I will start by introducing our guests to give us an overview of the book and then with some comments and me will take it from there to get as many of your questions as possible and then to submit those to the event page or through twitter or facebook or youtube using cato events james monroe distinguished professor at the university of virginia as well as the senior fellow for the study of presidency and one of the nations leading constitutional scholars especially with regard to president ial powers and the author of the constitution of the original executive. Jack goldsmith is professor of law at harvard and someone who has executive branch from the inside during the high profile extremely tense tenure in the Bush Administration of Legal Counsel during a key early. On the war on terror he is one of the most thoughtful commentators on the modern presidency it looks like the terror presidency and his latest book highly recommended is in hafez shadow on the last inperson Public Events we had in early march before lockdown. Jack, thank you for coming back so sat on so soon even if virtually. Im a great admirer of your previous book, but forgive me for saying so i think its one of the most misleadingly titled books in recent memory. It makes a convincing case the original design the framers had for the presidency and had very little in the way of war powers and a rifle claim to executive privilege to shield the inner workings from congressional demands for inner one information initially i said that is an imperial presidency but ill take it. So to expand some of those themes to the living presidency its about what the office has become on the vast golf on the comparatively modest office and what it has become now and institution with fullspectrum dominance over American Life and law. And to tell the story how we got here and the notion of the living constitution that we tend to associate with active on dash judges and scholars. And of those imperial presidency so what is the living presidency and how did we get here to this situation a fun house mirror version of the original presidency. And can we ever go back . Im absolutely delighted to be here today my connection goes back decades as a summer intern in washington i would come to some of the institutional events including farm subsidies. I and especially glad to be experts in the modern presidency as well you have superb books and i recommend them to the audience the cult of the presidency and my book fits in with the same genre. I have the book over my shoulder operators are standing by you should get it. [laughter] i have four points i went to make because i want to be brief. The first is why do progressives favor a living constitution that changes with the time . Simultaneously to excoriate a living changeable presidency . Think we see this phenomenon all the time liberals and progressives finding about the modern presidency with respect to impeachment James Madison and Alexander Hamilton with a high crime and misdemeanor thats fine if you are the originalist calling for a modern updated constitution and i basically use the title living presidency to provoke the system to make them think what i think is a contradiction between their professed admiration for changing constitution but the soft spot for the founders presidency what is wrong with the imperial presidency going over time . Whose legislative powers can change over time . And the creation and expansion changes over time. The living constitutionalism systematically favors the presidency as an institution if you will have constitutional change of the informal friday rather than article five the presidency is the best way to deliver that today we expect our president s to articulate constitutional visions prolife or prochoice pro or anti gun and affirmativeaction all sorts of things including shutdowns with covid19. They ratified the desires to express the vision and articulate them then they appoint justices and judges to carry on that legacy long after they are gone think of one of the momentous changes we often think about the justices but they were agents of Franklin Roosevelt but he picked people have the same vision and he had of the unchecked federal legislative power so if you are systematically favoring the president in terms of influencing that change, then i argue there is no Single Person who has greater influence over the future shape of constitutional law than the presidency. Not even anthony kennedy. My third point is the balance of Political Forces systematically favors the presidency when it comes to constitutional disputes as president grasps for Additional Authority to implement their policy or agenda thats favored by a co partisan they can rely upon a bedrock of Popular Support by their allies in the public. If we favor ally and the president diverts funds we will find ourselves defending the president s actions with regard to a rethink in our heart of hearts and this is especially true when it serves a partisan agenda and congress which is supposed to check the president natalie divided bipartisanship but also bicameral and that chant tends to innovate congress because it finds itself trying to stop a unitary executives written by party and a fighter jet in the Congress Left a sitting duck Aircraft Carrier moving slowly. In a situation nothing is thinkers think about the political elite. Over time if it can engage war and with that state of authority from expressed congressional delegations also the chevron doctrine and those interpretations of statutes and of the president in some respects bypass the senates check on the treaty power there is nothing the president can do with respect to meet the leaps and bounds of article two anything is a fundamental feature need not because with the passage of time and pro president ial practices what was once thought to be obvious will no longer be. You may think there is a signal that everybody agreed on. But that could be done in a year or two or ten years. Nothing is sacrosanct about article two. If we can reimagine an article two so why cant we so i will end with those four points and i do and the book with a bakers dozens of reforms and i argue that this is the perfect time to do that. Why . Because you dont know who the next president will be at we have that veil of ignorance members may be willing to oppose the current president because they are worried joe biden or Bernie Sanders might do. It tries to end on a hopeful note but again to get the full first by the book. Thank you so much. Thank you very much its an honor to be here today. I read a lot of books on president ial power. This is one of the best and the that was understanding of the legal constraints of the presidency. But i didnt want to raise the but that raise questions and i have four as well they dont match up completely but they do a little bit. President ial power has gone steadily and then to take the initiative to interpret laws and constraints and no send but the executive branches and then they could interpret their own powers and act on that with the other two branches on defense. When they acknowledge in this book that congress and the courts have gone along with every step and the rise of the administrative state, 95t and has appropriated for a larger but congress created the administrative state. And the courts have basically accepted it occasionally they push back they are pushing back at the margins. So what were talking about is the undoubted growth of the executive where it is completely different than what the framers expected but also by all three branches and doesnt mean we like it or not to live under a regime of former constitutional legal change with those National Laws may not change that often the meetings can and do. I believe this is an accurate statement of the way power has gone over the centuries but i want to emphasize this is not a recent but the way things happen from the very beginning but then congressional executive it is a statutory authorization to make executive agreements that the First Agreement set in 1792 another example all George Washington 1793 and then implicitly brought through executive power. And then the european war. And the ability to and violating the statute without congrats on congress in between madison and but the president was picking consist one consecutive powers so the first two. Is its been going on since the beginning ultimately the congress got in on acquiesced into it. The third point i just want to take a little bit of issue with the claim that tying the rise of executive power but from the beginning of the progressive era throughout the new deal and the sixties it was progressives and progressive thinkers whose had the road presidency and those who believed in the constrained presidency and one that was restrained by congress and constrained. In the last 40 years conservatives of the range of opinion within the academy but a conservative government and he got going in the eighties primarily to rediscover unitary executive as a function of the original understanding that robust conception is a matter of understanding a very important intervention when johnny wrote his famous article in the sixties explaining the president as an original matter and material to use military force without congressional authorization. It was both Bush Administrations one and two to place extremely ride executive power to statutory restrictions more powers but not limited. And it was and then in the last 30 or 40 years if you look at the Obama Administration and then we old and then to enforce or not enforce the statutes . But the signal position of the Bush Administration is essential executive power was that they are known for disregarding statutes. That was primarily based on the i also recall his speech which on the basis most contemplated a very broad robust executive. My last point talks about reform and there is an excellent menu of 15 reforms he proposes and three which he thinks are not constitutional sometimes they suffer from the inside outside problems. What they mean and that the reason we got in this stupor we are in right now with massive executive power is that congress for a variety of selfinterested reasons becomes incapable of governing, they are. So there are mechanisms and pressures behind that why congress has done that but the question is once we get to the reform era then stops delegating executive power . Had we have a congress basically cut the military budget without congressional authorization . I think some reforms are realistic based on the premise of the book. The last point is im not even sure if you get every single one of his reforms is congress stopped to value power that would certainly cap back. I question in a modern government given the complexity that congress could actually do that go back to the old model if that ever was the model that every other reform proposed even as implemented i dont think it cuts back very much. Its the way of the margin. Sometimes thicker or thinner the reason we have such for better or worse. The reason we have such a powerful presidency the government and society have grown more complex in congress cannot deal with those. Not just in the United States but every country in the world massive delegation of executive power. Im just not sure the reforms read cap back. Or even before 1937 liberal comments but it said wonderful book and i recommend it highly. I have a couple of questions of my own but thats a lot to chew on so lets go over for the talks. Thank you for your excellent comments and i agree with a lot on the last comment to buy the book. I agree with the first and fourth. I think he is vital be hard for congress to overcome its tendencies with a book written by a scholar is typically not the way Congress Reforms itself. It takes introspection and some cataclysmic event for them to review themselves maybe thats the trump administration. Maybe thats the administration not the book but there was about president ial power of the early years and the material from the beginning. For my perspective they were marginal disputes there was no claim president could wage war and i dont think it comes close to what has happened with the treaty power today in terms of the erosion. And the third comment of progressives those of the modern presidency i think there are originalist that they had a strong presidency. I am one of them but it was meant to be limited as well. So in the book i briefly talk about it they face originalist when they defend the idea the president can wage war without congressional authorization. I argue not years who i like he is right but aimed at the progressives in the theory of the living constitution. And jack is right that president ial change occurred before the living constitution to a great one rude i just think its an accelerant to the change. Let me pick up on a couple of those points, especially jacks point number three. I agree the growth of president ial power of many horrible things bipartisan and with the progressives. The early part of the 20th century the last 40 years with conservatives giving them a run for their money. The one thing that occurred to me why would a living constitutionalist say about this property that by definition can have no objection to constitutional change. Is that right to say it can and should and is involved that doesnt mean you are in different. That changes legitimate. The fact of the constitution empowers to put the executive branch in the best decision but you have a couple of foils in the book one of them is bruce ackerman. Could and they say by their criteria that they are not legitimate . Although ackerman has this theory with sweeping changes like the new deal with the civil rights revolution are ratified by the historic election that ackerman says launching a war in korea without any authorization was nothing like that