NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the power of the Executive. Today’s episode features Professor Jeremy Rabkin, who is a Professor of Law at the Antonin Scalia Law School, George Mason University. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. - PUBLIUS: The Executive Branch has been given the power to enforce the law. Does the President also have discretion to not enforce the law? How does this affect his relationship with Congress? JEREMY RABKIN: So, I think the real prize in this is, I mean, the thing that we should be really focusing on. The president should not be able to coerce people without legislative authorization. Legislative authorization means our legislature here in the United States, the House, the Senate. We can dispute over, "What if they delegate to an administrative agency within some limits?" Okay, maybe, but the president can't on his own coerce people. And the president, by the same token, shouldn't be able to grant exemptions from the law. He has a pardon power, but the pardon power is for an offense that was already committed. If you grant an open-ended pardon in advance, that's not even executive power. That's a royal prerogative, which even Britain didn't accept. I mean, this was one of the things they protested against in the Glorious Revolution. So, I think it was wrong of President Obama to say, "People coming to the United States in violation of our immigration laws, people who are here unlawfully, I'm going to give them a certification that it's okay." It's fine if he doesn't prosecute them. You can't prosecute everything all the time. If he wants to say, it would be better to say it quietly. But even if he wants to say publicly, "I'm not going to prosecute them," but what he purported to give them was a certification that you can't be prosecuted. You won't be prosecuted. And I think that was really abusive and I think the Supreme Court is going to say that, or at least they're now going to say President Trump is well within his rights. I mean, the court was divided on that. We should all acknowledge that the president or the executive has a lot of discretion. And different presidents will be comfortable with different exercises of discretion and more openly-framed exercises, but I think there shouldn't be, on the one hand, coercion without law. And there shouldn't, on the other hand, be official dispensations from the law. PUBLIUS: Given that context, what does the Constitution mean when it states that the President “shall take care that the laws be faithfully executed”? Does the President have final and complete authority over all parts of the Executive branch, like administrative officials and agencies? JEREMY RABKIN: There is a provision in Article II. He shall take care, he the president, that the law be faithfully executed. And that has been interpreted to mean not faithfully, correctly. So, he can just tell them what it means, but actually that is a somewhat strange, almost grammatically strange, way of saying that if that's what you meant. He shall take care that the law be faithfully executed. The passive construction implies it's being executed by someone else. And he's only making sure that it is faithfully executed, which may mean something different from correctly, but just honestly, all right? So, this was disputed by attorney general in the 19th century. I think there are still disputes about this. And just to raise the obvious complication, there are two obvious complications. There are a bunch of officials, hundreds, who have very technical duties as administrative law judges, hearing examiners, auditors. I think everyone would be disturbed at the idea that the president could call them up and say, "Well, you're not in Congress and you're not a judge. Therefore, you're in the executive branch. Therefore, you work for me." And the correct answer is general dynamics should not have to pay this. I haven't had time to go through all the documents that you did, but that's my impression, so I don't want you to change the result. That's a very alarming and disturbing thought. He's the commander-in-chief in the same way. It would be very disturbing, and I believe unlawful, for the president to call the officer sitting on a court martial and say, "The correct outcome is not guilty." So, there are officials who are in the executive branch who are doing, who are performing, very formal functions, which imply some distance from direct political interference. And I don't know constitutionally exactly how you work that out and square that circle. The reason why I don't know is there are hardly any cases that speak to this in a clear way. Everyone is aware of this difficulty, so those particularized functions. And then, the Congress has decided, "Oh, we're going to go beyond that and establish an entire agency. And we're going to say that the commissioners of the first important one, the Federal Trade Commission, can't be removed by the president except for cause." And that has been understood to mean they don't work for the president. They're not accountable to the president. How seriously we should take this is a matter of dispute. Some people think cause could be actually the president saying, "Oh, really, I don't agree with you." Other people think, "No, no, no, that would make it nonsense. It has to mean something like you've committed the equivalent of a crime, something like such an obvious dereliction of duty." Well, we are still arguing about this. But I think there's just a background understanding that presidents will have some role in influencing the policy of these independent commissions so they are not independent in the way the independent judiciary is independent. And there are people on the other side who say, "This has all been a constitutional error and really there cannot be any such thing as a whole agency that is independent of the president." I'm not sure we want to fight that fight to a conclusion, but it has been a fight that we've been having. Personally, I think it makes no sense to think of so-called independent agencies as other than executive. They are not judicial and they are not legislative. Therefore, they have to be executive unless you want to say that the Constitution sets out the three branches of power, but the three are just examples. And there could be five or seven. And if you go down that road, I think you're basically saying, "The Constitution was just a rough draft and it is up to us to polish it into something extremely different." That's not just going to produce a lot of confusion when it comes to the executive power, but all together is a dangerous way of thinking about the Constitution. PUBLIUS: So who’s job is it to oversee independent agencies? If the President plays only a limited role, then does that mean Congress should be exercising greater oversight powers? JEREMY RABKIN: We have come to have a somewhat exaggerated idea of what Congress should be doing, because we think, "Oh yeah, well, Congress makes the laws, but then Congress also does oversight. And the oversight is really important." Actually, the oversight is not mentioned in Article I, Section 8. British practice was, the parliament was, usually not in session. Early American practice, actually American practice well into the 20th century was that Congress was out of session as often as it was in session. There were long periods when Congress was just not there. And it's a fair question whether probing and inquiring, which often amounts to trying to bully executive officers. "Why are you doing this? What about this? How could you have failed in this?" Whether that is a part of legislative power, there's some of that in British parliamentary practice. But usually in British parliamentary practice, that is just a way of raising questions about the Cabinet as a whole, the government as they call it, meaning as we would say the executive, not individual officers. But we think the separate congressional committees will oversee the work of individual executive officers. That has become so ingrained in our practice that it would be ludicrous to ask, "Are they really allowed to do that?" Although, there are questions about what kind of information they are entitled to get and even questions about whether committees on their own, or one house, can mandate something to be done that is not exactly a law but is a way for Congress to say, "We want this to be done." So, we expect more of the activity of Congress than just passing laws. Let me just mention here. People who've thought a lot about the rule of law have raised questions about this. In his last great work, Friedrich Hayek proposed, "There ought to be a separate body that does things like budgeting, because that is so political. It's really different from making the laws. The lawmaking body should be removed from all the political stuff of budgeting and administration. Well, that's hopeless. That's not going to happen, but it is good to be reminded that what we mean by legislative power is something different from directing the details of implementation. And I belabor this just to come back to the executive. Whether or not you think every executive officer or every, as we would know say, administrative official is directly accountable to the president. I think it's very important for the president to be able to exercise some defense of those officials as against Congress. On the question of is there executive privilege, this is not a matter, I don't think, that can be decided by administrative officials. Congress says, "We want this information." And there may be some reason why that is a very sensitive and shouldn't be shared with the Congress. I don't think that's a matter for even a Cabinet secretary. That is something that really the president has to decide. There will be disputes about when he can claim it over how much material, but it's really his call. PUBLIUS: What about appointments for executive officers and other staff? Does the President or Congress rightly have authority over that? JEREMY RABKIN: Normally when people refer to the executive, it's shorthand for the executive branch, which is many thousands of people. Depending on how you count, it's tens of thousands of people. And so, there's an inherent ambiguity about, wait, are all of those people just assistance to the president and what does it mean to be an assistant to the president? And that is an inherent ambiguity. It's particularly ambiguous, because the Constitution doesn't establish any other executive offices apart from president and vice president. Vice president doesn't seem to have any actual executive responsibilities. So, all of those other executive offices are established by statute. And the Congress usually indicates, "We want someone to do the following and be responsible to do the following." So, that seems to indicate that all of the other executive officers have statutory duties, statutorily defined responsibilities. And if that is so, it raises a question. Well then, what really is their relation to the president? And that is a very big and complicated question. The president nominates and the Senate confirms, and the Constitution mentions that some appointments may by law be vested in heads of departments, which seems to be up to Congress. Then, if you say, "Oh, it's the call of the head of the department," can he do that independently of the president or can the president say, "No, I don't want that. I want my guy"? In practice, presidents are very intrusive. The Constitution doesn't say anything about what we now call civil service career people who are not appointed by the president. Appointed is not the right word. They're hired. There are all these people who are secretaries. There are maintenance people. They're doing the switchboard. They're doing communications. Some of those people are actually doing some real substantive activity. They are investigators and they write up reports. Let's just take the obvious example, the FBI. Should we think of FBI agents? It's a pretty responsible job. It's an important job. Is that an appointment? Well, they've never been treated as an appointment but, I mean, by the president. But should they even be an appointment of the attorney general. How should that be done? And so far, pretty much that's Congress by law decides how they want that done. And the president reaches over or around to the extent that he wants to, but not much on these civil service positions. PUBLIUS: What about recess appointments? That seems to be a pretty big issue in recent years. JEREMY RABKIN: So, the Constitution specifies that the president makes appointments with the advice and consent of a Senate, and then it makes this provision for the president alone may make an appointment during the recess of the Senate. And President Obama having failed to get a Republican Senate to confirm a bunch of his nominees, but in this case it was about the National Labor Relations Board. He said, "Oh, fine, I think the Senate is in recess, because they're not actually doing any business. And they have the...", whoever it was, the president of the Senate, the majority leader. Somebody just shows up and bangs the gavel saying, "Hi, here we are. Okay, no one showed up. CSPAN, you can turn off the cameras and go home." And so, Obama said, "Cut it out. You were really in recess." Now, they had gone through the Senate, that little ritual of saying, "Oh no, we're not in recess," precisely to stop the president. And the president said, "Well, I'm the president, so I know what's what." So, he appointed people to the National Labor Relations Board and they provided a quorum, not just a majority but a quorum, to make a number of rulings. And this company Noel Canning said, "No, wait, you're imposing on us, but you didn't actually have a qualified National Labor Relations Board," because some of the members were appointed during this recess appointment. And so, they challenged this and it went to the Supreme Court. It's quite interesting and also quite characteristic that it took approximately 130 years for this issue to get to the Supreme Court. What does it mean in the recess of the Senate? And everybody on the Supreme Court said, "It doesn't mean what Obama said." Because if it meant the Senate broke early for lunch, then the president would never have to submit anyone to Senate ratification so that can't be right. But the majority opinion by Justice Breyer argues still the recess should mean something like any time when the Senate is away for a significant amount of time. It doesn't have to be a real long time, but a significant amount of time, more than a one-day break. There is a concurring opinion by Justice Scalia, which as I recall, Justice Alito and Justice Thomas and maybe Chief Justice Roberts. But anyway, the Conservatives said, "No, no, no, that's clearly not what they meant at the beginning. What they meant in the beginning was the actual period when the Senate goes home for months," which is how it used to be. They would have a brief session, and then they would go home. And Scalia just says, which is an interesting concession on his part, that provision of the Constitution is now an anachronism, because they're there all the time. And this is one of the ways in which technology actually has changed the world. They can fly home for the weekend, which in the old days, it was really onerous to travel from Washington even to Massachusetts, let alone to places further west. And in the old days, it was horrible to be in Washington for the summer. So, air travel, or at least rail travel and air conditioning, have made it easy for the Congress to stay in session. And so, Scalia was just saying, "There's hardly is a recess." So, that's a provision in the Constitution that doesn't apply, but you don't update it. If it's been made anachronistic, well then it's anachronistic. And it probably won't apply, so we don't have a recess anymore. I don't have a particularly decided opinion about this. And actually I think this case was more interesting to advocates and critics of originalism than it was to people concerned about executive authority, because we managed to go along for a very long time without resolving this question. I think it's also true that President Obama was a little bit... Let me try and state this clinically, neutrally. He was much more aggressive in using this recess appointment power than his predecessor. So, maybe it was a good thing to push back, which was what everybody on the court was saying. Now, come on, don't do this. But what President Trump has done is always, I think, a little bit abusive, which is he has appointed people to be acting secretary and doesn't then appoint someone to be the secretary, or doesn't nominate someone to be the secretary. So, we have a lot of people who are... It is as if he's making a recess appointment. It's technically different, because they're not called secretary, but there's a whole lot of people who are conducting important offices without Senate confirmation and that is not a good thing either. PUBLIUS: One last important question about the interaction between a President and the Legislature. What about war powers? JEREMY RABKIN: The story that's usually told, particularly to high school students is Congress has the power to declare war, so only Congress can initiate a war. And sometimes, they even tell you that the original wording of that at the Philadelphia Convention was make war and it was changed to declare war, to acknowledge it. Okay, if we're attacked, then a president can use force to defend us even without a declaration for. Even in 1787, it was not always regular practice to declare wars. Frederick the Great would just launch his armies into an attack. He was not always concerned about these formalities and there was a reason for that Even in the 18th century, countries wanted to say, "This was forced on us. We're not declaring this, because we want to. We've just chosen it. No, no, no, this was forced on us." So, they frequently did not declare war. So, it's actually not so clear what the declare war power means. It's also totally clear that the president, just as a practical matter, would have a lot of difficulties sustaining a war without support from Congress to just say the first thing. A real war that involves a lot of troops costs a lot of money. You almost certainly had not budgeted enough for that, so you have to go back to Congress and say, "Please, give us more money. This is really important. We need to do this." It has never happened, but a war that lasted more than a few months did not require the president go back and ask for additional appropriation. So, Congress is going to be part of this as a practical matter. Also, if you don't win quickly, the country, "What is this? What's going on here?" And if it looks like the president's personal war, that will undermine support for it. So, as a practical matter, I don't think a lot turns on the phrasings in the Constitution. I think as a practical matter, you should ask yourself, "Are we talking about a sustained commitment of troops over a long time?", which is one thing. Or, "Are we talking about a quick jab?", which today can be done very easily, but we forget that that was true even in the time of the founders. In the Constitution, they mention the Navy separately and they have a separate prohibition in Article I, Section 10 against states maintaining a navy. And you might ask, "What's all this about a navy?" And I think there's a very clear answer to that, which they very well understood that the Navy could be out sailing around on the other side of the world and do a quick bombardment of, I was going to say, an enemy port but it doesn't have to be an enemy. I mean, just something that we're upset about. Our interventions against the Barbary pirates did not always follow from a declaration of war and that has a lot to do with the Navy is already in being. It's already out there. And it's not so threatening to Americans. So, you might think of the cruise missile as the 21st century counterpart of naval bombardment. I totally understand why people are concerned that the president might be impulsive in resorting to cruise missile strikes. I think it is hard to sustain that, oh no, there is a constitutional prohibition against the president using force outside the country. If there is one, then most presidents in the 20th century have violated it. And after a while, it's silly, I think, to say there's a constitutional prohibition, only it doesn't have to be observed. If it doesn't have to be observed, it isn't a constitutional prohibition. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! - Transcript [for YouTube - no speaker names/verbatim] Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the power of the Executive. Today’s episode features Professor Jeremy Rabkin, who is a Professor of Law at the Antonin Scalia Law School, George Mason University. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. The Executive Branch has been given the power to enforce the law. Does the President also have discretion to not enforce the law? How does this affect his relationship with Congress? So, I think the real prize in this is, I mean, the thing that we should be really focusing on. The president should not be able to coerce people without legislative authorization. Legislative authorization means our legislature here in the United States, the House, the Senate. We can dispute over, "What if they delegate to an administrative agency within some limits?" Okay, maybe, but the president can't on his own coerce people. And the president, by the same token, shouldn't be able to grant exemptions from the law. He has a pardon power, but the pardon power is for an offense that was already committed. If you grant an open-ended pardon in advance, that's not even executive power. That's a royal prerogative, which even Britain didn't accept. I mean, this was one of the things they protested against in the Glorious Revolution. So, I think it was wrong of President Obama to say, "People coming to the United States in violation of our immigration laws, people who are here unlawfully, I'm going to give them a certification that it's okay." It's fine if he doesn't prosecute them. You can't prosecute everything all the time. If he wants to say, it would be better to say it quietly. But even if he wants to say publicly, "I'm not going to prosecute them," but what he purported to give them was a certification that you can't be prosecuted. You won't be prosecuted. And I think that was really abusive and I think the Supreme Court is going to say that, or at least they're now going to say President Trump is well within his rights. I mean, the court was divided on that. We should all acknowledge that the president or the executive has a lot of discretion. And different presidents will be comfortable with different exercises of discretion and more openly-framed exercises, but I think there shouldn't be, on the one hand, coercion without law. And there shouldn't, on the other hand, be official dispensations from the law. Given that context, what does the Constitution mean when it states that the President “shall take care that the laws be faithfully executed”? Does the President have final and complete authority over all parts of the Executive branch, like administrative officials and agencies? There is a provision in Article II. He shall take care, he the president, that the law be faithfully executed. And that has been interpreted to mean not faithfully, correctly. So, he can just tell them what it means, but actually that is a somewhat strange, almost grammatically strange, way of saying that if that's what you meant. He shall take care that the law be faithfully executed. The passive construction implies it's being executed by someone else. And he's only making sure that it is faithfully executed, which may mean something different from correctly, but just honestly, all right? So, this was disputed by attorney general in the 19th century. I think there are still disputes about this. And just to raise the obvious complication, there are two obvious complications. There are a bunch of officials, hundreds, who have very technical duties as administrative law judges, hearing examiners, auditors. I think everyone would be disturbed at the idea that the president could call them up and say, "Well, you're not in Congress and you're not a judge. Therefore, you're in the executive branch. Therefore, you work for me." And the correct answer is general dynamics should not have to pay this. I haven't had time to go through all the documents that you did, but that's my impression, so I don't want you to change the result. That's a very alarming and disturbing thought. He's the commander-in-chief in the same way. It would be very disturbing, and I believe unlawful, for the president to call the officer sitting on a court martial and say, "The correct outcome is not guilty." So, there are officials who are in the executive branch who are doing, who are performing, very formal functions, which imply some distance from direct political interference. And I don't know constitutionally exactly how you work that out and square that circle. The reason why I don't know is there are hardly any cases that speak to this in a clear way. Everyone is aware of this difficulty, so those particularized functions. And then, the Congress has decided, "Oh, we're going to go beyond that and establish an entire agency. And we're going to say that the commissioners of the first important one, the Federal Trade Commission, can't be removed by the president except for cause." And that has been understood to mean they don't work for the president. They're not accountable to the president. How seriously we should take this is a matter of dispute. Some people think cause could be actually the president saying, "Oh, really, I don't agree with you." Other people think, "No, no, no, that would make it nonsense. It has to mean something like you've committed the equivalent of a crime, something like such an obvious dereliction of duty." Well, we are still arguing about this. But I think there's just a background understanding that presidents will have some role in influencing the policy of these independent commissions so they are not independent in the way the independent judiciary is independent. And there are people on the other side who say, "This has all been a constitutional error and really there cannot be any such thing as a whole agency that is independent of the president." I'm not sure we want to fight that fight to a conclusion, but it has been a fight that we've been having. Personally, I think it makes no sense to think of so-called independent agencies as other than executive. They are not judicial and they are not legislative. Therefore, they have to be executive unless you want to say that the Constitution sets out the three branches of power, but the three are just examples. And there could be five or seven. And if you go down that road, I think you're basically saying, "The Constitution was just a rough draft and it is up to us to polish it into something extremely different." That's not just going to produce a lot of confusion when it comes to the executive power, but all together is a dangerous way of thinking about the Constitution. So who’s job is it to oversee independent agencies? If the President plays only a limited role, then does that mean Congress should be exercising greater oversight powers? We have come to have a somewhat exaggerated idea of what Congress should be doing, because we think, "Oh yeah, well, Congress makes the laws, but then Congress also does oversight. And the oversight is really important." Actually, the oversight is not mentioned in Article I, Section 8. British practice was, the parliament was, usually not in session. Early American practice, actually American practice well into the 20th century was that Congress was out of session as often as it was in session. There were long periods when Congress was just not there. And it's a fair question whether probing and inquiring, which often amounts to trying to bully executive officers. "Why are you doing this? What about this? How could you have failed in this?" Whether that is a part of legislative power, there's some of that in British parliamentary practice. But usually in British parliamentary practice, that is just a way of raising questions about the Cabinet as a whole, the government as they call it, meaning as we would say the executive, not individual officers. But we think the separate congressional committees will oversee the work of individual executive officers. That has become so ingrained in our practice that it would be ludicrous to ask, "Are they really allowed to do that?" Although, there are questions about what kind of information they are entitled to get and even questions about whether committees on their own, or one house, can mandate something to be done that is not exactly a law but is a way for Congress to say, "We want this to be done." So, we expect more of the activity of Congress than just passing laws. Let me just mention here. People who've thought a lot about the rule of law have raised questions about this. In his last great work, Friedrich Hayek proposed, "There ought to be a separate body that does things like budgeting, because that is so political. It's really different from making the laws. The lawmaking body should be removed from all the political stuff of budgeting and administration. Well, that's hopeless. That's not going to happen, but it is good to be reminded that what we mean by legislative power is something different from directing the details of implementation. And I belabor this just to come back to the executive. Whether or not you think every executive officer or every, as we would know say, administrative official is directly accountable to the president. I think it's very important for the president to be able to exercise some defense of those officials as against Congress. On the question of is there executive privilege, this is not a matter, I don't think, that can be decided by administrative officials. Congress says, "We want this information." And there may be some reason why that is a very sensitive and shouldn't be shared with the Congress. I don't think that's a matter for even a Cabinet secretary. That is something that really the president has to decide. There will be disputes about when he can claim it over how much material, but it's really his call. What about appointments for executive officers and other staff? Does the President or Congress rightly have authority over that? Normally when people refer to the executive, it's shorthand for the executive branch, which is many thousands of people. Depending on how you count, it's tens of thousands of people. And so, there's an inherent ambiguity about, wait, are all of those people just assistance to the president and what does it mean to be an assistant to the president? And that is an inherent ambiguity. It's particularly ambiguous, because the Constitution doesn't establish any other executive offices apart from president and vice president. Vice president doesn't seem to have any actual executive responsibilities. So, all of those other executive offices are established by statute. And the Congress usually indicates, "We want someone to do the following and be responsible to do the following." So, that seems to indicate that all of the other executive officers have statutory duties, statutorily defined responsibilities. And if that is so, it raises a question. Well then, what really is their relation to the president? And that is a very big and complicated question. The president nominates and the Senate confirms, and the Constitution mentions that some appointments may by law be vested in heads of departments, which seems to be up to Congress. Then, if you say, "Oh, it's the call of the head of the department," can he do that independently of the president or can the president say, "No, I don't want that. I want my guy"? In practice, presidents are very intrusive. The Constitution doesn't say anything about what we now call civil service career people who are not appointed by the president. Appointed is not the right word. They're hired. There are all these people who are secretaries. There are maintenance people. They're doing the switchboard. They're doing communications. Some of those people are actually doing some real substantive activity. They are investigators and they write up reports. Let's just take the obvious example, the FBI. Should we think of FBI agents? It's a pretty responsible job. It's an important job. Is that an appointment? Well, they've never been treated as an appointment but, I mean, by the president. But should they even be an appointment of the attorney general. How should that be done? And so far, pretty much that's Congress by law decides how they want that done. And the president reaches over or around to the extent that he wants to, but not much on these civil service positions. What about recess appointments? That seems to be a pretty big issue in recent years. So, the Constitution specifies that the president makes appointments with the advice and consent of a Senate, and then it makes this provision for the president alone may make an appointment during the recess of the Senate. And President Obama having failed to get a Republican Senate to confirm a bunch of his nominees, but in this case it was about the National Labor Relations Board. He said, "Oh, fine, I think the Senate is in recess, because they're not actually doing any business. And they have the...", whoever it was, the president of the Senate, the majority leader. Somebody just shows up and bangs the gavel saying, "Hi, here we are. Okay, no one showed up. CSPAN, you can turn off the cameras and go home." And so, Obama said, "Cut it out. You were really in recess." Now, they had gone through the Senate, that little ritual of saying, "Oh no, we're not in recess," precisely to stop the president. And the president said, "Well, I'm the president, so I know what's what." So, he appointed people to the National Labor Relations Board and they provided a quorum, not just a majority but a quorum, to make a number of rulings. And this company Noel Canning said, "No, wait, you're imposing on us, but you didn't actually have a qualified National Labor Relations Board," because some of the members were appointed during this recess appointment. And so, they challenged this and it went to the Supreme Court. It's quite interesting and also quite characteristic that it took approximately 130 years for this issue to get to the Supreme Court. What does it mean in the recess of the Senate? And everybody on the Supreme Court said, "It doesn't mean what Obama said." Because if it meant the Senate broke early for lunch, then the president would never have to submit anyone to Senate ratification so that can't be right. But the majority opinion by Justice Breyer argues still the recess should mean something like any time when the Senate is away for a significant amount of time. It doesn't have to be a real long time, but a significant amount of time, more than a one-day break. There is a concurring opinion by Justice Scalia, which as I recall, Justice Alito and Justice Thomas and maybe Chief Justice Roberts. But anyway, the Conservatives said, "No, no, no, that's clearly not what they meant at the beginning. What they meant in the beginning was the actual period when the Senate goes home for months," which is how it used to be. They would have a brief session, and then they would go home. And Scalia just says, which is an interesting concession on his part, that provision of the Constitution is now an anachronism, because they're there all the time. And this is one of the ways in which technology actually has changed the world. They can fly home for the weekend, which in the old days, it was really onerous to travel from Washington even to Massachusetts, let alone to places further west. And in the old days, it was horrible to be in Washington for the summer. So, air travel, or at least rail travel and air conditioning, have made it easy for the Congress to stay in session. And so, Scalia was just saying, "There's hardly is a recess." So, that's a provision in the Constitution that doesn't apply, but you don't update it. If it's been made anachronistic, well then it's anachronistic. And it probably won't apply, so we don't have a recess anymore. I don't have a particularly decided opinion about this. And actually I think this case was more interesting to advocates and critics of originalism than it was to people concerned about executive authority, because we managed to go along for a very long time without resolving this question. I think it's also true that President Obama was a little bit... Let me try and state this clinically, neutrally. He was much more aggressive in using this recess appointment power than his predecessor. So, maybe it was a good thing to push back, which was what everybody on the court was saying. Now, come on, don't do this. But what President Trump has done is always, I think, a little bit abusive, which is he has appointed people to be acting secretary and doesn't then appoint someone to be the secretary, or doesn't nominate someone to be the secretary. So, we have a lot of people who are... It is as if he's making a recess appointment. It's technically different, because they're not called secretary, but there's a whole lot of people who are conducting important offices without Senate confirmation and that is not a good thing either. One last important question about the interaction between a President and the Legislature. What about war powers? The story that's usually told, particularly to high school students is Congress has the power to declare war, so only Congress can initiate a war. And sometimes, they even tell you that the original wording of that at the Philadelphia Convention was make war and it was changed to declare war, to acknowledge it. Okay, if we're attacked, then a president can use force to defend us even without a declaration for. Even in 1787, it was not always regular practice to declare wars. Frederick the Great would just launch his armies into an attack. He was not always concerned about these formalities and there was a reason for that Even in the 18th century, countries wanted to say, "This was forced on us. We're not declaring this, because we want to. We've just chosen it. No, no, no, this was forced on us." So, they frequently did not declare war. So, it's actually not so clear what the declare war power means. It's also totally clear that the president, just as a practical matter, would have a lot of difficulties sustaining a war without support from Congress to just say the first thing. A real war that involves a lot of troops costs a lot of money. You almost certainly had not budgeted enough for that, so you have to go back to Congress and say, "Please, give us more money. This is really important. We need to do this." It has never happened, but a war that lasted more than a few months did not require the president go back and ask for additional appropriation. So, Congress is going to be part of this as a practical matter. Also, if you don't win quickly, the country, "What is this? What's going on here?" And if it looks like the president's personal war, that will undermine support for it. So, as a practical matter, I don't think a lot turns on the phrasings in the Constitution. I think as a practical matter, you should ask yourself, "Are we talking about a sustained commitment of troops over a long time?", which is one thing. Or, "Are we talking about a quick jab?", which today can be done very easily, but we forget that that was true even in the time of the founders. In the Constitution, they mention the Navy separately and they have a separate prohibition in Article I, Section 10 against states maintaining a navy. And you might ask, "What's all this about a navy?" And I think there's a very clear answer to that, which they very well understood that the Navy could be out sailing around on the other side of the world and do a quick bombardment of, I was going to say, an enemy port but it doesn't have to be an enemy. I mean, just something that we're upset about. Our interventions against the Barbary pirates did not always follow from a declaration of war and that has a lot to do with the Navy is already in being. It's already out there. And it's not so threatening to Americans. So, you might think of the cruise missile as the 21st century counterpart of naval bombardment. I totally understand why people are concerned that the president might be impulsive in resorting to cruise missile strikes. I think it is hard to sustain that, oh no, there is a constitutional prohibition against the president using force outside the country. If there is one, then most presidents in the 20th century have violated it. And after a while, it's silly, I think, to say there's a constitutional prohibition, only it doesn't have to be observed. If it doesn't have to be observed, it isn't a constitutional prohibition. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!