The ability of congress to regulate the executive branch. This is one hour and 25 minutes. Hello, everyone. Panele to the 2019 apsa on prompt, constitutional crisis, and american democracy. Have distinguished panel here for you and we will hear from them individually. We will talk amongst ourselves briefly and then we will take some questions from the large and growing audience. Let me just quickly introduce the panel. Represent and reflect a diverse expertise in different points of view. Professor atwho is Cornell Law School visiting this year at georgetown. Matt glassman is senior fellow at the Governor Institute at georgetown, formerly at the Congressional Research service. Brick is the chancellors professor at uc irvine. Henry olson is a fellow at the ethics and Public Policy center and a columnist with the Washington Post. Ilya and victoria nurse is a woodworth professor of law at georgetown. In the interest of saving time and making sure that we can hear from all of these distinguished people and some of you, i will not give a lengthy introduction. I will just turn over the microphone to our first speaker, professor josh changes professor josh chavez. Thank you so much and thank you to all of you for coming. Apologies to walter the stevens, my title today is three ways of looking at the Trump Presidency. In terms of three different frameworks. My goal is not to pick one of them out as right or best or more plausible. They each reveal something true about their subjects. Problem is that they read they each counsel different postures with the administration. The first of these is the notion of donald trump as a norm shattering authoritarian. This is a widely held view. Donald trump is uniquely destructive of the status quo. A constitutional norm flout or flouter par excellence. The sheer profusion of such panels and conferences, this is my fifth. As well as how it looks like democracies. Multiple new works on impeachment are all indications that many people view donald trump as sui generis. He is uniquely dangerous to opponents. And uniquely good to his supporters who see him as a bending politics as usual. To the extent that we buy into the first wave of thinking about donald trump, what implications might that have . Is ourit the suggestion reaction should be as abnormal as a presidency itself. If there is a threat to the heart of our constitutional order, normal disagreements should be set aside. Logic behind newly woke conservatives. That it ism argue their very conservatives them conservatism. It has even caused several of them to oppose policy initiatives. On the other side of the aisle, this is the logic behind the democratic argument about health care, the environment, taxes and etc. They should be put aside right now. Combatingshould be on what makes donald trump exceptional. Electorally, this seems to be the strongest raison detre. The second way of looking at him is that he is a logical continuation. On trump his view his question of the validity of elections. To deconstruct the Administrative State harkens back to goldwater and reagan. His racism is a more overt manifestation of nixons southern strategy and his misogyny is not surprising. Moreover, his two primary accomplishments in office, a tax cut and judicial appointments are gop orthodoxy. What are the implications of this view of donald trump . Is it just the politics of this era is politics as usual. Donald trump views himself as more of a distraction. Oped, toork times ophobia can be counterproductive. Extent that you are inclined to this view, the problem is a modern gop. Adherence to this view will be left inclined to seek alliances theythey will seek will see the Republican Party as the core of the problem. The seams largely to be the electoral strategy for people like Elizabeth Warren and bernie sanders. The third and final way of looking at donald trump that i want to look at is as a weak president. Any 21st century president is powerful on an absolute scale . Ut how would he compare his Approval Rating has been underwater since the first week of his presidency. Many think he is dishonest. Majority described him as racist as well. The 2018 midterms are best interpreted as a severe rebuke to both donald trump and his party. He hasosition faced more than usual pushback from the bureaucracy. Loss of his purportedly unilateral executive initiative as noted above, he had two years of republican control of both houses and he only pushed through judges and a tax cut. On distinctly donald trump things whether it be funding for or his trashing of the American International alliances, he has found him elf repeatedly frustrated. This is not a president succeeding in persuading. This view would counsel patients. His incompetence is blunting a great deal of his malevolence. His opponents should keep doing what they are doing. In 2020, much if not all of his legacy can be erased. One might be more optimistic than this and suggest that his greatest legacy could turn out to be the backlash that he has inspired. Might squints just right, one might see this reflected in the views of nancy and House Democratic leadership. Those are three different ways of looking at the Trump Presidency. There is a great deal to all of them. Differentounsel responses. I wish i could end with a magic synthesis. Maybe we will figure one out through discussion. [applause] i want to come at this from a different perspective from the view of separation of powers. I am a scholar of separation of powers. More importantly, i spent a decade on capitol hill dealing with separation of power issues. Much to my chagrin, i did this from 2008 until 2017. And i was helping them fight president obama. We fought on all sorts of issues that might sound for mill your. Committee subpoenas. Rulemaking in statutory law. The use of appropriations. War powers. Virtually everything we see going on under President Trump. For me, the Trump Presidency is both a continuity and a disjunction from past practice. I think a lot of people tend to see this as a disjunction. What has struck me is how much of this is a continuation of the empowerment of the modern privacy of the modern presidency. I want to start with a general point that i am not comfortable with the use of the term constitutional crisis. That leaves us throwing that ouround and leads us system depends on the actors fighting. There is a certain amount of Public Opinion and elite opinion that does not like conflict anymore. Fightolitical actors using their powers between elections, it turns people off. It is part of the system. I had a grand point to make about President Trump is that he has taken off the gloves and he is fighting in the separation of powers system but he is losing. He may be a threat to the system. I think he is a dangerous character. He plainly admires authoritarians. But that is ok. Our separation of power system does not depend on the actors believing in the system. No difference in the free markets. Political parties do not need to believe in democracy or separation of powers in order for the system to work. It might be better if they do what it is not necessary to the system. If the system is working, it will be selfcorrecting. As we see other actors rising to the challenge, that is uncomfortable. Withict all over the place congress, the courts, the cabinet secretaries. With Civil Society and interest groups. President trump is provoking a lot of fights. But that is a sign of the madisonian system working in a positive way. It does lead to a lot of unknowns but i dont see it as fundamentally a harbinger of doom. This is mostly because i see donald trump is a weak president in a weak presidency in a very strong and stable system. Our american presidency is very weak in our system. Across president ial systems, you see president s with more power to appoint judges, more power to enact law on their own. A general fusing of legislative and executive powers. We are in a case in the United States where it would take a much higher threshold to get us there. The presidency is very weak. I also happen to think that President Trump is a particularly weak president. The point i would make here is a lot of people have chalked this up to the notion that he is an amateur. And i think that is right. He backtracks constantly and that creates an trust worthiness. Untrustworthiness he is impulsive. He does not understand policy. He is selfcentered. Things require another player in the system to engage with him. And to a large degree, they are. If you look at the president s relationship with congress, he had a disaster of a 115th congress. If you told me that you were going to have a unified presidency where your party controlled all of the elected chambers and the party in power would start an investigation of wouldn president and they completely ignore his agenda and substitute their own and that they would continually ignore his threats it is a picture of the president. If you do not include the border wall money, im not going to sign it. Lo and behold, he signed it with his tail between his legs in that pathetic white house signing ceremony. Saying i will never do this again. With the executive branch. It takes a certain skill to work in the exact and the executive branch. He does not seem interested in doing it. The key tools of control in the executive branch he has been very weak on. All sorts of political appointments are going unfilled. Those he has filled he has put in acting secretaries. And the executive branch can do a lot of things now but not at the request of the white house. People ignore him. People push back against him. And the bureaucracy is moving in its own direction. We dont want pure across operating freelance. But if the white house is not going to be a source of power, that is what they are going to do. Two other things. One is the historical time when the president has arrived in the system. Presidencyodern since roosevelt. Development and democracy in america. The development is being paired with a distinctive bright to partisanship. We have the highest levels of partisanship in the modern presidency. And the combination of this has led to me to one distinctive thing which is president s are. Ore easily able to exploit that is the attention of the Trump Administration. Some see this as norm breaking but i see it as a natural consequence. The National Emergency act will be pressed to their full possibilities. Or that president obama is going to do things like pushing through the obamacare subsidies without appropriations. Trying to stretch every bit of the law to wear executive decisionmaking can get to its natural conclusion. And congress is becoming aware of how sloppily they designed the modern presidency. I think this is a good thing. Another part of the system is reevaluating their role. Finally, the last thing i want to say is President Trump has arrived within the system at a time when there is distinctive ambivalence on the left and right about our separation of power system in general. There is a tremendous number of people that before President Trump were questioning the madisonian system itself. In this general rethinking of the system in which people long system, it has a lot of people will seeing donald trump as heading towards crisis by doing what they would like to do constitutionally. Theou are in favor of wilsonian model of hollowing out the legislature, getting rid of the filibuster, that is the other side of the coin from what a lot of people are concerned about. There is a deep tension for people on the right and left. They are fearful of authoritarianism in a negative partisanship way that in favor of the disassembling of the separation of power system in general. [applause] good afternoon and thanks to david for including me on the panel. When i saw the title of the constitutional crisis, it made me think about the potential constitutional theis that could come at time of our next elections. I have been working on a book entitled election meltdown. I want to think about what donald trump is doing now that could affect the legitimacy and the ability to have acceptance of Election Results by the losers of the election. Thatoing to make a claim donald trump has been unprecedented it least in what he says out loud about Election Integrity. I cant income another President Donald Trump made certain claims about Election Integrity that were unsupported by the facts and outlandish. After losing the popular vote by 3 million votes, he claimed millions of fraudulent votes were cast in the 2016 election saying every single one of them was cast for hillary clinton. He said there were millions of illegal votes cast. And that they were cast by noncitizens. He claims there were millions of these votes. In fact, there have been investigations about 30 votes. Nothing on the scale of what we are talking about. People inid that states without strict voter identification laws were voting three or four times. He talked about a kind of fraud that social scientists believe is nonexistent because it is the kind of fraud that would be a stupid way to steal an election. A massive conspiracy. He told an allwhite crowd in pennsylvania during the 2016 election that they need to go to the polls in the other areas and watch what they are doing. And he said you know what i mean. It caused some of his supporters rogueout and engage in types of activities. He has said more recently that the only way the democrats could win the 2020 would be through some kind of cheating. It would have to be illegitimate. He has repeatedly joked about staying in office for more than two terms. As recently as last week. He talked about staying in office for 10 or 14 more years. And more portly, he set up a socalled Election Integrity commission. Instead, he stacked it with are noted vote suppressors. Those that claim there is a lot of election fraud. All of this has happened in the past. What will 2020 look like . The 1980s until 2017, the republican was under a consent to create which prevented them from engaging in certain kinds of activity at the polling place. Ballot integrity activities. Minorityintimidate voters. Keeping them from the polls. Including sending off duty armed officers. They were for bidden from engaging in these at 70s. Now, not only will the rnc be freed from that but donald trump taken control over of the rnc and im concerned about the kinds of activities that might happen in the lead up to the election. Actions ithis is going to take the voting wars to a new level and make the election itself a Campaign Issue in 2020. This is a way to drive up turnout and fundraising but it undermines the kinds of things we take for granted about how our elections take place. We understate how norm based our roles are for peaceful transitions of power. So much is driven by Convention Rather than law and our rules for resolving close elections are underwritten. They leave a lot of room for discretion and the actors that exercise that discretion are often partisan actors. This time around, there are four factors i point to that i think in lead to a further decline in trust. A trust that the Election Results will not be affect accepted. The four factors. Voter suppression in republican states. The more these laws are pushed, the more there is a lack of trust in the system. Pockets of incompetence often in democratic cities and republican states. These jurisdictions are resource starved. Not only brenda snipes in Broward County and stories of her incompetence. To detroit,point michigan. In 2016, you may remember that jill stein try to have a recount conducted their and the recount reveals an incredible amount of incompetence, the way votes were counted in detroit. That recount was eventually abandoned and there was no findings of malfeasance, but plenty of findings of incompetence. When there is incompetence, it finds a base those distrustful of the election to believe the election is not fairly run. A poll this week from suffolk indicates the majority of democrats and republicans are concerned that if their side loses, there was some kind of wrong doing in how the election was run. The third issue, whether that is russian interference, which were copied by democrat operatives in the special election in alabama between doug jones and roy moore, or attorney general checks like the absentee ballot fraud like we saw in the ninth Congressional District in carolina, lots of different ways trying to interfere with the election. Whether or not the russians actually swing votes. A live it is about gerrymandering rhetoric from both sides. That kind of rhetoric further undermines things. Imagine a situation where on election day in michigan, trump is ahead, but then after all the votes are counted in detroit, trump is behind. Because we know with the provisional ballots are counted and the extra balance are tending to the democrats. Both sides declare a winner. And the election comes down to looking at the state of michigan. Im very concerned that we dont have good laws in place. We dont have good machinery in place. What we also dont have is any other authority that we can look to that can provide a definitive kind of resolution of this, whether that is the Supreme Court, which has become much more polarized with all the conservatives being appointed by republican president s and all the liberals by democratic president s, whether it is an appeal to elder states people. It seems there is no good shortterm solution so what we really need to do is think about triage in the road up to 2020 because we could be facing a constitutional crisis as we face the next election. Thank you. [applause] henry so i would like to tell a story. A story about a leader who has divided his country roughly down the middle. This is a person who is accused of