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. What are some of the most obvious powers that the President has? What do they entail? STEVEN CALABRESI: I should say something about both the law enforcement power and the foreign policy power of the president. On the law enforcement side the president is the chief law enforcement officer in the country. He takes an oath to preserve and protect the Constitution of the United States from all enemies, foreign and domestic. He appoints the attorney general, the deputy attorney general, the assistant attorney generals and the U.S. attorneys. He gets a lot of advice from the Senate on whom to appoint to those jobs, and there're very established professional criteria that have to be met for people to hold those jobs. But ultimately the president is in charge of making sure that the law is enforced. The other side of presidential power which is very visible, is presidential power in foreign affairs. John Marshall writing in the early 1800s, John Marshall being the fourth and the most famous Chief Justice of the Supreme Court, and the longest serving Chief Justice in American history. He served from 1801 until 1835. Chief Justice John Marshall wrote, "The President is the sole organ and voice of the United States in foreign affairs." As a matter of Constitutional practice over the last 225 years, presidents have played a lead role in setting foreign policy. Presidents have used their power to receive ambassadors to, for example, refuse to recognize the communist government of Mao Zedong from 1949 until President Carter recognized it in 1978, after President Nixon had made a famous visit to China in the early 1970s. For a long time the United States did not recognize the Fidel Castro dictatorship in Cuba. More recently, President Obama agreed to exchange ambassadors with Cuba and received the Cuban ambassador to the United States. So that's a foreign policy power the president has. The president's commander- in-chief power depends significantly on how much money Congress appropriates for the army and the navy and the air force and for space GPS satellites and other devices that facilitate air force actions. The United States has the world's largest military. We have an enormous army with troops stationed overseas, including 35,000 troops still stationed in Germany even after our victory in World War II in 1945. We have 30,000 still stationed in South Korea even though the Korean War ended in the 1950s. We have 12 aircraft carriers, many nuclear submarines, and many bombers of various different kinds armed with cruise missiles. PUBLIUS: If the President is the Commander-in-Chief, what power does he have to engage in war? What does it mean for Congress to declare war, and does the President require this declaration to act? STEVEN CALABRESI: One thing that has developed since World War II is that there have been, since World War II, a series of military actions, that it would be reasonable to say are wars, where Congress has not declared war and the president has nonetheless, as commander-in-chief, ordered the army and the navy to take military action. This was true during the Korean War in the early 1950s, during the Vietnam War under Presidents Lyndon Johnson, Richard Nixon and then Gerald Ford. It was true with the Iraq-Kuwait War, which was waged by President George Herbert Walker Bush to expel Saddam Hussein from Kuwait. That war, ironically, was authorized by a vote of both houses of Congress, but the authorizing resolution didn't use the words "declare war," so it's a little ambiguous as to whether the first Gulf War was a declared war or not. It was certainly a Congressionally authorized war, but the last time Congress has said the words "declared war" was in response to Pearl Harbor in World War II. More recently, presidents have used military forces in the Balkans to prevent human rights atrocities, to overthrow the regime of Saddam Hussein in the Iraq War under President George W. Bush. President Obama used the military to effectively depose Muammar Gaddaf, the dictator of Libya, who at one point had organized the blowing up of an American-bound airliner with hundreds of U.S. citizens on it over Lockerbie, Scotland. There continues to be a lot of controversy over whether these presidential assertions of foreign policy power are legitimate or not. The scholars who think that they are legitimate, like John Yoo at Berkeley, who was an advisor to George W. Bush, argue that the president as commander-in-chief, can move the army and the navy and the air force around and locate them wherever he wants to locate them. If President Trump were to decide tomorrow that he wants to locate the army in Tehran, we would be at war with Iran, and the president could effectively initiate that by moving U.S. troops into Tehran. There's no doubt that we could defeat Iran in a war if we wanted to. Scholars on the other side say that Congress was deliberately given the power to declare ware and that presidents' power to move troops around don't include the power to initiate wars. They argue the president can move the troops around in wartime, so they can deploy them as they see fit. George Washington thought that was essential, because he resented Congress during the Revolutionary War telling him how to deploy his troops, which he found to be both inconvenient and impractical. So, during a war, a president can certainly move troops around and a president can certainly move troops around friendly countries. Whether presidents can initiate conflicts on their own or not, it remains a contested question. PUBLIUS: Since the founding of the United States, several other countries have adopted their own constitutions. Does the role of the executive in these other systems resemble the U.S. Presidency? STEVEN CALABRESI: It should be noted that many foreign countries have copied the presidential separation of powers system of the U.S. Constitution. Among the countries that have copied it are all the nations of Latin America, the Philippines, South Korea, Indonesia and the Russian Federation. And also France today, the Fifth Republic, which has a presidential separation of powers regime. Switzerland copied the American Constitution, but it set up a seven member executive council rather than a unitary executive the way Article II does. One of the things that is distressing and noteworthy is that, with the exception of Switzerland, with its plural executive, and the French Fifth Republic, with a president elected separately from Parliament. With the exception of those two countries, every single country that has copied U.S. presidential system has degenerated into a dictatorship at some point in time. Every country in Latin America has had a presidential dictator. The Philippines, South Korea and Indonesia all had presidential dictators. Boris Yeltsin was originally a democratic president of Russia. His elected successor, Vladimir Putin, has reestablished a dictatorship in Russia. The idea of the presidency does not travel well outside of the United States, to put it mildly. And the reason why is that foreign leaders are very impressed by the title President, and they want to call themselves President in emulation of the President of the United States. So they copied the presidency from the Untied States, but they don't copy all the checks and balances that we put on our presidents. So, for example, their legislatures are much less powerful. Foreign presidents often have the power to make law by decree, interstitially. Foreign presidents often have the power to declare states of emergency when they suspend ordinary laws. Foreign presidents never have to worry about midterm elections two years into their presidency, elections which, the party in control of the White House, almost always loses. At least that's been the consistent pattern since 1934. Presidents overseas are not confronted by congressional oversight committees with the power to subpoena witnesses and with the power to impeach a president or potentially remove him from office. Other countries also don't have courts that are as powerful as the U.S. Supreme Court, which checks our president. Another very important check on presidential power is one the framers never anticipated, but which has evolved over two centuries, which is that the 50 states, over a long period of time, gradually decided that they wanted to elect their governors for the most part in non-presidential election years. Today, 39 of the 50 state governors are elected either in the midterm election or in odd numbered year elections as in Virginia, New Jersey, Louisiana and Kentucky. It turns out that the party in power in the White House, always loses the state elections as well as losing the federal midterm elections. PUBLIUS: Has Executive power become too much like the imperial power our Founding Fathers rejected? STEVEN CALABRESI: There's some American constitutional law professors, like Bruce Ackerman at Yale, who have written books entitled The Rise and Fall of the American Republic. The thesis of this book is that we have an imperial president and we are no longer a democracy. I think that's nonsense. I think we have a powerful president, and in some ways too powerful a president. I think too much power is delegated to the president, and both Congress and the courts should do something about that. I think Congress should be more assertive vis-a-vis the president. PUBLIUS: Can you elaborate on the proper role of the President? What does it mean for the Constitution to establish a “unitary executive”? STEVEN CALABRESI: So, Article II creates a unitary executive, which means that there is a President of the United States. One person who is the president. That's a change from the Articles of Confederation, which governed the U.S. from 1777 until the Constitution went into effect in 1789, when there was a three person executive committee. Some other countries, like Switzerland, have a seven person executive council. The framers of the Constitution deliberately chose to have a one person presidency because they thought that having one person would make that person accountable for everything that went on in the executive branch, would add energy to the government, both in foreign policy and in military matters, and would allow the one president to override domestic factions. For that reason they thought that having one president was important, but they checked and balanced the president's power in a host of other ways with midterm elections and oversight committees in Congress and judicial review and state elections and other things that we will discuss or have discussed. Among the people who argue that there is a unitary executive, there's essentially two camps. The camp that I'm associated with and that Justice Antonin Scalia was associated with, and from whom I learned most of what I know about the presidency, not to mention originalism and constitutional law, more generally. What I think the unitary executive signifies is mainly that the president is in charge of the executive branch. There is one president and he is in control of the executive branch. The tool that I think the constitution gives the president to control the executive branch is that I think he has the inherent power to fire any cabinet secretary or executive branch subordinate or inferior officer or employee who he thinks is misbehaving or could be better used in some other job. I believe in the unitary executive in the sense that we have one president who is in charge of the whole executive branch and can fire any subordinate, and therefore the president is accountable for how the whole executive branch functions, and he is subject to reelection based on whether he does a good job during a first turn, and then he is likely to see his vice president or a favorable successor elected to replace him, depending on whether he's done a good job. There is a second theory of the unitary executive, which has been put forward by Professor John Yoo at the University of California at Berkeley, who was also a Deputy Head of the Office of Legal Counsel under George W. Bush. George W. Bush's attorney generals, Alberto Gonzalez and John Ashcroft, and his White House counsel, who was Alberto Gonzalez before he became attorney general, and President Bush himself, believed in a different form of the unitary executive from the one that I have defended and set out, which is called The Unitary Executive: Presidential Power From Washington to Bush. The John Yoo theory of the unitary executive argues that the executive power in the vesting clause of Article II includes not only the power to remove or fire all insubordinate executive branch officers, thereby controlling the executive branch. Professor Yoo argues that the executive power includes broad foreign policy powers similar to those exercised by King George III of England when the Constitution was written. Professor Yoo essentially believes that the president has what English monarchs called the prerogative power. John Locke actually famously talks about the prerogative power in his two treatises on government, and he says the prerogative power is the power to act in emergencies, in unforeseen situations, when the legislature cannot safely be convened or take such other foreign policy actions as the executive may deem prudent. To some extent, I don't think the unitary executive by itself justifies the claim that the president has a prerogative power, but I do think that the framers would have understood the phrase executive power when the Constitution was adopted as including some ability to respond to a sudden attack, an emergency, a situation Congress hadn't anticipated when Congress was in recess. Here, we have to remember that when Congress was in recess in the 1790s, that meant that the representatives and senators were days away by riding horseback from Washington D.C. and they were busy farming their farms, which is why congressional sessions were always in the winter in the early years of our history. So, presidents have on a number of occasions, taken initiatives that's not quite clear they had the authority to undertake. Subject to the caveat that Congress has to ratify what the president did after the fact for it to be legal. For example, Thomas Jefferson, the third President of the Untied States, sent ambassadors to France to inquire into purchasing the city of New Orleans and Louisiana from the French emperor, Napoleon Bonaparte. To his surprise, Napoleon offered to sell Jefferson the entire western half of the United States from the Mississippi River to the Pacific Ocean for $15 million, and Jefferson agreed. And he said, "I don't think I have the constitutional power to do this, but this is just too good a chance to pass up. So I'll buy it." And once he convened Congress, they appropriated the money and approved the transaction, and they ratified a treaty with Napoleon with two-thirds of the Senate. It was all legally done. But Jefferson basically said "I'm really sticking my neck out here. And if they want to impeach and remove me, they could do it. But I really think, instead, they'll ratify and improve what I did." Which of course they did. Another famous example of this in American history is Abraham Lincoln was sworn in as our sixteenth president on March 4, 1861 in Washington D.C. in front of the capital building. At the time, seven southern states had purported to secede from the Union. When Lincoln made it clear that he would use military force to defend federal forts like Fort Sumter in Charleston Harbor, four more states seceded from the Union, including the state of Virginia. There were four slave states that did not secede from the Union in the Civil War. Maryland, Delaware, Kentucky and Missouri. They were slave states but they remained in the Union. But there was basically civil war in Maryland over whether Maryland should secede from the Union or whether it should stay with the Union. When Lincoln was sworn in as president on March 4, 1861, he literally had to be smuggled into Washington D.C. on a train at night so that the rebels in Maryland wouldn't seize and arrest him or assassinate him on his way to Washington D.C. Congress was not in session on March 4, 1861, and Lincoln concluded that it would not be safe to call Congress into session until the military had secured control of Maryland. Because if Maryland had seceded, Washington D.C. would have been behind enemy lines in the Civil War. Lincoln could have convened Congress, had he wanted to, in New York City or Philadelphia, but that would have given the south a huge propaganda victory, which Lincoln didn't want to give to the south. So Lincoln took a series of unilateral actions after March 4, 1861, which included imposing a naval blockade on all southern ports to shut down commerce between the south and western Europe. He raised an army of 600,000 men and ordered them paid out of the treasury without an appropriations bill. In Maryland, he unilaterally suspended the writ of habeas corpus, which translated into common language, meant he claimed the power to arrest power without trying them before a judge or a jury, and he arrested and held at a military base a guy named John Merryman who was in fact a Confederate terrorist who was trying to blow up telegraph lines in Maryland. After Chief Justice Roger Taney ordered Merryman released and Lincoln refused to follow Chief Justice Taney's order, which is the only certain time in American history that a president has ever refused to follow a court order. Once Maryland was secured by May of 1861, Lincoln called Congress into a special session on July 4, 1861 And he presented to Congress a list of all the things he'd done, and he asked Congress to ratify after the fact all the things that he did and Congress did ratify after the fact all the things that he did. But clearly in that instance too Lincoln was exercising prerogative power, he was dealing with an emergency in a situation where he couldn't safely assemble Congress to deal with it. So there really are two theories of the unitary executive, one theory which focuses on just the president's removal power and control over the executive branch. And a second theory which argues that the president has some prerogative or foreign policy powers, a theory which is most associated with Professor John U. of Berkeley. My own view is that I think what presidents, Jefferson and Lincoln did was constitutional, but only because congress ratified it after the fact. Congress could have chosen to impeach Jefferson or Lincoln for what they did, but it quite wisely did not impeach them. It instead ratified what they did. But some things that presidents have done during wartime have not been ratified by Congress and have in fact been unconstitutional and I would include among those the detention of 100,000 Japanese Americans in California, which the Supreme Court infamously upheld in a case called Korematsu against the United States, decided by a six to three margin. Congress eventually in the 1980s, awarded money damages to the descendants of the people who were interned, declared the internment unlawful. And just this past June in a case called Trump v. Hawaii, the Supreme Court unanimously overruled the Korematsu decision. The Korematsu decision, and the tournament of 100,000 innocent Japanese American US citizens during World War II is a stark reminder of why we don't want the president to have prerogative power that isn't subject to later approval by Congress or later impeachment by Congress if the president has abused power. 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 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. - We’re here today with Professor Steven Calabresi. What are some of the most obvious powers that the President has? What do they entail? I should say something about both the law enforcement power and the foreign policy power of the president. On the law enforcement side the president is the chief law enforcement officer in the country. He takes an oath to preserve and protect the Constitution of the United States from all enemies, foreign and domestic. He appoints the attorney general, the deputy attorney general, the assistant attorney generals and the U.S. attorneys. He gets a lot of advice from the Senate on whom to appoint to those jobs, and there're very established professional criteria that have to be met for people to hold those jobs. But ultimately the president is in charge of making sure that the law is enforced. The other side of presidential power which is very visible, is presidential power in foreign affairs. John Marshall writing in the early 1800s, John Marshall being the fourth and the most famous Chief Justice of the Supreme Court, and the longest serving Chief Justice in American history. He served from 1801 until 1835. Chief Justice John Marshall wrote, "The President is the sole organ and voice of the United States in foreign affairs." As a matter of Constitutional practice over the last 225 years, presidents have played a lead role in setting foreign policy. Presidents have used their power to receive ambassadors to, for example, refuse to recognize the communist government of Mao Zedong from 1949 until President Carter recognized it in 1978, after President Nixon had made a famous visit to China in the early 1970s. For a long time the United States did not recognize the Fidel Castro dictatorship in Cuba. More recently, President Obama agreed to exchange ambassadors with Cuba and received the Cuban ambassador to the United States. So that's a foreign policy power the president has. The president's commander- in-chief power depends significantly on how much money Congress appropriates for the army and the navy and the air force and for space GPS satellites and other devices that facilitate air force actions. The United States has the world's largest military. We have an enormous army with troops stationed overseas, including 35,000 troops still stationed in Germany even after our victory in World War II in 1945. We have 30,000 still stationed in South Korea even though the Korean War ended in the 1950s. We have 12 aircraft carriers, many nuclear submarines, and many bombers of various different kinds armed with cruise missiles. If the President is the Commander-in-Chief, what power does he have to engage in war? What does it mean for Congress to declare war, and does the President require this declaration to act? One thing that has developed since World War II is that there have been, since World War II, a series of military actions, that it would be reasonable to say are wars, where Congress has not declared war and the president has nonetheless, as commander-in-chief, ordered the army and the navy to take military action. This was true during the Korean War in the early 1950s, during the Vietnam War under Presidents Lyndon Johnson, Richard Nixon and then Gerald Ford. It was true with the Iraq-Kuwait War, which was waged by President George Herbert Walker Bush to expel Saddam Hussein from Kuwait. That war, ironically, was authorized by a vote of both houses of Congress, but the authorizing resolution didn't use the words "declare war," so it's a little ambiguous as to whether the first Gulf War was a declared war or not. It was certainly a Congressionally authorized war, but the last time Congress has said the words "declared war" was in response to Pearl Harbor in World War II. More recently, presidents have used military forces in the Balkans to prevent human rights atrocities, to overthrow the regime of Saddam Hussein in the Iraq War under President George W. Bush. President Obama used the military to effectively depose Muammar Gaddaf, the dictator of Libya, who at one point had organized the blowing up of an American-bound airliner with hundreds of U.S. citizens on it over Lockerbie, Scotland. There continues to be a lot of controversy over whether these presidential assertions of foreign policy power are legitimate or not. The scholars who think that they are legitimate, like John Yoo at Berkeley, who was an advisor to George W. Bush, argue that the president as commander-in-chief, can move the army and the navy and the air force around and locate them wherever he wants to locate them. If President Trump were to decide tomorrow that he wants to locate the army in Tehran, we would be at war with Iran, and the president could effectively initiate that by moving U.S. troops into Tehran. There's no doubt that we could defeat Iran in a war if we wanted to. Scholars on the other side say that Congress was deliberately given the power to declare ware and that presidents' power to move troops around don't include the power to initiate wars. They argue the president can move the troops around in wartime, so they can deploy them as they see fit. George Washington thought that was essential, because he resented Congress during the Revolutionary War telling him how to deploy his troops, which he found to be both inconvenient and impractical. So, during a war, a president can certainly move troops around and a president can certainly move troops around friendly countries. Whether presidents can initiate conflicts on their own or not, it remains a contested question. Since the founding of the United States, several other countries have adopted their own constitutions. Does the role of the executive in these other systems resemble the U.S. Presidency? It should be noted that many foreign countries have copied the presidential separation of powers system of the U.S. Constitution. Among the countries that have copied it are all the nations of Latin America, the Philippines, South Korea, Indonesia and the Russian Federation. And also France today, the Fifth Republic, which has a presidential separation of powers regime. Switzerland copied the American Constitution, but it set up a seven member executive council rather than a unitary executive the way Article II does. One of the things that is distressing and noteworthy is that, with the exception of Switzerland, with its plural executive, and the French Fifth Republic, with a president elected separately from Parliament. With the exception of those two countries, every single country that has copied U.S. presidential system has degenerated into a dictatorship at some point in time. Every country in Latin America has had a presidential dictator. The Philippines, South Korea and Indonesia all had presidential dictators. Boris Yeltsin was originally a democratic president of Russia. His elected successor, Vladimir Putin, has reestablished a dictatorship in Russia. The idea of the presidency does not travel well outside of the United States, to put it mildly. And the reason why is that foreign leaders are very impressed by the title President, and they want to call themselves President in emulation of the President of the United States. So they copied the presidency from the Untied States, but they don't copy all the checks and balances that we put on our presidents. So, for example, their legislatures are much less powerful. Foreign presidents often have the power to make law by decree, interstitially. Foreign presidents often have the power to declare states of emergency when they suspend ordinary laws. Foreign presidents never have to worry about midterm elections two years into their presidency, elections which, the party in control of the White House, almost always loses. At least that's been the consistent pattern since 1934. Presidents overseas are not confronted by congressional oversight committees with the power to subpoena witnesses and with the power to impeach a president or potentially remove him from office. Other countries also don't have courts that are as powerful as the U.S. Supreme Court, which checks our president. Another very important check on presidential power is one the framers never anticipated, but which has evolved over two centuries, which is that the 50 states, over a long period of time, gradually decided that they wanted to elect their governors for the most part in non-presidential election years. Today, 39 of the 50 state governors are elected either in the midterm election or in odd numbered year elections as in Virginia, New Jersey, Louisiana and Kentucky. It turns out that the party in power in the White House, always loses the state elections as well as losing the federal midterm elections. Has Executive power become too much like the imperial power our Founding Fathers rejected? There's some American constitutional law professors, like Bruce Ackerman at Yale, who have written books entitled The Rise and Fall of the American Republic. The thesis of this book is that we have an imperial president and we are no longer a democracy. I think that's nonsense. I think we have a powerful president, and in some ways too powerful a president. I think too much power is delegated to the president, and both Congress and the courts should do something about that. I think Congress should be more assertive vis-a-vis the president. Can you elaborate on the proper role of the President? What does it mean for the Constitution to establish a “unitary executive”? So, Article II creates a unitary executive, which means that there is a President of the United States. One person who is the president. That's a change from the Articles of Confederation, which governed the U.S. from 1777 until the Constitution went into effect in 1789, when there was a three person executive committee. Some other countries, like Switzerland, have a seven person executive council. The framers of the Constitution deliberately chose to have a one person presidency because they thought that having one person would make that person accountable for everything that went on in the executive branch, would add energy to the government, both in foreign policy and in military matters, and would allow the one president to override domestic factions. For that reason they thought that having one president was important, but they checked and balanced the president's power in a host of other ways with midterm elections and oversight committees in Congress and judicial review and state elections and other things that we will discuss or have discussed. Among the people who argue that there is a unitary executive, there's essentially two camps. The camp that I'm associated with and that Justice Antonin Scalia was associated with, and from whom I learned most of what I know about the presidency, not to mention originalism and constitutional law, more generally. What I think the unitary executive signifies is mainly that the president is in charge of the executive branch. There is one president and he is in control of the executive branch. The tool that I think the constitution gives the president to control the executive branch is that I think he has the inherent power to fire any cabinet secretary or executive branch subordinate or inferior officer or employee who he thinks is misbehaving or could be better used in some other job. I believe in the unitary executive in the sense that we have one president who is in charge of the whole executive branch and can fire any subordinate, and therefore the president is accountable for how the whole executive branch functions, and he is subject to reelection based on whether he does a good job during a first turn, and then he is likely to see his vice president or a favorable successor elected to replace him, depending on whether he's done a good job. There is a second theory of the unitary executive, which has been put forward by Professor John Yoo at the University of California at Berkeley, who was also a Deputy Head of the Office of Legal Counsel under George W. Bush. George W. Bush's attorney generals, Alberto Gonzalez and John Ashcroft, and his White House counsel, who was Alberto Gonzalez before he became attorney general, and President Bush himself, believed in a different form of the unitary executive from the one that I have defended and set out, which is called The Unitary Executive: Presidential Power From Washington to Bush. The John Yoo theory of the unitary executive argues that the executive power in the vesting clause of Article II includes not only the power to remove or fire all insubordinate executive branch officers, thereby controlling the executive branch. Professor Yoo argues that the executive power includes broad foreign policy powers similar to those exercised by King George III of England when the Constitution was written. Professor Yoo essentially believes that the president has what English monarchs called the prerogative power. John Locke actually famously talks about the prerogative power in his two treatises on government, and he says the prerogative power is the power to act in emergencies, in unforeseen situations, when the legislature cannot safely be convened or take such other foreign policy actions as the executive may deem prudent. To some extent, I don't think the unitary executive by itself justifies the claim that the president has a prerogative power, but I do think that the framers would have understood the phrase executive power when the Constitution was adopted as including some ability to respond to a sudden attack, an emergency, a situation Congress hadn't anticipated when Congress was in recess. Here, we have to remember that when Congress was in recess in the 1790s, that meant that the representatives and senators were days away by riding horseback from Washington D.C. and they were busy farming their farms, which is why congressional sessions were always in the winter in the early years of our history. So, presidents have on a number of occasions, taken initiatives that's not quite clear they had the authority to undertake. Subject to the caveat that Congress has to ratify what the president did after the fact for it to be legal. For example, Thomas Jefferson, the third President of the Untied States, sent ambassadors to France to inquire into purchasing the city of New Orleans and Louisiana from the French emperor, Napoleon Bonaparte. To his surprise, Napoleon offered to sell Jefferson the entire western half of the United States from the Mississippi River to the Pacific Ocean for $15 million, and Jefferson agreed. And he said, "I don't think I have the constitutional power to do this, but this is just too good a chance to pass up. So I'll buy it." And once he convened Congress, they appropriated the money and approved the transaction, and they ratified a treaty with Napoleon with two-thirds of the Senate. It was all legally done. But Jefferson basically said "I'm really sticking my neck out here. And if they want to impeach and remove me, they could do it. But I really think, instead, they'll ratify and improve what I did." Which of course they did. Another famous example of this in American history is Abraham Lincoln was sworn in as our sixteenth president on March 4, 1861 in Washington D.C. in front of the capital building. At the time, seven southern states had purported to secede from the Union. When Lincoln made it clear that he would use military force to defend federal forts like Fort Sumter in Charleston Harbor, four more states seceded from the Union, including the state of Virginia. There were four slave states that did not secede from the Union in the Civil War. Maryland, Delaware, Kentucky and Missouri. They were slave states but they remained in the Union. But there was basically civil war in Maryland over whether Maryland should secede from the Union or whether it should stay with the Union. When Lincoln was sworn in as president on March 4, 1861, he literally had to be smuggled into Washington D.C. on a train at night so that the rebels in Maryland wouldn't seize and arrest him or assassinate him on his way to Washington D.C. Congress was not in session on March 4, 1861, and Lincoln concluded that it would not be safe to call Congress into session until the military had secured control of Maryland. Because if Maryland had seceded, Washington D.C. would have been behind enemy lines in the Civil War. Lincoln could have convened Congress, had he wanted to, in New York City or Philadelphia, but that would have given the south a huge propaganda victory, which Lincoln didn't want to give to the south. So Lincoln took a series of unilateral actions after March 4, 1861, which included imposing a naval blockade on all southern ports to shut down commerce between the south and western Europe. He raised an army of 600,000 men and ordered them paid out of the treasury without an appropriations bill. In Maryland, he unilaterally suspended the writ of habeas corpus, which translated into common language, meant he claimed the power to arrest power without trying them before a judge or a jury, and he arrested and held at a military base a guy named John Merryman who was in fact a Confederate terrorist who was trying to blow up telegraph lines in Maryland. After Chief Justice Roger Taney ordered Merryman released and Lincoln refused to follow Chief Justice Taney's order, which is the only certain time in American history that a president has ever refused to follow a court order. Once Maryland was secured by May of 1861, Lincoln called Congress into a special session on July 4, 1861 And he presented to Congress a list of all the things he'd done, and he asked Congress to ratify after the fact all the things that he did and Congress did ratify after the fact all the things that he did. But clearly in that instance too Lincoln was exercising prerogative power, he was dealing with an emergency in a situation where he couldn't safely assemble Congress to deal with it. So there really are two theories of the unitary executive, one theory which focuses on just the president's removal power and control over the executive branch. And a second theory which argues that the president has some prerogative or foreign policy powers, a theory which is most associated with Professor John U. of Berkeley. My own view is that I think what presidents, Jefferson and Lincoln did was constitutional, but only because congress ratified it after the fact. Congress could have chosen to impeach Jefferson or Lincoln for what they did, but it quite wisely did not impeach them. It instead ratified what they did. But some things that presidents have done during wartime have not been ratified by Congress and have in fact been unconstitutional and I would include among those the detention of 100,000 Japanese Americans in California, which the Supreme Court infamously upheld in a case called Korematsu against the United States, decided by a six to three margin. Congress eventually in the 1980s, awarded money damages to the descendants of the people who were interned, declared the internment unlawful. And just this past June in a case called Trump v. Hawaii, the Supreme Court unanimously overruled the Korematsu decision. The Korematsu decision, and the tournament of 100,000 innocent Japanese American US citizens during World War II is a stark reminder of why we don't want the president to have prerogative power that isn't subject to later approval by Congress or later impeachment by Congress if the president has abused power. 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!