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 branch. Today’s episode features Professor Steven G. Calabresi, the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law. He is Chairman of the Federalist Society's Board of Directors. 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: We’re here today with Professor Steven Calabresi. Let’s start with an obvious question that the Founders would have considered. How is Executive Power similar to and different from the power of a King? STEVEN CALABRESI: In addition to granting the President the executive power one has to ask, "Well, what is the executive power? How broad is it?" And, at one extreme, some people have argued, as Alexander Hamilton did in the 1790s, that the executive power of the President includes all the powers that King George III of England had, except for those that are specifically assigned by the Constitution to Congress or to some other entity. So, King George III had the power to make war and declare peace and to make treaties, but the Constitution gives Congress the power to declare war, and it shares the treaty making power between the President and the Senate. Hamilton would say those exceptions are allowed, but everything else that King George III could do that isn't specifically given to Congress, the President can also do. I think this is an exaggerated view of presidential power. The framers of the Constitution, in settling on the power of the President of the United States, were very driven by two dystopias that they experienced. You probably are wondering now, "What is a dystopia?" And the answer is it's the opposite of a utopia. So, if a utopia is an ideal or perfect situation, a dystopia is a horrible situation. And the first dystopia that affected Americans' views of executive power was the dystopia of 1776 when they thought King George III was a tyrant. PUBLIUS: How did this first dystopia of too much executive power in the King give way to the other extreme of a very weak executive system in the Articles of Confederation? STEVEN CALABRESI: So, in 1776, the framers of the American colonies and of the Declaration of Independence were very opposed to executive power. And in fact, most of the Declaration of Independence as a list of grievances, all directed at the king and things that the king had done. The colonists didn't believe parliament had any power over them because they weren't represented in it, but they did think the king was their chief executive, and the list of grievances in the Declaration of Independence expresses their disagreement with the idea that the king has what's called prerogative power. That is to say a power to legislate to fill in the gaps when parliament hasn't legislated. So, that broad view of executive power was rejected by Americans in 1776. This led in the first 11 state constitutions to a series of very weak executive governors. Typically, governors were elected for a one year term by the legislature, not by the people. They didn't have the power to appoint officers. The legislature elected officers. They didn't have the pardon power, and they were really sort of ceremonial heads of state. This system, between 1776 and 1787, worked very, very badly. Everybody disliked it. Even Thomas Jefferson, who was no lover of executive power, found his one year term as governor of Virginia to be absolutely insufferable. And by 1787, people were worried that state governments were too weak, that they couldn't suppress things like Shay's rebellion in Massachusetts where disaffected taxpayers rose up, and they thought that they needed a stronger executive. So at the Philadelphia Convention that wrote the Constitution in 1787, there were a group of young Turks led by Alexander Hamilton, James Wilson, and James Madison, who wanted a very strong presidency, also Gouverneur Morris, was an advocate of a strong presidency. And then there were some old Turks at the Philadelphia Convention, like Benjamin Franklin, who feared executive power, and Franklin wanted a three member executive committee. What emerged as Article Two was a compromise between the young Turks of 1787 and the old Turks who remembered 1776, both of which were dystopian experiences. And so the president is more powerful than the state governors were between 1776 and 1787, but less powerful than King George III. PUBLIUS: How is Executive Power written into the Constitution explicitly? What does Executive Power entail? STEVEN CALABRESI: So Article Two of the constitution concerns the executive power, and it begins with the vesting clause as does Article One and Article Three. The vesting clause of Article Two says, "The executive power shall be vested in a President of the United States." And there are a number of things that are very important about the vesting clause of Article Two. The first thing that's important is that, unlike the vesting clause of Article One, the vesting clause of Article Two is actually a grant of power to the President. It gives the President the executive power, and the word “vested” in Latin meant “clothes with.” So it clothes the President with the executive power, and that's why investitures of judges are typically occasions in which the judges put on their robes and are clothed with the powers of their office. But it is very important to note that the vesting clause of Article Two is a grant of power. The vesting clause of Article Three is a grant of judicial power to the supreme court and the inferior courts. But, the vesting clause of Article One and the subsequent language of Article One makes the vesting clause of Article Two more significant than either of the other two vesting clauses. And the reason is that Article One, section one, vesting the executive power, is followed by section two, which describes some particular presidential powers and qualifies them, but which does not purport to be a comprehensive list of presidential powers. And then it's followed in Article Two, section three by a series of duties that are imposed on the President, like the duty to take care that the laws be faithfully executed. And the only way the President could have the power to fulfill those sorts of duties is because the vesting clause of Article Two grants him the executive power, the power to execute the laws. Article Two, section four, ends wIth a clause about impeachment. So, the first thing that's important about Article Two is that, in the vesting clause, it grants the President the executive power. Some scholars have argued that the vesting clause of Article Two simply settles the title of the President and that the President only has the enumerated powers that appear in Article Two, sections two and three. If that were the case, the President would not have the power to enforce the law or to execute the law. It would also be true that the President would not be able to fire subordinates. No president has read the vesting clause of Article Two as merely conferring a title on him. I think the president's executive power does include the power to remove all subordinate officers who are exercising executive power. So, I think that there are some inherent executive powers. The President also has an inherent executive power to protect federal officials and federal institutions. There was a famous case In Re Neagle where the President, through the Attorney General, ordered a US marshal to guard Supreme Court Justice, Stephen Field while he was hearing cases in California against a person who intended to assassinate him. The US Marshal shot and killed the assassin as the assassin was pulling out a knife, and the State of California imprisoned the Marshal. There was no federal statute that had authorized the Marshal to protect the Supreme Court Justice, but all the other Supreme Court Justices with Justice Field recusing himself, agreed that the President had the inherent executive power to protect the lives of supreme court justices, which is perhaps not a surprising conclusion for the Supreme Court to reach. So, the President does have some inherent powers under the vesting clause, and the main powers are the power to fire or remove subordinate executive officers, and a power to protect government officials and national property like the national parks. PUBLIUS: What else is in Article II of the US Constitution? STEVEN CALABRESI: Beyond that, Article Two, section one sets forth the system of the electoral college by which the President is elected, and as many of you probably know, every state is entitled to a number of electors equal to the number of representatives it has in the House of Representatives plus its two senators, and it requires a majority. Every state except for Maine and Nebraska, allocate their electors to the winner of the vote statewide in presidential elections, and generally speaking, the national popular vote winner also wins the electoral college vote, but there have been two elections recently, the election of 2016 and the election of 2000, where candidates won the electoral college, but lost the popular vote, and you win the presidency by winning the electoral college, and it requires 270 electoral votes to win the electoral college. Article Two, section two goes on to, I think, describe and fill in the details of some of the President's power. So for example, it says the President shall be Commander-in-Chief of the Army and Navy of the United States and the state militias, which today we call state National Guard units, when they are federalized, that is when they're called into the service with the federal government. So, the President has especially enumerated power to be Commander in Chief. The President also has a specially enumerated power to pardon anyone for any federal crime except an impeachment. The pardon power is a sweeping power of the President, some very sweeping pardons have been issued in American history. Presidents Lincoln and Andrew Johnson pardoned most southerners who rebelled against the Union after the Civil War. After World War I and after World War II, draft resisters were eventually pardoned. In the 1970s, when President Gerald Ford pardoned President Nixon for his crimes in the Watergate scandal, he combined that pardon, with a pardon for all draft resisters during the Vietnam War. This was an attempt by President Ford to try to make his use of the pardon power seem more equitable. The pardon power is a sweeping power that the President has that's mentioned, specifically, in Article Two, section two. There are then mentioned some powers in Article Two, section two, where the President acts together with the Senate. So, Article Two, section two says that the President shall, with the advice and consent of two-thirds of the Senate have the power to make treaties. So, that's a shared power. And Article Two, section two also says the President shall nominate and by in with the advice and consent, appoint all ambassadors, public ministers and other officers of the United States: But the congress may by law vest the appointment of such inferior officers as it thinks proper in the President alone, the courts of law or the heads of departments. So, that appointments clause is a significant power, and it's a shared power between the President and the Congress. Article Two, section three sets out a series of duties that the President has to follow. The President has the duty to give a State of the Union address. He has a duty to receive ambassadors and councils and other foreign ministers. He has a duty to take care that the laws be faithfully executed, and he's able to fulfill these duties because he has the executive power which is granted to him by the vesting clause of Article Two. The final section of Article Two provides that the President, Vice President and all officers of the United States can be impeached by the House of Representatives and removed from office by the Senate for treason, bribery and other high crimes and misdemeanors, and Article Two, section four is very important because the institution of impeachment existed in England, but only against the king's ministers and judges and not against the king or the queen themselves. So, the British found over a period of a thousand years that the only way to get rid of a king that they didn't like was to chop his head off. And they did that with alarming frequency. Between 1300 and 1487, five English kings were decapitated and replaced by other monarchs. And even in the 1600s, King Charles I was decapitated in 1649. This is a very expensive way of getting rid of a lawless king, and the framers wanted to ensure against that by making the president and the vice president subject to impeachment and removal. PUBLIUS: Can you talk a little bit about impeachment? It’s a procedure that has been used only rarely, right? STEVEN CALABRESI: In practice, three presidents have been impeached in American history, Andrew Johnson over issues relating to reconstruction after the Civil War, Bill Clinton over having committed perjury before a federal grand jury, and Donald Trump for trying to get the government of Ukraine to prosecute Senator Joseph Biden’s son.. All three of them were acquitted by the Senate, so they were not removed from office, uh, but it's fair to say that in all three cases, their reputations were permanently tainted by the fact that they were impeached even though they were not removed from office. Congress surprisingly has never impeached or removed any subordinate executive officials, even though that was the sole use of impeachment in England Congress has, however, impeached one supreme court justice, Samuel Chase, at the urging of the Jeffersonians in 1803. The Jeffersonians impeached Justice Chase simply because they disagreed with his judicial philosophy. The Senate refused to remove him, saying that was not adequate grounds for impeachment, and ever since the Chase impeachment, it's been understood that disagreements about judicial philosophy are not impeachable offenses. 16 federal district judges have been impeached by the House of Representatives and removed from office by the Senate. All of them are individuals who had committed crimes and were serving in jail, but who refused to resign their federal judgeships. Obviously, Congress did not want to pay a salary to federal judges who were sitting in prison cells and not trying cases, so these individuals were impeached and removed from office. Ironically, one federal district judge who was impeached and removed from office, Judge Alcee Hastings of Florida, is currently a congressman from Florida and sits in the House of Representatives, which is the very body which impeached him. PUBLIUS: You’ve just described one way that Congress has a check on the President. Are there other ways that the Legislative and Executive branches balance each other? STEVEN CALABRESI: One thing that this discussion of Article Two I hope will have illustrated is that the framers set up a system not only of separation of powers and not only of a democratized mixed regime, but they also very importantly set up a system of checks and balances where each of the three branches can check and balance the others and what they do. So, for example, Congress has the power of the purse, and the President may be the most powerful man in the world, probably is the most powerful man in the world, but the President literally cannot buy a light bulb for a lamp in the oval office without an appropriation being passed by Congress. So, that's a check and balance that Congress has. In contrast, the President has what's called the power of the sword. He is the chief prosecutor in the country. He appoints the Attorney General, he nominates the US attorneys and the deputy attorney general and the assistant US attorneys general. He's also the Chief Military Officer. He's Commander in Chief of the American military. So, the President having the power of the sword and having the power to prosecute has significant powers that he can exercise. He usually has to exercise them through subordinates, and the subordinates usually have to be confirmed by the Senate, and those Senate-confirmed subordinates are often quite a bit more independent of the President than the President would like. There are checks and balances that the Senate has on the president. Senatorial confirmation power and the need for the Senate to ratify treaties, checks and balances the president. On the other hand the president's power to enforce the laws and to pick executive and judicial officers is a check and balance. 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!