a president, for example, says that there are hundreds of thousands of terrorists who are coming in over the southern border, they can say, “That’s a national emergency and I can harvest whatever kind of powers that I want and use them.”

Now, ironically, Congress in the ’70s undertook and passed a wave of reforms to check the president. And as we know, reforms, well-intentioned reforms, also have unintended consequences. So, the president under this 1976 law can declare national emergency, has to notify Congress, and Congress can overturn it. The problem, of course, is that you really need bipartisan majorities in Congress to overturn it. And in an era of partisan polarization, it’s very hard to achieve.

And so, the most recent high-profile example is that President Trump, he shut down the government for, I think, more than three weeks in order to fund his border wall under pressure from really the far, far right in the media. So, he shut down the government and then he caved, and he said, “Okay, we’re gonna reopen the government, agree to a budget deal.” But, he said, “I’m also declaring a national emergency at the border wall.” Now, you know, Congress tried to overturn that. But again, unless you have big bipartisan majorities, which, you know, as we know, rarely happens, you can’t check the president’s power. And I believe Trump’s national emergency remained in effect for quite some time.

Virginia Heffernan: I’m reminded of — I just was hearing from a bioethicist at one of the major house hospitals that, during the height of the pandemic, a lot of doctors wanted to waive some ethical hurdles they have to jump through to decide about using chest compressions. And so, they declared a state of emergency in the hospital so that they could bypass the “do not resuscitate” orders, or if they had no “do not resuscitate” orders, they could still not resuscitate. Right?

And it does seem like this declaring a state of emergency is the signature act of the Imperial Presidency. up to and including things like Obama didn't declare a state of emergency, but, you know, Mitch, McConnell's being difficult, so, I now need to issue executive orders. That is not exactly a state of emergency. And, you know, and Bill Barr said, “Trump can’t get anything done under this Russia investigation.” Essentially, so that’s enough of an emergency to restore to him the powers of the unitary executive. So anyway, tell me about the abuse in particular of that quote “state of emergency.”

Matt Dallek: Our presidency and our democratic stability depends on presidents, in particular, adhering to a set of norms, of democratic norms. And as we now know, that is a very risky bet. Because a president can say — and again, I’ll use the Trump border wall — “There is a national emergency at the border.” Or they can say under this Title 42 Act, which wasn’t a national emergency, but is sort of similar, that, “Because of the COVID pandemic, we must turn away hundreds of thousands of people who, many of whom, are seeking asylum,” and kind of suspend the laws.

There are examples of kind of the power of the unitary executive. During the war on terror, under George W. Bush, there were a number of emergencies declared, and, you know, the idea that extreme measures were needed to protect the country, including the use of, of torture or so-called “enhanced interrogation techniques.” You know, that’s another example that I think a lot of critics saw as an abuse. But it’s really the use of an outside event to justify a particular set of actions undertaken by the federal government, in the name of the American people, that often skirt — or maybe cross — lines, ethical lines, what we would consider moral lines, the Geneva convention, and oftentimes that are illegal.

You know, Paul Begala, the Clinton aide, said of executive orders, “stroke of a pen, law of the land.” And it gives you a sense of the kind of authority that presidents see in their pen. Or, as Obama said, “I have a phone, and I have a pen.” Well, Franklin Roosevelt, two months after the bombing of Pearl Harbor, with the stroke of a pen signed Executive Order, I think it was 9066, which authorized the internment, the army to intern Japanese nationals and Japanese Americans. So, tens of thousands of citizens, most of them on the West Coast. To detain them, round them up, put them in camps. You know, there was no real debate. It was large part born of the hysteria, especially on the West Coast, that had welled up in reaction to Pearl Harbor, and also of the, the racism as well, that existed in the country. And, you know, Reagan, even as president, agreed this was abuse of power and signed a bill authorizing reparations for those camps.

But it does give you a sense of a kind of dictatorial power, right, when it is abused. It’s not always abused, right? It can be used for good things. You know, for example, at least in the eyes of, of liberals, when Obama signed executive order are legalizing the Dreamers, allowing the Dreamers to stay for at least a couple years and, and to work, and to go to school without fear of deportation. So, it, you know, in a way it’s sort of in the eye of the beholder. But there’s certainly plenty of opportunities for presidents to abuse this power.

Walter Shaub: You know, the executive orders really are an example of how it’s a double-edged sword. Republicans complained about President Obama’s use of executive orders. Democrats complained about President Trump’s use of executive orders. And it seems like so much of the public feels like, when it’s your guy, “It’s strength; it’s responding to a broken, gridlocked Congress that won’t do anything. And this is getting things done.” And when it’s the other guy, it’s, “This is abuse. This is the president circumventing Congress and doing whatever they want.” So, in that context, you can begin to see how they get away with it. There’s, there’s support.

Matt Dallek: As long as you have the support of your party, given how divided the country is and how closely divided the Congress is, it’s hard to imagine not getting away with it in a sense. I mean, the exception is that the courts can obviously step in. They did step in with, with Trump’s Muslim ban, and it was ultimately upheld — but in a much-modified form after many years.

One example I like to point to is stem cell research. So, George W. Bush came in, and in a very high profile, pre-9/11 decision, delivered a speech, I think from the Oval Office, in which he issued an executive order that sort of split the middle, although it really came down on the side on restricting the use of stem cells for medical research. Fast forward, eight years later, Barack Obama comes in, and one of his first actions, which was substantive but also really symbolic, was to lift that executive order.

So, it really is governing and policymaking via the pen. And it is a way, especially after a campaign, of saying to those who elected you, “I am implementing the agenda that I promised to do right on day one.” And it gives presidents a powerful — not just policymaking, but political — tool. And if a president thinks that they can do it without Congress, they will do it.

The other last piece I’ll mention is that because of the well-known dysfunction within Congress, the inability to enact legislation, the 60-vote threshold for a lot of legislation in the Senate, you know, Obama in part said he has a pen and a phone in reaction to a few years of frustration that he couldn’t get anything through Congress. Not after Republicans took over. And so, you know, presidents feel — understandably to some extent — that they have no other choice, no other option. If they wanna get things done, they’re just left to use their executive power, and they push it to the max.

Virginia Heffernan: You know, sometimes I think that the founders anticipated that, you know, everyone, in sort of Adam Smith-style, would be out for a monopoly — that you couldn’t trust a man to put a natural check on his own ambitions. And so, all this stuff exists, the checks and balance and everything else, the elections, to subdue his will of power, his, like, arrogant power grabs.

And yet with this most bitter consequence to me, of all these efforts to circumnavigate it — from unitary executive theory to the exercise of executive order after executive order — now they’re like, so in our brain that nobody even thinks about how they are out of sync with the democratic ideal and processes. We just think that’s how presidents act.

All of that asks the American people to think we are constantly in a state of some kind of emergency or another requiring the Imperial Presidency. And that is just not — I don’t think that’s good for our psyches. Like, if we ask all the time about why we’re on tenterhooks, why we’re polarized, part of it is because the presidents are always telling us: I can’t get anything done here because the other party are so terrible that I have to violate our first commitments in the Constitution to do this thing.

Oh, really? Well, I found that New York is an anarchist jurisdiction, so I need to start thinking about rolling tanks in. Well, I’ve decided to do this military action, so I now have all the imperial power. And so, we never think that we’re just in, like, a normal, well-running country, you know? Yeah.

Matt Dallek: Look, if the clock is always stuck at 10 minutes to midnight and apocalypse is always nigh, then you can do a lot, right? You can justify a whole raft of measures.

And that gets back to the point we were discussing earlier, which is that a lot of the underpinning of the democratic system is a reliance on norms and expectations, right? The trust that a president, once he or she gets into office, will behave responsibly, will act rationally, will act not on conspiracy theories but based in reality, and will adhere to traditions and, modern traditions, at least, and norms.

You know, the presidency, of course, was not – I mean, Americans have always been suspicious of concentrated power. The presidency was never envisioned as wielding the kind of power that it does today. In some respects, it’s understandable because, you know, in a true national emergency, as Franklin Roosevelt said and well understood in 1933, like the Great Depression, the ability of, of Roosevelt, of the president to act and to act quickly — much of it through Congress, but not all — I think was really critical, right? To save capitalism and also saving democracy. And you can kind of see the use of presidential power, of expansive pre— I mean, Roosevelt said in his first inaugural that he was going to treat the economic emergency as if an army, a foreign army, was marching on American territory. And we could say the same thing about preparing the country for World War II.

But, at the same time, yes. If everything is an emergency, if critical race theory threatens the minds of your kids, if transgender issues, you know, I mean, you can pick out any issue and you can say, “You know, if this is this kind of existential threat, Well, I as president, or frankly as governor even, have the ability to crack down, to use all my powers to save you from that threat.” And the “you” usually means that person’s supporters.

And so, I think we have entered into a more dangerous period. The fears during the Cold War, of course, were that someone like a Barry Goldwater was gonna have his finger on the nuclear button and abuse his power that way. Right? That, that would be a, you know, “Do you really want someone unstable?” That’s the argument, right? “In your heart, you know, he might.” And they said the same thing about Reagan as well.

That fear remains, to some extent, but I think it’s diminished now. I think it’s the fear —and it’s a justifiable fear; it’s legitimate, I think — that a president will get in and try to wield their powers to suppress people’s civil liberties. To round up, you know, Trump running for president in 2016, proposed not just a Muslim ban, but also maybe putting Muslims into camps or rounding them up in some kind. So, you know, the fear is that, that presidents will act on that. They have tried to some extent.

And the last thing I’ll say is, you know, well, what are the checks? Well, as we know, Congress is not a great check at this point. The courts move pretty slowly, right? So, the courts, I think, have been the most effective. The media to some extent has been effective. But, you know, given the often glacial speed at which the courts move, and also that they’ve been polarized as well — it becomes a more fraught situation for the country and for democracy.

[music]

Walter Shaub: Virginia, professor Dallek mentioned how FDR abused presidential power to order American citizens of Japanese descent to be forced into internment camps. I just want to paint for people a picture of how incredibly sinister that is, because this is the kind of thing, we’re afraid it could lead to with a future, authoritarian president. This is a government propaganda film. And it’s what it might sound like if the government did it again today,

Milton S. Eisenhower: Japanese fishermen had every opportunity to watch the movement of our ships. Japanese farmers were living close to vital aircraft plants. So, as a first step, all Japanese were required to move from critical areas such as these. But, of course, this limited evacuation was a solution to only part of the problem. The larger problem, the uncertainty of what would happen among these people in case of a Japanese invasion, still remained.

Virginia Heffernan: Wow.

Walt Shaub: He says, “these people.” What are “these people” gonna do?

Virginia Heffernan: Yeah.

Walt Shaub: It’s just so overtly racist.

Virginia Heffernan: I think one of the things that really stood out to me that’s germane to this, that Professor Dallek said, is that, you know, if we’re talking about the government the American people deserve, the government we deserve — that I think is your phrase — we deserve not to be chronically told we’re in a state of emergency that justifies extreme powers; that justifies discrimination on our soil; that justifies the president locking down our borders because there’s some imagined danger from a completely fictional caravan. I mean, these things, they prohibit rational thought. And that justifies surveillance; that justifies internment camps in some cases. That’s where I think the people can push back and say, “This is not an emergency.”

Walt Shaub: Yeah.

Virginia Heffernan: I think what we need to do is look at the legal structures for how presidents start to expand power and how their power is constrained. Our next guest is Jed Shugerman. He’s a professor of law at Fordham University, and he’s really so great. He’s a friend, I have to admit. Let’s go to the interview right now.

[music]

Walt Shaub: All right, Jed, I think we’re gonna have to talk about the unitary executive theory, but our audience may not know the term. So, before we talk about anything else, let’s define it.

Jed Shugerman: What’s amazing about the unitary executive theory is that the words of it make perfect sense, right? The unitary executive is really just a description. It’s like a facile truism. It’s a basic truism that we only have one president. Like no one, no one — there’s no alternate theory out there that says, “Oh, we really have, we have like 50 presidents.” Right? So, the question is, “What does oneness mean?”

And, so the unitary executive theory takes that really basic idea of having one president and — to oversimplify it — they try and give that president more royal power, tries to turn it into more of a king-monarch within the executive branch. So, what it, what the unitary executive theory does with that one president is, it says, “That one president cannot have conditions set on presidential power.” Which includes things like not just the veto or pardons, but also that the president has complete control over the executive branch, can fire anybody for whatever reason, and is also beyond the checks and balances within executive domain —beyond Congress and the court.

So, like hypothetically, if a president wanted to negotiate a deal to use, I don’t know, javelins, and wanted to tell the president of Ukraine, “It would be really great if you could do us a favor.” That — not only is that, that that’s fine. Because that isn’t bribery and/or extortion; that’s an extension of executive power, and it’s beyond the scope of Congress or the courts to question the use of that power.

Virginia Heffernan: That is just the most far-fetched example, Jed. I, I thought you were gonna keep it down to earth, but I, I can’t imagine a president, unitary or otherwise, making that request.

Walt Shaub: Science fiction going on here.

Virginia Heffernan: Speaking of unitary and monarchs. I do remember Donald Trump writing, “I want you to do ‘us’ a favor though,” which sounds a little bit like the royal “we.” I bring that up because I want you — like, drill down even further on the unitary idea. Because there’s obviously something called a unitary state, which gets into something about supreme authority, authority that supersedes the authority of others. I mean, why would anyone want this? Except for the person going for the power themselves.

Jed Shugerman: Well, it does help to start off with the notion that the founders chose to have one president. I mean, part of the story here is, and this is the — there is a true story that is part of the unitary executive theory. And then there’s the myth that they build on it. So let me tell you what the true story was.

The true story was that the founders thought that they experienced in the states and in the interim government, between the Revolution and the Constitution, there was something called the Articles of Confederation. And the Articles of Confederation had no executive branch. They had a Congress, and they appointed a president of Congress just like we have. It’s just like the president of the Senate is the vice president. But they had no executive leader. And what they were responding to — one of the, one of the crises was the states that had very weak executives, and the Articles of Confederation — at a time of, you know, still coming out of a revolution, it was just, it was just too much disorder. Not enough execution. Not enough functional government. So, the true story is they went into Philadelphia and had a debate, and there was a robust debate about whether there should be one or three presidents, or a council. And they chose one. And they borrowed, Virginia, they borrowed from English history to look at the powers that kings had.

But here’s the thing that they — here’s the thing that they sort of fudged, or they’re not — that unitary executive theorists don’t pay close enough attention to: They took those royal powers, and they gave some to Congress. They gave some to the president. And they gave some to neither and made sure that they went to the states.

So, an example of this is, what, what’s bigger than war and peace? Nothing. War and peace are about as big as governmental power get. They gave the war power, which had been the king’s, they gave it to Congress. They took the peace power, a.k.a. the treaty power, and they, they mixed it between the president and the Senate. So, there are a lot; those are two examples. Now the, the thing that — the mistake that the unitary executive theorists make, is that they go from that bundle of powers from the king, and they assume that anything else that wasn’t explicitly given to Congress or denied is inherited by the president. And that is wrong. That is not historically — that’s royalism. That’s not originalism.

Walt Shaub: Yikes.

Virginia Heffernan: So, tell us, it does seem like these people natter on about the unitary executive refer to the founders a lot. But does the unitary executive — tell us about how it does and doesn’t square with what the founders envisioned.

Jed Shugerman: The word “president” was understood to be someone who works with a council, works with others, presides, but cooperates. The other aspect of the founding — and this is work that I’ve done with colleagues Ethan Lee and Andrew Kent — is looking at this other clause of the Constitution, that the president shall take care that the laws be faithfully executed. That the president shall take care that the laws be faithfully executed. The president also takes an oath to faithfully execute the office. And unitary executive theorists assume that this language, it made a president more powerful. That this language of “taking care” meant that a president should have more power.

That’s not right, historically. That language was about duties. And a duty of a president to be faithful to the Constitution, to be faithful to Congress and what Congress legislates, and to be committed to Congress’s oversight — and also to be faithful to the people — all of this points in a more limited direction about presidential duties, as opposed to creating bigger presidential power.

So, an example of this is removal. So, let’s say a president wanted to remove an FBI director. I mean, again, another hypothetical, Virginia.

Virginia Heffernan: You just go — wait, Jed...

Jed Shugerman: Let my —

Virginia Heffernan: ... you gotta stick to reality here.

Jed Shugerman: Let my imagination run wild and free. Imagine a president wanted to engage in a Saturday night massacre and, right, and wanted to fire, wanted to fire the prosecutors that are investigating them for Watergate break-ins or for extorting foreign presidents for information about their rival candidates from the other party. So, the, the question is, “Should a president just be able to remove anybody for any reason?” Or does the Constitution tell us that they have to have good faith “to faithfully execute,” means that if you’re gonna fire somebody, you have to have good faith. That means you have to have good reasons. You have to have good cause. The main question here is, “Can Congress and the courts create a set of basic rules to make sure and to ask whether presidents are faithfully executing their office?”

Walt Shaub: Hmm. So, if it didn’t come from the founders, where did we get this unitary executive theory? What, what gave it its jump-start? And, and when did that happen?

Jed Shugerman: Well, I’m gonna, I’m gonna oversimplify this because, you know, there are some stages where — there is a stage a hundred years ago where there’s a major decision that said, “Congress can’t — Congress or the Senate can’t block the president — can’t have a veto over presidential removal.” And I think that might be right. Like, I think that, I think it’s fair enough to say that the president can’t be blocked. I mean, it’s one thing to say the president should have good reasons and should be able to give good reasons. Another thing to say the Senate should be able to stop the president from, from firing someone. And I think it’s arguable, but I think it’s, I think it’s valid enough. But this, but you take that kind of rule, that’s called “Myers,” and it goes, it gets, you know, it gets put on steroids somewhere between Scalia and Roberts.

So let me tell a really simple version of the story. I went back into the Watergate cases that — U.S. v. Nixon — and I found that Nixon’s lawyers were making these textual arguments that I’ve been critiquing here with you. That they, that when the president is vested with executive power, that means that the president is beyond the Watergate kind of investigation and, and has the power to do these — has, has unconditional kinds of powers. And that to take care of that, that comes from — that that revival comes directly out of Watergate in the Nixon era.

And guess who was appointed to be the head of a very major DOJ law interpreting office called the Office of Legal Counsel at the end of the Watergate era, at the end of Nixon’s administration? None other than Antonin Scalia. And Scalia then gets onto the Supreme Court. And in his second year on the court, he authors a decision that says that independent counsels and special prosecutors are, are basically unconstitutional. That the president has to be able to fire at will a prosecutor.

So, I think part of this comes out of the, for many of us, the lesson of Watergate was, presidential power is dangerous. For many conservative lawyers, the lesson of Watergate is that sometimes you gotta break eggs to make omelets, and sometimes presidents need to get stuff done, like during the Cold War. So, Walt, my answer is that it was a combination of the Cold War and making sure that presidents were powerful enough to win a Cold War. Talk about things, you know, like, you know, the, the ’80s are calling and they want their foreign policy back. Right? But that we’re back in it now.

The other thing going on with Scalia was it’s not just the Cold War but was the culture war. And — and this is really important — this isn’t just a Republican or conservative phenomenon. So, one thing that happens is after, after Scalia sort of revives his theory, now he does it in dissent. He’s all by himself. Rehnquist, conservative Supreme Court chief justice, rejects this theory. He says, “You know, it’s ... a president can exercise power, even, but sufficiently, even when he has to give good causes, give reason. Like, it’s not really an encumbrance on a presidential — president’s faithful execution duty if a president has to show that they have good faith by giving good reasons.”

So, Rehnquist is fine with what I was just describing before, but Scalia says, “No. That’s not enough. Presidents should be able to do whatever they want without having to give reasons. And without being accountable.” That’s the unitary executive theory is really is — I’m oversimplifying a bit, but it’s basically that as long as the president has the power, the president is thus above the law.

Walt Shaub: It sounds like they ought to label this one The Empire Strikes Back, because it sounds like this is the answer to Nixon being driven out of power. It’s like, “Oh, we got caught this time. Let’s not let our, our president get derailed from his authoritarian leanings next time.”

Jed Shugerman: That’s right. “And so, for a mix of foreign policy and for domestic policy, we need presidents to be able to crack eggs to get things done.” And it, and Democrats buy into it — not into the full theory, but Clinton and Elena Kagan, who was an executive branch lawyer under, in the Clinton administration. She wrote an article called “presidential administration,” which was basically, “We need to maximize presidential control over the executive branch to get stuff done.”

And Obama, then, exercises some similar kinds of power to fire inspectors general who were investigating some of his supporters. And Biden cites the Roberts Court’s expansion — massive expansion — of the unitary theory to fire some of Trump’s officials. Now I think that it will, would’ve been fine if Biden had said, “I’m getting rid of this Trump holdover because I’ve got good faith, good cause reasons why this person was corrupt or not up to the job.” But that’s not what Biden did. Biden said, “I've got the unitary — I’m citing the Supreme Court decisions for the unitary theory because I don’t wanna have to give good reasons. I just wanna exercise presidential power.”

Presidents like power. Like, so you know what they say, power corrupts. Yeah. Absolute power corrupts, absolutely. Presidential power corrupts, unitarily.

Virginia Heffernan: Yeah. That, I think is really important. That Bill Barr also said that Donald Trump, basically his reason for not pursuing an indictment for obstruction of justice after the Mueller report is that all of this headache was just to keep Trump from pursuing his political agenda.

Jed Shugerman: That’s right.

Virginia Heffernan: So, everyone was playing politics. And I think, if you like the guy, you don’t like that Barack Obama’s being blocked at every turn from what he needs to do. And you think that these are, like, carping, meddlesome priests who don’t wanna see anything done. And then when it’s the reverse, you think the guy’s a big criminal.

Jed Shugerman: Totally right. But the last thing I’ll say about Bill Barr is: He wouldn’t go all the way for Trump. This is the real — if I’ve gotta identify, “What is the real big danger of the unitary executive?” It’s that a sitting incumbent president can rig their election. And Trump tried to do that in 2020, wanted to get the DOJ to do it. And, and he found some people to do it, but they — but not enough.

The real danger of it is if you get enough, if you get a president who believes the unitary executive, wants to use presidential power to stay in office, and gets enough people in the DOJ and elsewhere to do his bidding, that that is the real danger with concentrated presidential power over things like voting or election law, as well as many other things, like foreign policy in America.

Virginia Heffernan: We talked in an earlier episode about Congress’s sort of demurral from exercising its powers to declare war. I mean, you said that war and peace responsibilities fall out, strictly speaking, of the unitary executive’s hands. So that suggests that the unitary executive theory is inconsistent with the way the country is designed. At the same time, Congress and presidents have failed to adhere to the idea that only Congress can declare war. And the more that the legislature gives up its power or refuses to take responsibility for big decisions like going to war, the more a hole is opened up for someone to argue that the executive is doing all this anyway.

Jed Shugerman: That’s exactly right. And I think when we come to the questions of war, it is really complicated — you can see the psychology of why we’ve gotten to this point. And then you look back and you’re like, at every stage, we understand why. World War II meant that we needed to have more presidential power. And, and then you get to the Cold War. Good too. And at the end, you realize that you’ve built this military-industrial complex that one person has all this control over. And then you’re in Afghanistan for 20 years.

There is a bit of this sort of, you know, the apocryphal frog, getting boiled. I mean, I think that this, the unitary executive is an incremental boiling of democracy into a more imperial executive, or a more royalist executive.

[music]

Walt Shaub: You were right, Virginia, when you introduced him and said Jed is terrific. Jed is terrific. That was a great interview. You know, faced with the authoritarian apocalypse, we might as well have some fun on the way down.

Virginia Heffernan: We’re gonna go down swinging. Yep. Well, we are The Continuous Action. So, let’s talk about what we can do to stave off that apocalypse.

Walt Shaub: Indeed, we are. As Jed pointed out, Congress is a mess. And one thing we can do is demand that our members of Congress get their act together and reassert some authority. You know, voters can also pressure the White House to do something it hates to do: Exercise restraint. Don’t grab every last inch of presidential power your Office of Legal Counsel can rationalize.

Virginia Heffernan: So, what about laws? What can we do?

Walt Shaub: Yeah, I’m glad you asked. Let’s bring back POGO’s Liz Hempowicz, who we heard from earlier. I asked Liz to tell us about one bill in particular that I really like that’s pending in Congress, called the Protecting Our Democracy Act. That bill would put some limits on the presidency. Let’s go to Liz.

Liz Hempowicz: The Protecting Our Democracy Act is a, is a piece of legislation that —the way I like to think about it is that it improves the types of laws that the public shouldn’t really have to worry about at all.

What do I mean by that? For example, it would make sure that the, that Congress is able to enforce its subpoenas when they ask, you know, the executive branch for information. It would make sure that whistleblowers blowing the whistle on waste, fraud, and abuse in the federal government don’t have to worry about their jobs if they do so; don’t have to worry about retaliation. It would ensure that Congress can monitor whether the White House is complying with the law, and, and respecting separation of powers when it comes to the power of the purse. It would put restrictions on the president’s ability to pardon themselves for committing crimes. You know, that is something that the public does not need to have explained to it. They are really there. It would also require presidents and presidential candidates to release their tax records.

And it would put a limit on the power that presidents have to declare national emergencies. That gives them access to so many emergency powers, and, and doesn’t really allow Congress to effectively rein them in if they see the president is abusing those powers. And, and I know, you know, I just wanna emphasize that when we’re talking about the National Emergencies Act, we’re not even talking about the kind of normal presidential power that we see presidents, you know, kind of taking to the logical extreme. We’re talking about powers that Congress has delegated to the president to only use in a time of emergency. And so, it’s just so critical that in that exact scenario, Congress is able to say effectively when they disagree with the president’s definition of what an emergency is.

And so, you know, the Protecting Our Democracy Act — those are just a couple of the central features in that, in that piece of legislation. But what it really is about is improving, again, those types of laws that the public just assumes — and should be able to assume — are strong enough. But frankly, they aren’t. And so, we really need Congress to act to make sure that, that they have the tools, and the public has the tools we need to keep corruption out of our federal government.

Virginia Heffernan: You know, this Protecting Our Democracy Act sounds like a great bill.

Walt Shaub: It really is. And it’s the kind of legislation we need Congress to pass, to restore balance. And I think it’s just crucial that the public keep up the pressure on Congress to rein in the presidency. Even if you like the president you have. Because the next president is gonna use the powers that this president grabs.

Virginia Heffernan: Amen. Well, that’s it for this episode of The Continuous Action. In the next episode, that’s episode five, we’re gonna look at the largest and least accountable law enforcement agency in the country: the Customs and Border Patrol. The Continuous Action is hosted by me, Virginia Heffernan, and Walter Shaub. Myron Kaplan is our producer, with help from Bubba Bach.

[music]