Take it from there trying to field as many of your questions as possible and you can submit those questions through the event page or over twitter or facebook or youtube using the cato events. First our first guest is our author, he is the james munro distinguished professor at the university of virginia as well as a senior fellow for the study of the presidency and hes one of the nations leading constitutional scholars especially with regard to president ial powers in the author of an equally excellent previous book imperial from the beginning, the constitution of the original executive. Jack goldsmith is the professor of law at harvard and someone who youre probably aware of has seen the executive branch from the inside during a high profile, extremely tense tenure in the Bush Administration office of Legal Counsel during an early. On the war on terror, jack is one of our most thoughtful commentators on the modern presidency in venues like the atlantic on the blog and books like the terror presidency and power in constraint. His latest book also highly recommended is in half a shadow, also the subject for one of the last in person Public Events that we had at cato in early march before the lockdown, jack, thank you for coming back so soon if only virtually. I am also a great admirer of your previous book imperial from the beginning but if you will forgive me for saying so, i think its one of the most this leading the title 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 interworkings from congressional demand for information. When i initially read it i said to myself thats an imperial presidency, i will take it. In your new book you cover and expand some of those themes but the living presidency seems more a book about what the office, the next step, what the office has become in the vast gulf between comparatively modest office and what the office has become now, and institution with fullspectrum dominance over American Life and law, in telling the story of how he got here, you point to a somewhat counterintuitive corporate, the notion of a living constitution which is something that i think we tend to associate with activist judges and leftleaning scholars, we are also getting people who oppose these features of the socalled imperial presidency, so tell us a story of the new book, why is a living presidency, what is its relationship with the living constitution and how did we get here to the situation that you call a fun house mirror version of the original presidency and can we ever go back . I am absolutely delighted to be with you here today and of course the audience, my connection to cato goes back decades when i was a summer intern in washington and i had the occasion to come to the institutions events including events on farm subsidies and thankfully we finally taken care of the problem, im especially glad to be with you to folks because both the you folks are experts on the modern presidency as well and you have superb books and i recommend them to the audience, there is jeans book, the cult of the presidency and jean max and intermittent intervention max and mine fits in the same genre. I got the book over my solar, operators are standing by, you should definitely get it, i have four points that i want to make today because i want to be brief, the first point, why do progressives favor a living constitution, one that changes with the time but simultaneously lament a living changeable presidency proved we see this phenomenon all the time and liberals and progressives fighting what the founders would say about the modern presidency, we saw this recently with respect to impeachment in progressive siding, james mattis and Alexander Hamilton about what a high crime and misdemeanor is, thats a perfectly fine argument if youre an originalist but a little puzzling if you are not in as jean points out, progressives believe that modern times call for modern updated constitution, with respect to the presidency and i basically use the title living presidency to provoke progressives to make them think of what i think is a contradiction between their professed admiration for a change in constitution, but the 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 rollover Constitutional Rights in the creation and expansion of them changes over time, my second point i want to bring today, living constitutionalism systematically favors the presidency as an institution, it turns out you going to have constitutional change of the informal variety rather than through article five, the presidency is institution best poised to deliver that change, today we expect our president s to articulate constitutional visions, we expect them to be prolife or prochoice or proor antigun or pro orientated affirmative action, proor antiall sorts of things including proor antishut down with respect to covid19. They gratify our desire, they express constitutional vision, they articulate them, defend them and they appoint justices and judges that will carry on the legacy long after they are gone, when we think about the momentous changes in constitutional why law, the new deal we think about the justices but they were agents of franklin roosevelt, not in the sense that he was looking over the shoulder but he picked people have the same constitutional vision that he had of unchecked federal legislative power, my thesis, if your living constitutionalist, your systematically favoring the president in terms of influencing the informal constitutional change and i argue in the book, there is no Single Person who has greater influence over the shape of constitutional law than the presidency. Not even Anthony Kennedy had as much influence as the president can possibly yield, my third point, the balance of political forces, systematically favors the presidency when it comes to constitutional disputes or statutory disputes for that matter, as president s grasp for additional authority, typically to implement their policies or their policy agenda, agendas that are often favored by copartisan, they can relight upon Popular Support by their allies in the public, americans like you and me, if we favor a law and the president diverts funds to build that wall, we are going to find ourselves defending the president s actions in defending their legality with regard to what we really think of our heart of hearts that those actions are legal and if this is especially true when the action is in service of a partisan agenda that the president s copartisan share in congress which is supposed to check the president is not only divided bipartisanship of what i mentioned but its also divided by camberley and that tends to intervene congress because Congress Finds itself trying to stop a unitary executive when it riveted by factions, parties and personality and by two chambers in the presidency is like in a sitting duck aircraft that use moves slowly and ponderous. In that situation the presidency will typically when in my final point, nothing is about the presidency, if you can acquire the power to wage war which is basically to declare it, the presidency over time can acquire legislative authority from express congressional delegations but also through doctrine like the chevron doctrine but creative interpretive interpretations of statute, the president can essentially in some respects bypass the senate check on the treaty power, there is nothing that the president cannot do with respect the metes and bounds of article two, anything that you think is a fundamental feature of article two need not be because with the passage of time in the accretion of propresident ial practices, what was once thought to be obvious will no longer be with the accretion of these practices. You may think that there is some sort of signal feature of the president today that everyone agrees on but that can be undone in a year or two or perhaps ten years, nothing of article two including the oath, if we can reimagine article two and various ways and we have as a nation, why cant we reimagine or reunderstand the article to president ial oath which reads very specific but its contents can drift over time and be given new meaning by new generations. I will and with those four points, i do in the book with a hopeful note of a bakers dozens of reforms that congress can enact if it wanted to check the presidency, i argue this is the perfect time to do that, why, because we dont know who the next president is going to be a behind the bill of ignorance, members of Congress Might be willing to oppose the current president because theyre worried about what joe biden or Bernie Sanders or one over might do, it tries to end on a hopeful note but again to get the full thrust, you will have to buy the book. Thank you so much. I should say please send those questions and either on the event page moreover twitter, Youtuber Facebook with a cato events. Read a lot of books on president ial powers and this is one of, theres few people more expert, probably no one were expert on the presidency in the original understanding of the constraint on the presidency. I love the book, i learned a lot from it by my boo job is not to praise the book but raise questions and i have four points as well in response to these points that do not match up completely but they do a little bit. The first point, site is right that the arc of president ial power has gone steadily up over time and gone steadily up because president s are in a better initiative, interpret laws and interpret constraints and expand their powers and there is no doubt that i think he is right, the executive branch is ultimately the most consequential interpreter of the constitution when it comes to executive power because it has auto interpretation power and interpret its own powers, it can act on that but the other two branches on the defensive. Here is the undoubted growth of the executive to a place where its completely different than the framers expected but by all three branches of the government. But its been enabled because of that as well. The second point in the book, whether we like it or not, we live under a regime of informal constitutional and legal change that the text of the federal Constitution International law may not change that often. The meanings can and do. This is an accurate statement in the wavy executive power has gone over the centuries, but i want to emphasize this isnt a recent phenomenon. This is the way constitutional interpretation and change happened from the beginning. Critical of executive agreements in the book these are substitutes basically at the statutory authorization to make executive agreements and make executive agreements in the treaty power i think it seems pretty obvious they thought they would have to go through the senate process and two thirds but the first was 1792 that authorized the post office to make agreements for postal mail. Another example is George Washington in 1793 very broad conception of executive power in the european war and claiming the ability to prosecute those who violated the statute even without congressional legislation there was a famous debate between madison and hamilton and that the debate is who knows who one. Everybody has a different view but from the beginning the president was making contest of interpretations of his own power to expand executive power. The third point, i wanted to get out of it is used with a claim. This is accurate for the most part. Most of the 20th century from the beginning of the progressive era throughout the new deal throughout the 50s and marvelous this tease it was progressives and it was progressive thinkers that favored a strong heroic presidency and conservative thinkers who believed in the presidency that was by congress and an intrinsically but i would say the last 40 years has been conservatives there is a range of opinion that is interesting in itself that have embraced broad views in the name. This got going in the 80s aed is fairly its too long of a story to go but it was conservatives rediscovered unitary executive is an understanding as a matter of the original understanding and a very important intervention is when john you mawrote his article explaining s an original matter based on original materials could use military force without congressional authorization. As both bushes under the original is thinking that embraced the executive power to set aside statutory restrictions especially more power but not limited to that. And conservatives it is fair to say who were pushing the doctrine. I think its a mixed story whether it is progressivism that has been the font of the growing executive. If you look at the administration, the power were wielding delegations very aggressively and using the power to enforce or not enforce statutes but the signal position and the administratioin the admh executive principle, the executive power of the is disregarding statutes under the name o of the article too and tt was primarily based on the original understanding so i dont think this is a onesided story. I also commend the attorney generals speech that was grounded in the principal whose famous speech in the last fall which on the basis of the principles contemplated a broader robust executive. My last point is talking about reform. Theres been at the lunch menu of the reforms he proposes and then the three that he thinks are not on the original grounds but to consider in light of executive aggrandize meant. And this raises a larger point and then i will stop. The first thing is some of these proposals suffer from what eric poster calls the outside problem and we can get rid of that. What they basically mean is the reason we got in th into super n right now in terms of massive executive power is the congress has for a variety of reasons become incapable of governing and theyve given away the story and openended delegations across every conceivable topic and the president has been happy to receive those into so there are mechanisms in the pressures that inform why congress has done that so the question once we get to the reform era will we have a congress that proposes to stop delegating executive power and how are we going to have a congress that is going to suggest basically cut the military budget by 75 for the president uses without congressional authorization. Some of the reforms are realistic and some are not based on the premises of the book about congressional abdication of power. The last point is im not even sure are coming and im wondering what side about this, if he got every single one of the reforms set aside as congress stopped delegating power, that would certainly cut back. I question whether given the complexity, congress could actually do that, that we could go back to the old model where they reinforce the law to the extent that ever was the model. But i think with every other reform proposed, even if they were implemented i dont think that it would cut back the executive. Sometimes thicker or thinner margins of the reason we have the powerful presidency some days i like it and some days i dont. The reason we have such a powerful presidency is because our government and our society has grown more complex and they havent been able to deal with those and its not just in the United States with a free country in the world with executive power and it is executive power. I am not sure if the reforms cut back certainly not to 1789. I dont go in think before 1980. This is a truly extraordinary book and i recommend it very highly. I had a couple of questions of my own but that is a lot so why dont we go over the response to those four points. I want to thank you for your comments and certainly agree with the last comment as far as the comments i agree with the first and the fourth he is right that its going to be hard to overcome its tendencies in a book written by a scholar its typically not the way Congress Reforms that solve. Iitself. It takes a mashup of introspection and some cataclysmic event before congress can reform itself. Maybe that is the Trump Administration and its not the book per se. There were disputes about the president ial power in the early years of the administration there were all kinds of years. But from my perspective those were marginal disputes. There was no claim the president could wage war, and i dont think the Postal Convention comes close to whats happened with respect to the treaty power today in terms of the erosion of the senate check. And then, jacks third comment about progressives versus originalists as a sort of modern presidency, i think that hes right there or people who are originalists who think they created a rather strong presidency. I am one of them but i think that it was meant to be limited as well. And my point is the modern presidency is transgressing a lot of those limits. I do briefly talk about whether originalists are faithful when they defend the idea that president can wage a war without congressional authorization that jack is right that most is aimed at progressives and president ial change occurred before the theory of the constitution took root i just think that its an excellent rant to the change. Let me pick up on a couple of those points, particularly number three. The growth of the power has been like many things, a bipartisan mistake with a progressive being more responsible in the early part of the 20th century into the last 40 years of conservatives giving them a run for their money. One thing that occurred to me as i was reading the book was what specifically, why would a living constitutionalist say about the theory, for example a living constitutionalist by definition would have no foundational objection to the constitutional change and the is that right saying that the constitution can, should, and whether we like it or not does involve mean that you are in different that all change is sort of legitimate. The fact of the constitution certainly empowers and puts the executive branch and the vast position to force the end of formal change but you have a couple of flails in the book. One of them is Bruce Ackerman and another is David Strauss. Couldnt they say by their criteria these changes ar