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 Keith E. Whittington, the William Nelson Cromwell Professor of Politics at Princeton University. Professor Whittington is widely regarded as one of the preeminent scholars on the American Constitution. 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: What does the Constitution say about executive power? Why did the Founders choose to specify some parts of this power but not others? KEITH WHITTINGTON: Article Two of the US Constitution lays out the power of the executive branch in general and the presidency, including how the presidency is selected. It begins like Article One does and like Article Three does, with a vesting clause. Article Two of the US Constitution is a much briefer part of the constitution than Article One of the constitution is. It does not have the same level of detail in it about what exactly the powers of the president are. The founders are leaving a lot more to be filled out later in drafting Article Two than with how they left things with Article One of the US constitution. That raises various problems and includes the problem of trying to think about, "Okay, what is part of that bundle of executive powers that the framers have vested in the president of United States?" The framers go through and do specify some specific powers that the president has. They specify some of those powers in part because they want to qualify them and modify them in various ways, and so we might think the president naturally has a power to negotiate treaties, but the framers wanted to qualify that power by requiring that Senate ratify those treaties and so they specifically named the treaty making power. It's been a source of ongoing controversy as to what exactly falls within this bundle of executive power and there's been disagreements. As you'd expect, presidents often are pushing the line as to what counts as executive power, and often, Congress has been more reluctant to admit that things president wants to claim as part of executive power really belong there, as opposed to thinking about it as legislative power. In part, we borrow the idea of executive power out of the English experience But part of the complication, of course, is the founders didn't want to import the English king and so they knew that the president of the United States should not have all the powers of the English king. So it's then a little touchy to figure out exactly where the line is between the appropriate executive powers that we've imported from the English context and things that we might think of as purely monarchical powers that we in fact did not mean to import into the American context. PUBLIUS: What does the Constitution say about the relationship between the Executive and the other two branches of government? KEITH WHITTINGTON: It helps a little bit that other places in Article Two, the founders did write down some specific powers that the president has and also some powers that are shared with other branches of government. So the president is given the power to negotiate treaties, but he needs the Senate to help ratify those treaties. The president is given a specific power to be commander in chief of the military, but Congress is given a specific power to declare war, for example. So we know that the war declaration power, at least, is separated from what it might mean to exercise executive powers, but other things are less clear. The court and the president have understood the president have a leading role in foreign affairs. The president is the chief representative of the country abroad and talking to other nations. Raises real questions about what exactly is bundled within that kind of authority and where exactly it's located within Article Two of the constitution more generally. So for example, does the president have the authority to prohibit certain aliens from entering into the country, for example? There's no place in the constitution that specifies, one way or another, as to who might have the authority to make decisions about who can enter into the country and who cannot enter into the country. This is a power that was exercised by the king in the English context. It might be understood as part of the foreign policy authority that falls implicitly to the executive branch, perhaps through the executive power, but the constitution is not entirely clear about it. As a consequence, of the courts and Congress and the president, they've all struggled over what the scope of that executive authority might be. Likewise, the constitution specifies how executive officers are appointed into offices and specifies that that's a power that's going to be shared by the Senate. So we might think that otherwise it might have naturally fallen to the president to be able to fill executive branch offices at least if not also judicial offices, but the framers are specific that the Senate has a role to play in that part of the process by confirming officers that are nominated by the president. What the constitution does not specify is what happens to those officers once they've been installed in office. So how much supervisory capacity does the president have over those officers? How are those officers removed from office if they misbehave or are engaging in a misconduct of some sort. Presidents have interpreted this initial vesting clause, vesting the executive power in the United States, combined with the take care clause that the constitution imposes a duty on the president to take care that laws are faithfully executed. The combination of those two powers, those two provisions of the constitution, are understood to include then, for the president, the ability to remove lower-level executive branch officers who are negligent or incompetent or engaged in misconduct in various ways even though the constitution doesn't explicitly say the president has the authority to remove lower-level officers. Likewise, presidents have claimed the authority to supervise how they conduct their offices as part of his duty to take care laws are faithfully executed. But again, that's a lot of inferences that we're having to make from a very sparse constitutional text. PUBLIUS: Are there any specified limits on Executive power? KEITH WHITTINGTON: We might think presidents would naturally have the power to appoint lower-level executive branch officials, but they wanted to qualify that power by having the Senate confirm those appointees. So as a consequence, the constitution specifically lists that power. There are other provisions that they are not necessarily qualifying but they're just making explicit that the president has. So for example the president has a pardon power that is specifically given to them, to him. We might not think that that falls naturally out of, for having the executive authority more generally. The president is given some legislative authority that is specifically written in the constitution so he can make a state of the union address for example, and make recommendations to Congress. He's given a veto power over legislation being proposed by Congress for example, but other things that we might think of as sort of simply part of how laws are executed and implemented are not laid out in separate constitutional provisions. There is no detail in the constitutional text. It's simply viewed as implicit and the executive power as such. There's also the challenge of thinking about the president as the chief arm of the United States government and making foreign policy more generally. There are features of Article Two that point to aspects of how the president's going to relate to the international community. The president is commander in chief, the president negotiates treaties, the president receives ambassadors and sends ambassadors abroad, all of which suggests that the president is going to be the chief representative of the United States in dealing with other countries abroad, but that only details a handful of powers and of course, the foreign affairs power is much broader than that. So there's always been a question of how much of the general foreign affairs power that the United States as a country is going to exercise falls specifically under the president of the United States as opposed to thinking it's some kind of share power between the president and Congress or maybe it falls to Congress itself in various ways. Presidents would often claim then that there is an inherent power in the presidency to engage in foreign policymaking and in conducting foreign affairs. That's a feature of the president representing the sovereignty of the nation as a whole and that those powers that are not otherwise specifically mentioned elsewhere, but are part of what it means to be a country on the international stage, must necessarily be exercised by the president on behalf of the United States government as a whole. PUBLIUS: Has Executive power changed or evolved over time? KEITH WHITTINGTON: So the nature of the presidential office has changed dramatically over time and some of that specifically connected to the nature of how we think about executive power and what executive power does in the modern context. So the president was not nearly the kind of high profile office in the early republic that we now think of it as today, and the executive power certainly was not necessarily the kind of high profile power that we might think of it as today. It's the boring day to day routine implementation and the policy in the early republic. For us, on the other hand, there's a lot of discretionary policymaking that's being made out of the white house. We turned to the president in order to set a political agenda in order to make important policy decisions, which reflects our changing view about what the nature of the presidency is and what role the president plays in the political system more generally, but also reflects changes in the nature of executive power more specifically. So as Congress, for example, passes statutes with broadly worded delegations of authority to the executive branch, it gives the president a much greater role. And so as Congress passes more and more of those statutes, as the federal government becomes more active and more busy both in internal policy making but also on the world stage, it gives more space for the president to be exercising important policy making decisions on his own as a function of decisions that Congress had previously made. In addition, the president has seized greater political authority than they previously exercised. That too, that feature of changes in the presidency over the course of the 20th century. The president has emerged as the leader of political party. He's emerged as an agenda setter for legislative policy. We turn to the president to set out an initial agenda that we then expect the Congress is going to pursue and we expect the president to go out and defend that agenda and defend those legislative policy initiatives. So the presidential campaigns in the modern era turn often on presidential candidates offering a legislative agenda. That's not something that sort of naturally follows from the constitutional design, that we would expect presidents to run for office on the back of a legislative agenda. We might have thought that was more appropriately something that Congress would be doing, but in the modern period, we assume, in fact, that the president is the legislative leader and is making policy for the country as a whole and will be guiding Congress and making policy as a whole. That's a power that the president has seized through his own activities rather than necessarily something that's emerged from the constitution itself. PUBLIUS: Foreign policy has always been an acknowledged and important part of Executive power. But have modern Presidents taken on an even greater role in foreign policy than was anticipated by the Constitution? KEITH WHITTINGTON: The foreign policy role of the president has expanded over time. As the United States becomes a more important player on the international stage, the United States has more engagement in the world in both in military affairs, but also in other context. The president is the natural home of a lot of that activity, and so the president has assumed a much greater role in society and in politics more broadly in part because foreign policies become more important in the American context. The president has a lot of room for discretionary decision-making in the foreign policy arena. The president is negotiating deals with Iran on how Iran is going to handle nuclear power. The president is negotiating trade deals with other countries. The president is coordinating policy with the G7 in order to set a common set of economic policies across the country, across the globe. All these are features of a more soft power that presidents exercise as part of their role of communicating with talking to the foreign leaders, making decisions on an international stage that don't necessarily simply involve their power to exercise force as commander in chief. Especially across the 20th century, presidents have become increasingly important, exercising more discretionary authority, more prominent figures on the political stage, more generally exercising a lot more authority in the international arena. This has given rise to increasing fears that presidents are too powerful, too strong, have winning power that overwhelms the legislature and is making policy in general. Arthur Schlesinger characterizes that the imperial presidency during the Nixon administration where he specifically is thinking about the war powers, thinking about foreign policy making and thinking of the president, is really off on his own making important policy across a wide range of issues with very little congressional input and very little congressional control, which he sees as reaching its height during Vietnam. He sort of calls for a paring back of the presidency so it'd be less imperial in that sense, but there's likewise been concerns about the president and the domestic arena. So while the president may have even more authority in the foreign affairs arena, even on the domestic policy side, presidents have had a great deal of authority over time, in both those cases, this is part on both the foreign policy side and on the domestic side, presidential power has increased in part because the federal government itself has become more expansive and more active in doing more things. As the federal government has become more powerful, the presidency naturally gained some more power as well. Power has been passed to the president by Congress refusing to make its own decisions in various ways. So they pass broadly worded statutes that vest discretion in the president, or in some cases, they refuse to make decisions. As a consequence, they leave a power vacuum that the presidents wind up occupying by their willingness to be able to make more decisions over time. PUBLIUS: You just mentioned that the modern Congress, intentionally or not, frequently defers to the President. Can you elaborate on what that looks like and how it happened? KEITH WHITTINGTON: So in both the domestic and the foreign policy realm, presidents have become more important, more active players, exercising more discretionary authority, in part of how the nature of what the government's doing in part of how the inability of Congress to occupy that space instead. The criticisms of presidential power have been persistent across the 20th century and the beginning of the 21st century in general, but there's often a partisan flavor to those criticisms as well. So members of Congress often are much more concerned when it's a president of the other party exercising his authorities. So it's not uncommon at all for members of Congress to complain about an imperial presidency when the other party controls the White House, but then immediately turn around and empower the presidency even further when their own party member is in the White House. This partisan quality to try and think about how Congress thinks about the White House makes it very difficult to alter and rein in presidential power on the whole because it's often the case that one faction or the other in Congress sees it as in their immediate interest to give power to the executive branch rather than try to take it away and constrain it. So there's often been a partisan feature to the complaints about the growth of the presidential power, but there's also a partisan dynamic that feeds the growth of presidential power over time because members of Congress who see their friend in the White House think that they can achieve something by giving greater power and they don't worry so much about how that power is going to be used because they trust the person in office because that person basically shares their own aims and goals and interests and values. So they're willing to vest increasing discretion in the executive branch over time as well. We now occupy a position where presidents are much more powerful and influential figures than the founders would have anticipated and they're playing a much more active policy-making role than the founders would have anticipated. So documents that now are part of our own common parlance and how we think about the policy-making process work like the executive orders, for example, were not anticipated by the founders. There's no provision in the US Constitution that empowers presidents to issue executive orders. Executive orders are something that's inferred from the nature of the powers that are given to the president. Executive orders simply are orders that presidents give to the executive branch about how they go about implementing the law. These have become particularly prominent because they are the tools by which presidents can exercise a lot of policy making authority by guiding the executive branch in how the executive branch is exercising all the discretionary authority that Congress has vested in it over time. So presidents have been more and more active in using that tool. They have a lot of room to maneuver because of how statutes have been written in order to take advantage of the space that Congress has left them. So important decisions wind up being made through executive orders as a consequence. Congress has the capacity to tighten that up if they wanted to. So if they drafted a more narrowly worded statutes, if they took back some of that discretionary authority that they vested in the president, it would reduce the amount of discretion presidents can exercise through executive orders, reduce the importance of those executive orders over time. But Congress also has a difficult time agreeing enough to be able to pull back that power. So presidents in part have turned to executive orders because they have a hard time getting measures through Congress. If Congress can't make legislation, presidents tend to find other ways of trying to make policy decisions and executive orders are one way of doing that. If Congress has left presidents with a lot of discretionary authority, presidents will utilize that if Congress won't make more finely tuned statutes on its own. Then when the president sees that kind of power and sees that authority to make policy decisions, Congress has a hard time pushing back because they can't come to agreement on their own about what kind of policies they want to make instead of what the president's doing, and they can't come to a great deal of agreement that they ought to be making the policy as opposed to letting the president make those policies over time. 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 branch. Today’s episode features Professor Keith E. Whittington, the William Nelson Cromwell Professor of Politics at Princeton University. Professor Whittington is widely regarded as one of the preeminent scholars on the American Constitution. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. What does the Constitution say about executive power? Why did the Founders choose to specify some parts of this power but not others? Article Two of the US Constitution lays out the power of the executive branch in general and the presidency, including how the presidency is selected. It begins like Article One does and like Article Three does, with a vesting clause. Article Two of the US Constitution is a much briefer part of the constitution than Article One of the constitution is. It does not have the same level of detail in it about what exactly the powers of the president are. The founders are leaving a lot more to be filled out later in drafting Article Two than with how they left things with Article One of the US constitution. That raises various problems and includes the problem of trying to think about, "Okay, what is part of that bundle of executive powers that the framers have vested in the president of United States?" The framers go through and do specify some specific powers that the president has. They specify some of those powers in part because they want to qualify them and modify them in various ways, and so we might think the president naturally has a power to negotiate treaties, but the framers wanted to qualify that power by requiring that Senate ratify those treaties and so they specifically named the treaty making power. It's been a source of ongoing controversy as to what exactly falls within this bundle of executive power and there's been disagreements. As you'd expect, presidents often are pushing the line as to what counts as executive power, and often, Congress has been more reluctant to admit that things president wants to claim as part of executive power really belong there, as opposed to thinking about it as legislative power. In part, we borrow the idea of executive power out of the English experience But part of the complication, of course, is the founders didn't want to import the English king and so they knew that the president of the United States should not have all the powers of the English king. So it's then a little touchy to figure out exactly where the line is between the appropriate executive powers that we've imported from the English context and things that we might think of as purely monarchical powers that we in fact did not mean to import into the American context. What does the Constitution say about the relationship between the Executive and the other two branches of government? It helps a little bit that other places in Article Two, the founders did write down some specific powers that the president has and also some powers that are shared with other branches of government. So the president is given the power to negotiate treaties, but he needs the Senate to help ratify those treaties. The president is given a specific power to be commander in chief of the military, but Congress is given a specific power to declare war, for example. So we know that the war declaration power, at least, is separated from what it might mean to exercise executive powers, but other things are less clear. The court and the president have understood the president have a leading role in foreign affairs. The president is the chief representative of the country abroad and talking to other nations. Raises real questions about what exactly is bundled within that kind of authority and where exactly it's located within Article Two of the constitution more generally. So for example, does the president have the authority to prohibit certain aliens from entering into the country, for example? There's no place in the constitution that specifies, one way or another, as to who might have the authority to make decisions about who can enter into the country and who cannot enter into the country. This is a power that was exercised by the king in the English context. It might be understood as part of the foreign policy authority that falls implicitly to the executive branch, perhaps through the executive power, but the constitution is not entirely clear about it. As a consequence, of the courts and Congress and the president, they've all struggled over what the scope of that executive authority might be. Likewise, the constitution specifies how executive officers are appointed into offices and specifies that that's a power that's going to be shared by the Senate. So we might think that otherwise it might have naturally fallen to the president to be able to fill executive branch offices at least if not also judicial offices, but the framers are specific that the Senate has a role to play in that part of the process by confirming officers that are nominated by the president. What the constitution does not specify is what happens to those officers once they've been installed in office. So how much supervisory capacity does the president have over those officers? How are those officers removed from office if they misbehave or are engaging in a misconduct of some sort. Presidents have interpreted this initial vesting clause, vesting the executive power in the United States, combined with the take care clause that the constitution imposes a duty on the president to take care that laws are faithfully executed. The combination of those two powers, those two provisions of the constitution, are understood to include then, for the president, the ability to remove lower-level executive branch officers who are negligent or incompetent or engaged in misconduct in various ways even though the constitution doesn't explicitly say the president has the authority to remove lower-level officers. Likewise, presidents have claimed the authority to supervise how they conduct their offices as part of his duty to take care laws are faithfully executed. But again, that's a lot of inferences that we're having to make from a very sparse constitutional text. Are there any specified limits on Executive power? We might think presidents would naturally have the power to appoint lower-level executive branch officials, but they wanted to qualify that power by having the Senate confirm those appointees. So as a consequence, the constitution specifically lists that power. There are other provisions that they are not necessarily qualifying but they're just making explicit that the president has. So for example the president has a pardon power that is specifically given to them, to him. We might not think that that falls naturally out of, for having the executive authority more generally. The president is given some legislative authority that is specifically written in the constitution so he can make a state of the union address for example, and make recommendations to Congress. He's given a veto power over legislation being proposed by Congress for example, but other things that we might think of as sort of simply part of how laws are executed and implemented are not laid out in separate constitutional provisions. There is no detail in the constitutional text. It's simply viewed as implicit and the executive power as such. There's also the challenge of thinking about the president as the chief arm of the United States government and making foreign policy more generally. There are features of Article Two that point to aspects of how the president's going to relate to the international community. The president is commander in chief, the president negotiates treaties, the president receives ambassadors and sends ambassadors abroad, all of which suggests that the president is going to be the chief representative of the United States in dealing with other countries abroad, but that only details a handful of powers and of course, the foreign affairs power is much broader than that. So there's always been a question of how much of the general foreign affairs power that the United States as a country is going to exercise falls specifically under the president of the United States as opposed to thinking it's some kind of share power between the president and Congress or maybe it falls to Congress itself in various ways. Presidents would often claim then that there is an inherent power in the presidency to engage in foreign policymaking and in conducting foreign affairs. That's a feature of the president representing the sovereignty of the nation as a whole and that those powers that are not otherwise specifically mentioned elsewhere, but are part of what it means to be a country on the international stage, must necessarily be exercised by the president on behalf of the United States government as a whole. Has Executive power changed or evolved over time? So the nature of the presidential office has changed dramatically over time and some of that specifically connected to the nature of how we think about executive power and what executive power does in the modern context. So the president was not nearly the kind of high profile office in the early republic that we now think of it as today, and the executive power certainly was not necessarily the kind of high profile power that we might think of it as today. It's the boring day to day routine implementation and the policy in the early republic. For us, on the other hand, there's a lot of discretionary policymaking that's being made out of the white house. We turned to the president in order to set a political agenda in order to make important policy decisions, which reflects our changing view about what the nature of the presidency is and what role the president plays in the political system more generally, but also reflects changes in the nature of executive power more specifically. So as Congress, for example, passes statutes with broadly worded delegations of authority to the executive branch, it gives the president a much greater role. And so as Congress passes more and more of those statutes, as the federal government becomes more active and more busy both in internal policy making but also on the world stage, it gives more space for the president to be exercising important policy making decisions on his own as a function of decisions that Congress had previously made. In addition, the president has seized greater political authority than they previously exercised. That too, that feature of changes in the presidency over the course of the 20th century. The president has emerged as the leader of political party. He's emerged as an agenda setter for legislative policy. We turn to the president to set out an initial agenda that we then expect the Congress is going to pursue and we expect the president to go out and defend that agenda and defend those legislative policy initiatives. So the presidential campaigns in the modern era turn often on presidential candidates offering a legislative agenda. That's not something that sort of naturally follows from the constitutional design, that we would expect presidents to run for office on the back of a legislative agenda. We might have thought that was more appropriately something that Congress would be doing, but in the modern period, we assume, in fact, that the president is the legislative leader and is making policy for the country as a whole and will be guiding Congress and making policy as a whole. That's a power that the president has seized through his own activities rather than necessarily something that's emerged from the constitution itself. Foreign policy has always been an acknowledged and important part of Executive power. But have modern Presidents taken on an even greater role in foreign policy than was anticipated by the Constitution? The foreign policy role of the president has expanded over time. As the United States becomes a more important player on the international stage, the United States has more engagement in the world in both in military affairs, but also in other context. The president is the natural home of a lot of that activity, and so the president has assumed a much greater role in society and in politics more broadly in part because foreign policies become more important in the American context. The president has a lot of room for discretionary decision-making in the foreign policy arena. The president is negotiating deals with Iran on how Iran is going to handle nuclear power. The president is negotiating trade deals with other countries. The president is coordinating policy with the G7 in order to set a common set of economic policies across the country, across the globe. All these are features of a more soft power that presidents exercise as part of their role of communicating with talking to the foreign leaders, making decisions on an international stage that don't necessarily simply involve their power to exercise force as commander in chief. Especially across the 20th century, presidents have become increasingly important, exercising more discretionary authority, more prominent figures on the political stage, more generally exercising a lot more authority in the international arena. This has given rise to increasing fears that presidents are too powerful, too strong, have winning power that overwhelms the legislature and is making policy in general. Arthur Schlesinger characterizes that the imperial presidency during the Nixon administration where he specifically is thinking about the war powers, thinking about foreign policy making and thinking of the president, is really off on his own making important policy across a wide range of issues with very little congressional input and very little congressional control, which he sees as reaching its height during Vietnam. He sort of calls for a paring back of the presidency so it'd be less imperial in that sense, but there's likewise been concerns about the president and the domestic arena. So while the president may have even more authority in the foreign affairs arena, even on the domestic policy side, presidents have had a great deal of authority over time, in both those cases, this is part on both the foreign policy side and on the domestic side, presidential power has increased in part because the federal government itself has become more expansive and more active in doing more things. As the federal government has become more powerful, the presidency naturally gained some more power as well. Power has been passed to the president by Congress refusing to make its own decisions in various ways. So they pass broadly worded statutes that vest discretion in the president, or in some cases, they refuse to make decisions. As a consequence, they leave a power vacuum that the presidents wind up occupying by their willingness to be able to make more decisions over time. You just mentioned that the modern Congress, intentionally or not, frequently defers to the President. Can you elaborate on what that looks like and how it happened? So in both the domestic and the foreign policy realm, presidents have become more important, more active players, exercising more discretionary authority, in part of how the nature of what the government's doing in part of how the inability of Congress to occupy that space instead. The criticisms of presidential power have been persistent across the 20th century and the beginning of the 21st century in general, but there's often a partisan flavor to those criticisms as well. So members of Congress often are much more concerned when it's a president of the other party exercising his authorities. So it's not uncommon at all for members of Congress to complain about an imperial presidency when the other party controls the White House, but then immediately turn around and empower the presidency even further when their own party member is in the White House. This partisan quality to try and think about how Congress thinks about the White House makes it very difficult to alter and rein in presidential power on the whole because it's often the case that one faction or the other in Congress sees it as in their immediate interest to give power to the executive branch rather than try to take it away and constrain it. So there's often been a partisan feature to the complaints about the growth of the presidential power, but there's also a partisan dynamic that feeds the growth of presidential power over time because members of Congress who see their friend in the White House think that they can achieve something by giving greater power and they don't worry so much about how that power is going to be used because they trust the person in office because that person basically shares their own aims and goals and interests and values. So they're willing to vest increasing discretion in the executive branch over time as well. We now occupy a position where presidents are much more powerful and influential figures than the founders would have anticipated and they're playing a much more active policy-making role than the founders would have anticipated. So documents that now are part of our own common parlance and how we think about the policy-making process work like the executive orders, for example, were not anticipated by the founders. There's no provision in the US Constitution that empowers presidents to issue executive orders. Executive orders are something that's inferred from the nature of the powers that are given to the president. Executive orders simply are orders that presidents give to the executive branch about how they go about implementing the law. These have become particularly prominent because they are the tools by which presidents can exercise a lot of policy making authority by guiding the executive branch in how the executive branch is exercising all the discretionary authority that Congress has vested in it over time. So presidents have been more and more active in using that tool. They have a lot of room to maneuver because of how statutes have been written in order to take advantage of the space that Congress has left them. So important decisions wind up being made through executive orders as a consequence. Congress has the capacity to tighten that up if they wanted to. So if they drafted a more narrowly worded statutes, if they took back some of that discretionary authority that they vested in the president, it would reduce the amount of discretion presidents can exercise through executive orders, reduce the importance of those executive orders over time. But Congress also has a difficult time agreeing enough to be able to pull back that power. So presidents in part have turned to executive orders because they have a hard time getting measures through Congress. If Congress can't make legislation, presidents tend to find other ways of trying to make policy decisions and executive orders are one way of doing that. If Congress has left presidents with a lot of discretionary authority, presidents will utilize that if Congress won't make more finely tuned statutes on its own. Then when the president sees that kind of power and sees that authority to make policy decisions, Congress has a hard time pushing back because they can't come to agreement on their own about what kind of policies they want to make instead of what the president's doing, and they can't come to a great deal of agreement that they ought to be making the policy as opposed to letting the president make those policies over time. 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!