Especially with regard to president ial powers and the author of an equally excellent previous book, imperial from the beginning the constitution of the original executive. Jack goldsmith is the henry l. Shaddock professor of law at harvard and someone who, as youre probably aware, has seen the executive branch from the inside during a high profile, extremely tense tenure in the bush Administrations Office of Legal Counsel during a key early period in the war on terror. Jack is one of our most thoughtful commentators on the modern presidency in venues like the atlantic and books like the terror Prime Minister city and presidency and power and constraint. His latest book is in hoffas shadow, one of the last inperson events we had at cato back in early march before the lockdown so, jack, thanks for coming back so soon if only virtually. Sai, im also a great add meurer of your admirer of your previous book, imperial from the beginning, but if youll forgive me for saying so, i think its one of the most disleadingly titled books in recent memory. It makes a convincing case that the original design the framers had for the presidency, that office had very little in the way of Emergency Powers or independent war powers and no rightful claim to an executive privilege that could shield its inner workings from congressional demands for information. And, you know, when i initially read it, i said to myself if thats an imperial presidency, ill take it. In your new book, you cover and expand some of those themes, but the living presidency is, seems to me, really more a book about what the office its the next step. Its a book about a what the office has become and the vast gulf between a comparatively modest office and what the office, you know, has become now, an institution with near full spectrum dominance over American Life and law. And in telling the stories of how he got here, you point to a somewhat counterintuitive culprit, the notion of a living constitution which is something that i think we tend to associate with activist judges and leftleaning scholars. Were also in the main people who oppose the key features of the socalled imperial presidency. So tell us the story of the new book, what is the living presidency, whats its relationship with the living constitution, and how did we get here to this situation that you call a funhouse mirror version of the original presidency. And can we ever go back . Well, gene, i am absolutely delighted to be with you here today and jack and, of course, the audience. My connection to cato goes back decades when i was a summer intern in washington. I had the occasion to come to some of the institutions events, the students events institutes events including events on farm sub su eties subsidies. Thankfully, weve taken care of that problem. Im especially glad to be with you two folks. You both have superb books and, you know, i recommend them to the audience. Genes book, the cult of the presidency, and gene just mentioned jacks book, the terror presidency. And my book kind of fits within the same genre. I, you know, and ive got the book over my shoulder here, operates are standing by operators are standing by, you should definitely get it. [laughter] i have sort of four points i want to make today, because i want to be brief. The first point is why do progressives favor a living constitution, one that changes with the time. But simultaneously disfavor, excoriate, lament a living, changeable, mutable presidency. And i think we we see this phenomena all the time, we see liberals, progressives fighting what the founders would say about the modern Prime Minister city. We presidency. We saw James Madison and Alexander Hamilton about what a high crime and misdemeanor is. And thats a perfectly fine argument if youre an originalist, but its a little puzzling if youre not. And as gene points out, a lot of progressives believe that modern times call for a modern, updated constitution save with respect to the presidency. And i basically, you know, use the title living presidency to to voc progressives, to take them think about the difference between their profess admiration for a changed constitution but their soft spot for the founders presidency. What is wrong with an imperial presidency that grows over time if you can have an Imperial Congress whose legislative powers can change over time or an imperial judiciary whose role over Constitutional Rights and the creation and expansion of them changes over time. My second point that i want to bring told is living constitutionalism systematically favors the presidency as an institution. Why it turns out if youre going to have constitutional change of the informal variety rather than through article v, the Prime Minister city is the best poised to presidency is the best poised to deliver that. Today we expect our president s to articulate constitutional visions, we expect them to be prolife or prochoice, pro or antigun, pro or antiaffirmative action, you know, pro or anti all sorts of things including pro or antishutdowns with respect to covid19. Well, they gratify our desires, right . They express constitutional vision, they articulate them, they defend them. And then, guess what . They appoint justices and judges that will carry on that legacy long after theyre gone. And so when we think about one of the momentous changes in constitutional law, the new deal, we often think about the justices. But they were really just agents of franklin roosevelt. Not in the sense that he was looking over their shoulder, but he pucked people that had picked people that had the same constitutional vision that he had of unchecked power. If you are a living constitutional u. S. , you are system mat clue favoring the president in terms of influencing that informal constitutional change. And i argue in the book theres no Single Person who has greater influence over the shape of constitutional law, the future shape of constitutional law than the presidency, right . Not even Anthony Kennedy had as much influence as a president can possibly wield. My third point is that the balance of Political Forces systematically favors the presidency when it comes to constitutional disputes or statutory disputes, for that matter. As prime prime prime president sr authority to advance their agenda, agendas often favored by copartisans, they can rely upon a bedrock of Popular Support by their allies in the public, americans like you and me. If the president if we favor a law and the president , you know,ty eventers funds to build that wall, we are going to find ourselves defending the president s actions and their legality would want regard to whether those actions are legal. This is especially true when the action is in service of a partisan agenda that the president s copartisans share. And congress, you know, which is supposed to check the president , is not only divided by partisanship of the sort i just mentioned, but its also divided bicamerally, right . And that tends to enervate congress because Congress Finds itself trying to stop a, you know, a unitary executive when its riven by factions, party, personalities and by two chambers. And so in the book i say the presidency is like a fieger jet, and the fighter jet, and the congress is like a sitting duck our craft carrier that moves slowly and is very ponderous. In that situation the presidencys typically going to win. And my final point is nothing is sacrosanct about the presidency. If you can if the presidency over time can acquire the power to wage war, which is basically the power to declare it, if the presidency over time can acquire legislative authority from express congressional delegations but also through doctrines like the chevron doctrine but also through creative, interpretive legal interpretations of statutes and then, finally, if the president is can essentially in some respects bypass the senate ifs check on the treaty power, there is nothing that the president cant do with respect to bounds of article ii. Anything that you think is a fundamental feature of article ii need not, because with the passage of time and the accretion of propresident ial practices, what was once thought to be obvious will no longer be with, you know, with the accretion of these practices. So you may think theres some sort of signal feature of president s today that everyone agrees on, but that can be undone in a a year or two. Or perhaps ten years. And so, you know, nothing is sacrosanct about article ii including the oath, right . Because if we can with reimagine article ii in various ways, and we have as a nation, why cant we reimagine or reunderstand article, the article ii president ial oath which reads, its very specific but, you know, it can drift over time and can be given new meaning by new generations. So ill end with those four points. You know, i do end the book with a hopeful note, with a bakers dozen of reforms that congress could enact if it wanted to check the presidency. And i argue that this is the perfect time to do that. Why . Because we dont know who the next president s going to be, and behind that veil of ignorance, members of Congress Might be willing to oppose the current president because theyre worried about what a joe biden or a bernie sanders, whoever, might do. So it tries to end on a hopeful note. But, again, you know, to get the full thrust of it, youll have to buy that book. Thank you so much. Over to you, jack. I should say, please do send those questions in on, either on the event page or over twitter, youtube or facebook with the hashtag cay toe events. Cato events. Ready . Yep. So thank you very much. Its a real honor for me to be here today to talk about sais great new book. I read a lot of books on president ial power, and this is one of the best. There are few people more expert, probably no one more expert on the history of the presidency and the legal constraints on the presidency and the original understanding of the legal constraints on the presidency. I love the book, i learned a lot from it, but my job not to praise the book, but to raise some questions. And i have four points as well to, in response to sais points. They dont match up completely, but they do a little bit. The first point is sai is right that the arc of president ial power has gone steadily up over time, and its gone steadily up over time because president s are in a better position to take the initiative, interpret laws and interpret constraints and expand their powers. And theres no doubt that i think hes right, that the courts excuse me, that the executive branch is ultimately the most consequential interpreter of the constitution when it comes to executive power because it has the autointerpretation power, it can interpret its own powers, it can act on that and put the other two branches on the offensive. I just want to say though, and sai acknowledges this in husband book but i think his book but i think its important to understand, congress has gone along with every step of it. Everything he talks about in the book, the rise of war powers, the rise of the administrative state, almost all of it, 95 of it, i would say, congress has gone along with, congress has appropriated for an ever larger and larger military which is what enables the president to use his military powers broadly. Congress is the one that created the administrative state. So this has been a and the courts have basically accepted it. Occasionally they push back, but ultimately over the arc of history theyre pushing back at the margins, and theyre basically accepting the growth of president ial power. So what were talking about here is the undoubted growth of executive to a place where its completely different than what the framers expected, but its been acquiesced by all three branches of the government. Thats the first point. Its been enabled because of that as well. The second point i want to sai says in the book whether we like it or not, we live under a regime of informal constitutional and legal change. Though the text of our federal constitution and our National Laws may not change that often, their meanings and do. Can and do. And i believe this is an accurate statement of the way executive power has gone over the centuries, but i want to emphasize that this is not a recent phenomenon. This is the way that constitutional interpretation and change happened from the very beginning. Sai is critical of congressional executive agreements in the book. These are substitutes for the treaty power. Basically, its a statutory authorization for the president to make executive agreements which makes it easier to make executive agreements in the treaty power. I think it seems pretty obvious that the framers thought that International Agreements would have to go through the senate process, the twothirds. But the first congressional executive agreement was 1792, an agreement that authorized the post office to make International Agreements for International Postal mail. Another example is George Washington in the neutrality proclamation in 1793 asserted very broad, a very broad conception of, implicitly, very broad conception of executive power in declaring neutrality in the european war and in claiming an ability to prosecute those who violated the statute even without congressional legislation. There was a famous debate between madison and hamilton, and the debate is who knows who won. Everybody has a different view. But the point is from the very beginning the president was making very contested interpretations of his own powers to expand executive power. This has been my first two points are this has been going on since the beginning, and ultimately congress and the courts have acquiesced into it. The third point is i just want to take a little bit of issue with sais claim that tying the rise of executive power to a progressive view of the constitution and living constitutionalism. I think this is accurate for the most part. I think for most of the 20th century from the beginning of the progressive era throughout the new deal, throughout the 50s and more or less the 60 it was, it was progressives and it was progressive thinkers who favored the strong Prime Minister city, the he row you can presidency. And heroic presidency s. And it was thinkers in that period who believed in a constrained presidency, constrained by congress and intrinsically constrained. But i would say in the last 40 years it has been conservatives who and, again, theres a range of opinion within the academy, but thats interesting within u. S. But conservative government within itself. But conservative governments who are embraced very broad executive power in the name of originalism. This got going when in the 80s primarily its too long a story to tell, but it got going in the 80s primarily when conservatives rediscovered unitary executive as a function of the original understanding, and they embraced a robust conception of executive power as a matter of the original understanding. A very important intervention in this debate was when john yu wrote his famous article in the 1960s explaining the Prime Minister as an original matter based on original materials could use military force without congressional authorization. It was both Bush Administrations, bush i and ii, who under the guise of original thinking embraced extremely broad conceptions of executive power to set aside statutory reductions, especially more powers but not limited to that. And it was conservatives, i think its fair to say, who were in the guise of Justice Scalia but others who were really pushing the chevron doctrine, which sai criticizes. So i think its a mixed story about whether testing progressivism or originalism in the last 30 or 40 years that has, that has really been the font of the growing executive. And ill say that, you know, if you look at the Obama Administration, the main sins on the executive power of the Obama Administration were wield the executive power, wielding delegations very aggressively and using the take care power to force or not enforce statutes. But the signal, the signal position of the Bush Administration wielding executive principle, the central executive power principle as theyre known for is disregarding statutes under the name of article ii. And that was primarily based on the original understanding. So i dont think this is a onesided story about originalisming versus progressivism. I also commend attorney general barrs speech, his famous speech at the Federalist Society last fall which, on the basis of originalist principles contemplated a very broad, robust executive. My last point is talking about reform, and sai has an excellent menu of 13 reforms that he proposes and then, i think, 3 reforms which he news arent constitutional on originalist grounds, but he nonetheless urges congress to consider in light of executive aggrandizement. And i just have two things to say about this, and it raises a larger point, and then ill stop. The first thing is some of these proposals suffer from what eric posener called the insideoutside problem. And we can get rid of that jargon. What they basically mean is that the reason we got in the soup were in right now in terms of massive executive power is that congress has, for a variety of structural and selfinterested reasons, become incapable of governing. Theyve given away the store. Theyve given, massively opened the delegations across every conceivable topic, and the president s been very happy to receive those. So there are mechanisms and pressures behind that that inform why congress has done that. So the question is once we get to the reform era, how are we going to have a congress, that as sai proposes, basically stops delegating executive power . How are we going to have a congress that is going to, as sai suggests, basically cut the military budget by 75 fundamental president uses force without congressional authorization. I think some of the reforms are realistic, i think some of the reforms are not realistic based on the premise of the book. And the last point is im not even sure if we and im wondering, i wonder what sai