let's not include ford just for the scum of the three presidents that you have written about -- >> four of them. >> rino -- >> i meant kennedy, nixon and reagan. >> of kennedy, nixon and reagan, could any of them have done what truman did, would either of them have had the will to overcome the opposition of their entire cabinet? something so fanciful as this? >> i don't know, the trilogy i wrote on it in the end shows what a reactive job it is that campaigns and promises and those things don't mean anything, we don't pay presidents by the hour we pay them for their judgment in crisis. .. in john mccain, a very instinctive and sometimes a politician this kind of a person who might have done something like this against all advice, against all counsel. [inaudible] well, yes, they are a breed apart. and they hated the air lifters who they called grocery deliverers. [laughter] >> well, i'm not outcome he mentioned how bradley and marshall were so against the air lifters to begin with. what was their response after they sought how successful the airlift was quite >> well, marshall is very sick so he really didn't have -- bradley was truly mystified by it. he thought it was like. and of course some of it was luck. the great make their own luck. i want to say something about truman's role in all this and when i was looking for something to write. what actually got me to write it was in reading tony judd's book, postwar, which is a very good book on this. and david mccullough's book on truman, which obviously is a wonderful book on truman. but in both those books, berlin airlift gets about two paragraphs. and it was then i realized that people don't know this enabler. they knew in germany, but not in america and america is worried that we needed to know why. >> to base anything publicly? >> no, they never said anything palpably about being against it. the president is commander-in-chief. >> thank you both for your comments. i wondered if you might comment what was happening at the united nations at the time of the decision to the airlift to berlin, which seems in my opinion, the united nations like so many times from security council members that are at odds debate and there's no in action. >> well, the picture that we saw here for a moment of people talking at a table with the soviet ambassador, jacob miao, and the american representative announced in the end of it. this is how the airlift ended with a blockade ended, the airlift continued for a while. stalin took neither advice or questions as far as anyone could tell. that american reporters would constantly send written questions to the kremlin in the hope that stalin had something to say. a man named kingsbury smith, who was the chief foreign correspondent of the hearst news service had sent questions to stalin. and stalin chose to answer those five questions. no wine reticular teen ashes and was the first one who understood what one of stalin's answers meant. what was asked about berlin, the airlift was still going on. forty was asked about berlin, he did not mention currency reform, which after all was the stated reason for the blockade. ashes than went to truman and told them that and they then decided that that blood in his weekly press conferences would mention that stalin was very interesting, that was the open parts. the behind-the-scenes part was that our delegation to the u.n. would ask their delegation was the omission of currency reform deliberate? and two weeks later, malik came back and said yes, it was. and then the question was, the next question was, is your leader open to solving this problem at this time? and the answer came back two weeks later, yes. it was a tremendous embarrassment to them. they knew they had lost once the winter was over. general winter had defeated napoleon, general winter had defeated hitler and museum hitler -- general winter would defeat the airlift. and when he didn't, he knew the game was up. >> the united nations played a role -- the >> capo. it was one of their real triumphs. >> we have time for one more. >> could you speak to the prime minister of britain and the political situation in britain and how that might have related to the american's decision to the airlift? >> related to it was, as many of you probably remember, when the conference at which the air card was set up, churchill was prime minister. he was then defeated by clement ackley at the labour party. in the key figure for the british was not ackley, that was asked by then, the labor leader who became a great foreign secretary of pretend. and ackley, in the last month of the airlift or the first time, as it had been there many times, came over and looked at it and then was asked, what do you think of this. he said this is the eighth wonder of the world. and so it was. >> i want to say on behalf of the constitution side of this, this was a great way to kick off a funny time programming schedule. so thank you very much. [applause] and thank you very much to the professor for moderating this evening. both of our cassette copf their books available in the lobby and are sticking around for signing copies. we hope you will find us in the lobby in just a few minutes. >> coming up next, booktv presents "after words," an hour-long discussion between the guest host and author of a new book. this week, john yoo, law professor at the university of california berkeley and assistant attorney general and the justice department process of legal counsel from 2001 to 2000 attacks that his latest book, "crisis and command." looks at the history power going back to president george washington. for faster yoo discusses his book with victoria toensing. and a founding partner at the geneva lp. >> hello, i'm victoria toensing and welcome to "after words." i'm interviewing john yoo. visiting scholar for the american institute. former deputy assistant to the journey a channel for the justice department. at a similar position, but it was a few years before john's. and i was in the criminal division. he was in the office of counsel. author of two books. constitutional law and the years and that bush justice department. and now john, as i read "crisis and command", i say presidential scholar and historian. i'm impressed. >> thank you. >> very good. i may just tell you i don't want to be like an undergraduate history professor that i had cool menu to world war i. i want to get through all of this. of course there are five presidents from washington, jefferson, jackson, lincoln and fdr, the cold war presidencies. i want to get to the mall. let's start. and where better to start than on the concept of executive power. article ii, section one, executive power vested in a president of the united states. that wasn't something they made up at the time. that has historical meaning. they had philosophers, lock, tell us about what concepts they had. >> this is the interesting thing is sometimes we tend to read the constitution is it just emerged out of the head of zeus, right? actually, the one thing i tried to do at the beginning of the books distortive plated on context and the idea of the executive order order to come from. one reason that is important is that you know the first constitution we have in the country with articles of confederation. there was no executive at all. it was just the congress. for the presidency seems like this radical innovation in american constitutional law actually if you see as long antecedent and actually a think about to start with is machiavelli, -- >> i left them out of the list as i thought of my candidates. >> i think in this area of the book, was heavily influenced by the work of harvey mansfield, the political theorist at harvard. and in his book he really points out how machiavelli has a fundamental tension throughout the book, which is your legislature the right size. but those laws can't anticipate the future. he can take care of every contingency. government needs to have somebody in being that can react quickly and immediately to one frizzy in emergencies and circumstances. >> that our framers had also seen no executive power was carried out in europe because it was all moniker is. so they were staying away from it. >> is a great point. one thing that people don't see and i think he sees the executive power comes and goes and there was a kind of cycle. we shouldn't confuse the revolution with the constitution. the revolution was a rebellion against what the framers saw as an over powerful executive. but then they went totally the other way. it was almost they decided to go the exact opposite in that state constitutions which gave huge power to the legislature, to the point where i original home state of pennsylvania had a 12 member governorship. >> let's go to the articles of confederation for dementia men because that was the other thing. zero my gosh we have this disaster. and it was schizophrenic and that they had to much power and not enough power. >> exactly. >> talk about that. we are in the minds of underwriting. >> part of a retry to do is put ourselves back into the physicians of people who wrote the constitution, what are they worried about. on one level they just rebelled against the english king. on the other hand they felt the legislature and they saw these over powerful legislature is taking property and redistributing income without the check of an executive and that articles of confederation, a weak national government with no executive at all. >> couldn't even do taxes or regulate congress. it were not up and here's what they know. they want to three branches as they want some kind of check and balance system. and given them the legislature, which is the first branch of course, they have two bodies. they break that up with a segment in a house. they know they want to have an executive. they know they want the judiciary and yet all of these bodies, not only have to be balanced against each other, but against the state. >> writes. in fact, madison calls this the double security liberty of the people is that the three branches would check each other and in the federal government and state government would check each other, too. and if you remember, madison has this classic phrase where he says a constitution is designed to make interest, i'm sorry, ambition can't rendition. each branch of government has its own self-interest and would give them each powers of the different functions. this will come into conflict, but actually that's what the framers wanted. that was the check. >> i try to explain to my kids once when i was in law school, that it's a game of papers, scissor, rock. >> i never thought of that. that's a great analogy. >> it just depends on what's happening in which one is going to win. they did something else fascinating as they got different terms for every one of these bodies. so the senate has six years, but they are staggered. the house has two, the president in between as for andy was unlimited at the time in the judiciary is lifetime. i mean, how interesting that they never wanted the government to be replaced at once. >> right, the one thing if they thought that part of making sure there wasn't just a pure democracy could they were also afraid of pure democracy ima but also a government that was too distant from the people he would have staggered terms for different institutions to give them different incentives. so the house two years would be the most immediate representatives of the passions of the people. but the presidency four years was that to be a check on that. and this gets to this point about what you made about the re-electability that are interesting. we are accustomed to more than two terms. the framers, many of them thought that having constantly eligibility was no term limits for the president was actually good thing because what they worried about was a president who was not -- would not be answerable to the people. would not have that connection at the same time they didn't want a president who was just looking out for short-term political gain that would not make a longer-term decisions that would be ultimately to the benefit of the country. >> said the right article i and a very carefully thought congress you can do this on some things counted among mine your dependent post office and coin money, but they gave congress a really powerful authority. what is most impressive? cammack congress power of interstate commerce which is a great find for all federal regulation in the country. but also the other big one, the power of the purse. congress is the only branch that can pay for everything else the government does. and that is seen even at the time of the framing and the debates over the constitution, the defenders of the constitution, federal fire up their same no matter what happens if you're worried about the executive going overboard, the congress always has the ultimate power in the person can overstock them. >> they also thought it was bigger power to declare war. >> the changes, right. >> what happens in what president think about. >> they value could have a war without congress because the u.s. had no standing military. every war in their minds then you have to build an ad hoc military to fight that war. >> that goes back to the power of the purse. article ii, that the president. they hadn't even decided whether there should be one president. i find that a fascinating debate. what was it that won the argument for a single president? >> this is a really interesting thing. people don't realize how much is in play is to the constitution. it's fascinating to look at all the different things they might have been. there were proposals to have multiheaded executive branch. a proposal to have a council estate that up to advise and consent to all executive decisions. can you imagine what that would've been like? their decisions -- a lead of the power suppressant the house were originally given to the senate. >> so what's one the day? >> as i as i went on during the constitutional command ten, the senate, part of it was that the senate did not become the body people thought it was, it was a rep or senator that is safe. once that decision is made in the convention and that was really the deadlock issue whether the states would have representation. once that happens, the framers realized that we have to move these powers to an executive who's responsible to the people. and so the power is over war. treaties get transferred to the executive branch. >> we now have the executive power vested in the president. was there in a great debate about what that meant like >> it comes at the very and. they are tired, it's philadelphia in august. i grew up in that town and its path. >> president's commander-in-chief? and great debate over that like >> a little bit, but not much. >> he hears a power that we're going to find fascinating throughout the presidencies. and that is the section two of the article, take care that the laws are to be faithfully executed. and we'll see how that plays out with the various presidents. so let's start, george. no campaign. 1789, no campaign. he was elected unanimously so he doesn't have any staff to put into play. and as you write, he had to rely on allies and friends. >> there were no political party. >> no political party. but here he still knows -- he didn't take that greater part in the convention as i understand, the history of it. but he still knows there is a debate as our there were equals or substitutes. lucas said i'm into my cabinet and will run this government. he didn't do that. was that his general background, his military background? >> i think a lot of it did have to do with his being a general and he was comfortable with command. he knew how to organize a staff and how to get things done. it's really interesting you could look at the constitution and the first president could've thought my job is to be prime minister. maybe i should have each cabinet minister should represent one of the parties or groups in congress. and maybe i should take the lead from congress. there's a great story that this is not washington -- >> there's advice and consent. and so, the senate passed a resolution saying they wanted to advise them. tell that story. >> is a great story that shows you how washington came into office and thought of it as an independent body from congress. and having its own prerogatives. and not being simply go would be called a clerk in chief for congress. it's one great story that symbolizes this is washington decided well maybe advise and consent means i have to go and talk to the senate before i enter into a treaty or before i appoint someone. so there's a treaty he's thinking of negotiating with some indian tribes. and so he goes to the senate and actually appears in the senate chamber before the senators and us plans to ask some questions about what he should or shouldn't do. and of course anyone can imagine the president going to the senate now and ejecting themselves a lot of questions. there were long speeches, bomb questions, it was really loud and noisy in washington who had this terrible, terrible temper just got up and stormed out of the senate and according to people who were there said i'll be damned if i ever step foot in there again. >> never going to see those guys again. >> does the first first and only time the resident has appeared in the senate to take his advice. >> also you're talking about the hiring. there is a debate at this time, could he fire him? he needed the senate to higher, so do they decide to fire and there were people who thought they be shed. >> this is another interesting question that has a lot to do with how the executive branch as you know works today. if you look in the constitution there's that is no closet actually sized canon officers have to obey the president. there is no order that says you can do what you like. and so it happened is in the very first debate in congress about setting up the first agencies, there's a huge debate called the great debate over whether the president should be able to fire people in the executive branch, which was in great contrast to their appointment which require senate consultation. and the president or at least the valleys made quite that power to remove no one would ever obey the president orders. the president is in charge of executing the laws here but supposing that this position and you had to order come down for the president. he would say, no, what can a president do. he has no presidential constitution to order you. it is a political opponent to show. they'll put in someone who will do what he wants. >> and also, there is a situation that arose regarding a whiskey rebellion. >> yes. >> and what did old washington due? >> it's amazing one-story is about how much alcohol our forebears drank is astounded in number. act on the government and extend its powers in various ways. if you try to tax alcohol that's worse -- >> it's worse than tv. >> yoo tex w-whiskey created a rebellion in pennsylvania. and washington is an incredible story. he thinks i execute the laws. there is this rebellion. the former general raises and leads him personally at the head of the militia. >> the president is out there at the head. >> into western pennsylvania to put down the rebellion, confident that his appearance by itself as it does frighten them into dispersing. >> he also did something else. he told the governor of a state that he wanted the militia called. >> writes, and then -- >> i mean, that was -- >> it was remarkable. and then you're the prosecutor in on the legal counsel. if you recall all so he decides to pardon the people who were responsible for the rebellion and orders what was the u.s. attorney to draft its prosecutions in the u.s. attorney does so, which is also an early precedent. >> and he also established his prominence in foreign affairs. and i was the neutrality with france. we have this wonderful treaty with france in 1778, before we really became a valid country, before washington took office and the french had a revolution in the mr. wernick and with britain and come knocking on her door as they remember us, you've got to help us at washington didn't want to. >> i hate to say it, but the french might have some cost to think of a set in great spirits they contributed our independence. what becomes the napoleonic wars start because of the french revolution, the french send an ambassador to say it like to get some help in this war. >> we've got chipped in the bank. >> the remarkable thing is washington decides the foreign policy of the united states, the president. he calls a cabinet and says pretty soon or quickly he declares neutrality. as you say, despite this great city which had been so beneficial to the u.s. >> of course, the legal theory wesley was attributed now there's a new government in france. >> unter and that's fine, go get the lawyers. >> the interesting as this is a quite clever theory. it's a mutual defense treaty and france was an attack. france went ahead and attack to reverse or at least that's what the web washington claims. we don't have to abrogate the treaty although later we do under adams. but we can keep faith with the treaty and declared neutrality. he never consulted congress. it was his decision. >> in just one other point about washington before we beat him, executive privilege because i'm just so fascinated that i very first president i do do with the house voted to come up here with some and he said? >> no. >> we're going to see that through the years. he was the very first president to say i'm dealing with this, you're not invited. >> it goes all the way back to washington. justifiably so. >> a constitutional premise of our first president. jefferson. now 18 no one is important because the president to change his pants, but also political parties change hands and there's no bloodshed tiered >> at the first peaceful transfer of power between political parties. and it's amazing. and so they might not have shed real blood, but they shed a little political blood in the course of it. but i want to get a little bit into the jeffersonian area of the presidency because before he was president, what did jefferson think of presidential powers. >> this is one of the most interesting chapters to work on because whichever some thought about the exeve and the presidency quotes on both sides and i think it's only starting to come into focus lately what he really thought. it's very interesting, for example, is quite the credit of executive power because after the neutrality proclamation -- >> certainly before u.s. president. >> he founded the democratic party in opposition to the neutrality proclamation. i mean, that was the event and make it to their version the airwaves to the press is inside -- >> he was a francophile. >> he also that washington had gone too far and was claiming executive power to. he comes to office is kind of a critic of all that. >> but now -- maybe it's because he's trying to gain consistency. i just thought of this. he comes in with this prerogative. >> gas. >> explain that. >> the six is the most expansive view of presidential power. he has this conflict and is internally conflicted because he is the original construction. he wants the constitution to be read narrowly because he fears the power of the federal government. on the other hand, there are crises and emergencies, opportunities that he knows are in the best interest of the country. or example, the louisiana purchase. >> were going to get to that in a minute. but explain that prerogative. >> jefferson think that there's not a power in the constitution, does the president still has this extraconstitutional power to do something in the best interest of the country, to say the safety of the people and what's the check? he asks for popular support after he's done. >> do people okay me? at its popular it's okay. he became a party leader company patronage. figured that were now. but also the party power was interesting when he came to office used the power -- >> yes. >> with carrying out the laws faithfully. >> he's a guy who did not leave the supreme court had the last word on the constitution anybody could use his executive powers -- >> sounds radical today. >> many presidents have that view. he got the alien sedition act were unconstitutional because they restricted the free speech of critics of the government. he had just been one of them before he was elected, a critic of the government. when he came to office, he pardoned people who were convicted of it and ordered all prosecutors to drop cases for a violation of that lot, which only valid law on the books when he became president. so use his constitutional powers to pursue a vision of the constitution quite at odds with what the federal court had done. >> and let's get to the louisiana purchase because he didn't really think it was constitutional for him to do that. >> the construction minister could not find a provision in the constitution is that we can add new states to the union -- add to the territory, make the country bigger. >> what to do, what to do. he decides is going to go figure this out with the senate, right? >> gas. >> someone whispers in his ear, if you wait too long, does deal may fall through. >> is really worried that napoleon is going to back out. it was such a great deal for the united states. the louisiana purchase for $15 million -- >> i think i was just louisiana. but i-india got bigger with the whole territory. >> it was such an obvious benefit to the country that he had to do it even now he thought it was unconstitutional and so he's decided to keep quiet about it and he decided not to make his constitutional judgments known. but if the people were in support of the purchase as they were that that almost made it okay and made it legitimate even though he thought it was unconstitutional. >> he also refused to comply with a judicial subpoena, so again, independence from the court. i'm not going to comply. it was nixonian, but jeffersonian. >> a lot of his arguments reappeared during the clinton investigations, but we didn't know them. no one cited back to jefferson's attempt to disobeyed subpoenas from the supreme court justice of the united states at that time. >> we need to talk about the bribery pirates. >> is that you're going to say sally hemmings. >> now, the barbary pirates i've always found the piracy interesting and read about the days of the barbary pirates. i mean, how did you decide to find the authority. congress wasn't in session and off he sends the new navy. >> yes, and that they may be that he didn't particularly like having around when he was in office because he was against having a military establishment. he serves up a squadron to the mediterranean and he secretly gave them orders to attack the barbary pirates and sink their ships and do what's necessary to get them to stop preying on american commerce. >> by congress -- he didn't need congress to declare war. >> he said there's a statute congress passed this as i'm allowed to essentially send the navy vessels out on training exercises. but otherwise, he said, look i'm the commander-in-chief and am going to some and maybe buy to protect national interests. he asked congress for support after the subtle happen. he gave congress a report and asked for authority after the fact. but before that he just did it on his own constitutional powers. >> but he also had this theory that the congress' power to declare war. well, that was only were going against friendly countries. it was somebody who attacked us and we don't need congress to do it, which i found really fascinating. >> i think a lot of people find this now but i'm sorry, if the united states is attacked, then we have the power to respond. yeah, the executive has a power to respond. the interesting thing is what happens when the executive maneuvers forces in places they're likely to get attacked, which is what jefferson did in the mediterranean for the barbary pirates. >> and because he said self-defense. wait until they fire first and then we can say that it was self-defense. that will be constitutional or political, i don't know which one, but probably both. can you have a great quote from and that's a, when faced with a choice of two readings of the constitution, one is safe, other dangerous, when besides, other indefinite, i would choose the safe and precise. and ask an enlargement of power from the nation. but i say to you, how is that really different in practice from washington or later presidents who have a more expansive view? >> the question effects of this basic tension and learning to the idea of the executive to this book is, is the constitution or the powers of the executive currently limited inside the constitution or is there some kind of power service and claim to act outside of the best interest of the country. washington and the other presidents i think believe that they're always acting acting within the constitution. that proves the executive power caused -- jefferson did not want to cause to be so elastic. so instead he won the constitution to be fixed and the new circumstances and would create something outside -- >> if he reached out to the people -- >> yes, washington and others when they say there's an emergency, they read the constitution to expand their powers. >> reaching out to the people is my segue to jackson. right? >> very good. you are great in front of juries, i can tell. >> democratic with a small and d. his theory was the will of the majority prevails regardless of existing governmental and social arrangements. what does that mean? >> he is the president that attaches his office to the popular will. he is the first trimester there to argue most clearly -- which we are commonly today, i'm the only one elected by the whole country. i represent the majority. sunday congresswomen are representative of small distinct constituencies and they can't do the whole national interest. he is the first one who concentrates the idea of the will of the people in the president. >> they say did you forget about the electoral college? you weren't elected by the people. and so, what did he try to do? >> this is interesting. as people may remember, he lost his first run for the presidency even though he had more of the popular vote than the president who was john quincy adams. but those of you -- those of us who followed the bush versus gore case or participated in it, we could be forgiven for thinking it was unprecedented what happened. but actually, in that election, the election gets thrown in the house of representatives because there is no electoral college majority. >> for those of us who read that, you could know how the bush gore election was going to turn a and would've never turn out any differently. it was so it's going to be bush when you come in all those votes. exactly, because republicans have a majority of congress. for what happened is nobody had a majority initially in the house or senate either. so what jackson forever called the corrupted bargain was struck between john quincy adams and henry clay and it's thought that henry clay who is also running but didn't have enough votes or intellectual rowboats and his supporters to items in exchange for becoming secretary of state. you can imagine jackson who is an irascible imposter was later. he is a general. >> they don't do that in the senate anymore. you say he reinvigorated the presidency and what do you base that on? >> so committing between the period of jefferson attacker send a very bad thing started. i offer nothing again now. the congress creates a congress of democratic leaders because they become to be the only real party in the country. they essentially pick the president -- >> the congress dominates, no nominating conventions. >> there's no serious opposition so that person becomes president. as you can imagine under that the president has come quite weak because the congress picks the president. they get to pick whether he's going to be renominated after four years, no surprise the president has to quite a lot of what congress wants and he has to work more closely, not being up in a relationship that jefferson would've sketched out. >> well, we can't leave jackson without talking about the paint. so, he declared war on the bank. what with the situation with the banks? >> is very interesting the bank of the u.s. is in some ways not quite the federal reserve. you don't have a monopoly in currency but in some ways they're far more powerful than the federal reserve is today. it was in part privately owned. the stock was quite valuable. typically they controlled the money supply because they let money to buy the state banks, which were issuing a lot of currency. the interesting is the bank of the u.s. was hiring senators, congressmen, senators to be there to represent the interests common to give speeches on their behalf. actual sitting members of congress. it's extraordinary to power the bank had. i think a lot of the congress think the bank did a good job because of its chairman nicholas biddle who did a very good job. he hated the elitism in what he saw as the corruption of the bank. >> and the congress passed a law probe bank. he vetoed it and did the very first signing states. it's very interesting. until jackson, president had not vetoed any bills that they also thought you could only use it for unconstitutional laws. the president thought it was unconstitutional, it could be took. jackson bought the law was unconstitutional and he also said, but i know the supreme court already upheld the constitutionality of the ups of the bank of the case of mcculloch versus maryland. i don't care. i have my own view. >> i'm going to veto a peer >> i'm going to veto it under my own rule of the constitution. they can observe you and i i can have mine. >> they told them why in a signing statement. they go back to jackson. he was the first one. in executive privilege again, the senate ostend for documents. no, i'm not going to give the documents. so they voted to center him. >> yet a precursor to the 90's. the senate shenk shares jackson for his refusal to explain -- he's eventually forcing people to move this money out of the bank and fires the secretary of the treasury who refuses to comply. and of course the senate centers them. jackson had very much the kind of arguments is nothing in the constitution that says they can. you either pg or shut up. >> he says for the first time, for all you latin students on out there. i am the first of my peoples. >> is amazing. jackson succeeded two. there weren't enough words to override his veto and he moved all the federal monies out of the second bank and he won. >> at this point, we are going to take a break and we'll be back with you for some more presidents. >> "after words" with john yoo and victoria toensing continues. >> hello, welcome back. and victoria toensing and i'm talking to john yoo about his wonderful book on the presidency and presidential powers, "crisis and command." and we are now ready to talk about lincoln. 1861 you write washington founded the nation, lincoln saved it. what do you mean by that? >> we have the original sin of slavery was dividing the country and lincoln stepped into a situation, one of the most unprepared man for the presidency and he fainted by keeping the union together and freeing the slaves. and it's hard to imagine if they would've turned out so well a great cost that so often a country u.s., not just the point of character but his understanding of its constitutional powers, too. >> he was a trained lawyer. >> very good one. >> we have an interesting view of the supreme court and certainly before he took the presidency. what you think of the dred scott decision and that was the decision that is the most aligned possession of the supreme court throughout our history, which said slaves could be property. >> agenda was his reaction to that as a lawyer? >> if you think about the republican party of us comes to life in response to the drug that decision. talk about a political party founded on opposition to the decisions of the supreme court. it's almost unique in that regard. and lincoln in his debates with stephen douglas was a senate seat in illinois before humans for president is confronted by what we might call judicial prominence. senator dodd does this and the supreme court has decided this question about slavery and were bound to obey it no matter what. lincoln develops a theory that pulls on jackson and jefferson, as we talked about before, and he says i'll obey the decision of the supreme court as it applies to the two parties who come over. other than that, if i'm elected president has the authority to interpret the constitution himself. i may follow the precedents but if i think they're prone, and may not. in other words, he was a now respected to a decision only if i have to return trip out to center all do that. then that's going to return every freed slave for escaped slaves to their owners, too. you have to sue each time to make a duet. >> and he said, in the overview of the supreme court, he said necessity couldn't justify unconstitutional acts. and on the other hand, he said he refused to believe the constitution withheld the power for its own self reservation. that sounds somewhat inconsistent because on one hand it's got to be constitutional slackened preserve the union. on the other hand i could work outside on some jeffersonian. >> lincoln was torn again by what you are asking about with jefferson quite rightly is lincoln sometimes toyed with the idea of a provocative. he is very famous quotes about all the laws about when to go unexecuted in the country collapse. if you're sick and might be better to amputate a win than lose. these are as homespun ways of saying, you know, the nation and its preservation are more important than the constitution and sometimes we may have to sacrifice one to say the greater good. as a trained lawyer, he was always careful and responding to the unimaginable crisis of the civil war. i mean, talk about an unprecedented emergency for the country, the civil war. he carefully tries to keep his claims of authority within the chief executive commander-in-chief and take care of causes. >> but he also goes back to jefferson in the show of force, but being able to attack. he felt that secession was unconstitutional, illegal, therefore he was entitled to use force. but what does he do? she waits for an attack by the south. >> but also lincoln seizes on this site. he sort of intuitively understand that the war is going to be better off for the north if they are not seen as the aggressors. and also -- >> its political unconstitutional the same time. >> was never seen that before, right, right. >> looks at what the constitution and the rid of habeas corpus. >> this is interesting. the great writ is mentioned in the constitution. mostly the context of whether can be suspended. and so, the writ of habeas corpus exists when the government to team somebody, you the detainee has a right to ask the government and court to explain the legality of their detection. today we commonly see it mostly in federal court review a state court criminal evictions. >> people who have been convicted and it wasn't fair in the state federal judge, get me out of here. two people who lived outside the united states. rick had always been viable that within the united states. >> usually not to worry. but that's a whole another -- >> that's a whole another book. >> lincoln, confronted by the civil war, the city of baltimore is open for revolt. and so, to get troops and supplies to the capital, they have to pass through maryland in baltimore. lincoln suspends the writ of habeas corpus. the suspension of the right of that which is located in article i but doesn't say who can do it. a system which shall not be expended except in cases -- the >> it's in the legislative powers. the lincoln says i'm going to do it anyway and not confer with you and of course he gets to the supreme court. >> by chance perhaps, chief justice tonic, the writer of dred scott happens to be in baltimore when this is happening. , sitting as a circuit judge. these two right -- a fellow named john merriman was one of the people captured by the union army says i want a rate of habeas corpus. i'm held unconstitutional. >> for sure they didn't have jury trials but they can be tamed without a military commission, with the writ not in play. >> that clinton's policy in theory. he seeks a writ from time you issue said. he says to the general, to the general mchenry, by the way, where the star-spangled banner was flying back in the war of 1812. the chief justice orders the general of the fort to release, not reduce that produce them in court and explain why he's been held. tommy appears on the front steps of the baltimore courthouse in front of a crowd of 2000 people to receive the news of the generals have refused to produce mr. merry men. he said that the president is going to allow this, even i may be in jail very shortly. he found in order to lincoln and says, i want the rates observed and i want -- you were the chief law-enforcement officer officer in the country. you have to obey my order is chief justice of the united states. amazing conference on track confrontation. >> lincoln was detaining people who were exercising will reconsider their first amendment rights, the former congressman and ohio spoke out against the war. he was asked into detention, even though he did something after that to let them free. and he said, to induct this war, during war detention is more for the inventive and less warranted death. and that he felt very comfortable with. >> too bad the bush administration did know about that quote back in 2001. >> it sounded like they did. the emancipation proclamation. we were all caught in grade school that in 1863 lincoln freed the slaves. but not so fast. >> is so interesting that the emancipation proclamation is solely under the commander-in-chief of april 2 -- that's why we had they said the emancipation proclamation has the rhetoric of a bill of shipping. it's the area boiler.he meant that only applies to the areas under rebel in basically the south. it doesn't even play to the parts of the north where slavery still exists. >> until i figure but got out of us for political reason. i didn't know about the legal basis. is a war of powers because he says if you're at war with somebody. the irony is that i'm not going to abide by address company was basically okay, its laser property i can take property away from the enemy and that was the basis he used his commander-in-chief power. >> exactly. and if you think about it this was in direct conflict with the congress and the supreme court, which had not allowed for general emancipation. the congress was trying to create a case-by-case system using the federal courts and the federal courts, the governing precedent was still tried scott. the lincoln in fact indirectly and consistently with tried scott unless his commander-in-chief power provides that authority. >> how the war is over the powers expand them in the war is over a course of presidential power goes back. the reconstruction lincoln didn't go back so fast. he defined a new power to be in control of reconstruction. >> writes and again when of this unprecedented questions we've never seen before is when the civil war is over as the south rejoin the union and get other senators and members of the house back. they send the vice president of the confederacy back to the senate. instead, lincoln says we're going to have a reconstruction and they're going to have military troops. you must dig it up with a lot faster than the republicans. >> he wants to do it with his pardon power. >> is grandma to keeping with this and not really address of the bouts and. republicans in congress actually want to remake southern society, send the troops permanently there to occupy, so which is eventually what i think. lincoln frustrates and trieso ar reconciliation and then he is assassinated. >> at this point, you write him a regarding executive power, even at its greatest height, and we've seems a bit hyped up to now, together branches always had ample authority to counter him. now, a reviewer in the "washington post" which gave him a pretty decent review. the made this observation that your book has a deceptively simple t has been the driving force in american history. in either congress or the supreme court has ever rivaled the presidency and its capacity to direct tile our country response. first off, i i don't think it's quite simple of a pain because why they don't respond or why they act the way they do is pretty complex, it just wasn't your book. i'm wondering what you think of that observation. >> i think it was a very favorable review, the most unexpected of sources i would say for me to get a favorable review. it was written by jack breakoff, one of the buildings of american history and the framing history. i take it seriously unlike some people who write about me i take very seriously what he says. and i think jack steele, at least in the review is that well, as you say it's trying to simplify or it's too simplistic. perhaps the powers that expand and contract equally. as lawyers, we know there's a lot that goes on in the conflict between the president and congress. there's a lot of that congress can check a president, not just a funding power but oversight powers to create an authorized apartment and so on. he really saw the ultimate power of impeachment and saw that in reconstruction in one of the worst presidents. andrew johnson. he gets impeached because he wants actually to an families speed up reconciliation faster than congress wanted to and ultimately the powers conflict so much they try to drive him out of office. >> so we fast forward six decades to fdr. your final real specific president that you address. andy's got two crises of course, economic and the war. but the first remedy is to confront is economic. so here he is with the democratic majority. he could have his way. they could have their way with the country they are in there to fix the country from the depression and they're breaking in the paths from the republican president to offer that the economy was up to the marketplace. things don't change so much. present-day argument >> i'm glad you said that, not me. >> but i was amazed, do you think the framers would've thought that with this crisis if they'd been given this whenever the constitution that would've been the executive who brought forth the new deal and other programs and they really should've been the congress that would have been surprised here it's >> yeah, i think so. one thing i tried to sketch out is the framers thought is expanding presidential power really to occur with foreign threats, national security threat than congress is to take the lead in domestic affairs. the presidency was fairly modest. the thing that fdr did a really revolutionized the domestic presidency is that he claimed the powers of the presidency of national security also apply to a domestic emergency like the great depression. >> he treated it like a war. >> he called it a war. if you look at his speeches he talks about mobilizing the great depression as if it were for. and so, he took the techniques in the powers that it really been reserved or foreign affairs and national security and apply them domestically. i think i would've really surprised the framers. i don't think the sinner vision. >> the first 100 days that fdr has legislation of what crops to plant. price controls, industrial production, being covered by the fed tiered an impact, it was so much that congress couldn't deal with the doll and delegated a lot of the decision-making to the executive branch. and i tear thought he could do with it because it was a beautiful quote that you give him and i just have to say it. our constitution is so simple and practical. it is possible always to meet extraordinary needs by changes in emphasis and arrangements. without loss of its essential form. was that? does a pretty strong presidency there. so the legislation goes to the supreme court but alas they didn't see it that way. >> right, one of the consistent themes of the great president is that they are not left to attack or come into conflict with the supreme court. when it gets in their way. in a way we don't see presidents challenging the supreme court. >> don't you think nixon had a lot to do with that? >> certainly nixon would maybe sort of stemming from brown versus board or even before then. .. @ú@ú >> that was old the then. not like now. >> host: but these guys are so old we needed new blood and they're holding a justice. >> guest: he said they come from the course -- horse and buggy generation and cannot understand the modern economy. everybody over 70 there was one created for every younger man to help them. >> of course, they would not do that. but not so fast victoria. after the threats of the legislation which did not pass. >> guest: all of the side been around the time as the supreme court switches, it is called a switch in time save nine bird but it changes the decision on the commerce clause. >> host: that did not give congress a 30 much to do something two and now i can fully regulate the economy that it can regulate a bushel of wheat. >> host: i was there before and the commerce clause was overturned because it was another 60 years. >> guest: the year of lopez was my year. [laughter] in. >> host: we used to say it was a hot dog stand buy you had to buy mustered across the state to bite into today's to interstate commerce tivo but if you grow the wheat and you only use it for yourself, that is still interstate commerce. >> host: that her came from elsewhere. [laughter] let's change from the domestic agenda because fdr had to go to war but we were neutral during the early years of the second term with the neutrality act and congress was passing them right and left. they dodd fdr had the foresight have a controversy of the new deal fdr properly saw it was the threat that it would and took action much sooner. you say they pass the neutrality act to prevent us from getting into roker or two that strictly a limited aid to the allies and restrict from getting into been eight days military action. step-by-step favor giving aid to the allies come and transferring destroyers. >> he traded them for british but did not sell them. eventually leading up to than german submarines in the north atlantic. >> host: he was giving british escorts. >> guest: he gave them orders to attack german submarines. >> host: viagra appearing that nothing would happen with pearl harbor. but what it is consistent with previous presidents is if he did. he did want that to me to fire the first shot. >> guest: because of opening the archives, and these things between churchill and fdr, when he says i am trying to manage things so there will be a military incident, yes, that he thought it was important to fire the first shot and also maneuvered the japanese into a difficult position. he did not know there'd be an attack on pearl harbor but thought they might try to attack somebody at some time. he was trying to press the japanese into a corner at the same time he was also conducting the undeclared war in the north atlantic with the germans. he was doing everything he could to get the united states into world war ii. it is best that we did. what if we went in late 1942? >> host: years later we might not happen as effective. military commissions people don't understand that is why it fdr relied on. >> guest: that is the interesting question. we have seen what you have never seen before, fdr trying to figure out what do the not see saboteurs. >> host: he came without uniform. >> guest: right. from florida and dior can have the plans to attack and seven ties to of them were born here all of them lived here and a comfortable with the language and the cultures of there captured by the fbi primarily because one of them turns the rest of them and on his own. it was not that the fbi found them are caught them. then they decide we will use the military commission. >> host: can they go to congress? >> he issued an order right away. talking about habeas corpus now to appeal to the supreme court now it is unconstitutional you have to try this is a billion court. the supreme court said they approved the military commission. >> host: fdr actually wrote the rules and it came out of the white house. there was no appeal except to him. [laughter] >> guest: that's right. exactly. and the enormous popular support for what he was doing. >> host: he also had the attention of the japanese, i italians, germans, and the supreme court upheld that. wiretapping. >> guest: this is a story that i don't think anybody really knows. >> host: rose about had a background in the talent -- intelligence in the navy department and there was a law that says thou shall not wiretap government but the way the supreme court interpreted that. >> guest: after all of the fighting of wiretapping today you look at fdr decides to wiretap without a warranty things people who are involved with subversive activities by nazi germany. there is a statute on the books in the supreme court decision that says the government cannot wire tap unless it is a judicial warrant first and the president says it is for national security. he says those justices would never have written a decision that way if they thought it was about national security. >> host: justices don't know about national security. >> guest: he authorizes it to any way. >> host: now the war is over. we're in the cold war as a result of the division of germany, the russians. the president in the whole time span taken for granted that they have spent hours on the domestic front to take care of the people. they will not fight back they have more responsibility, but that is not as important as the cold war years as the cold war witches of fighting of communism. it is interesting how each of the president's in his own little way figure out how to reach containment with communism. i would like to do a lightning round with you to see what the president's as our time with close down, truman? first of all, he dropped the atom bomb without congress getting involved. he went to correa. >> karina more no congressional authorization or declaration of war. he says the troops right away and says i am the commander in chief and protecting the nation's security. a small country where i actually happened to be from, congress always had to check because they did not have to fund the war but they keep finding it and keep the draft in place. but during this cold war point* we need to do this to maintain containment of the soviet union and stop the communists in places like korea 57 if you did get stopped by the supreme court when he tried to take the steel mills and the supreme court stopped him. but that was about it. >> guest: it is interesting youngstown that made it clear because he was acting domestically. the other say in the theater of the war, outside the country but that was domestic activity. >> host: eisenhower. from my days from the senate intelligence committee and oversight always interests me. eisenhower was the first president to use the cia for covert action. and my reaction is my goodness what a way for the executives to control foreign policy were unfettered and this is how eisenhower fought communism and containment through the italian election fighting the communist party. by being covert action. >> guest: they thought it was the president commander-in-chief power. also eisenhower, his command of the executive branch micki prevented the united states for being more were like. but i found three searched the vice president and the cabinet chiefs unanimously agreed we ought to launch an attack on china and eisenhower is the only one who voted no. it takes the votes of the cabinet and everybody says no and he says the eyes have it. he is the boss and says that is the craziest idea. >> host: washington was military and he new-line but did not need to use it and eisenhower was the same way jfk? confer with congress? >> jfk of the cuban missile crisis with congress at least an active for blockade being the active for they called it a blockade but it was inactive for anti-undertook that without any permission from congress or any attack from cuba. now there was a longer-term threat to by the change in the balance of power but the soviets are not gassing up the missiles. >> host: lbj, a vietnam war? it continue to be funded. nixon? in vietnam right before a brief negotiation here we are. it is watergate. but then the curve of presidential power by congress in here presidents for all these years have pushed the envelope to foreign domestic policy over the edge. it is a two bit burglary for political information that curbs the president's foreign policy powers. how does it get from there to there? it is good to talk about because it is not guaranteed bad people will not be elected, the constitution helps us with the