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: Can you give us some background on how the Founders thought about executive power? What powers did the monarch have that they wanted to retain in a President? Who were some of the influential authors that the Founders would have referred to in developing a role for executive power? JEREMY RABKIN: The practice has always been to, when you're thinking about the executive power and what the president can do, to glance at what British practice was but you wouldn't want to take that as that's the first word and the last word. It's a reference. It's a thing to think about, but it's not necessarily decisive. If you read Blackstone's chapter in volume one on he has an overview chapter, which deals with royal prerogative. And the royal prerogative as Blackstone describes it and that's a very relevant source, because this is the main source for the Framers' understanding of law under the, we'll call it, the British Constitution, but anyway British practice. The king has lots of powers that we would recognize and think of as analogs to things that the president has, like a pardon power, a power to negotiate treaties, power to direct the armed forces. So, there are a whole lot of things that are direct analogs and we think, "Oh okay, so that's the source." But if you actually read through Blackstone's chapter, he gets along to all of these things, which have no analog, which people would be shocked if the president tried to exercise. For example, the power on his own, the king, to establish weights and measures. This is the king's measurements and the king decides the coinage. That's part of why his face is on it, because it's his shilling or his penny or his crown. And also, the power to establish market fares. He just would proclaim, "We're going to have in this town on this date a market fair and everyone can come to it." So, there's a whole bunch of things. Most of them don't involve a lot of the power, although the coinage and the measurements could be important, which clearly they didn't think was something the president could do. I want to mention something else, because I think people can get tangled up in, "Oh, it was a monarchy and we're a republic." And I think that doesn't advance the ball very much. One of the works, which they certainly consulted, was John Locke's Second Treatise of Government and John Locke who was extremely emphatic about natural rights and protecting the liberties of individuals at the end says, "Of course, the executive," and he speaks about the executive, not the king. He says, "The executive has a prerogative," and he has a whole discussion about prerogative. And he's quite explicit the prerogative power is the power to act, basically, in a crisis, in an emergency. Without the law and sometimes against the law. So, they were aware of very reputable Whig that is quasi-Republican arguments, which said there needs to be within the executive power some reservoir of power to deal with a real crisis. So, you have to be able to respond in a way that faces the challenge that these countries present to us. And that is hard to do by following a law that goes into a lot of detail and has been established in advance. PUBLIUS: You’ve described a British monarch with a lot of power. How did an experience with an abusive king shape the Founders’ ideas about executive power? JEREMY RABKIN: So, I think that that way of posing the question is somewhat misleading this idea that they were very concerned about monarchy, because they just had the experience of an abusive monarchy. There are two points I would make in pushing back on that. And the first is if you read the Declaration of Independence where it speaks about the king, they were perfectly aware that this wasn't the king acting on his own. In fact, it was hardly at all the king. It was the parliament and the parliament following a prime minister, but it was all done by legislative process. So, it's the Stamp Act. It's not the royal directive on stamps. And I think for rhetorical reasons, the Declaration of Independence wanted to say, "He's the king and it's really abusive." They were tapping into a tradition of rhetoric, but they were perfectly aware that a parliamentary body could be abusive and threatening, because that was their experience. So, that's one point, but the second, I think, more important point is, yes, they had an experience of abuse that was a dozen years in the past. Even in the 18th century, a dozen years was a pretty long time, if you had important experiences in between. Well, they had very important experiences in between. They had a War of Independence, which we nearly lost. And then, we had tremendous difficulty after the peace treaty and getting any other countries to deal with us in a respectful way, including Britain, which we just made this peace with. And so, everybody had this sense. It's really incapacitating that we do not have an executive authority. I would say if you stand back and look at what's new in the Constitution, the most important innovation is the executive. That's the biggest change. It's not the only one of course, but it's the biggest single change from the Articles of Confederation. And you have always to keep this in mind. The people who drafted the Constitution, every single debate which they have while they are meeting Philadelphia, they glance up and there is George Washington. And he was the single most imposing man in America and he was the hero of the War of Independence. And without question, they were thinking, "Well, President of the United States, well, for example, George Washington." They didn't even have to think. It was obvious to everybody that this was an office designed to fit George Washington. Of course, they were aware that, well then, after George Washington, what? And they, of course, were mindful that you couldn't just say, "Everything will be fine, because it'll be George Washington forever." But as far as their expectations for how the office would be shaped at the beginning, they took for granted that it would be George Washington. And that meant far from being distrustful. I would say they had a reservoir of great respect and high expectations. They came out of an experience in which you really had to rely on the leadership of an executive and it was a very good experience in this sense, which is Washington was very mindful of it. He was leading a revolution to establish a Republican government. And so, he was anxious to reassure people that he was not going to be a dictator. That was true at the beginning and that was true all the way through, but he also very well understood that reassuring people meant he would have the trust to do some decisive things and sometimes some controversial things. PUBLIUS: It sounds like a lot of things were left to the discretion of the President, which is why Washington had to reassure people of his good intentions. How is the Executive power different in this respect than the powers specifically enumerated for Congress in Article I? JEREMY RABKIN: .Article I, if you just glance at it, is very detailed and a lot of that is because there are provisions in Article I that are setting out the scope of the federal government. And in particular, Article I, Section 8 which is a very extensive enumeration of powers of Congress. Those are really the powers of the federal government. These are the things that the federal government has authority over. And the assumption behind that is, well, the most important element of power is legislative power. That's why it's Article I. These are things that we'll pass laws about. And so, that will set out what people are obliged to do, at least in their capacity as people governed by the federal government. The states had some capacity, but there are some national challenges, which you really need a national response. And you sometimes will need an immediate response. So, the executive is different in this way than the legislative authority. So, the first sentence of Article II, the executive power shall be vested in the President of the United States and there is dispute about whether that means there is some inherent power that goes with being executive and he has that power. And I think that almost certainly has to be the right answer, although this has been disputed almost from the beginning. And it is a somewhat disturbing answer, because if you say he has powers other than those precise ones that are mentioned later on in Article II, then you seem to be saying he has a whole reservoir of power, which is not defined by the Constitution. If it's not defined by the Constitution, maybe it's not limited by the Constitution. And that is rather disturbing. I do think that to some extent that is inherent in the nature of executive power, which is a power to deal not only with the routine challenges of implementing laws, but also dealing with crises, emergencies, foreign affairs, a range of things where we understand that it's hard to define in advance by law exactly what needs to be done. PUBLIUS: In the Constitution, the first part of the job description for the President states that he will be “Commander-in-Chief.” What does that mean? JEREMY RABKIN: It just uses this expression, commander-in-chief. And as with almost every other item. It's possible to interpret that in a very narrow, almost ceremonial way. And it's possible to interpret that in a very broad way, which implies really the president is in charge. And again, I think the practice as varied, but certainly since Lincoln and probably since President Polk and the Mexican War, presidents have felt entitled to say, "I want this general to be commanding and I don't want that guy.” And, of course, presidents frequently have said, as President Roosevelt did to a large extent in World War II, "I don't want to be micromanaging. So, I trust my military people to implement things." But even somebody like Roosevelt who was pretty differential to his top military people, he had regular conferences with them. He wanted to know. I mean, and he wanted to be the final decision-maker. And he made some really fundamental strategic decisions. I mean, famous example, it was Roosevelt who said, "We're going to invade North Africa in 1942." And George Marshall, the Army Chief of Staff, said, "No, that's a diversion. Let's not do that." But Roosevelt felt, "No, this is a good thing to do. I've talked it over with Churchill." Churchill is a very great man, maybe the greatest man of the 20th century, not a constitutional officer of the United States. He felt perfectly free, Roosevelt. I think appropriately, but we should just remind ourselves to say, "I am conducting this war with allies and I am going to negotiate personally with these allies, and then I am going to determine the outlines of strategy, even against my own military. So, the people who are confirmed by the Senate to be top generals, they're not the commander-in-chief. I am and the commander-in-chief power, whatever else it means, means I get to decide at least on the main outlines of strategy." And outlines is not go out and win. It is we're going to invade here and not there. And we're going to do this in two years, but not now. These were quite consequential and important decisions. And a lot of books have been written about this. And I think generally it's thought he did a good job. I think it's generally thought that Lyndon Johnson in Vietnam not so much, but he was always very, very involved in details. I mean, maybe too much involved in details, but it again would be contrary to our practice to say being the commander-in-chief just means you have a ceremonial role. Presidents have taken that they are managers of the military, even in war, especially in war. Yes, and occasionally, micromanagers. And I think that's probably bad, although people do need to remind themselves that if you say no to that, what you're saying is the military questions are only military and that is rarely the case. There are likely to be political implications, such as can we bomb any neutral country? Well, that's a really big political question. Can we bomb close to the border of a neutral country where there might be some spillover? Can we bomb if it means a lot of civilians are going to be hurt? There's a lot of obvious questions, which will have political consequences, which somebody needs to be thinking about. And it's not obvious to me that, well, generals, they're always the right ones to decide. Why? I mean, this is a complicated balance thing. These are things that call for judgment. And unless you have a lot of experience at the very highest level, I think just having been a lieutenant, and then a major and all of that. It doesn't qualify you necessarily to make these very difficult political, diplomatic judgments. PUBLIUS: Speaking of political and diplomatic judgements - another important executive power is the President’s role in representing the interests of the United States in our dealings with other nations. Can you talk a bit about what kind of authority the President has to do that? What sort of foreign affairs are properly under his consideration? JEREMY RABKIN: We should try as much as we can to make a distinction between presidential action abroad and presidential action at home. It may happen in fact that we need to have some coordination with foreign countries. This is what most of our trade agreements now do. We make agreements that we will not subsidize these things, that we will not restrict these things from being sold. The president can't do that. He needs to work through Congress, because it does have a direct, not just an effect, it imposes legal obligations on what Americans do at home. There, I think, the president can't invoke foreign affairs but as to what he does with foreigners, I think there's a real question how much Congress can constrain him there. So, what you find in Article II is, among other things, he shall have the power to receive ambassadors. That could mean a power that is an analog to the British monarch. You present your credentials to Queen Elizabeth and she says, "Thank you very much." She doesn't do anything else. I mean, she happens to receive the ambassadors and there's a ceremony. She doesn't conduct foreign policy. It has generally been taken to mean that, "Oh no, no, no. When he receives ambassadors in the first place, he's deciding whether or not to receive a delegation from that sending country." So, that implies that he will have the power to recognize that they are an independent nation, that they are an independent nation that we want to have diplomatic relations with. I think everyone accepts that ambassadors and other diplomats are in the executive branch. They are reporting to the president, so he has a lot of information. He's also commander-in-chief, whatever else that means. It means he has a lot of say over the military. So, the diplomats and the military, that covers a lot of foreign affairs. If you look at it the other way and ask, "Does the Congress have authority in foreign affairs?", it has to power to declare war. It has the power to regulate commerce with foreign nations. I think those are the two items. He doesn't have the power to receive ambassadors. He doesn't have the power to say which countries we will recognize. I mean, that is not mentioned as a power. So, it makes sense both as a practical matter and in relation to the constitutional text that the president has the predominant role in foreign affairs. But if you ask me, okay, predominant but does that mean anything that the president considers to be a matter of foreign affairs he can do? And the answer to that has to be, no, of course not. Because otherwise, he could make himself a legislator in America just by having an agreement with another country. I mean, he could just sign an agreement with the Prince of Liechtenstein saying, "We both agree that taxes should be raised in the following way." And if that were enough to give us a new tax code, which by the way, the Prince of Liechtenstein is able to do in Liechtenstein. So, he'd be a good partner, then we would not have a constitutional government anymore, right? It can't be that just because it's something to do with a foreign country, the president has unlimited power. PUBLIUS: It sounds like presidential power in foreign affairs has not changed a lot since the Founding. But what about presidential power at home in the United States? Has that changed or evolved over time? JEREMY RABKIN: Wow. So, of course it's changed, because so many other things have changed. One of the things, which we took for granted, which was not their experience is that the president will be extremely visible all the time. I mean, to say they obviously think the president's on television all the time. The president, particular, is on television all the time. . . . So, the president is hugely more prominent and visible and that has been a trend through the 20th century. And, of course, it's intensified in recent times. But that already makes a change, because it means the president can appeal very directly to the voters and it's expected that he will appeal directly to the voters. And that's a change. Just to give one example, I mean, which again we take for granted, but probably we shouldn't. The State of the Union is now a ceremonial pep rally for the president. Everybody has to cover it on TV. Everyone has to stop what they're doing. You can't watch sports. Even if you're in a bar, you have to see the president and the State of the Union. And he gives now a very political speech. And this started, I think, with Reagan, but it just props. Mrs. So and So, she saved her neighbor's children from a fire, stand up, please. Let's all applaud. This guy was in World War II. He's great. Let's all applaud. So, it's a show. But before the 20th century, presidents did not even show up. They sent in a document in writing, which maybe was read out. I'm not sure, but anyway it wasn't covered in mass media. Maybe, it got into newspapers, but if you go back and look at State of the Union addresses, they are very formal documents. I mean, they're not fun. And they're like accounting statements. They tell you a lot about how much money is in a treasury, how much money was expended, what were the shortfalls. I mean, they're managerial. The idea that the president has a legislative program and he's going to alert the country to it and build support for it, that is something that really they did not have that idea before the 20th century. And it's a change and maybe not all together a good change. It assumes that the president is the central political leader, which that is not at all inherent in being an executive. I wouldn't say this is against the Constitution. I would say it is not something that is clearly indicated in the Constitution. The very fact that they put in, "He shall from time to time give Congress information on the State of the Union." They say it, because it's not obvious. I mean, they were trying to give the president some kind of role, but that means they were assuming that a lot of people would be skeptical and suspicious and think, "You're acting like a monarch. You're giving directions through the legislature." So, presidents tended to be cautious about that in the old days, and now they're, "Hoorah, my administration is great. Let's all rally around." One of the things that's very bad about it is it puts, almost now, almost every policy question into the perspective of, "Do I support the president or not?" To give one example, Franklin Roosevelt did not call the Social Security Act FDR Care. It was a separate thing, the Social Security Act. But Obama's health plan became Obamacare. And it wasn't his coinage, but he embraced it. He didn't say, "Oh, please, this is not about me." He was happy to say, "It is about me." Okay, you've really changed the understanding of executive power, if you think the president is the personal sponsor of everything. And he personally has his name on everything. That's a change and not a good one, but there it is. PUBLIUS: So would the Founders have disapproved of a President who was so familiar to the people? Why might it be an advantage for the President to be a bit more remote? JEREMY RABKIN: The famous story about George Washington, which probably people listening to this have heard but if not, it captures it. Gouverneur Morris has this bet with Hamilton. I mean, I guess Hamilton said to Morris, "I dare you to slap Washington on the back." You know this, right? And so, Morris takes the bait and he goes up, and he says, "General, so good to see you," and he slaps him on the back. And then, Washington turns and gives him a look, which is so withering that he just melts into a puddle. And he says to Hamilton afterwards, "It wasn't worth it, the bet. I'll never recover." Washington was not a guy who let people slap him on the back, because he had a real sense of his own dignity and authority. The Electoral College was a way of trying to keep the selection of the chief executive out of Congress, but without having it degenerate, degenerate, without having it fallback on a national election. They were afraid of a national election. They were like, "Whip people out, it'll make them crazy. There will be too much passion." Because everything will turn on one election, oh no, no, no. So, they wanted this to be a little removed from politics and that didn't work, but we still had this until really late in the 20th century. When we had political parties, they had a nominating convention. And the nominating convention was choosing on behalf of the party. And those are often very contested, but the convention had a certain authority. It was a big deal when Franklin Roosevelt in 1932 showed up at the convention. People thought, "Whoa, that is bold." The previous candidates waited to be asked and they pretended that, "Well, jeez, thank you, this is unexpected." They didn't it to look as if they had arranged to get the nomination. You didn't want it to look that way, because I thought that would undermine the dignity of the office. Well, dignity of the office, we left that behind a long time ago. So, the primary system is just we spend an entire year having prospective presidential candidates pandering in one state after another, going into diners saying, "Hi, what do you want? I'll do it, anything, sure. How's the coffee? I'll have more." They would have thought in the 19th century this was undignified. And we would still think it's undignified, if the Chief Justice of the United States went around doing this. I mean, we think, "Well, no, the Chief Justice has a serious job and he shouldn't be slapping people on the back in bars and diners." But damn, the president has a serious job too, but we don't let ourselves think about that, because we've gotten used to this. But it changes our understanding of the office. I think it is one of the reasons why there is so much distrust of the president. Yeah, yeah, we're more partisan. It's hard to say which is the cause and which is the effect. Maybe we're more partisan, because in a presidential system, you're basically down to two choices. I mean, I'm for the president or I'm against him. And so, the people who are against him say, "Well, he has too much power, and he's dangerous, and he's bad," but I think part of the perception that he has too much power is that he's in your face all the time, whether it's Trump or Obama, because we're just seeing him and hearing about him. And he's claiming all the time, "I'm doing this. I'm doing that." And wherever you are in the quadrennial schedule, you're either a year from or a year before another presidential election. 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. Can you give us some background on how the Founders thought about executive power? What powers did the monarch have that they wanted to retain in a President? Who were some of the influential authors that the Founders would have referred to in developing a role for executive power? The practice has always been to, when you're thinking about the executive power and what the president can do, to glance at what British practice was but you wouldn't want to take that as that's the first word and the last word. It's a reference. It's a thing to think about, but it's not necessarily decisive. If you read Blackstone's chapter in volume one on he has an overview chapter, which deals with royal prerogative. And the royal prerogative as Blackstone describes it and that's a very relevant source, because this is the main source for the Framers' understanding of law under the, we'll call it, the British Constitution, but anyway British practice. The king has lots of powers that we would recognize and think of as analogs to things that the president has, like a pardon power, a power to negotiate treaties, power to direct the armed forces. So, there are a whole lot of things that are direct analogs and we think, "Oh okay, so that's the source." But if you actually read through Blackstone's chapter, he gets along to all of these things, which have no analog, which people would be shocked if the president tried to exercise. For example, the power on his own, the king, to establish weights and measures. This is the king's measurements and the king decides the coinage. That's part of why his face is on it, because it's his shilling or his penny or his crown. And also, the power to establish market fares. He just would proclaim, "We're going to have in this town on this date a market fair and everyone can come to it." So, there's a whole bunch of things. Most of them don't involve a lot of the power, although the coinage and the measurements could be important, which clearly they didn't think was something the president could do. I want to mention something else, because I think people can get tangled up in, "Oh, it was a monarchy and we're a republic." And I think that doesn't advance the ball very much. One of the works, which they certainly consulted, was John Locke's Second Treatise of Government and John Locke who was extremely emphatic about natural rights and protecting the liberties of individuals at the end says, "Of course, the executive," and he speaks about the executive, not the king. He says, "The executive has a prerogative," and he has a whole discussion about prerogative. And he's quite explicit the prerogative power is the power to act, basically, in a crisis, in an emergency. Without the law and sometimes against the law. So, they were aware of very reputable Whig that is quasi-Republican arguments, which said there needs to be within the executive power some reservoir of power to deal with a real crisis. So, you have to be able to respond in a way that faces the challenge that these countries present to us. And that is hard to do by following a law that goes into a lot of detail and has been established in advance. You’ve described a British monarch with a lot of power. How did an experience with an abusive king shape the Founders’ ideas about executive power? So, I think that that way of posing the question is somewhat misleading this idea that they were very concerned about monarchy, because they just had the experience of an abusive monarchy. There are two points I would make in pushing back on that. And the first is if you read the Declaration of Independence where it speaks about the king, they were perfectly aware that this wasn't the king acting on his own. In fact, it was hardly at all the king. It was the parliament and the parliament following a prime minister, but it was all done by legislative process. So, it's the Stamp Act. It's not the royal directive on stamps. And I think for rhetorical reasons, the Declaration of Independence wanted to say, "He's the king and it's really abusive." They were tapping into a tradition of rhetoric, but they were perfectly aware that a parliamentary body could be abusive and threatening, because that was their experience. So, that's one point, but the second, I think, more important point is, yes, they had an experience of abuse that was a dozen years in the past. Even in the 18th century, a dozen years was a pretty long time, if you had important experiences in between. Well, they had very important experiences in between. They had a War of Independence, which we nearly lost. And then, we had tremendous difficulty after the peace treaty and getting any other countries to deal with us in a respectful way, including Britain, which we just made this peace with. And so, everybody had this sense. It's really incapacitating that we do not have an executive authority. I would say if you stand back and look at what's new in the Constitution, the most important innovation is the executive. That's the biggest change. It's not the only one of course, but it's the biggest single change from the Articles of Confederation. And you have always to keep this in mind. The people who drafted the Constitution, every single debate which they have while they are meeting Philadelphia, they glance up and there is George Washington. And he was the single most imposing man in America and he was the hero of the War of Independence. And without question, they were thinking, "Well, President of the United States, well, for example, George Washington." They didn't even have to think. It was obvious to everybody that this was an office designed to fit George Washington. Of course, they were aware that, well then, after George Washington, what? And they, of course, were mindful that you couldn't just say, "Everything will be fine, because it'll be George Washington forever." But as far as their expectations for how the office would be shaped at the beginning, they took for granted that it would be George Washington. And that meant far from being distrustful. I would say they had a reservoir of great respect and high expectations. They came out of an experience in which you really had to rely on the leadership of an executive and it was a very good experience in this sense, which is Washington was very mindful of it. He was leading a revolution to establish a Republican government. And so, he was anxious to reassure people that he was not going to be a dictator. That was true at the beginning and that was true all the way through, but he also very well understood that reassuring people meant he would have the trust to do some decisive things and sometimes some controversial things. It sounds like a lot of things were left to the discretion of the President, which is why Washington had to reassure people of his good intentions. How is the Executive power different in this respect than the powers specifically enumerated for Congress in Article I? .Article I, if you just glance at it, is very detailed and a lot of that is because there are provisions in Article I that are setting out the scope of the federal government. And in particular, Article I, Section 8 which is a very extensive enumeration of powers of Congress. Those are really the powers of the federal government. These are the things that the federal government has authority over. And the assumption behind that is, well, the most important element of power is legislative power. That's why it's Article I. These are things that we'll pass laws about. And so, that will set out what people are obliged to do, at least in their capacity as people governed by the federal government. The states had some capacity, but there are some national challenges, which you really need a national response. And you sometimes will need an immediate response. So, the executive is different in this way than the legislative authority. So, the first sentence of Article II, the executive power shall be vested in the President of the United States and there is dispute about whether that means there is some inherent power that goes with being executive and he has that power. And I think that almost certainly has to be the right answer, although this has been disputed almost from the beginning. And it is a somewhat disturbing answer, because if you say he has powers other than those precise ones that are mentioned later on in Article II, then you seem to be saying he has a whole reservoir of power, which is not defined by the Constitution. If it's not defined by the Constitution, maybe it's not limited by the Constitution. And that is rather disturbing. I do think that to some extent that is inherent in the nature of executive power, which is a power to deal not only with the routine challenges of implementing laws, but also dealing with crises, emergencies, foreign affairs, a range of things where we understand that it's hard to define in advance by law exactly what needs to be done. In the Constitution, the first part of the job description for the President states that he will be “Commander-in-Chief.” What does that mean? It just uses this expression, commander-in-chief. And as with almost every other item. It's possible to interpret that in a very narrow, almost ceremonial way. And it's possible to interpret that in a very broad way, which implies really the president is in charge. And again, I think the practice as varied, but certainly since Lincoln and probably since President Polk and the Mexican War, presidents have felt entitled to say, "I want this general to be commanding and I don't want that guy.” And, of course, presidents frequently have said, as President Roosevelt did to a large extent in World War II, "I don't want to be micromanaging. So, I trust my military people to implement things." But even somebody like Roosevelt who was pretty differential to his top military people, he had regular conferences with them. He wanted to know. I mean, and he wanted to be the final decision-maker. And he made some really fundamental strategic decisions. I mean, famous example, it was Roosevelt who said, "We're going to invade North Africa in 1942." And George Marshall, the Army Chief of Staff, said, "No, that's a diversion. Let's not do that." But Roosevelt felt, "No, this is a good thing to do. I've talked it over with Churchill." Churchill is a very great man, maybe the greatest man of the 20th century, not a constitutional officer of the United States. He felt perfectly free, Roosevelt. I think appropriately, but we should just remind ourselves to say, "I am conducting this war with allies and I am going to negotiate personally with these allies, and then I am going to determine the outlines of strategy, even against my own military. So, the people who are confirmed by the Senate to be top generals, they're not the commander-in-chief. I am and the commander-in-chief power, whatever else it means, means I get to decide at least on the main outlines of strategy." And outlines is not go out and win. It is we're going to invade here and not there. And we're going to do this in two years, but not now. These were quite consequential and important decisions. And a lot of books have been written about this. And I think generally it's thought he did a good job. I think it's generally thought that Lyndon Johnson in Vietnam not so much, but he was always very, very involved in details. I mean, maybe too much involved in details, but it again would be contrary to our practice to say being the commander-in-chief just means you have a ceremonial role. Presidents have taken that they are managers of the military, even in war, especially in war. Yes, and occasionally, micromanagers. And I think that's probably bad, although people do need to remind themselves that if you say no to that, what you're saying is the military questions are only military and that is rarely the case. There are likely to be political implications, such as can we bomb any neutral country? Well, that's a really big political question. Can we bomb close to the border of a neutral country where there might be some spillover? Can we bomb if it means a lot of civilians are going to be hurt? There's a lot of obvious questions, which will have political consequences, which somebody needs to be thinking about. And it's not obvious to me that, well, generals, they're always the right ones to decide. Why? I mean, this is a complicated balance thing. These are things that call for judgment. And unless you have a lot of experience at the very highest level, I think just having been a lieutenant, and then a major and all of that. It doesn't qualify you necessarily to make these very difficult political, diplomatic judgments. Speaking of political and diplomatic judgements - another important executive power is the President’s role in representing the interests of the United States in our dealings with other nations. Can you talk a bit about what kind of authority the President has to do that? What sort of foreign affairs are properly under his consideration? We should try as much as we can to make a distinction between presidential action abroad and presidential action at home. It may happen in fact that we need to have some coordination with foreign countries. This is what most of our trade agreements now do. We make agreements that we will not subsidize these things, that we will not restrict these things from being sold. The president can't do that. He needs to work through Congress, because it does have a direct, not just an effect, it imposes legal obligations on what Americans do at home. There, I think, the president can't invoke foreign affairs but as to what he does with foreigners, I think there's a real question how much Congress can constrain him there. So, what you find in Article II is, among other things, he shall have the power to receive ambassadors. That could mean a power that is an analog to the British monarch. You present your credentials to Queen Elizabeth and she says, "Thank you very much." She doesn't do anything else. I mean, she happens to receive the ambassadors and there's a ceremony. She doesn't conduct foreign policy. It has generally been taken to mean that, "Oh no, no, no. When he receives ambassadors in the first place, he's deciding whether or not to receive a delegation from that sending country." So, that implies that he will have the power to recognize that they are an independent nation, that they are an independent nation that we want to have diplomatic relations with. I think everyone accepts that ambassadors and other diplomats are in the executive branch. They are reporting to the president, so he has a lot of information. He's also commander-in-chief, whatever else that means. It means he has a lot of say over the military. So, the diplomats and the military, that covers a lot of foreign affairs. If you look at it the other way and ask, "Does the Congress have authority in foreign affairs?", it has to power to declare war. It has the power to regulate commerce with foreign nations. I think those are the two items. He doesn't have the power to receive ambassadors. He doesn't have the power to say which countries we will recognize. I mean, that is not mentioned as a power. So, it makes sense both as a practical matter and in relation to the constitutional text that the president has the predominant role in foreign affairs. But if you ask me, okay, predominant but does that mean anything that the president considers to be a matter of foreign affairs he can do? And the answer to that has to be, no, of course not. Because otherwise, he could make himself a legislator in America just by having an agreement with another country. I mean, he could just sign an agreement with the Prince of Liechtenstein saying, "We both agree that taxes should be raised in the following way." And if that were enough to give us a new tax code, which by the way, the Prince of Liechtenstein is able to do in Liechtenstein. So, he'd be a good partner, then we would not have a constitutional government anymore, right? It can't be that just because it's something to do with a foreign country, the president has unlimited power. It sounds like presidential power in foreign affairs has not changed a lot since the Founding. But what about presidential power at home in the United States? Has that changed or evolved over time? Wow. So, of course it's changed, because so many other things have changed. One of the things, which we took for granted, which was not their experience is that the president will be extremely visible all the time. I mean, to say they obviously think the president's on television all the time. The president, particular, is on television all the time. . . . So, the president is hugely more prominent and visible and that has been a trend through the 20th century. And, of course, it's intensified in recent times. But that already makes a change, because it means the president can appeal very directly to the voters and it's expected that he will appeal directly to the voters. And that's a change. Just to give one example, I mean, which again we take for granted, but probably we shouldn't. The State of the Union is now a ceremonial pep rally for the president. Everybody has to cover it on TV. Everyone has to stop what they're doing. You can't watch sports. Even if you're in a bar, you have to see the president and the State of the Union. And he gives now a very political speech. And this started, I think, with Reagan, but it just props. Mrs. So and So, she saved her neighbor's children from a fire, stand up, please. Let's all applaud. This guy was in World War II. He's great. Let's all applaud. So, it's a show. But before the 20th century, presidents did not even show up. They sent in a document in writing, which maybe was read out. I'm not sure, but anyway it wasn't covered in mass media. Maybe, it got into newspapers, but if you go back and look at State of the Union addresses, they are very formal documents. I mean, they're not fun. And they're like accounting statements. They tell you a lot about how much money is in a treasury, how much money was expended, what were the shortfalls. I mean, they're managerial. The idea that the president has a legislative program and he's going to alert the country to it and build support for it, that is something that really they did not have that idea before the 20th century. And it's a change and maybe not all together a good change. It assumes that the president is the central political leader, which that is not at all inherent in being an executive. I wouldn't say this is against the Constitution. I would say it is not something that is clearly indicated in the Constitution. The very fact that they put in, "He shall from time to time give Congress information on the State of the Union." They say it, because it's not obvious. I mean, they were trying to give the president some kind of role, but that means they were assuming that a lot of people would be skeptical and suspicious and think, "You're acting like a monarch. You're giving directions through the legislature." So, presidents tended to be cautious about that in the old days, and now they're, "Hoorah, my administration is great. Let's all rally around." One of the things that's very bad about it is it puts, almost now, almost every policy question into the perspective of, "Do I support the president or not?" To give one example, Franklin Roosevelt did not call the Social Security Act FDR Care. It was a separate thing, the Social Security Act. But Obama's health plan became Obamacare. And it wasn't his coinage, but he embraced it. He didn't say, "Oh, please, this is not about me." He was happy to say, "It is about me." Okay, you've really changed the understanding of executive power, if you think the president is the personal sponsor of everything. And he personally has his name on everything. That's a change and not a good one, but there it is. So would the Founders have disapproved of a President who was so familiar to the people? Why might it be an advantage for the President to be a bit more remote? The famous story about George Washington, which probably people listening to this have heard but if not, it captures it. Gouverneur Morris has this bet with Hamilton. I mean, I guess Hamilton said to Morris, "I dare you to slap Washington on the back." You know this, right? And so, Morris takes the bait and he goes up, and he says, "General, so good to see you," and he slaps him on the back. And then, Washington turns and gives him a look, which is so withering that he just melts into a puddle. And he says to Hamilton afterwards, "It wasn't worth it, the bet. I'll never recover." Washington was not a guy who let people slap him on the back, because he had a real sense of his own dignity and authority. The Electoral College was a way of trying to keep the selection of the chief executive out of Congress, but without having it degenerate, degenerate, without having it fallback on a national election. They were afraid of a national election. They were like, "Whip people out, it'll make them crazy. There will be too much passion." Because everything will turn on one election, oh no, no, no. So, they wanted this to be a little removed from politics and that didn't work, but we still had this until really late in the 20th century. When we had political parties, they had a nominating convention. And the nominating convention was choosing on behalf of the party. And those are often very contested, but the convention had a certain authority. It was a big deal when Franklin Roosevelt in 1932 showed up at the convention. People thought, "Whoa, that is bold." The previous candidates waited to be asked and they pretended that, "Well, jeez, thank you, this is unexpected." They didn't it to look as if they had arranged to get the nomination. You didn't want it to look that way, because I thought that would undermine the dignity of the office. Well, dignity of the office, we left that behind a long time ago. So, the primary system is just we spend an entire year having prospective presidential candidates pandering in one state after another, going into diners saying, "Hi, what do you want? I'll do it, anything, sure. How's the coffee? I'll have more." They would have thought in the 19th century this was undignified. And we would still think it's undignified, if the Chief Justice of the United States went around doing this. I mean, we think, "Well, no, the Chief Justice has a serious job and he shouldn't be slapping people on the back in bars and diners." But damn, the president has a serious job too, but we don't let ourselves think about that, because we've gotten used to this. But it changes our understanding of the office. I think it is one of the reasons why there is so much distrust of the president. Yeah, yeah, we're more partisan. It's hard to say which is the cause and which is the effect. Maybe we're more partisan, because in a presidential system, you're basically down to two choices. I mean, I'm for the president or I'm against him. And so, the people who are against him say, "Well, he has too much power, and he's dangerous, and he's bad," but I think part of the perception that he has too much power is that he's in your face all the time, whether it's Trump or Obama, because we're just seeing him and hearing about him. And he's claiming all the time, "I'm doing this. I'm doing that." And wherever you are in the quadrennial schedule, you're either a year from or a year before another presidential election. 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!