And the exercise of executive powers and now youve are presenting him as the defender of the Constitutional Order regarding president ial power. What changed your view, how did you move from where you were before to what you have presented in your new book . Guest thanks for inviting me to come on with you. Im looking forward to the conversation. Ive been an admirer of your work. This should be fun. I start to weary of President Trump. The thing that worried me as he was a populist and fairly antidemocratic in a lot of ways like the senate and Electoral College, the presence of the states constitution so i was worried when he came in as a populist who wants to achieve an agenda he received a mandate for what hthat he would go beyond te constitutional restraints of power and i was worried at the beginning. The beginning he would do that to think the travel ban and building a wall without congressional approval. I urged them to try to use the president ial powers for National Security and Foreign Affairs and to understand Domestic Affairs that his role is to enforce the law and get legislation passed. I think what happened is i found his critics are the ones that have gone too far. They launched attacks on his legitimacy. His critics talked about getting rid of the Electoral College and a the new members who want to return to a world of Permanent Councils which i think criminalize our politics. I think that has left trump using the constitution more as a shield. They are intentionally or unintentionally become a more defender dan and his critics. Host there is a number of topics you cover from the executive orders, the impeachment process. Im going to try to go through some of these and get your take on the president s exercise of executive authority in these areas. Starting with the impeachment, the president did and yield or apologize but you also dont hold the president duane morris for how he handled the matter altogether. So my question is it a win for the institution of the presidency and affirmation of trumps defense of constitutionalism if hes defending his position in a situation that never should have happened in the first place. Guest it reaffirms how the constitution intends us to deal with executive misconduct or abuse of power. The problem with the unconventional approach to the foreignpolicy or even as some people claim the interest of his own private political interests. The constitutional question i thought was how does the constitution tried to constrain executives. It does it in two ways. The election process is first and foremost in terms of the framers of the un how you you au constrain an executive you think is accusing powers and elect congressional majorities then you get them out of office. I thought the mistake that occurred in his impeachment is being used for activity that prt fell short of the constitutional standard. I dont think that requires a crime. The crimes and misdemeanors does include a piece of executive power but it has to be a serious one. It wasnt one of those serious levels of treason during the 17th century i think we can see that in the founders requirementfoundersrequiremento get to two thirds before it actually was remove a president even though it would put an impeachment in the hands of a simple majority of how they want to make it difficult and that would funnel the rasul for the electoral process. Host the president likes to talk about a deep state of officials that he believes gives some defense in the book and you point out the legitimacy and in the president s of view theyve acted to try to undermine a duly elected president. Here we address the complicated issues with principled loyalties of people and not to their branch of government for the president who believed they had an obligation to honor that i bringing to the attention of authorities whether it is internal oversight or committees in congress potentially illegal or unethical behavior. Guest it raises a deeper question im not claiming that he is thinking about the political theory but i think that by the precipitous rational political selfinterest, he is advancing thhesadvancing the gr constitutional good wishes more time to the 18th century constitution to let me sort of described what he is fighting against in a way, whether its the fbi or Jim Kofi Annan at the headquarters or members of the Foreign Service and the National Security council staff. I dont think that its a deep state of phrase comes from turkey. I think of as mor it as more ofa progressive tier of bureaucracy which was the positions are technical and scientific or professional so you want to delegate power over the decisions to those experts and isolate them from politics and it had a great impact on the constitution. And the fbi National Security bureaucracy and the Foreign Service, trump embodies the executive branch which is we the voters elect the president. We hold them accountable or her through politics and to me that is what happened in the impeachment investigation for the Foreign Service of the fbi to conclude the president was unfit for office said to me it wouldnt have computed so they would challenge the head of their own branches. Its not really their own job. From the executive branch for people that work there and i dont see how it will run other than people saying the president misused his powers from the executive branch. To me it was a standard the house and some members of the senate were using at the high crimes and misdemeanors. I would have thought all of those were more appropriate for the oversight hearings to be brought up for spending cuts to fight with th the executive page and ultimately putting it before the voters as they will. I think that is the better solution. Host you talk about executive powers and prerogatives and trump defending the institutional presidency. I wanted to go through some of the different powers but starting with executive orders that is an easy one to talk about. The president has the authority to reverse actions by executive order but in other words if we have a President Joe Biden next year i would imagine he will have a large number of executive orders. Is there more of a legacy of a president to engage in the traditional process of negotiation building consensus, getting compromised in congress and getting the ball through the system that wouldve a greater deal of permanency rather than just issuing large numbers of executive orders and saying i did a lot of things . Guest that is a great point. I guess the way i think of it is the president has a power of reversal. There is a lotheres a lot of tt president s can do unilaterally. You are quite right to president only operates through executive orders. He is laying his achievements vulnerable. Its a simple reversal. Only by working with congress to affect statutory change do you get any kind of long Lasting Legacy of permanence. So, i agree and yet President Trump like president obama have been frustrated and havent been able to get a lot of their agenda through so naturally they will try executive orders, but i dont think that it is permanent so long as the constitution says, so long as president s have the power to quickly and immediately reverse any use of power by their predecessors. And i think that was a visiting quick decision of the case which surprised me and i said i thought that it would come out the other way and then i had the wrong implications that would occur if the court did allow President Trump triggers the program. Host let me take a temporary application on this issue can the president issued an executive order to prohibit evictions as he said recently that he might like to do even though it was congress that the temporary moratorium. Would that be appropriate of an executive order which the president simply work through the lawmaking process. And with the attitude that, tiktok can the president issued an executive order on tiktok . Guest im sure a lot of parents wish he had the power right now creating a program by not enforcing the law has certain limits so i havent studied it closely but generally toomey is a state law issue and so i dont see how the federal government by restraining its own discretion can have an effect on the state and whether they are going to evict people. If it is the state courts and federal government as a whole when the states accept pandemic relief money but its not the same thing. Tiktok is more the traditional use of the executive orders that you were mentioning earlier. Congress has given a huge amount of power to the executive branch to regulate for National Security reasons. With regards to china and its businesses if he bans tiktok its constitutionally straightforward as they wall that Congress Gave the president distinction the companies, transactions for National Security is. If he were to do it unilateral unilaterally, that would be a difficult question because i dont think that without congress the president has an International Economic sanctioning power. Host let me turn to another contemporary issue and to be fair, the author i know you are not writing during the pandemic like with all books was published in late july that the last source you cited was february of this year. Guest guilty as charged. Host i think its a good topic to bring up with the issue of executive power because this is absolutely the biggest challenge of president ial leadership of our time. None of us expected this challenge. Challenges at home dont tend towards the unprecedented but that isnt what happened in this particular case. But it became a domestic crisis and the president has an obligation to establish his leadership and in the book you didnt have a chance for this to approach but i want to ask you to apply it because you defended him as a strong and vigorous national leader. Where was he getting the outbreak when he said effectively to the states you are on your. Were on your. The federal government isnt a shipping clerk. When the governors were pleading for help getting protective equipment and also in a new edition of the book i dont think you could ignore the pandemic is a new chapter. What are you going to say in the next edition. Host guest that is the chapter i wish i could have gotten. During the presidency, things kept happening over and over again. People are criticizing trump for being a dictator and then within a month people are saying why arent you doing more and its not really the separation of power that is the problem from its federalism the matter with the powers are the federal government still has limits and this is where it would have gone along with the thesis of the limits on his powers even to his own political detriment im sure they want to set a closing date. They want the standards of social distancing the constitution doesnt get the federal government the power to. We have had the understanding that the Public Health and safety is primarily a state and local issue but the front line and the trench warfare of it is going to the city and state so the federal government has been doing what its supposed to be to provide money to the states and can provide equipment and personnel and resources. But it doesnt have the mechanisms of government to take care of a nationwide epidemic. How can they force the social distancing system. Its entire workforce is smaller than the police department. The they wouldnt try to go beyond that but it does this political detriment and has stayed within those boundaries. Is it a fair question can you imagine in a situation like this this is for the state and we are not a shipping clerk. I think that is what bothers so many people as they expect the president to be big and powerful and authoritative and how difficult is it to say where a mask. This is why they created the presidency. Why even have the independent executive branch. Why dont we have a park metric system where the chief executive is the leader of the party. The president would be nancy pelosi right now or paul ryan a few years ago. Because they wanted to act swiftly in times of emergency in unforeseeand unforeseen circumsd so we expect the president to do that, and i think that it is easier to do that when you have an enemy that is attacking with a Natural Disaster or someplace where the president can use their own powers or legislation to provide that. It is such a great social problem. To create the law and enforce it for this kind of crisis and nonetheless some of the other systems is where theyve done a lot better. Is there something inherent to the system that led us to the situation that we are in right now with this pandemic and the president was constrained in the tool that he had available to solve the product or some other democracy . Guest i dont know that the outcome would have been different because of its restraint on the president and federal government. Comparing it to the performance of other federal systems its different with so many other state governments to. Trump is appointing justices and has been pushing this federalism revolution a lot. As you point out, it is slow. If you figure out the right policies, why do you have to go through 50 states to do it, the state system is more risk adverse and almost dubious that we will get the right answer right away. It is actually trying to make an affirmative mistake and the definitions for the experimentation. It was posed immediately on the country. And more prone to make mistakes by omission and failing to act. Although we are not going to make mistakes but ownership by making the wrong choice either. One of the federalism issues that came up and continues as the sanctuary city the president tried to withdraw federal funds from those localities. Do you care to comment on that as it asa review of the federald how it works with his deep respect for the institutions of the state and local level to have their autonomy dealing with these issues. Guest its interesting and i think to separate the political rhetoric i think the constitutional actions and he hasnt tried to compel the state and local officers to do the federal governments bidding. These decisions which say state and local officers dont have to or maybe cannot even reinforce the federal law because they are not within the executive branch so the president can tell them how to enforce the federal law and so the court has said this is one of the reasons state offices of their own government and to enforce the federal law. They would have to cooperate in the sanctuaries and so if this comes out of the obamacare case they can use bribery and local officers to cooperate with immigration or Drug Enforcement or whatever subject. To me, when it comes time to actually move a state policy to seek to rely on the traditional tools if you dont cooperate me than i will not give as much money as we did before. We are not sure exactly what that level is that the amount has been not that high. The cities and states have become centauris opposition to trump policies and nothing has really happened to them. I want to address the shifting fund out of the department of defense but they didnt get the appropriation from congress that he had requested. Whathat is the basis for the president s authority to circumvent the cover and why do you think the Supreme Court decided to leave them alone . Guest theyve tracked the critics on both sides of the aisle and senators from both sides of the aisle voted to override the decision. But to me this wasnt a clean executive power. What happened is Congress Gave the president appointed power and trump is using it as past president s have. So what he did is declared a National Emergency which has recognized in the National Emergencies act and then once there is a National Emergency there is another law that says the president can transfer between the building account essentially and is a the constitutional question is a statutory question can the president declared a National Emergency with border immigration is the kind of National Emergency congress had in mind. The a specific entity or problem is more like a problem i admit dan a country on the other hand the past president s have done the same. Sometimes people make arguments against trump that they didnt make with past president s. President reagan declared a National Emergency is what he said at the National Emergency if i cannot control the exports abroad. The president s have already in the past used this. Would this be over Climate Change itself it seems to me when you look how theyve used this power and repeatedly do not try to divide the National Power is going to be more flexible with you for the next president. You said immigration at the border. I can say Climate Change. Precedents create a presumption of legality as he said that theyve done similar things. What is the standing in the constitutional wall of precedence that themselves dont really have established standings in any language of the constitution itself for the evolution of constitutional law and judicial decisions . Guest we probably think about it differently. This is being guided more by Alexander Hamiltons papers. They had in mind energy, speed but they also left it somewhat defiant because it is something they struggled over. They handle everything thats going to come at it. If you knew about it in advance and could write a detailed statute to prepare and handle it, so the president is supposed to be there to declare a National Emergency is. Maybe it is wise to circumscribed by the written law because you dont know what the problem is going to be. So how do you check back, wit